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HomeMy WebLinkAbout28163.docBEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE PETITION FROM UNION PACIFIC RAILROAD COMPANY TO CLOSE A GRADE CROSSING IN PONDERAY LOCATED AT MILEPOST 76.12. ) ) ) ) ) CASE NO. UPR-R991 ORDER NO.  28163 In November 1998, Union Pacific Railroad Company requested that the Commission issue an Order authorizing the closure of an “old” grade crossing in Ponderay, Idaho located at milepost (MP) 76.12. Following the submission of written comments and an evidentiary hearing, the Commission issued final Order No. 28106 on August 5, 1999. In that Order, the Commission found that the closure of the old crossing is in the interest of public safety and that the crossing was not reasonably necessary for the traveling public. The Commission directed that the crossing be permanently closed on October 1, 2000. The closure was timed to allow local officials and other interested persons to seek improvements to a nearby highway project thereby mitigating any adverse consequences of the closure. On August 24-25, 1999, the Commission received 17 timely Petitions for Reconsideration. On August 30, 1999, Union Pacific filed a timely Answer to the Petitions for Reconsideration. After reviewing the Petitions for Reconsideration, Union Pacific’s Answer and the evidentiary record, we deny reconsideration and affirm our prior Order for the reasons set out below. BACKGROUND A. The Commercial Triangle The background and procedural history of this case are set out in Order Nos. 28106, 27901, 21442, and 21351. Briefly, the old crossing and its “new” replacement (located at MP 76.45) have been the subject of controversy and two prior proceedings since 1987. In 1986 Union Pacific constructed a new grade crossing across two tracks to provide access to the Bonner Mall area with the expectation that the old crossing would be closed. The area surrounding the Mall has generally been referred to in these proceedings as the “commercial triangle.” The commercial triangle boundaries are formed by the Mall on the north side, U.S. Highway 95 on the west side, and State Highway 200 on the east side. The two highways intersect at the southern point of the commercial triangle. The old crossing and the continuing roadway (Fontaine Drive) were part of old U.S. 95. After U.S. 95 was relocated to its present location to the west, the northern portion of old U.S. 95 was vacated and conveyed to the Mall. Old U.S. 95 intersects with the Mall’s frontage road (Bonner Mall Way) which in turn intersects with the relocated U.S. 95. UP Exhibit 10; Ponderay Exhibit 101; Staff Revised Exhibit 203. There are two vehicular access points to the commercial triangle from U.S. 95 (west side) and two access points from State Highway (east side). On U.S. 95 there is the southern access of Tibbetts Road (which dead ends at Fontaine Drive) and the northern intersection at Bonner Mall Way. On Highway 200, there is the southern access point at the old crossing to Fontaine Drive and a northern access at the new crossing to East Gate Drive (which connects to Bonner Mall Way). The two Union Pacific tracks (a main line and a side track) generally parallel the east side of the commercial triangle. There is also vehicular access to the area on the north side from Triangle Drive and the Kootenai Cutoff Road. Order No. 28106 at 2; UP Exhibit 10; Ponderay Exhibit 101; Staff Revised Exhibit 203; Tr. at 12, 15, 62, 141-42. B. Procedural History and the 1987 Orders In September 1986, Union Pacific and the City of Ponderay entered into a contract to construct a new grade crossing at Bonner Mall. In exchange for granting a right-of-way across the Railroad’s two tracks, the City agreed to close the old crossing. The new crossing was opened for use in November 1986. Order No. 21357 at 1. In March 1987, the City rescinded its agreement with Union Pacific because no formal vote had been taken by the City Council. When the City refused to subsequently ratify the agreement, the Railroad then notified the City that it intended to close the new crossing. The City then filed a Petition requesting that this Commission hold a hearing pursuant to Idaho Code § 62-305. The City “sidestepped the issue of which crossing to close and indicated that the decision to close a grade crossing should be left to the Commission.” Order No. 21357 at 3. Following an evidentiary hearing, the Commission issued Order No. 21357 in July 1987 authorizing the closure of the old crossing once three conditions were met. First, the new crossing was to be equipped with automatic warning signals and barrier gates. Second, State Highway 200 was to be widened at the new crossing to accommodate a deceleration/right-turn lane onto East Gate Drive and an acceleration lane for southbound Highway 200. Northbound Highway 200 would also be widened to accommodate a center/left-turn lane at the new crossing. Third, Bonner Mall was to convey to a public entity that portion of old U.S. 95 controlling access to the new crossing from the southern part of the commercial triangle. Order Nos. 28106 at 3; 21357 at 8-10. In its initial Order No. 21357, the Commission found: Once the new crossing is signalized and the associated road construction completed, the new crossing will be safer than the old crossing for the increased volume of vehicular traffic in and out of the commercial area. Construction of the turn bays at the crossing will afford adequate holding areas for traffic using the new crossing during train movements. The new crossing also affords greater visibility to vehicular traffic and crosses the railroad tracks at a perpendicular angle. Order No. 21357 at 8. Upon reconsideration, the Commission modified the third condition. In Order No. 21442 issued in September 1987, the Commission stated that “the mall may satisfy the third condition if it conveys an interest in the subject property or takes other permanent action to ensure public access to the entire commercial triangle from the new crossing.” Order No. 21442 at 5; Order No. 28106 at 4. The City did not request reconsideration. Order No. 21442 at 1. C. Current Proceedings On January 29, 1999, the Commission issued Order No. 27900 scheduling a settlement conference for February 9, 1999 “to provide an opportunity for the parties to determine whether they can resolve this matter without further proceedings.” Order No. 27900 at 4. The parties were subsequently unable to resolve the dispute. On May 13, 1999, the Commission issued Order No. 28045 scheduling this matter for hearing. In Order No. 28045, the Commission observed that there was no dispute that the first two conditions of the 1987 Orders (Nos. 21357 and 21442) had been met. Rather than determine whether the third condition had been satisfied, the Commission stated that the appropriate criteria for adjudicating this case are contained in Idaho Code § 62-305. More specifically, when objections are made to the closing of a grade crossing, the Commission is to determine whether the closure is in the interest of and reasonably necessary for the public safety or whether the crossing is no longer reasonably needed. The Commission’s Order No. 28045 suggested that the prior Orders were dispositive on the issue of public safety. In particular, the Commission found in Order No. 21357 that “once the new crossing is signalized and the associated road construction completed, the new crossing will be safer than the old crossing for the increased volume of vehicular traffic in and out of the commercial area.” Order No. 28045 at 6-7, citing Order No. 21357 at 8. Turning to the second issue, the Commission noted that the record concerning the public’s need to use the old crossing had not been adequately developed. Consequently, the Commission solicited written comments addressing whether the old crossing is necessary to gain vehicular access to the commercial triangle. Order No. 28045 at 7-8. In addition, the Commission scheduled a public hearing for June 7, 1999 to obtain public testimony to determine whether the old crossing is necessary to gain access to the area in question. Id. at 9. D. Final Order No. 28106 Written comments were received from: Union Pacific; Idaho Transportation Department (ITD); Commission Staff; Cenex Co-Op; Bonner County Commission; City of Ponderay; Papa Murphy’s; and the Bonner County Advisory Transportation Team (BCATT). At the June 7 public hearing, the Commission heard testimony from the aforementioned entities (with the exception of the Commission Staff and BCATT) and from several other individuals that operate/own businesses in or adjacent to the commercial triangle. Order No. 28106 at 7-16. 1. Jurisdiction and Authority. In final Order No. 28106 issued August 5, 1999, the Commission set out its authority regarding grade crossing disputes. The Commission noted that when an objection is made concerning the elimination or discontinuance of an old grade crossing, then the Commission is authorized and empowered to hear and determine said [dispute] in accordance with the provisions of [the Public Utilities Law. I]f upon hearing duly had [the Commission] shall find and determine that the closing and abandonment of such grade crossing is in the interest of, and reasonably necessary for the public safety, or that said crossing is no longer reasonably needed, it shall make an order authorizing the closure and abandonment of said crossing. Order No. 28106 at 16, citing Idaho Code § 62-305. Consequently, the Commission observed that it was to consider two issues: (1) public safety; and (2) whether the public grade crossing is “no longer reasonably necessary as a public crossing for any reason.” Order No. 28106 at 16. 2. Public Safety. Turning first to the safety issues, the Commission began by noting that highway grade crossings are inherently dangerous given the speed, mass, and the lack of stopping ability of trains. Id. The Commission continued that it is clear from our review of the prior Orders that the Commission has previously found that satisfaction of the first two conditions makes the new crossing safer than the old crossing. As we found in our prior Order No. 21357, the new crossing is safer than the old crossing because it is equipped with automatic warning signals, barrier arms, vehicle turn lanes for the highway and is aligned perpendicular to the tracks. Moreover, there is no dispute that the first two conditions necessary for closure of the old crossing have been satisfied. The testimony and written comments also disclose the hazards present at the old crossing. ITD’s rail-highway safety expert testified that the existing configuration of the old crossing presents several hazardous conditions. He observed that large vehicles using the crossing must intrude into the other traffic lane to make the acute angle where Fontaine Drive intersects the two railroad tracks at the old crossing. He also explained that southbound drivers on Fontaine [Drive] must use their rearview mirrors or look over their left shoulder[s] to look for rail traffic. Staff noted in its written comments, that Fontaine Drive parallels the railroad tracks for approximately 450 feet. We also observed that vehicles accessing the old crossing northbound on Highway 200 do so at a curve in the highway. Also increasing the hazardousness of this [old] crossing is the increased train movements due to main line trains and yard operations at this location. In addition to the increased number of train movements since we first took up this matter in 1987, the sidetrack is used to park rail cars. As depicted in Staff Exhibit No. 1, the existence of parked rail cars on either side of the old crossing impairs the visibility of trains operating on the other track. Even installing automatic warning signals and barrier gates would not correct the other hazards presented at the old crossing. … ITD reported that vehicle traffic at the old crossing increased from 60 trips per day in 1985 to 182 trips per day in 1999. The number of trips in the busiest hour of the day was 79. Comments of ITD at 1; Tr. at 150. Despite this increase, traffic at the new crossing is 3.5 times greater than at the old crossing and the peak hour traffic at the new crossing is nearly 3 times greater than at the other crossing. Notwithstanding its current state of disrepair, we find that the old crossing is hazardous to the public safety. Order No. 28106 at 17-18. 3. Public Necessity. On the issue of public access, the Commission found that closure of the old crossing still leaves four other access points to the commercial triangle. Even on those occasions when the new crossing is temporarily blocked by rail operations, “it is not a considerable distance to the other access points.” Id. at 18. The Commission found that the old crossing is not reasonably needed. “While we recognize that users of the old crossing will have to modify their routes of ingress and egress, we find that the public safety concerns inherent at this crossing outweigh the public’s need to continue using the old crossing.” Id. 4. Delayed Closure. Although the Commission determined that the old crossing should be closed, it delayed the closure until October 1, 2000. The Commission indicated that the delay in closing the old grade crossing affords a sufficient period of time for local officials, interested persons and ITD to evaluate and seek other access improvements to the commercial triangle as part of ITD’s roadway improvement project to U.S. 95. The Commission concluded that although “closure of the old crossing may inconvenience motorists currently using it, we believe its closure is necessary in the interest of public safety. Delaying its eventual closure until October 2000 will allow the parties and other interested persons to seek other improvements to mitigate the consequences of its closure.” Id. at 19. THE PETITIONS FOR RECONSIDERATION The Commission received 17 timely Petitions for Reconsideration. All the Petitions dispute the Commission’s findings regarding both the issues of public safety and public access. The Petitions all state that closure of the old crossing is “not in the interest of and reasonably necessary for the public safety, and that said grade crossing remains reasonably necessary as a public crossing because of the number and nature of the businesses served by said crossing.” Petitions at 1 (emphasis original). Standards for Reconsideration Reconsideration provides an opportunity for an aggrieved person to bring to the Commission’s attention any issue previously determined and provides the Commission with an opportunity to rectify any mistake or omission. Idaho Code § 61-626; Washington Water Power v. Kootenai Environmental Alliance, 99 Idaho 875, 591 P.2d 122 (1979). The Commission’s Procedural Rule 331.01 requires that Petitions for Reconsideration must include “a statement of the nature and quantity of evidence or argument that the petitioner will offer if reconsideration is granted.” IDAPA 31.01.01.331.01. Rule 331.03 provides that Petitions for Reconsideration must state whether the petitioner requests reconsideration by evidentiary hearing, written briefs, comments, or interrogatories. IDAPA 31.01.01.331.03. With the exception of the City’s Petition, none of the other petitions request reconsideration by evidentiary hearing, briefs or comments. The City’s Petition requests that the Commission grant reconsideration and “permit additional briefs, comments and a hearing.” City Petition for Reconsideration at 1. Although we find that the City’s Petition specifically sets forth the grounds why it contends that the Commission’s Order No. 28106 is unreasonable or erroneous, it fails to state the nature and quantity of evidence it would offer at any subsequent evidentiary rehearing. Consequently, the Commission denies reconsideration by evidentiary rehearing. In instances where an aggrieved party asks the Commission to reconsider its decision, it may simply do so based upon the record. Accordingly, the Commission will review its Order No. 28106 based upon the record and the arguments contained in the Petitions for Reconsideration. The City’s Petition for Reconsideration was the most comprehensive. The City’s Petition was accompanied by a supporting memorandum and the affidavits of the Chief of the North Side Fire District and the Mayor of Ponderay. The City presents several arguments why the Commission’s findings regarding the two issues of public safety and the public access are erroneous, inconsistent with the evidence, or not supported by the evidence. Most of the other Petitions reiterate issues already presented in the written comments or the evidentiary hearings. Consequently, we shall primarily address the City’s Petition and refer to the other Petitions where appropriate. B. The Commission’s Notice At the outset the Commission must address one procedural issue raised by the City and Co-Op Gas & Supply. In a footnote, the City contends that the Commission violated its own Order and Notice by allowing Union Pacific to present evidence addressing safety issues at the June 7 hearing. City Memorandum at n.1; see Co-Op Petition at ¶1. The Commission’s Notice and Order No. 28045 soliciting public comment and scheduling the evidentiary hearing specifically sought public input addressing whether the old crossing is reasonably necessary to gain access to the commercial triangle. The reason why the Commission focused upon the issue of public access was that the record regarding this issue had not been adequately developed — unlike the issue of safety. Consequently, the Commission issued a Notice of Modified Procedure scheduling a public hearing and soliciting written comments “whether the old crossing is necessary to gain vehicular access to the commercial triangle.” Order Nos. 28045 at 8; 28106 at 7. Although the Commission did not specifically seek comments and testimony regarding the safety issues, neither did it prohibit or reject the submission of comments or testimony addressing safety. Indeed, all the written comments addressed both the public safety and public access issues. Order No. 28106 at 7-11 and the citations therein. In addition, several public witnesses testified on the safety issues. Tr. at 6-7, 30, 32, 39-40, 82, 84, 105, 144. The City (represented by counsel) did not object to any of the written comments or safety testimony offered at the hearing. The City had an opportunity to cross-examine all the witnesses, including the Railroad’s witness, the ITD rail-highway safety expert. The City did not request the opportunity to submit additional evidence or post-hearing briefs. Finally, the City did not object or raise this concern in its closing argument. Tr. at 163-67. Consequently, we do not believe that the City or the Co-Op was prejudiced or disadvantaged. C. Public Safety Issues The City raises a number of arguments why the Commission’s decision to close the old crossing in the interest of public safety is erroneous. The City asserts that the Commission applied the wrong statutory criteria when it authorized the closure of the old crossing. The City also raises several evidentiary arguments and suggests that the Commission’s findings are not supported by the evidence in the record. In its Answer, Union Pacific urges the Commission to deny the Petitions for Reconsideration. Union Pacific asserts that the agreement between its predecessor and the City of Ponderay “explicitly provided for the opening of the public crossing at the Bonner Mall access road and closure of the old crossing.” Union Pacific Answer at 1; Order No. 28106 at 2, n.1. Consequently, Union Pacific argues that the City “should be estopped by its own pleadings, contract, and representations from taking any contrary position” to the closure of the old crossing. Id. at 2. Union Pacific also maintains that the City’s Petition has “failed to provide any new information that was not thoughtfully considered by the Commission either by way of written comments or during the public hearing.” Id. at 3. In particular, Union Pacific notes that the Mayor “deferred to the Idaho Transportation Department, acknowledging that ITD was the ‘expert’ on railroad grade crossing safety.” Id.; Tr. at 143. ITD’s rail-highway safety specialist testified that the old crossing should be closed in the interest of public safety. Order No. 28106 at 11, 15; ITD Comments at 2; Tr. at 155. The City’s arguments are examined below. 1. Comparing the Two Crossings. The City first asserts that the Commission erred when it authorized the closure of the old crossing based upon a comparison that the new crossing was ‘safer’ than the old crossing. City Memorandum at 4-5, City Comments at 2. The City maintains that the Commission’s examination of the public safety issue should not compare the old crossing to the new crossing. “Only if closure of the old crossing is in the interest of and reasonably necessary for the public safety should closure be considered for safety reasons.” City Memorandum at 4. However, contrary to the assertions of the City, the Commission’s Order No. 28106 concluded that the old crossing should be closed based upon the safety hazards specifically present at the old crossing. In the first part of its findings, the Commission noted that “the new crossing is safer than the old crossing because it is equipped with automatic warning signals, barrier arms, vehicle turn lanes for the highway and is aligned perpendicular to the tracks.” Order No. 28106 at 17. This comparison between the new and old crossing must be viewed within the historical context of this case. At the time the Commission issued its initial Orders in 1987, the new crossing was built to replace the old crossing. Neither crossing was equipped with automated safety devices. In 1987, the City did not advocate the closure of either grade crossing and left the decision to the Commission. Order No. 21357 at 3. Accordingly, the Commission found that equipping the new crossing with safety devices, adding the turn/acceleration bays to State Highway 200 and ensuring the motorists would not be denied the use of Fontaine Road, made the new crossing safer than the old crossing. Order Nos. 21357 and 21442. The City did not seek reconsideration of this decision. Consequently, this finding was uncontested. Despite this historical comparison, the Commission’s decision in Order No. 28106 authorizing the closure of the old crossing was not based solely on that comparison. The Commission goes on to describe the hazards specifically present at the old crossing. The Commission in Order No. 28106 noted the testimony and written comments of ITD’s rail-highway safety expert regarding the large vehicle turning radius and the alignment of the tracks to Fontaine Drive and to State Highway 200. Order No. 28106 at 17; Tr. at 151; ITD Comments 1-2. The Commission also cited the increased train movements at the old crossing, and found that the “parked rail cars on either side of the old crossing impairs the visibility of trains operating on the other track. Even installing automatic warning signals and barrier gates would not correct the other hazards present at the old crossing.” Order No. 28106 at 17; ITD Comments at 1-2; Staff Comments at 3; Staff Exhibit 1, 2, 4, 5; UP Photo 9. The Commission next recognized the changes in vehicular traffic from 1985 to 1999 at both crossings. Order No. 28106 at 17-8; ITD Comments at 1; Tr. at 150. The increased vehicular traffic and train traffic at the old crossing increases the likelihood of a car-train mishap. The Commission’s Order stated, “Notwithstanding its current state of repair, we find that the old crossing is hazardous to the public safety.” Id. at 18. The Commission concluded, “the public safety concerns inherent at this crossing outweigh the public’s need to continue using the old crossing.” Id. Our review of Order No. 28106 and the findings just recited demonstrate that the Commission did consider the public safety interests of the old crossing “in isolation” and in comparison to the new crossing. Having clarified that the Commission did consider the interests of public safety specific to the new crossing, we next turn to the City’s evidentiary arguments. The City claims that the overwhelming evidence offered in the written statements and at the public hearing does not support the Commission’s finding that closure of the old crossing is reasonably necessary for the public safety. City Memorandum at 5. Findings of the Commission will be upheld on appeal if they are supported by competent and substantial evidence. Rosebud Enterprises v. Idaho PUC, 128 Idaho 609, 917 P.2d 766 (1996); A.W. Brown Company v. Idaho Power Company, 121 Idaho 812, 828 P.2d 841 (1992). In reviewing the Commission’s findings of fact, the Supreme Court will not displace the Commission’s choice between two conflicting views, even though the Court might justifiably arrive at different conclusion if the matter were before it de novo. Boise Water Corporation v. Idaho PUC, 128 Idaho 534, 916 P.2d 1259 (1996); Rosebud, 128 Idaho at 618, 917 P.2d at 775. When the Commission’s findings of fact are challenged, the petitioners have the burden of showing error, and the Supreme Court will review the evidence in the light most favorable to the Commission or prevailing party. Idaho Department of Law Enforcement v. $34,000 U.S. Currency, 121 Idaho 211, 824 P.2d 142 (Ct. App. 1991). If the Commission’s findings are supported by competent and substantial evidence, then the factual findings cannot be clearly erroneous and will not be disturbed. Id.; Muniz v. Schrader, 115 Idaho 497, 767 P.2d 1272 (Ct. App. 1989). We next examine the City’s evidentiary arguments. 2. Only One Accident. The City argues that the single accident at the old crossing “does not indicate a safety hazard.” City Memorandum at 5. The City asserts that the “chances of being struck by lightening are far greater than the chances of an accident at the old crossing … Since the crossing opened, it can be assumed there have been 1,500,000 crossings with just a single accident.” Id. The City also implies that the crossing is not hazardous because it is “so low on ITD’s [grade crossing] priority list” for the installation of warning devices. Id. The City’s arguments are unpersuasive for several reasons. First, the City’s calculation of the number of vehicle trips per year was based upon 182 average daily crossings in 1999. Id. However, the record does not support this as the average number of crossings over the years. In fact, the average daily traffic in 1985 was only 60 vehicle trips per day. Tr. at 150; ITD Comments at 1. Consequently, it is not reasonable to calculate the number of vehicular trips at the crossing based upon an inflated annual figure. Second, the number of vehicular trips per day is just one factor in determining the hazards of a crossing. As presented in our record, other safety factors include: crossing alignment, vehicle approaches, number of tracks, number of trains, speed of trains, presence of yard operations, visibility, parked cars, types of vehicles using the crossing, warning devices, barrier gates, cargo of vehicles, accident history, and other factors. Order No. 28106 at 15-17, Tr. 150-54. ITD’s rail-highway safety expert concluded based upon his review that the old crossing should be closed. Tr. 155. As Union Pacific pointed out, the City “defers” to ITD on issues of rail crossing safety. Union Pacific Answer at 3; Tr. 143. Third, as part of its regulatory authority over railroads, the Commission has actively supported the adoption of various grade crossing safety measures. The purpose of implementing grade crossing safety measures is to reduce the likelihood of vehicle-train accidents. The railroads, ITD, schools, public highway entities, and others actively seek to reduce the risk of grade crossing accidents by educating the public, the installation of stop signs, installing reflectorized rail crossing signs, installing highway warning signs, equipping crossings with automated safety devices, and prioritizing rail crossings in the state. For example, in this case the new crossing has been equipped with automated warning signals and barrier gates. Likewise, since this case was first initiated in 1987, the old crossing has been equipped with stop signs and crossing safety reflectors. Staff Exhibit 3, 4, 6. The fact that the old crossing is in a lower position on ITD’s prioritized listing does not mean that the crossing is not hazardous. As the City acknowledged, the purpose of ITD’s prioritized listing is to determine which crossings will be the beneficiary of state-funded warning signals. City Memorandum at 5; see also Idaho Code §§ 62-304A and 62-304D. ITD’s rail-safety expert Lee Wilson testified that the ranking is used to determine which crossings should be signalized. Tr. at 152-53. He testified that federal and state fundings are only sufficient to signalize approximately one crossing per year. Tr. at 159. Consequently, we find the City’s arguments unpersuasive. 3. Vehicles Stopping on the Tracks. The City next argues that the Commission ignored “undisputed testimony that semi-trucks utilizing the new crossing to enter Highway 200 … often must stop on the tracks.” Memorandum at 6. Several other Petitions also mention this issue. The owner of the Sandpoint Preschool stated in her petition that she is always afraid that she will get “caught in the middle of the tracks with a van full of children if she is in line with other traffic and cannot get out onto [State Highway 200] fast enough.” Preschool Petition at 2. However, this argument addresses the safety of the new crossing and does not directly address the safety issues at the old crossing. On the one hand, the City wants us to “isolate” strictly on the safety issues of the old crossing but now directs our attention to the new crossing. More importantly, however, we believe this safety concern arises when drivers stop on the tracks while in line to turn left or right on to State Highway 200. Apparently motorists moving toward the intersection of Bonner Mall Way and Highway 200 do not allow sufficient space ahead of their vehicle to clear the tracks. They should not cross the tracks unless there is sufficient room for the backs of their vehicles to clear the tracks. Indeed, Idaho Code § 49-660(1)(a)(8) provides that no person operating a motor vehicle shall stop on any railroad tracks. Our review of the area and the exhibits indicates that there is sufficient distance between the tracks and Highway 200 to accommodate several automobiles and smaller trucks. Union Pacific Exhibit 10; City Exhibit 101. Larger vehicles may present a more difficult problem in fitting between State Highway 200 and the tracks at the new crossing. Staff Exhibit 6; UP Exhibit 10; City Exhibit 101. However, large vehicles should stop before crossing the tracks to insure there is sufficient space for them to pull ahead between Highway 200 and the tracks. We encourage ITD and the City to examine this issue more closely. Possibly stop bars/lines on the pavement or warning signs not to stop on tracks might adequately address this concern. In any case, we do not have the authority to require changes in the roadways that may be needed to improve safety at the new crossing. 4. Encroaching in the Other Lane. The City next takes issue with Mr. Wilson’s observation that large trucks and vehicles using the old crossing “are forced to encroach into the opposite lane of traffic in order to negotiate the curve north of the [old] crossing” on Fontaine Drive. City Memorandum at 6 quoting ITD Comments at 1. The City does not claim that Mr. Wilson’s observations are inaccurate but simply argues that this practice is not so unsafe as to require closure of the street to truck traffic. Id. We find the issue is not whether the street is closed but whether the alignment and orientation of the adjacent roadway contributes to a hazardous situation at the crossing. As observed by Mr. Wilson, large trucks “use both lanes of [the] road [when] crossing the crossing. Essentially, the road is closed when a truck goes over the crossing.” Tr. at 151. We find the testimony of the ITD safety expert compelling and adhere to our previous finding that this activity contributes to the hazardness of the old crossing. In essence, it means that the two-lane crossing cannot be safely used in both directions when large vehicles or trucks are trying to negotiate the acute right turn on Fontaine Drive or the acute left turn southbound on Fontaine at the crossing. See UP Exhibit 10; City Exhibit 101; Staff Revised Exhibit 203. The fact that this practice has never caused or resulted in an accident does not mean that practice and the crossing are less hazardous. 5. Restricted Visibility. The City next raises two issues related to visibility. First, it maintains there was insufficient evidence that the parked railroad cars restrict a driver’s sight distance when approaching the old crossing from either direction. Order No. 28106 at 17. The City notes that parked “railroad cars would restrict sight distance at any crossing, including the new crossing.” City Memorandum at 6. Although it acknowledges the contrary evidence, the City argues that the testimony “uniformly demonstrated that visibility at the old crossing did not present a safety hazard.” Id. at 7. We disagree. ITD and the Commission Staff both filed comments indicating that the parked railroad cars at the old crossing obstruct the view of the other track. Staff Comments at 3; ITD Comments at 1-2. The parked cars are depicted in Staff Photo Exhibits 1, 2, 4-5; UP Comments Photo No. 9. The City’s argument that parked railroad cars would restrict the sight distance in any crossing is misplaced because all crossings are not equal. For example, unobstructed visibility is less important at crossings equipped with automatic warning devices and gates. These safety measures are activated at the approach of trains in sufficient time to prevent train-car mishaps. Unobstructed visibility is more important at crossings without automated safety devices. It is at these unsignalized crossings, such as the old crossing, that unobstructed visibility becomes more important. At unsignalized crossings drivers must determine whether the way is clear by looking down the tracks in each direction. The danger at crossings increase where cars on sidings obscure the sight path in either direction. Consequently, we reaffirm our finding that the parked rail cars at the old crossing obstruct the clear view of the other track. This constitutes a safety hazard. The second visibility issue is related to the first and concerns motorists southbound on Fontaine Drive looking over their left shoulders. Order No. 28106 at 17. At the time the Commission first undertook this case, the old crossing was posted with the railroad cross-buck warning signs but no stop signs. Consequently, the lack of stop signs placed greater importance on the need for drivers’ to have adequate sight paths when approaching the old crossing southbound on Fontaine Drive. As the Railroad’s trainmaster testified at the first hearing, “a motorist travelling in the same direction as the train” may have a more difficult time checking for rail traffic and ensuring that it is safe to cross. Order No. 21357 at 5. This concern (although reduced given the stop signs) is still present at the old crossing. The safety issue is that Fontaine Drive parallels the two railroad tracks. Thus, motorists may not readily detect trains moving behind their forward line of sight. For example, a crossing that is perpendicular to a single track affords motorists an opportunity to see train traffic approaching in either direction (assuming unobstructed views). In contrast, the old crossing has two tracks (allowing parked rail cars on both sides) and approaches from a parallel roadway. Consequently, a southbound driver on Fontaine Drive would be forced to “use their rearview mirrors or look over their left shoulder[s] to look for rail traffic” traveling south as they approach the crossing. Order No. 28106 at 17. This concern is further compounded by the fact that rail cars may be parked on either side of the crossing. While the roadway alignment of Fontaine Drive at the old crossing may allow southbound automobiles to turn perpendicular to the tracks, trucks and large vehicles may not be able to. This finding is supported by the testimony of ITD’s safety expert. Tr. at 151. 6. The Curve on State Highway 200. In discussing hazards at the old crossing, the Commission stated in its Order that “We also observed that vehicles accessing the old crossing northbound on Highway 200 do so at a curve in the highway.” Order No. 28106 at 17. The City takes exception to this statement and characterizes it as “extremely misleading.” City Memorandum at 7. As the City explains in its memorandum, when coming from State Highway 200, Fontaine Drive “is perpendicular to the tracks” at the old crossing. Id. However, the Commission’s reference to the “curve in the highway” is not to the alignment of Fontaine Drive at the old crossing but to the right-hand curve in State Highway 200 where vehicles turn left onto Fontaine Drive and the old crossing. Vehicles turning left onto Fontaine Road do so at a right-hand curve on State Highway 200. This portion of the posted 45 MPH highway has no turn bay and our concern is that the visibility for turning traffic is hindered because of the reduced sight clearance to observe opposing traffic southbound on State Highway 200. See Staff Exhibit No. 1, 2; Union Pacific Exhibit 10; City Exhibit 101. Consequently, it is not the visibility at the crossing itself but the visibility of northbound traffic on State Highway 200 turning to approach the crossing that is hazardous. 7. Increased Train Traffic. The City also takes issue with the Commission’s finding that increased train movements increases the hazardousness of this crossing. Order No. 28106 at 17. As ITD’s rail-highway safety expert stated in his comments and his testimony, the train traffic at the old crossing increased from 7 movements to 21 movements per day at the old crossing. ITD Comments at 1; Tr. at 150. The increased number of train movements simply increases the chance that motorists will meet trains at the crossing. We find this factor does increase the hazardousness of the old crossing, and when included with other hazards, supports the Commission’s conclusion that this crossing is hazardous to the public safety. Emergency Responses. The Petitions filed by the Co-Op and IPS Tack & Feed assert that the old crossing should remain open to accommodate emergency vehicles because the new crossing is sometimes blocked by train operations. Tr. at 9, 70. The affidavit from the North Side Fire Chief attached to the City’s Petition also expresses concern that there are times when the new crossing is blocked by train traffic and emergency vehicles had to use the old crossing to gain access to the commercial triangle. This argument was considered by the Commission in Order No. 28106 where we noted that the old crossing provides an alternative route for access to the commercial triangle during emergency responses.” Order No. 28106 at 9, 10. While we do not discount this concern of using the old crossing for emergency vehicles, we find that the danger of the crossing to the traveling public outweighs the need to maintain this crossing for emergency response vehicles. It does not appear reasonable to leave open a hazardous crossing for those few occasions (although important) when emergency vehicles use the crossing. We believe there are more appropriate courses of action to take than leaving the old crossing open. For instance, given the closure of the old crossing, Union Pacific may be able to perform more yard operations at the southern end of its dual track and avoid blocking the new crossing. We also note that Idaho Code § 49-1425 requires that trains not block the vehicular use of any highway for a period of time in excess of 15 consecutive minutes. The Railroad should exercise vigilance to ensure that its operations minimize the blocking at the new crossing. We encourage the City and Union Pacific to work together to ensure that train operations minimize blocking at the new crossing. We also offer one suggestion to the Fire District. The City, Fire District and Railroad should explore the possibility of receiving telemetry information at the fire and police stations that would indicate when the automated safety devices are activated at the new crossing. Presumably, this would indicate times when the new crossing is blocked. This would alert responding emergency vehicles that the new crossing is blocked and they can proceed to use one of the other alternate routes to gain access to the commercial triangle. In summary, the Commission finds that there is substantial and competent evidence to support our conclusion that the old crossing should be closed in the interest of public safety. Taylor v. Soran Restaurant, 131 Idaho 525, 960 P.2d 1254 (1998). Contrary to the assertions of the City, the Commission did not base its findings on speculation as to the danger of the old crossing. City Memorandum at 8. The Commission’s findings concerning the hazardousness of the old crossing are supported by substantial and competent expert testimony of ITD’s safety expert, the written comments of Union Pacific and Staff, and our observations. It is the responsibility of the Commission to weigh conflicting testimony. Although we received conflicting testimony regarding safety, we accord greater weight to comments and testimony of ITD’s expert. The City and other petitioners have the burden of showing that the Commission committed error in its findings. Courts will view the issue of hazardousness in light most favorable to the prevailing party, in this case Union Pacific. Lethrud v. ISIF, 126 Idaho 560, 887 P.2d 1067 (1995). Hipwell v. Challenger Pallet and Supply, 124 Idaho 294, 859 P.2d 330 (1993); Ernst v. Hemenway and Moser Co., 126 Idaho 980, 895 P.2d 581 (Ct. App. 1995). The finder’s facts will be liberally construed in favor of the Order. Credibility and weight given to the evidence will not be set aside unless it is clearly erroneous. See The Highlands v. Hosac, 130 Idaho 67, 936 P.2d 309 (1997). In summary, we believe the Commission’s finding that closure of the old crossing is in the interest of public safety and is supported by substantial and competent evidence. Based upon our review of the record, the written comments, and the testimony offered at our public hearing, we believe that there is sufficient evidence to support our conclusion to close the old crossing. Idaho Code § 62-305. D. Public Access Issues The City and other petitioners raised a number of issues on reconsideration concerning the Commission’s findings that the old crossing is no longer reasonably needed for the traveling public. Idaho Code § 62-305. In its final Order No. 28106, the Commission noted that traffic at the new crossing is 3.5 times greater than at the old crossing and that the peak hour traffic at the new crossing is nearly 3 times greater than at the old crossing. Order No. 28106 at 17-18. In addition, the Commission also found that Closure of the old crossing still leaves four other access points to the commercial triangle: 1) the new crossing (on the east side); 2) Triangle Drive (on the north side); 3) Tibbetts Road (west side); and 4) Bonner Mall Way (west side). Even when the new crossing is blocked, it is not a considerable distance to the other access points. Closure of the old crossing may inconvenience some, but we find that the crossing is not reasonably needed. While we recognize that users of the old crossing will have to modify their routes of ingress and egress, we find that the public safety concerns inherent at this crossing outweigh the public’s need to continue using the old crossing. Order No. 28106 at 18. 1. Union Pacific’s Answer. Union Pacific states that numerous people testified at the hearing concerning alternate accesses to and within the commercial triangle.” UP Answer at 4. The Railroad argues that “necessity,” as the Commission noted in its Order, is not the equivalent of “convenience.” Id. citing Order No. 28106 at 18. Based upon its review of the record and the Petitions, Union Pacific stated that neither “the City nor the other petitioners have offered any evidence or argument that has not been presented previously.” Id. at 4-5. Union Pacific asserts that reconsideration of the Commission’s Order is unnecessary simply because the City disagrees with the Commission’s conclusion regarding public access. Id. at 3. 2. Direct Access. The City argues that the four access points identified by the Commission in its Order quoted above, do “not provide direct access to the commercial triangle.” City Memorandum at 9 (emphasis added). For example, the City claims that “there is not direct access to the commercial triangle from Triangle Drive.” Id. at 10 (emphasis added). The City apparently implies that because Triangle Drive connects to Bonner Mall Way, that this does not provide “direct” access to the commercial triangle. The City suggested that this roadway access connects with Bonner Mall Way not “in” the commercial triangle but “out” of the triangle. Id. In essence, the City’s argument is to “shrink” the commercial triangle to south of Bonner Mall Way. This is clearly incorrect. As the Commission has noted in its Orders several times, the commercial triangle is bounded on the north side by Bonner Mall, i.e., the parking areas and buildings that constitute the Bonner Mall shopping center. Bonner Mall Way is to the south of the main shopping center. Order Nos. 28106 at 1-2; 28045 at 1-2. As depicted in Union Pacific Exhibit 10, City Exhibit 101 and Staff revised Exhibit 203, access is available from Triangle Drive to Bonner Mall Way. ITD Comments at 2; Tr. at 62, 133, 142. In addition, Triangle Drive does intersect with U.S. Highway 95. Union Pacific Exhibit 10. The City also argues that there is no direct access to the commercial triangle from the new crossing. Moreover, it claims that such access is impaired because it is obtained through private property or by exiting Highway 95 and driving south on Tibbetts Road. City Memorandum at 9-10. As shown in the aforementioned exhibits and the testimony at our hearing, this is clearly not the case. Based upon the record, parties are clearly able to turn south onto Fontaine Drive from Bonner Mall Way after entering from either U.S. 95 or Highway 200. 3. The ITD Project. The City also argues that access from Tibbetts Road and the northern portion of Fontaine Drive is “slated” to change with ITD’s U.S. 95 improvement project. The City implies that the “slated” or proposed highway improvements are the approved and final improvements. We do not believe so. Order No. 28106 at 18-19. As the Commission noted, ITD’s proposals to improve U.S. 95 are merely that—proposals. Tr. at 8, 74, 143. Even the City acknowledged in its written comments, that the “exact nature of that [Highway 95] redesign has not been determined and will not be determined until after public hearing this summer.” City Comments at 3. The City apparently urges the Commission to engage in speculation on what the final improvements will be. It is inappropriate for us to speculate on what improvements ITD might implement. At the present time, Tibbetts Road allows ingress and egress both north and south bound on U.S. 95. Bonner Mall Way also intersects with U.S. 95 and State Highway 200. The City also suggests that future access to Fontaine Drive is impaired because the northern portion of the road is privately-owned. Order No. 28106 at 5. However, there is no evidence in the record from the owners of the property that the roadway might be closed. Indeed, McDonalds (owner of the eastern half of the roadway) made no mention of this in its Petition for Reconsideration. In fact, its sole issue on reconsideration is “the potential traffic congestion if said crossing is closed.” Phillip H. Freestone (dba McDonalds) Petition at 1. The apparent basis for the City’s argument is contained in the Mayor’s affidavit. In his affidavit, the Mayor states that “this portion of Fontaine Drive is slated for closure by the state in connection with its redesign of Highway 95.” Affidavit of James Hunt at 2 ¶ 7 (emphasis added). Once again, the Mayor has based his statement upon proposed actions which are not final. Tr. at 143; City Comments at 3. Countering the City’s argument, Union Pacific asserts in its written comments that the northern section of Fontaine Drive may in fact be a public highway. UP Comments at 3-4. Union Pacific asserts that under Idaho Code § 40-202, the northern portion of Fontaine Drive may be declared a public street if the City has been maintaining this private road and the public has been using the road for more than five years. At the public hearing the Mayor testified that the City has maintained and performed snow removal services on that portion of Fontaine Drive. Tr. at 140. 4. Impact to Businesses. The City and several other petitioners argue that the Commission ignored undisputed evidence that businesses would suffer “catastrophic” business injury by closure of the old crossing. City Memorandum at 10. The City insists that closing the old crossing would cause reductions in patronage, and this in turn would work a financial hardship on businesses. Id. at 11. In their petitions, some businesses indicated that the value of their property would be reduced while others asserted the closure would result in significant loss of business. These arguments are explored in greater detail below. a. The Co-Op claims closure of the old crossing “will have an economic impact on the Co-Op alone of sales more than $2,000,000 per year, which will be impossible to overcome. We are a small company, but 35 people will lose their jobs as a result.” Petition at 1. This dire prediction stands in stark contrast to the Co-Op’s general manager’s testimony at the public hearing. He testified that traffic currently reaches his business by the old crossing on south Fontaine, north Fontaine, Tibbetts Road as well as a small amount of traffic from the new crossing. Tr. at 10-11. When asked to quantify how customers access his business, he indicated about 25% come from the old crossing, “about 40 percent comes from Tibbetts and the balance [35%] comes south maybe from the McDonalds crossing [north Fontaine Drive].” Tr. at 11. He estimated that if the crossing were closed, customers would still be able to access his business. Id. b. The owner of Sandpoint Furniture indicated in his Petition for Reconsideration that closure of the old crossing “will definitely ‘stunt’ economic growth to the triangle business area, and will be the ‘nail in the coffin’. . . .” Sandpoint Furniture Petition at 1. His store is located between the private alley and Bonner Mall Way. Tr. at 120. One of his concerns expressed at the public hearing was that closure of the old crossing would “push the truck traffic up to Bonner Mall Way.” Id. In other words, he was concerned about an increase in traffic. Under cross-examination, he testified that he was not opposed to the increased automobile traffic but was opposed to the increased truck traffic. Tr. at 22-23. c. In its Petition for Reconsideration ISP Tack & Feed asserts closure of the old crossing “would have an adverse effect on our business. A projected loss of up to $200,000.00 in store revenues.” Petition at 3. At the public hearing when asked if customers would still be able to get to the business, the manager of the business testified that “it depends on what they’re going to do with Highway 95 and it depends on if there are trains at the Bonner Mall Way.” Tr. at 22. When pressed, she replied that customers would still be able to get to her business by using Tibbetts Road. Id. d. In its Petition for Reconsideration Lake R.V. insists that closure of the old crossing would financially “put us out of business.” Petition at 1. At the public hearing, the owner testified that closure of the old crossing “would impact our business tremendously.” Tr. at 112. Even if the old crossing were closed, however, she acknowledged that recreational vehicles can currently get back onto Highway 95 from Tibbetts Road depending upon what ITD does with the Highway 95 improvement project. Tr. at 115. She indicated that many of their customers are “spontaneous customers, they’re driving through and if its not easy access [to our store] for them, they’re not going to stop.” Id. at 115. Contrary to the assertion of the City, the Commission did not ignore the testimony concerning the impact on businesses. The Commission is sensitive to the disruption in business caused by any change in access. However, as we indicated in Order No. 28106 we believe there are sufficient points of access for customers to reach these businesses. In addition, as set out above, the evidence on this subject is conflicting. Most of the businesses testifying at the public hearing acknowledged that customers could still obtain access to their businesses. While acknowledging the conflicting statements, we affirm our prior finding that the old crossing is not reasonably necessary. Order No. 28106 at 18-19. It was our concern for the businesses in the commercial triangle that led us to delay the permanent closure of the crossing until October 1, 2000. Order No. 28106 at 1, 18-19. The Commission urges ITD, local officials and other interested persons to implement physical improvements to the internal roadway system before then. In particular, the Commission “recommended that the City and ITD evaluate improving the private alley to public street standards and extending it to intersect with U.S. 95.” Order No. 28106. 5. The City. Finally, the City insists that the Commission’s Order No. 28106 “attempts to put the onus on the City.” It points to the statement that “the Mayor conceded that the City has done nothing since 1987 to make sure that businesses that moved to the commercial triangle have sufficient access if the old crossing were closed.” City Memorandum at 11; Order No. 28106 at 18. The City also argues that the 11-year delay in complying with the original Order could be interpreted to mean that the attempts to close the old crossing had been abandoned. City Memorandum at 11. Again, the City has misconstrued the Commission’s Order. The Commission believes that the City could have taken actions to avoid some of the inconvenience that may be caused by closure of the old crossing. Although the City knew in 1987 that the old crossing was subject to closure once the three conditions outlined in the 1987 Orders were accomplished, it continued to allow businesses to locate in the area and did not advise them of the pending closure of the old crossing. Preschool Petition at 1: “At no time was it ever disclosed to us that the railroad crossing at the end of Fontaine Drive would be closed.” When asked what the City had done to insure that businesses moving into that area would in fact have sufficient access if the old crossing were closed, the Mayor answered that the City has done “nothing.” Tr. at 139. The Mayor testified that new businesses locating in the commercial triangle were required to obtain permits from the City, Tr. at 145. He conceded that the City should have advised businesses locating in the area that the crossing was subject to closure. Order No. 28106 at 18; Tr. at 145-46. In “20-20 hindsight, probably [the City] should have, but it was one of those things, out of sight, out of mind. People weren’t even thinking about that [closure] because it had been so many years and we did know that neither the Commission nor ITD nor the City could force somebody to give this property if they didn’t wish to[. S]o I think the City was probably remiss, but they were still waiting for a compliance with this Commission’s Order of 1987.” Tr. at 145-46. Moreover, it has not been an 11-year delay. In 1994, Union Pacific for the second time requested that the Commission issue an Order authorizing the closure of the old crossing. The City objected and argued that the closure conditions contained in the Commission’s 1987 Orders had not been satisfied. Union Pacific subsequently withdrew its 1994 Application. Order No. 28106 at n.3; Order No. 25783. The City was at least aware in 1994 of the Railroad’s intent to pursue closure of the crossing. The City could have certainly advised businesses locating in the commercial triangle of the closure of the old crossing and could have taken other measures to improve internal circulation. In particular, Idaho Code §§ 50-311 and 312 empower cities to create or open streets and alleys, and to levy and collect special taxes to open such streets and alleys, respectively. In addition, the Commission has encouraged the City, interested persons and ITD to mitigate the consequences of the closure as part of the U.S. 95 improvement project. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW Idaho Code § 62-305 provides that the Commission is empowered and authorized to hear grade crossing disputes and to determine whether the closing and abandonment of such grade crossing is in the interest of and reasonably necessary for the public safety, or whether said crossing is no longer reasonably needed. Following our review of the Petitions for Reconsideration including the affidavits, Union Pacific’s Answer and the record in this case, we find that there is substantial and competent evidence to support our findings that the old crossing should be closed in the interest of public safety. The Commission further finds that the old crossing is not reasonably necessary to provide access to the commercial triangle given the existence of the four other access points. The Commission orders closure of the old crossing on October 1, 2000 and encourages the parties to implement measures to mitigate any negative consequences of the closure. O R D E R IT IS HEREBY ORDERED that the Petitions for Reconsideration are denied. IT IS FURTHER ORDERED that Union Pacific is authorized to close the old crossing on October 1, 2000. IT IS FURTHER ORDERED that Union Pacific take appropriate actions to minimize the blockage of the new crossing. Union Pacific shall also meet informally with the City of Ponderay to discuss measures to insure that blockage of the crossing caused by train operations is kept to a minimum. THIS IS A FINAL ORDER ON RECONSIDERATION. Any party aggrieved by this Order or other final or interlocutory Orders previously issued in this Case No. UPR-R-99-1 may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho Appellate Rules. See Idaho Code § 61-627. DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this _______ day of October 2000. DENNIS S. HANSEN, PRESIDENT MARSHA H. SMITH, COMMISSIONER PAUL KJELLANDER, COMMISSIONER ATTEST: Myrna J. Walters Commission Secretary Vld/O: UPR-R991_dh4 BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE PETITION FROM UNION PACIFIC RAILROAD COMPANY TO CLOSE A GRADE CROSSING IN PONDERAY LOCATED AT MILEPOST 76.12. ) ) ) ) ) CASE NO. UPR-R991 ERRATA TO ORDER NO.  28163 On September 24, 1999, IPUC Order No. 28163 was issued by this Commission. The following changes should be made to that Order. Page 1, first sentence in Subsection “A. The Commercial Triangle” READS: “The background and procedural history of this case are set out in Order Nos. 28106, 27901, 21442, and 21351.” SHOULD READ: “The background and procedural history of this case are set out in Order Nos. 28106, 27900, 21442, and 21357.” DATED at Boise, Idaho this day of November 1999. Myrna J. Walters Commission Secretary vld/O:UPR-R-99-1_errata _dh At the June 7, 1999 hearing in Sandpoint, the City of Ponderay and Union Pacific each provided exhibits portraying the commercial triangle. The City provided a large map and Union Pacific provided an enlarged photograph of the commercial triangle. Although the map and photograph were not marked with exhibit numbers, we have assigned Union Pacific’s photograph Exhibit No. 10 and Ponderay’s map Exhibit No. 101. Petitions for Reconsideration were submitted by the City of Ponderay, Ponderay Preschool, Les Schwab Tire Center, Sandpoint Furniture-Carpet One, Co-Op Gas Supply, Plumb-Co Supply, Three Rivers Specialities/ Original Concept Carpets, China Chalet Restaurant, Pend Oreille Professional Center, Waste Management of Idaho-Sandpoint, ISP Tack & Feed, Phillip H. Freestone (dba McDonald’s), Lake RV, J. Loude Trucking, Senator Shawn Keough, the Bonner County Advisory Transportation Team, and Papa Murphy’s. The City maintains “in this case, no state or public highway, road or street [has] changed location.” Memorandum at 2. However, this is exactly what has happened in this case. At one time U.S. Highway 95 crossed the Union Pacific tracks at the old crossing. “When U.S. 95 was relocated to its present location to the west,” it now passes under the Union Pacific tracks. Consequently, one could argue that at such time as the location of U.S. 95 was changed to use the underpass constructed at such new location, “the old crossing shall be deemed to be unnecessary and may be eliminated and discontinued.” Idaho Code § 62-305. In the Mayor’s affidavit he states that the 1995 accident at the old crossing “was not a car-train accident. It was a one-car accident.” Affidavit at 1, ¶4. However, ITD’s rail-highway specialist Lee Wilson commented that the one accident at the old crossing involved a motor vehicle and train. ITD Comment at 1; Tr. 152-53. Given this conflicting evidence, the Commission assigns the greater weight to Mr. Wilson’s comments. In a footnote, the City alleges that Mr. Wilson’s knowledge and familiarity with the subject crossing is somewhat suspect because he referred to the old crossing in his written comments as “the old Bonner Mall crossing.” City Memorandum at 6 n.2. Our review of Mr. Wilson’s written comments and testimony indicates to us that he clearly understands the differences between the old crossing and the new crossing. The Sandpoint Preschool, the Sandpoint Furniture, the Co-Op, Tack & Feed, J. Law Trucking and Senator Keough. Idaho Code § 50-306 also provides cities with the authority to prescribe rules relating to grade crossings and the running of trains. The Co-Op, ISP Tack & Feed, and Papa Murphy’s also raise this issue. Idaho Code § 40-202(3) states that “all highways used for a period of five (5) years provided they shall have been worked and kept up at the expense of the public … are [public] highways.” Sandpoint Preschool, Les Schwab Tire Center, Sandpoint Furniture, Co-Op, Plumb-Co Supply, Three Rivers, China Chalet, Pend Oreille Professional Center, Waste Management, Lake RV, and Papa Murphy’s. ORDER NO. 28163 26 Office of the Secretary Service Date September 24, 1999