9. Comments on Proposed Decision

The proposed decision of the Administrative Law Judge (ALJ) was mailed to the parties in accordance with Pub. Util. Code § 311(d) and Rule 77.1 of the Rules of Practice and Procedure. VTA and the Borello Neighborhood Committee submitted comments on December 3, 2002. Staff replied to VTA's comments on December 9, 2002. The Borello Neighborhood Committee supports the proposed decision without change.

VTA faults the proposed decision for (1) "failure to harmonize" constitutional and statutory provisions that govern transit systems and the Commission, and (2) interpreting § 99152 in a manner that gives overly broad safety authority to the Commission. Staff responds that VTA has failed to identify factual, legal or technical errors in the proposed decision as required by Rule 77.3 of the Rules of Practice and Procedure. Staff asserts, and we agree, that VTA has simply repeated the legal arguments raised in its two earlier briefs in this case. Rule 77.3 provides that "Comments which merely reargue positions taken in briefs will be accorded no weight and are not to be filed." VTA also has failed to provide its version of proposed findings of fact and conclusions of law as required by Rule 77.3.

We believe that the proposed decision adequately responds to the legal arguments raised by VTA in its comments. We find untenable VTA's position that the Legislature intended that VTA merely share its grade-crossing plans informally with the Commission, and that the Commission then would be limited to making informal safety suggestions on crossings that VTA could accept, reject, or ignore. Certainly, we encourage informal communications between transit agencies and our rail safety engineers, but we cannot permit transit agencies to disregard this Commission's recommendations and orders that are intended to safeguard California motorists, pedestrians and transit agency employees.

At VTA's suggestion, we have made one minor change in the text of the decision. Because there is no evidence of record showing that street railroads before 1911 were operated only by private street railroad corporations, we have revised that reference to show that, on this record, it is an assertion by Staff rather than a statement of proven fact.