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.)
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 proposes to install safety devices at the crossing that meet the requirements both of the Commission and Union Pacific. The County has not demonstrated that it will be able to timely fence the track corridor leading to the new crossing, nor has it demonstrated the support of the Commission's RCES, which has urged a more comprehensive rail crossing plan for San Miguel and the county. Similarly, the County has not shown that a separated crossing is 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, we will approve the application. However, we will condition our approval on a number of stringent conditions that the County at hearing assured us it will be able to accomplish. The conditions are as follows:
1. Before completing the at-grade pedestrian crossing at 16th Street, the County must close (or arrange the closing of) at least two active crossings in San Luis Obispo County.2 Since there are at least 108 such crossings in the county, and the County has advised us that it has targeted a number of these crossings for closure, this requirement does not appear to be insurmountable. Closure of the two crossings will lower the overall exposure of vehicles and pedestrians to train traffic, thereby improving safety and mitigating the new at-grade crossing.
2. The County must design the new crossing to meet all applicable safety requirements, including Commission General Order (GO) 26-D (clearances), GO 72-B (pavement construction), GO 75-C (crossing protection) and GO 118 (walkways). The crossing will include a cement concrete sidewalk, swing gates and two standard No. 9 flashing light signals with automatic gates, and two standard No. 1-D signs (pedestrians and bicycles only) as described in GO 75-C. When complete, the design must be submitted to the Commission's RCES and to Union Pacific before construction begins. Additionally, the County should make every effort to immediately arrange adult crossing guards at the crossing during daylight and evening times of peak usage.
3. The County is directed to provide for vandal-resistant fencing or other barriers (walls, buildings) along one or both sides of the railroad right-of-way to close access to random crossing of the tracks and direct pedestrian traffic to the 14th Street and 16th Street crossings. Chain-link fencing can only be used if the County has a maintenance program in place to ensure that any breaks in the fence are repaired within 48 hours. The testimony shows that Union Pacific requires fencing of the tracks when it sells unused property adjacent to the tracks, and we expect Union Pacific to cooperate fully with the County in arranging for fencing for this project.
4. The County is directed to promptly investigate and design improvements to the 14th Street crossing, including sidewalks and a traffic light and other rail safety warning devices acceptable to RCES staff, to encourage pedestrian use of this existing crossing and discourage trespass crossing at unfenced areas of the track.
5. All costs of the 16th Street crossing are to be borne by the County, with the County to contract with Union Pacific for maintenance of the signaling devices at the crossing.
6. The authorization that we grant today shall expire if not exercised within two years, provided that a two-year extension of the authority may be granted upon the recommendation of the RCES.
2 A Union Pacific witness testified that the company fully supports the policy of the U.S. Department of Transportation in encouraging the consolidation or elimination of at-grade highway-rail crossings on mainline tracks. This Commission also supports that policy (see, e.g., City of Bakersfield (2004) D.04-08-013).
