10. Assignment of Proceeding
Timothy Alan Simon is the assigned Commissioner and Kenneth L. Koss is the assigned Administrative Law Judge in this proceeding.
1. The Expo Line is a new light rail line being developed in Los Angeles County for service between downtown Los Angeles and Culver City.
2. The Expo Line will be a double-track configuration powered by electricity from overhead catenary lines.
3. Expo Authority is responsible for constructing the Expo Line and filed the 10 subject applications for authority to construct 38 new crossings along the corridor.
4. Expo Authority entered into a Master Cooperative Agreement with MTA and the City regarding the design, construction, operation and maintenance of the proposed crossings.
5. The completed project will be turned over to MTA for operation.
6. UCA (formerly ECU) protested all of the applications.
7. NFSR filed a response to A.07-05-013.
8. LAUSD is an interested party to the proceeding, as described herein.
9. All protests, responses, and replies were filed timely.
10. Interim D.07-12-029 authorized Expo Authority to construct 36 of the 38 requested crossings.
11. The two crossings not authorized in D.07-12-029 are the at-grade crossing at Farmdale Avenue, requested in A.07-05-013, and the grade- separated pedestrian tunnel crossing at Harvard Boulevard, one of the 11 crossings requested in A.06-12-020.
12. Dorsey is adjacent to the proposed Farmdale Avenue crossing.
13. Foshay is adjacent to the existing Harvard Boulevard tunnel.
14. The scope of this proceeding, as described herein, is appropriate.
15. It was necessary to hold an evidentiary hearing with respect to the proposed crossings at Farmdale Avenue and Harvard Boulevard.
16. Related procedural events included: a PPH, two workshops, two PHCs, a meet and confer session, and a mediation conference, as described herein. No agreements or settlements were reached by the parties.
17. The criteria we use in judging the practicability of a grade separation was established in D.02-05-047, and D.03-12-018.
18. A crossing at Farmdale Avenue is necessary for public access.
19. Expo Authority has not shown that all safety hazards at the Farmdale crossing have been eliminated.
20. All local authorities do not concur with the proposed design of the Farmdale Avenue crossing.
21. Public opinion varies on the Farmdale Avenue crossing.
22. The final F&P Traffic Study is sufficient for purposes of our review.
23. Expo Authority's estimated costs of the various alternative design options are sufficient for the purpose of comparison.
24. A pedestrian bridge with Farmdale Avenue closed to traffic is practicable.
25. The comparative costs of a train undercrossing at Farmdale Avenue are prohibitive, in light of the level of safety provided.
26. The comparative costs of a grade-separated pedestrian bridge with Farmdale Avenue open to traffic are prohibitive in light of the level of safety provided.
27. CPSD staff reviewed the Farmdale Avenue crossing and finds that the design of the proposed at-grade crossing is safe; and, further finds that for engineering purposes it is feasible to grade-separate the crossing.
28. CPSD staff reviewed the Harvard Boulevard crossing and finds that the design of the proposed grade-separated crossing is safe.
29. The proposed grade-separated crossing at Harvard Boulevard is practicable.
30. The pedestrian tunnel at Harvard Boulevard is a preexisting condition.
31. There is no surface pedestrian crossing at Harvard Boulevard.
32. Construction of the Expo Rail does not create new problems for pedestrians crossing the tunnel at Harvard Boulevard.
33. It is not necessary that we consider adequate and safe access to the Harvard Boulevard tunnel, and safe passage through the tunnel, in our review of the proposed crossing.
34. Access to the Harvard Boulevard tunnel is locked except for an approximate one-half hour before and after school hours at Foshay.
35. It is reasonable to keep this proceeding open to allow Expo Authority to file necessary amendments or new applications, as described herein.
36. MTA is the lead agency for the Expo Line project with respect to CEQA compliance.
37. The Commission is a responsible agency under CEQA.
38. Pursuant to CEQA Guidelines, the Commission, as a responsible agency, may act in a lead role for conducting any necessary future environmental review with respect to the Farmdale Avenue crossing, if such review involves either a Supplemental EIR or an Addendum to the existing EIR.
39. The Final EIS/EIR for the Expo Line examine the at-grade crossings at Farmdale Ave. and the grade separated crossing at Harvard Boulevard.
40. The Commission will not act in a lead role for conducting any future CEQA review if a new subsequent EIR is found to be necessary.
41. This proceeding is properly categorized.
42. The October 10, 2008 joint motion of UCA and NFSR to supplement the record in this proceeding is not relevant, outside the scope of the proceeding, and late.
1. It was necessary to hold an evidentiary hearing with respect to the Farmdale Avenue and Harvard Boulevard crossings
2. A.07-05-013, for authority to construct and at-grade crossing at Farmdale Avenue in the City of Los Angeles, should be denied.
3. Authorization to construct a light rail line over an existing pedestrian tunnel crossing at Harvard Boulevard, in the City of Los Angeles, requested in A.06-12-020, should be approved and construction may begin immediately.
4. This consolidated proceeding should remain open, within statutorily established timelines, to allow Expo Authority to amend A.07-05-013, as described herein.
5. Pursuant to CEQA Guidelines, the Commission, as a responsible agency, should act in a lead role with respect to conducting the environmental review in any future applications for crossing at Farmdale Avenue that involve either a Supplemental EIR or an Addendum to the existing EIR.
6. The Final EIS/EIR was adequate for consideration of the environmental impacts of the proposed grade-separated crossing at Harvard Boulevard.
7. As a responsible agency under CEQA, the Commission should not act in a lead role for environmental review if such review involves a new subsequent EIR.
8. The joint motion of UCA/NFSR dated October 10, 2008 to supplement the record in this proceeding should be denied.
IT IS ORDERED that:
1. Application (A.) 07-05-013 by the Exposition Metro Line Construction Authority (Expo Authority) for an at-grade rail crossing at Farmdale Avenue in the City of Los Angeles is denied.
2. A.06-12-020 by Expo Authority to construct a rail line at ground level over an existing pedestrian tunnel crossing at Harvard Boulevard in the City of Los Angeles is approved.
3. The train operator shall slow the speed of the train to 35 mph or less when passing by Harvard Boulevard, during school crossing hours.
4. Within 90 days of the effective date of this decision, Expo Authority shall submit to the CPSD its plan for improvements to the pedestrian tunnel at Harvard Boulevard, such as increasing lighting and installation of surveillance cameras.
5. As a responsible agency under the California Environmental Quality Act, the Commission will act in a lead role with respect to conducting the environmental review in any future amendment or application for a crossing at Farmdale Avenue that involve either a Supplemental Environmental Impact Report (EIR) or an Addendum to the existing EIR.
6. The October 10, 2008 joint motion to supplement the record by United Community Associations, Inc. and Neighbors for Smart Rail is denied.
7. A.06-12-005, A.06-12-020, A.07-01-004, A.07-01-017, A.07-01-044, A.07-02-007, A.07-02-017, A.07-03-004, A.07-05-012, and A.07-05-013 remain open.
This order is effective today.
Dated February 20, 2009, at San Francisco, California.
MICHAEL R. PEEVEY
President
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
Commissioners
I reserve the right to file a dissent.
/s/ TIMOTHY ALAN SIMON
Commissioner
APPENDIX A
List of Appearances
For Exposition Metro Line Construction Authority:
Nossaman, Guthner, Knox & Elliott, LLP, by Martin A. Mattes, and
Cox, Castle & Nicholson LLP, by Frederick H. Kranz,
For United Community Associations, Inc.:
Sonnenschein, Nath & Rosenthal, LLP, by Ivor E. Samson, and
Christopher E. Prince.
For Los Angeles Unified School District:
Strumwasser & Woocher LLP, by Michael J. Strumwasser, and
Beverly Grossman Palmer.
For Neighbors for Smart Rail:
Heller & Edwards, by Lawrence E. Heller.
For Consumer Protection and Safety Division:
Patrick S. Berdge, Attorney at Law
(END OF APPENDIX A)
************** PARTIES ************** |
Ivor E. Samson |
Kenneth L. Koss |
Michael H. Zischke |
Darrell Clarke Vijay Khawani
|
Lark Galloway-Gilliam |
D.09-02-031
A.06-12-005
Dissent of Commissioner Timothy Alan Simon
February 20, 2009 Commission Meeting
1. Introduction
On February 20, 2009, I asked for the support of my fellow Commissioners for Item 60, the revised Proposed Decision ("PD") of Administrative Law Judge Kenneth Koss issued in response to the Application of the Exposition Metro Line Construction Authority for an order authorizing the construction of a two-track at-grade crossing for the Exposition corridor Light Rail Transit Line across Jefferson, Adams, and 23rd Street, all three crossings located along Flower Street in the City of Los Angeles, County of Los Angeles, California, And Related Matters. Instead, by a vote of 4-1, my fellow Commissioners voted in favor of the Alternate Proposed Decision ("Alternate"), Item 60-a.
As a result of that vote in favor of the Alternate, I submit the following Dissent, in part, to that portion of the Alternate that authorizes the construction of a rail line over an existing pedestrian tunnel crossing at Harvard Boulevard, without first providing the Commission with a comprehensive management plan to address how the safety and security of pedestrians using that tunnel will be ensured.
2. Background
The Exposition Metro Line Construction Authority ("Expo Authority") filed 10 applications with the Commission for authority to construct a series of 38 rail crossings along the "Exposition Corridor Light Rail Transit Line" in Los Angeles County, which will be a new 8-½ mile light rail transit extension line that will run between downtown Los Angeles and Culver City.16 An interim decision in this proceeding, D.07-12-029, authorized the construction of 36 of the 38 crossings, and construction has commenced at those crossings. D.07-12-029 also directed that the proceeding remain open to address further the two remaining crossings at Farmdale Avenue and Harvard Boulevard. In Application 07-05-013, the Expo Authority proposed an at-grade crossing at Farmdale Avenue where the Susan Miller Dorsey High School ("Dorsey") is located. In Application 06-12-020, the Expo Authority proposed a grade-separated crossing over the existing Harvard pedestrian tunnel located adjacent to the James A. Foshay Learning Center ("Foshay").
3. Discussion
This has been a contentious proceeding rife with issues that reflect disparate opinions on transit planning and safety. All 10 of the Expo Authority's applications were protested, and pleadings were filed by the Expo Authority, United Community Associations, Inc., Neighbors for Smart Rail, and the Los Angeles Unified School District. The public participation hearings, meet and confer sessions, workshops, two pre-hearing conferences, and evidentiary hearings were well attended. Additionally, the Commission facilitated a mediation. Throughout this proceeding, it became apparent that there were opposing views regarding the safety of the potential crossing options at Farmdale Avenue and Harvard Boulevard.
For the Farmdale Avenue crossing, both the revised PD and the Alternate reject the at-grade crossing proposed by the Expo Authority in favor of a pedestrian bridge. (PD, page 2; Alternate, page 2.) This is the appropriate outcome. Having attended public meetings regarding these crossings and looked at the record in this proceeding, I have questioned whether the proposed at-grade crossing, at such close proximity to an active high school, would provide adequate safety and security for the students of that high school.
My concerns were heightened by the suggestions of a party to this proceeding, made to my staff and other individuals with access to Commission decisionmakers, that an at-grade crossing at Dorsey High School would be equivalent to other Commission-approved at-grade crossings near schools such as the Griffith Middle School, Blair High School, and Mission High School. As a factual matter, with Farmdale Avenue and the proposed rail line located immediately adjacent to Dorsey, none of the previously-approved at-grade crossings are in the same or similar proximity to a school as an at-grade crossing at Farmdale Avenue would be to Dorsey High School. Furthermore, because there are train stations near the Griffith and Mission Schools, trains stop in the vicinity of those schools, and the velocities of the trains are necessarily slower.
I am pleased that, despite these potentially misleading statements regarding the merits of an at-grade crossing at Farmdale Avenue, the Commission has determined that a grade-separated crossing is appropriate for the health and safety of the local community, and is practicable.
Where the revised PD and the Alternate differ, however, is with respect to the Harvard Boulevard crossing near the Foshay Learning Center. I have made multiple visits to this crossing site. I also conducted a public hearing in the Foshay Auditorium and listened first-hand to the concerns of the local community. Under the revised PD, both the existing pedestrian tunnel and a pedestrian bridge remain viable alternatives as the safest grade-separated crossing options, but the revised PD finds that, for the Expo Authority to construct its new rail line, safe use of the tunnel is a proper matter for Commission consideration:
The Harvard 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 personal safety and security of students and others using the tunnel, limited hours of access, and access by safety and security personnel needing to cross Exposition Boulevard. We find here, however, that adequate and safe access to and passage through a proposed crossing are important elements of crossing design; and, that these elements certainly should be considered in our review of the Harvard tunnel. (PD, pages 32-33.)
Thus, the revised PD does not approve the use of the grade-separated pedestrian tunnel as a crossing at Harvard Boulevard, but instead orders the Expo Authority to return to the Commission with a detailed management plan that addresses safety, tunnel access, and use by students and law enforcement. (PD, pages 30-31.)
In contrast, the Alternate jumps the gun by approving the pedestrian tunnel at Harvard Boulevard without vetting the Expo Authority's plan for making improvements to the tunnel, and removes the option of constructing a pedestrian bridge. Instead, the Alternate requires Expo Authority to submit a plan to the Commission's Consumer Protection and Safety Division for safety improvements to the tunnel within 90 days, and does not require any Commission review or approval of the plan. (Alternate, page 47.) The Alternate also requires trains to travel at 35 mph or less when passing the Harvard tunnel area during school crossing hours. (Alternate, page 46.) These measures, however, do not ensure that the Expo Authority will have considered all of the necessary safety measures at the Harvard crossing before it is given approval to proceed with construction.
And while it is also true that this Commission retains jurisdiction over rail crossing safety, and also must approve Expo Authority's safety certification plan prior to the commencement of revenue operations, it would be better for the health and safety of the children, who are predominantly students of the Los Angeles Unified School District, for Expo Authority to have the incentive of providing a fully fleshed out management report as a condition to receiving construction authorization for the Harvard crossing from this Commission.
Finally, while both the revised PD and the Alternate note the Expo Authority's claim that constructing a pedestrian bridge at Harvard would delay completion of the entire project by six months, there is nothing in the record that indicates that a delay to allow the Commission to review a safety management plan prior to approving the already existing pedestrian tunnel as a crossing would result in any such delay. As a practical matter, any delays resulting from our regulatory review will be caused by construction of a grade-separated crossing at Farmdale Avenue, a requirement that is the same in both the revised PD and the Alternate.
4. Conclusion
As noted previously, 36 of the 38 crossings related to this project have already been approved and construction has commenced. The review of a safety management plan before approval of the pedestrian tunnel at Harvard Boulevard would not have impacted construction at the other 36 crossings, and would not have resulted in delay of the project.
It is for these reasons that I must respectfully dissent, in part.
/s/ TIMOTHY ALAN SIMON
Timothy Alan Simon
Commissioner
16 The Expo Authority was created by Senate Bill 504 for the specific purpose of constructing this project. Senate Bill 504 (Kuehl); 2003. Pub. Util. Code Section 132600 et seq.
