7. Discussion
Expo Authority has the burden of proving that its proposed crossings at Farmdale Avenue and Harvard Boulevard meet the Commission's standards, including the Commission's General Orders, Rules of Practice and Procedure, and Pub. Util. Code § 99152. Expo Authority bears the burden of proving safety, rather than the protestant(s) proving unsafe conditions, and the safety of any proposed crossing must be convincingly shown.
The two crossings are discussed below.
9.1. Farmdale Avenue
The proposed at-grade design for the Farmdale Avenue crossing includes separate crossing gates for pedestrians and vehicles, swing gates to allow pedestrians to exit the rail right-of-way when the other gates are down, and a paved pedestrian plaza constructed on the Dorsey side of the crossing as a queuing area for pedestrians waiting to use the crossing.
The peak periods of use of the Farmdale crossing are on school days at Dorsey during the 20-30 minutes before and after classes are dismissed. Dorsey serves grades 9-12, with an enrollment of approximately 1,800 students. Approximately 550 pedestrians (mostly Dorsey students) now use this crossing each school-day morning and afternoon during the peak periods (afternoon crossings generally are higher than morning crossings).
The practicability of a grade separation at Farmdale is discussed below, followed by a discussion of the four design options for a grade-separated crossing.
The seven criteria for judging the practicability of a grade separation, with respect to Farmdale Avenue, are discussed below:
1. Public need for the crossing
No parties argued against the need for the Farmdale Avenue crossing. In its environmental review of the Expo Line project, MTA found that the project area had the highest proportion of transit ridership in the Southern California region. The proximity to Dorsey and the high number of crossings before and after school hours show the crossing is necessary.
2. A convincing showing that all potential safety hazards have been eliminated.
Expo Authority proposed a state-of-the-art system of gates and other warning devices at the Farmdale crossing, including swing gates to allow pedestrians to exit the rail right-of-way when all other gates are down. All of these gates, however, can be avoided easily by pedestrians. Considering the large number of crossings during peak periods, and the student populations using the crossing, we find that any system of gates or other warning devices at-grade would not eliminate all potential safety hazards.
3. The concurrence of local community and emergency authorities.
Expo Authority coordinated the Expo Line project with the City Bureau of Street Lighting, Fire Department, and other CITY agencies; as well as the California Department of Transportation, CPSD, and MTA.
LAUSD, however, clearly does not concur with the proposed at-grade design for Farmdale because, it argues, it would be unsafe given the children that would be using the crossing. LAUSD's position was supported by the testimony of the principal of Dorsey, as well as a school police officer assigned to Dorsey who expressed concerns with student populations using the crossing and his ability to provide security at or near the crossing.
4. The opinions of the general public, and specifically those who may be affected by an at-grade crossing.
The public's views of the entire project specifically were addressed in MTA's Final Environmental Impact Statement /Environmental Impact Report (EIS/EIR). Approximately 800 comments were submitted to the Draft EIS/EIR, and another 200 to the Final EIS/EIR. Approximately 77% of the comments supported the project, as a whole, with little or no opposition expressed to the proposed crossings.
We also must consider, however, that approximately 90% of the 300-400 members of the public attending the PPH at Dorsey offered testimony expressing opposition to the entire project, and to the Farmdale crossing being constructed at-grade. The Dorsey principal also testified at the EH about various concerns with the safety and design of an at-grade crossing at Farmdale.
5. Although less persuasive than safety considerations, the comparative costs of an at-grade crossing with a grade separation.
The comparative costs of the options for grade separating the Farmdale Avenue crossing are shown in the table of design options (included in Section 6 of today's decision). The protesting parties (UCA, NFSR, and LAUSD) questioned the cost figures as possibly being too high. The cost figures are clearly estimates which have not been subjected to scrutiny, but we find these costs nonetheless to be useful for the purposes of comparison in judging practicability.
Three of the four grade separation alternatives (the train flyover, the train undercrossing, and the pedestrian bridge with Farmdale closed to traffic) all appear to offer similar levels of safety as each would separate completely the rail right-of-way from vehicles and pedestrians. The fourth alternative, a pedestrian bridge with Farmdale open to traffic, offers a significantly lower level of safety as vehicles still would cross the rail line at-grade and pedestrians would still be likely to cross the at-grade crossing rather than use the pedestrian bridge.
We find that grade-separated options at Farmdale to be necessary. The pedestrian bridge with Farmdale closed to traffic option, at $9 million, is the most cost-effective design for a complete separation of grade at Farmdale. We find that the train flyover and train undercrossing are estimated to be substantially greater in cost than the pedestrian bridge with Farmdale closed option. We also find that the pedestrian bridge with Farmdale open to traffic, at $6.5 million, to be expensive when compared to an at-grade crossing, in light of the lower level of safety provided.
6. A recommendation by Staff that it concurs in the safety of the proposed crossing, including any conditions.
CPSD thoroughly reviewed all of the subject applications, and participated in a diagnostic review and the hazard analysis review of the entire Expo Line project. CPSD filed a protest to A.07-01-017, but withdrew its protest as a result of an amendment to that application filed by Expo Authority.
With respect to the Farmdale Avenue crossing, CPSD staff testified at the EH that the proposed at-grade crossing at Farmdale is safe. However, staff also testified that, with respect to engineering feasibility, the Farmdale crossing can be grade-separated.
7. Commission precedent in factually similar crossings.
The parties discussed several other crossings at or near school sites along other light-rail lines. However, none of these cases presented the unique characteristics of the proposed Farmdale crossing at Dorsey. The large number of school age youth who cross at this Farmdale site is our main concern. This issue, therefore, provided little or no weight in our determination of practicability.
The Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) did not examine any grade-separated alternatives at Farmdale. Although Expo Authority has provided some testimony on possible adverse environmental impacts related to grade-separated alternatives, the record is not complete enough at this time for the CPUC as the responsible agency to conduct the necessary CEQA review.
An important element of the environmental analysis of the alternative design options discussed above is the "Traffic Study for the Exposition Light Rail Transit Farmdale Avenue Crossing" (Traffic Study), performed by consultant Fehr & Peers (F&P) for Expo Authority. The Traffic Study analyzed the impacts on vehicular traffic of the various design options for Farmdale Avenue. The study focused on the pedestrian bridge with Farmdale closed to traffic option, as the four other options (at-grade, train flyover, train undercrossing, and pedestrian bridge with Farmdale open) all would not result in meaningful changes to traffic patterns.
The protesting parties (UCA and LAUSD) argued that the Traffic Study is incomplete, and that not all data relating to the analysis was made available for review. F&P began work on the study in early 2008. Expo Authority discussed and reported on its findings at various stages as the study progressed. Expo Authority also made available several draft versions of the study, or reports on its progress. Expo Authority clearly states in the draft reports that the study was an evolving process, and that the final report would be available in the summer of 2008.
The final version of the Traffic Study, dated August 2008, finds that closing Farmdale to vehicular traffic would not result in unmitigable adverse environmental impacts. Similarly, in the supplemental information it served in March 2008, Expo Authority states that closing Farmdale likely would result in an acceptable flow of traffic at other impacted locations; and, draft versions of the Traffic Study dated May 8, and May 14, 2008 also state that closing Farmdale likely would result in an acceptable flow of traffic at other impacted locations.
However, in prepared testimony served on June 6, 2008, three Expo Authority witnesses, relying on the evolving F&P Traffic Study, stated that closing Farmdale to traffic may not be feasible as unmitigable adverse impacts may be created. This position is supported by another draft version of the Traffic Study dated July 24, 2008 that states various traffic mitigation measures would not be feasible and that significant unavoidable traffic impacts would occur if Farmdale Avenue were closed to traffic.
On August 8, 2008, relying on the final version of the Traffic Study, Expo Authority served its revised prepared testimony for the same three witnesses stating that closing Farmdale Avenue to traffic would be feasible, as no unmitigable adverse impacts would be created.
John Stutsman, a principal of F&P and the person in charge of conducting the Traffic Study, testified at the EH. He explained that the study began as a series of technical memoranda that were later converted to a report format. Stutsman stated that the conclusions in the final version of the Traffic Study regarding the traffic impacts of closing Farmdale were based on data relating to traffic patterns, school enrollments, computerized simulations of the traffic flow alternatives, and other related factors. Stustsman also advised that the City's current automatic traffic control system will be updated and improved in 2011; and, that the August 2008 version of the Traffic study represented F&P's final recommendations and findings.
The protesting parties questioned the motivation of the changed outcomes of the Traffic Study, and suggested that Expo Authority purposefully was not providing all of the data, internal e-mails, work papers, telephone records, and other materials used in making the findings in the Traffic Study. The protesting parties made various requests and motions to compel the production of such data. These motions were denied for the reasons discussed below.
The parties further alleged that Expo Authority purposefully may have directed F&P to change the conclusions of the August (final) Traffic Study to show that closing Farmdale to traffic was feasible, after F&P stated in the July 24th draft version of the study that closing Farmdale was not feasible. The alleged motivation for such directive was that if the Commission determined that a grade separation at Farmdale was practicable, Expo Authority then could chose to construct the less expensive pedestrian bridge with Farmdale closed option, instead of having to construct a more expensive train flyover or train undercrossing.
Expo Authority provided the final Traffic Study, at least four draft versions of the study, related information such as e-mails and work papers, and the testimony of four witnesses (Stutsman and three others) regarding the outcomes of the study. No convincing evidence was presented to show that Expo Authority attempted to hide any results or manipulate data related to the study. We therefore find the final Traffic Study is sufficient for our review purposes.
The projected maximum train speed through the Farmdale crossing is 55 miles per hour (mph). In testimony, Expo Authority discussed the possibility of MTA slowing trains to 10 mph before and after school hours through the Farmdale crossing. Witnesses from the protesting parties testified that slowing trains at Farmdale is problematic as pedestrians and vehicles may become familiar with the trains approaching the crossing at 10 mph during peak periods, but not be aware the trains are approaching at much faster speeds at other times of the day.
MTA will be the operator of the line, and Expo Authority did not offer any additional testimony, or support from MTA, regarding the slowing of trains at Farmdale Avenue Expo Authority also did not offer any evidence or testimony regarding the slower speed with respect to train operators, train operating rules, or whether any similar situations exist elsewhere.
In view of these concerns, we have not considered the implementation of slower train speeds at Farmdale in today's decision.
The four options for grade-separating Farmdale Avenue are discussed below:
Pedestrian bridge with Farmdale open to traffic
We find that this option is not practicable. Most (if not all) witnesses on the subject testified that pedestrians generally will ignore any signs or signals regarding use of the bridge, and instead will use the open at-grade roadway to cross Exposition Boulevard and the rail right-of-way in the center median. We also are concerned that since motorists on Exposition may not be expecting pedestrians on a roadway not marked for pedestrians, this option may be even less safe than a marked at-grade crossing.
Train Undercrossing
Constructing the rail line below ground level (tunnel or trench) is not practicable for engineering reasons, cost reasons, and project delay time. Expo Authority's analysis shows a below-ground rail line in this area would need to be 3,200 feet long, and include special engineering and construction considerations associated with two large storm drains crossing under and adjacent to the rail right-of-way.
The additional cost of such a project, $100 million, also is prohibitive, not only when compared to the cost of an at-grade crossing, but also when compared to the pedestrian bridge with Farmdale closed option, or the train flyover.
Train Flyover
We considered the practicability of a train flyover at Farmdale Avenue. This is the preferred option of LAUSD because it does not require Farmdale to be closed and provides full separation of the train, automobiles, and pedestrians. As Expo Authority opined in its table of design options, this option also may result in permanent unmitigable adverse environmental impacts related to visual impacts and historical resources. However, we neither concur nor refute this assertion.
Raising the tracks above the roadway would require an aerial structure approximately 1,500 feet long and 20 feet high. With sound walls and the necessary overhead catenary on the structure, the overall height would be 40-45 feet. Expo Authority's visual impacts study concluded that permanent adverse unmitigable impacts would result with the flyover constructed.
Dorsey is a historical resource under CEQA and listed in the California Register of Historical Resources. Expo Authority's Historical Resources study determined that the flyover would not change the Dorsey campus or the resource itself, but substantially would obstruct the views to Dorsey and diminish the integrity of its location. The study also determined that the other design options for Farmdale would not cause significant impacts of this type.
The additional cost of a train flyover, $28 million, also is of concern when compared to the additional cost of the pedestrian bridge with Farmdale closed, at $9 million, as both of these options would provide the same level of safety, and complete separation with respect to the interface of the trains with vehicles and pedestrians.
Pedestrian Bridge with Farmdale closed to traffic
We find that constructing a pedestrian bridge with the roadway closed to traffic at Farmdale Avenue is a practicable alternative to an at-grade crossing at Farmdale.
The crossing would be completely grade-separated in order to enhance safety for the pedestrians (particularly the school age pedestrians), would not cause any significant unmitigable adverse environmental impacts, and is cost-effective when compared to the cost of an at-grade crossing at the same location.
In order to comply with ADA, Expo Authority showed in its analysis that any pedestrian bridge would be accessed by an elevator and stairs on each side of the bridge.
We find it is practicable to construct a grade-separated pedestrian bridge and close the roadway to traffic at Farmdale Avenue, because the grade-separated pedestrian bridge will eliminate the potential safety hazards of large number of school age pedestrians crossing the road at-grade. Further, we find that closing Farmdale Avenue will not cause adverse unmitigable impacts and is therefore feasible. We also find that the cost of constructing the pedestrian bridge (closed at Farmdale) is cost-effective. Therefore, we deny Expo Authority's request to construct an at-grade crossing at Farmdale.
9.2. Harvard Boulevard
Expo Authority is requesting approval to construct the rail line in the center median of Exposition Boulevard, above an existing pedestrian tunnel at the extension of Harvard Boulevard, without making any alterations to the tunnel itself. The northern entrance to the tunnel is at Foshay.
Foshay is a year-round school serving grades Kindergarten-12, with a total enrollment of approximately 3,335 students (185 elementary, 2,500 middle school, and 650 high school). Approximately 2,000 students are on campus at any one time due to the year-round schedule.
Approximately 250 pedestrians (mostly Foshay students) now use the Harvard Boulevard tunnel each morning, and again each afternoon, during the 20-30 minutes before and after school hours. There is currently no surface pedestrian crossings at Harvard Boulevard. across Exposition Boulevard. During these same peak periods, another approximately 330 pedestrians cross Exposition Boulevard at the two crossings on each side of the Harvard tunnel, located approximately 200 yards to the east and the west of Foshay (both are at-grade crossings authorized in D.07-12-029).
The only access to the tunnel is by a stairway on each side of Exposition Boulevard. This stairs-only design does not comply with the access requirements of the ADA. The tunnel, however, was constructed pre-ADA and therefore
exempt from its requirements. Expo Authority proposes to construct a ground-level concrete slab over the tunnel, supported by pilings on each side. The resulting concrete "bridge" would bear no additional load on the tunnel. Since the tunnel itself would not be changed or modified, exemptions from ADA access requirements would remain.
The tunnel presents other access and security issues. Left open and without supervision, the tunnel provides a convenient location for crime (theft, robbery, assault, illegal drug use, bullying, etc.), and also presents problems related to sanitation and public health. Because of these safety and security issues, access to the tunnel is locked, except during the approximate 30-minute period before and after school hours; and, operation of the tunnel is supervised by adult volunteers (mostly parents and others associated with Foshay). We find that the access, security and other issues relating to this tunnel are pre-existing and that the operation of this tunnel is the responsibility of third parties (the City, LAUSD, and Foshay).
The issue of practicability is not considered here as the proposed crossing of the rail line and the Harvard tunnel already proposes complete grade separation. The tunnel is approximately 120 feet in length, runs under the entire width of Exposition Boulevard (4-6 lanes of traffic and the center median), and can be accessed only by a stairway on each side.
The principal of Foshay testified at the EH regarding problems the tunnel presents, including access to and personal safety inside the tunnel. A police officer assigned to Foshay also testified to the difficulties he now faces of crossing through the tunnel to handle emergency situations (i.e., lack of radio contact, losing view of ground-level criminal activity, and interference from students and others when trying to cross Exposition Boulevard quickly). At times, the officer crosses Exposition at street level, stopping traffic, when the situation warrants. At the public workshop held at Foshay, several participants also complained of various safety and security issues related to the tunnel.
Because of security issues, the tunnel now is limited to volunteer supervised use for 20-30 minutes before and after school hours. Expo Authority responds that any type of tunnel supervision is the responsibility of others (Foshay or LAUSD), a view with which we concur.
As an alternative to the Harvard tunnel, Expo Authority analyzed a pedestrian bridge as an overcrossing of Exposition Boulevard. LAUSD prefers this option. Expo Authority estimates that a pedestrian bridge would increase the project cost by $5-8 million, and would cause a six-month delay in project completion time.
A pedestrian bridge at Harvard would be similar in design to the bridge alternatives at Farmdale, with access subject to ADA compliance. Expo Authority showed in its analysis that any pedestrian bridge at Harvard would include an elevator and stairs on each side of the bridge. Expo also contends that the bridge will require purchase of existing vacant property on the south side of Exposition Boulevard, and an easement from LAUSD on the north side of Exposition.6
The tunnel crossing presents many problems not directly related to the actual interface of the rail right-of-way and vehicles and pedestrians. These problems include the safety and security of students and others using the tunnel, and very limited hours of access. However, these problems related to the tunnel were preexisting and are not caused by the Expo Rail. From a safety point of view, the rail crossing will not interface with the Harvard tunnel and does not affect the 250 pedestrians who use the tunnel.
Accordingly, there is already a grade-separated crossing that provides for adequate separation of pedestrians and rail operations at Harvard Boulevard. As noted above, we do not consider the practicability of a grade separation here because the interface of the rail line and the Harvard tunnel are already completely separated. Moreover, our own CPSD staff have found the grade-separated crossing to comply with our safety requirements.7
In comments on the Alternate Proposed Decision, LAUSD disputes the Alternate Proposed Decision's finding that there are no pedestrian crossings at Harvard Boulevard across Exposition Boulevard. LAUSD contends that there is currently an "implied crosswalk" that school children can use from Harvard Boulevard to Exposition and that Commission should condition or deny the proposed crossing.8 In response to this assertion, Expo Authority asserts that construction of the Expo Rail closed Harvard Boulevard and that the closure of Harvard Boulevard at Exposition was "part of the design of the Expo Rail project from the outset" and therefore, there are currently no surface pedestrian crossings at Harvard Boulevard across Exposition Boulevard. Expo Authority also notes that it "was certainly a hazardous route for school children to cross the busy, multi-lane Exposition Boulevard" and that LAUSD has never suggested previously that Harvard Boulevard at-grade was a safe route for students to take to or from school.9 We note that LAUSD had not previously in the proceeding raised the argument that there was an at-grade crosswalk available at Harvard for students to cross Exposition Boulevard. However, even if there were an at-grade pedestrian crossing at Harvard, we observe that the Expo Rails do not raise new pedestrian safety issues. We emphasize that there is an existing grade-separated tunnel crossing at Harvard Boulevard that is adequate. We find that closure of Harvard Boulevard by the Expo Rails does not impair the ability of students to cross Exposition Boulevard either at the nearby crosswalks at Western and Denker, or through the existing pedestrian tunnel. We will, however, require Expo Authority to submit to the Commission's CPSD within 90 days of the effective date of this decision its plan for improvements to the pedestrian tunnel, such as increasing lighting and installation of surveillance cameras to enhance pedestrian safety.
LAUSD also asserts in comments on the Alternate Proposed Decision that the Expo Line will result in law enforcement issues where previously, vehicles and pedestrians could cross Exposition Boulevard. LAUSD specifically asserts that, with the Expo Rail in the center of Exposition Boulevard, the police officer stationed at the Foshay Learning Center will be forced to go underground through the tunnel to cross Exposition Boulevard if he witnesses a potential incident on the other side of Exposition Boulevard. With regard to the law enforcement issues, Expo Authority proposes that it could install a locked gate in the fencing along the Exposition Boulevard median for use by police officers or other authorized security personnel.10 The Commission has also previously approved or imposed requirements related to such security gates in the past.11 We encourage Expo Authority to explore whether installing a locked security gate in the fencing along the median for this purpose will assist law enforcement. We further order that light rail trains running by this security gate during school crossing hours be reduced to 35 mph or less for the safety of the police officer assigned to Foshay Learning Center.
Therefore, we reject the arguments by LAUSD as to the adequacy and safety of the Harvard tunnel crossing and approve the grade-separated crossing at Harvard, with the requirements that: (1) Expo Authority submit a plan to CPSD for making improvements to the tunnel within 90 days such as increasing lighting and installation of surveillance cameras; (2) Expo Authority explore whether installing a locked gate along the fence of the Exposition Boulevard median and provide keys to security personnel for Foshay will be beneficial; and (3) require the train operator to slow the light rail trains to 35 mph or slower when passing the Harvard tunnel area during school crossing hours. Construction may begin upon issuance of this decision.
9.3. Environmental Review
The California Environmental Quality Act of 1970 (CEQA, as amended, Public Resources (PR) Code Section 21000 et seq.) applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to inform governmental decision-makers and the public about potential, significant environmental effects of the proposed activities. Since the project is subject to CEQA, and the Commission must issue a discretionary decision in order for the project to proceed (i.e., the Commission must approve the project pursuant to § 1202 of the Pub. Util. Code), the Commission must consider the environmental consequences of the project by acting as either a lead or responsible agency under CEQA.
The lead agency is the public agency with the greatest responsibility for supervising or approving the project as a whole.12 Here, MTA is the lead agency for this project and the Commission is a responsible agency. As a responsible agency under CEQA, the Commission must consider the lead agency's environmental documents and findings before acting on or approving this project.13
MTA prepared a combined Final Environmental Impact Statement/Environmental Impact Report (Final EIS/EIR), for the Expo Line project to comply with the National Environmental Policy Act (NEPA) (42 U.S.C. Section 4321 et seq.) and CEQA. The relevant portions of that document were summarized in D.07-12-029. The Final EIS/EIR did not consider a grade-separated crossing at Farmdale.
6 Expo Authority Exh. 15, CD Attachment at p. 113.
7 TR p. 159, L. 5-6. (Berdge).
8 LAUSD Comments on Alternate PD at 7.
9 Expo Authority Reply Comments on Alternate PD at 1-2.
10 Id. at 2.
11 See, e.g., D.03-05-025 (ordering the Pasadena Metro Blue Line Construction Authority to construct warning devices along gates to a power plant that was adjacent to the rail line); D.89-07-010 (approving a private emergency road crossing over Southern Pacific tracks and requiring use of the emergency road crossing to be barred by locked gates except during an emergency); D.04-03-015 (approving two private service crossings near Caltrain tracks, which would be closed off locked gates when not in use).
12 CEQA Guidelines (Title 14 of the California Code of Regulations), Section 15051(b).
13 CEQA Guidelines, Sections 15050(b) and 15096.
