2. Procedural History
VTA raised its jurisdictional argument at the first prehearing conference (PHC) in this matter on September 25, 2001. A briefing schedule was established. On November 19, 2001, VTA filed its motion to dismiss this and one other pending application (Application (A.) 01-03-0381) on grounds that the Commission's jurisdiction over light rail crossings is limited to regulation of safety appliances and procedures and post-construction safety review, and does not include the location, construction or separation of light rail crossings of roadways. The Commission's Rail Crossings Engineering Section, Safety and Enforcement Division (Staff) timely filed in opposition to the motion. On March 1, 2002, assigned Administrative Law Judge (ALJ) Walker issued a ruling that denied the motion to dismiss and held that the Commission has jurisdiction to review and approve VTA's light rail crossings.
A second PHC was conducted on April 23, 2002, at which time VTA filed a motion to withdraw its application and close the proceeding, asserting that it had a right to unilaterally withdraw an application and contending again that the Commission lacks jurisdiction to approve construction or separation of light rail crossings. The motion was opposed by Staff. By ALJ Ruling dated April 29, 2002, VTA's motion to withdraw was denied, and the application was scheduled for hearing on June 27, 2002. The ALJ Ruling also granted a motion to intervene by a neighborhood association, the Borello Neighborhood Committee.
Both ALJ Rulings encouraged VTA to amend its application to reflect its changed plans for an aerial crossing. VTA declined, arguing that to do so would cede jurisdiction to the Commission over placement and construction of light rail crossings. On May 29, 2002, Commissioner Lynch issued her Scoping Memo. She identified the issues to be decided in this proceeding as follows:
· Has VTA justified an at-grade crossing as described in the application?
· Has VTA rebutted the protest of Staff that a grade-separated crossing is the only safe method of constructing the crossing?
· Should the Commission affirm the ALJ Rulings denying the motion to dismiss for lack of jurisdiction and the motion to withdraw the application for the same reason?
· Should the Commission enjoin VTA from proceeding with this project absent Staff review and Commission approval?
The hearing was conducted on June 27, 2002. VTA presented no testimony and stated that its appearance was limited to cross-examination and to its legal argument on jurisdiction. Staff presented a single witness, a rail safety engineer, who testified that he had reviewed the proposed at-grade crossing and with his colleagues recommended that the crossing be grade-separated. Following hearing, VTA on August 6, 2002, presented its brief and various motions for official notice of documents.2 Staff and the Borello Neighborhood Committee submitted their responsive briefs during the week of September 9, 2002. VTA filed its reply brief on October 3, 2002, at which time the application was deemed submitted for Commission decision.
1 The parties later stipulated approval of crossing devices and environmental review of the at-grade crossing in A.01-03-038 without prejudice to VTA's jurisdictional position challenging Commission authority as to placement of the crossing. Placement and construction of the crossing were not at issue in A.01-03-038. 2 Without opposition, VTA's three motions for official notice of documents are granted. The motions are dated August 5 and August 6, 2002, and deal with a decision of the United States Surface Transportation Board, a Commission staff exhibit in a 1990 proceeding, and a document on grade separation options on file with the VTA Board of Directors.
