5. Discussion

Pub. Util. Code § 1201 provides that no public road, highway or street shall be constructed at grade across a railroad track without prior approval of this Commission. The Commission has exclusive jurisdiction to require, where practicable, a separation of grades. (Pub. Util. Code § 1202.) The Commission has stated that the reason for this latter requirement is that

railroad grade separations constitute ultimate protection, since all grade crossing accidents and delays then are eliminated. It has long been recognized that the Commission should not grant applications for crossings at grade where there is a heavy movement of trains, unless public convenience and necessity absolutely demand such a crossing (Mayfield v. S.P. Co. (1913) 3 CRC 474). The advantages which might accrue by way of added convenience and financial benefit are outweighed by the dangers and hazards attendant upon a crossing at grade. Accident incidence is related to increases in the number of crossings; therefore, grade crossings should be avoided whenever it is possible to do so (Kern County Bd. of Supervisors (1951) 51 CPUC 317). (City of San Mateo (1982) 8 CPUC2d at 580-81.)

The Commission has set the bar high for approval of a new at-grade crossing of a heavy rail mainline:

Today in this State a proponent who desires to construct a new at-grade crossing over mainline railroad trackage carrying any appreciable volume of passenger traffic has a very heavy burden to carry. Against the aforestated formidable backdrop of fundamental statutory and professional opprobrium, he must convincingly show both that a separation is impracticable and that the public convenience and necessity absolutely require a crossing at grade. (City of San Mateo, supra, at 581.)

In Re Los Angeles to Pasadena Metro Blue Line Construction, 2002 Cal. PUC LEXIS 301, *15, the Commission provided guidance regarding the standards it will apply to determine whether a separated grade is practicable and whether an at-grade crossing is justified by public need and convenience, indicating that it will give consideration to the cost of a separation in comparison to the cost of an at-grade crossing. (It should be noted that this case involved the proposed crossing of a light rail system; light rail vehicles have superior stopping capabilities in comparison to freight trains.)

The Commission indicated that it would consider an otherwise cost-prohibitive at-grade crossing if the applicant shows (1) elimination of all potential safety hazards; (2) concurrence of local authorities; (3) concurrence of local emergency authorities; (4) support by the general public; (5) cost justification; and (6) Commission staff concurrence.

The County here has shown broad community support for the proposed new crossing, particularly among parents of children who use the dirt path crossing. Since only pedestrians would use the crossing, emergency vehicles are unaffected. The County proposed safety devices at the crossing that would meet the requirements both of the Commission and Union Pacific. The County did not demonstrate that it will be able to timely fence the track corridor leading to the new crossing, nor did it demonstrate the support of the Commission's RCES, which urged a more comprehensive rail crossing plan for San Miguel and the county. Similarly, the County did not show that a separated crossing was impracticable.

Solely on the merits of the County's application, therefore, a new at-grade crossing at 16th Street should be denied, with a recommendation that the County consider improving the nearby 14th Street crossing and routing children there or encouraging them to take an existing school bus service.

As a practical matter, however, the County has persuaded us - and Union Pacific's witnesses agree - that a growing number of children (and adults) are going to continue to use the dirt path crossing at 16th Street to get to school, as they have been doing for the past decade or more. Furthermore, even if the tracks are fenced the entire distance to 14th Street, fencing alone is not likely to deter children for long if the alternative is to walk a considerable distance out of their way to reach the school.

For these reasons, and primarily because the current situation puts children at risk, ALJ Walker on July 25, 2006, issued a proposed decision approving the application. The approval was subject to a number of conditions, including closure of two existing crossings, construction of tamper-proof fencing to discourage children from crossing tracks at open areas, installation of new safety devices at the approved crossings, and improvements to the existing 14th Street crossing.

The County and Union Pacific then requested an extension of time in which to comment on the proposed decision in order to further consider settlement. The extension was granted. On April 23, 2007, the parties moved for approval of a proposed settlement agreement pursuant to Rule 12.1 of the Rules of Practice and Procedure. It is this settlement that the Commission approves today.2

The settlement agreement settles all issues between the applicant and Union Pacific and the Commission's rail crossing staff. The criteria for settlements are set forth in Rule 12.1(d) of the Rules of Practice and Procedure, which requires that a settlement be reasonable in light of the whole record, consistent with law, and in the public interest. We conclude that the settlement agreement is consistent with these criteria, and we approve it in the order that follows.

The settlement agreement is attached to and made part of this decision as Exhibit A. Its terms include the following conditions:

2 Under Rule 1.2, we waive the requirement that a settlement must be finalized within 30 days after the close of public hearings. The waiver is based on the unique circumstances of this case and the fact that children are at risk.

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