The City of Vinita, Oklahoma - Oklahoma Corporation Commission

BEFORE THE CORPORATION COMMISSION OF OKLAHOMA
APPLICANT:
THE CITY OF VINITA, OKLAHOMA
RELIEF SOUGHT: AN ORDER OF THE CORPORATION
COMMISSION AMENDING THE
ORDER PREVIOUSLY ISSUED IN
TD-2006-00031 BY CANCELING THE
PORTION CLOSING THE CROSSING
AT DELAWARE AVENUE WITHIN
THE CITY OF VINITA, CRAIG
COUNTY, OKLAHOMA.
HEARING:
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Cause No. TD 201000012
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F
IL E
JUN 2 3 2011
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COURT CLERKS OFFICE - 0KG
tORPORKUON COMMISSION
OF OKLAHOMA
June 23,2010,in Courtroom 3Ol
2101 North Lincoln Boulevard, Oklahoma City, Oklahoma 73105
Before Maribeth D. Snapp, Administrative Law Judge
APPEARANCES: Jot Hartley and Travis Hartley, Attorneys for the City of Vinita
Robert D. Hart, Attorney for Union Pacific Railroad Company
Kathy L. Nelson, Assistant General Counsel, and Jeffrey P. Southwick,
Deputy General Counsel, for Transportation Division
REPORT OF THE ADMINISTRATIVE LAW JUDGE
A.
Summary of ALJ Recommendation
The Administrative Law Judge ("AU") recommends that the Commission approve the
opening of a railroad crossing at Delaware Avenue in the City of Vinita, to protect the safety of
young pedestrians in the SE quadrant of Vinita.
B.
D
Procedural History
Applicant, the City of Vinita, filed an Application March 15, 2010, requesting that the
Commission amend Order No. 527528, which was issued in Cause No. TD 200600031 on
July 18, 2006. Order No. 527528 approved a corridor project affecting seven railroad crossings
in and near the City of Vinita, Oklahoma.
The City of Vinita seeks to re-open the railroad crossing at Delaware Avenue, which was
closed pursuant to the corridor project agreement reached between the City of Vinita, the
Oklahoma Department of Transportation ("ODOT") and the Union Pacific Railroad Company
("Union Pacific"), and approved by Commission Order No. 527528.
On June 23, 2010, the Union Pacific filed an Objection to the Application.
Cause No. TD 201000012 — Report of Administrative Law Judge
Page 2ofl3
The merits of the Application came on for bearing June 23, 2010, before an
Administrative Law Judge.
C.
Summary of Allegations
The City of Viriita states that after the Delaware Avenue railroad crossing was closed, it
was determined that closure of the Delaware Avenue crossing created a hardship for the
community in general and caused a disproportionately adverse impact on the minority citizens of
the City of Vinita in particular. The City of Vinita stated that it was willing to bear the expense
of reopening the Delaware crossing and that it was their belief the cost to the City of Vinita
would be about $50,000.
Union Pacific filed an Objection to the Application on June 23, 2010. In the Objection,
Union Pacific stated that Order No. 527528, approved an agreement between the City of Vinita,
the ODOT and Union Pacific for a corridor project in the City of Vinita, Oklahoma. The
corridor project was approved by the City Counsel of Vinita pursuant to City Resolution No.
2005-3293 and as a result of the agreement, an estimated $1,105,000 was spent on improvements
to the railroad crossings within the corridor. As part of the corridor project, and in exchange for
the use of federal money for improvements to the railroad crossings in Vinita, the City Counsel
agreed to close the Delaware Avenue crossing.
Union Pacific objected to the City of Vinita's request on the grounds that although the
Delaware Avenue crossing had been closed for over two years, the City had failed to produce
anything but anecdotal evidence that the lack of a crossing is .perceived as a nuisance. Union
Pacific alleged that the City of Vinita failed to show that:
1) Any increase in traffic has actually occurred on First and Second Streets in Vinita;
2) Any accidents have actually occurred to pedestrians walking on First and Second
Streets in Vinita due to an increase in vehicular traffic; and
3) Any persons representing the emergency services in Vinita have registered any
complaints of difficulty in reaching the East side of Vinita due to the closure.
Union Pacific also pointed out that the City of Vinita was in the best position to analyze
the issues of which crossings should be improved and which should be closed at the time
Resolution No. 2005-3293 was passed by the City Council and there has been no evidence of a
change of circumstances since the Final Order was issued in TD 200600031.
Union Pacific suggested that a safer alternative to re-installing a railroad crossing at
Delaware Avenue would be for the City to instead install sidewalks on First Street and Second
Street. Union Pacific pointed out that Canadian Avenue, which is 792 feet away from Delaware
Avenue, received an installation of lights and gates in the corridor project. Additionally, the next
crossing to the South of Delaware Avenue, Excelsior Avenue, is equipped with lights and gates.
Union Pacific stated that the May 21, 1998, Final Report of the Oklahoma Railroad
Grade Crossing Safety Task Force does not support the opening of any new crossings and
recommends that any new opening be accompanied by a closure. If Delaware Avenue is reopened as a RR crossing, Union Pacific argues that another crossing should be closed in its stead.
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 3 of 13
Funding for the reopening of the crossing was also raised as an issue by Union Pacific.
The City of Vinita received crossing upgrades along a corridor of the Union Pacific Railroad line
through the City of Vinita, which exceeded one million dollars, based in part on the fact that the
Delaware Avenue crossing was being closed. Union Pacific objected to the re-opening of
Delaware Avenue, because the City has not offered to pay for the entire cost of re-opening the
crossing as well as any expenses for proper signalization. Union Pacific also expressed concerns
regarding the increased maintenance expenses that will be incurred by Union Pacific if the
Delaware crossing is re-opened, as well as the potential future liability in the form of vehicletrain collisions.
D.
Summary of Evidence
1.
Charlie Enyart, City Administrator for the City of Vinita, testified that he was the
City Administrator during the time that the corridor project was discussed with ODOT and
Union Pacific. He further indicated that he was a police officer prior to becoming the City
Administrator and, in that capacity he received training regarding railroad safety. He did not
recall any accidents that had occurred at the Delaware crossing, prior to its closure.
2.
Mr. Enyart stated that there is a proper sight distance at the Delaware crossing if
traffic is traveling at an appropriate traffic speed. He indicated that although he was unaware of
the precise number of trains that move through the Delaware crossing each day, there are several
trains each day.
Hearing Exhibit No. 1 was introduced, which was an aerial map of the City of
3.
Viita, with a circle drawn by hand around the Delaware crossing. Mr. Enyart also pointed out
the two ball fields located in Attucks Park, South of the Delaware crossing and West of 1st and
2nd Streets. Mr. Enyart identified the location of a day care on Attucks Street, which is the street
West of Delaware Avenue, and indicated that the day care has been impacted by the closure of
the crossings at Attucks Street and Delaware Avenue.
4.
Mr. Enyart testified that there is a convenience store, a car wash, Snow Cone
stand and a weight lifting facility, on Delaware Avenue, on the North side of the railroad tracks.
Youth in Vinita like to "hang out" at these facilities and these facilities are most easily accessed
from the South side of the track via Delaware Avenue. It was further the testimony of
Mr. Enyart that the traffic level on both 1St and 2nd Streets has increased as a result of the closure
of the crossing at Delaware Avenue.
The Canadian Avenue railroad crossing is open and located one block East of
5.
Delaware Avenue, a distance of about 450 feet. Mr. Enyart stated that traffic on Canadian
Avenue tends to flow more quickly than it did on Delaware Avenue, in part because Canadian
Avenue was designed to be a secondary artery and is wider than Delaware Avenue. Commercial
growth along 7th Street has contributed to an increased traffic flow on Canadian Avenue. Since
there are no sidewalks on Canadian Avenue, the increased speed makes travel for pedestrians
and bicycle riders more dangerous on Canadian Avenue than it was on Delaware Avenue. It was
the opinion of Mr. Enyart, as City Manager for Vinita, that the railroad crossings that remained
open through Vinita after the corridor project was completed, do not meet the needs of the
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 4 of 13
residents of the SE quadrant of Vinita. He further testified that if the railroad crossing at
Delaware Avenue were to be reopened, pedestrians would use the crossing at Delaware Avenue.
Mr. Enyart stated that the City of Vinita relied upon the ODOT for a
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determination of the number of trains that cross Delaware Avenue, when the decision was made
to close the Delaware Avenue crossing.
It was further the testimony of Mr. Enyart that when the City of Vinita was
7.
talking to the representatives of the ODOT and the Union Pacific Railroad, that the City of
Vinita was told that 2 crossings would need to be closed in exchange for the upgrades at the
other crossings. It was his opinion that if the crossing at Euclid Avenue had not been included in
the original corridor plan, it would have only been necessary to close one street in order to
receive federal funding for the corridor project, and the closure of the Attucks Avenue crossing
would have satisfied the requirement to close one crossing in exchange for funding to improve 3
crossings that would remain open.
Mr. Enyart indicated that when Union Pacific sought to modify the Commission's
8.
approval of the original corridor project by removing Euclid Avenue from the list of crossing
that would receive improved signalization, the City of Vinita wanted to join in that application to
modify and re-open the Delaware crossing in the same Cause. It was instead agreed that if the
City of Vinita were to withdraw their request to reopen the Delaware Avenue crossing from the
Cause brought to remove Euclid Avenue, then Union Pacific would not oppose the request by the
City of Vinita to reopen the Delaware Avenue railroad crossing.
Mr. Enyart stated that citizens of Vinita have expressed their opinion that it would
9.
be safer to re-open the Delaware Avenue crossing than it is to have the Delaware crossing remain
closed.
10.
On Cross-examination, Mr. Enyart acknowledged that he was the City
Administrator in 2005 when the original corridor project was proposed and that it was his job to
gather information and provide it to the City Council and the Mayor of Vinita. Additionally, Joe
Johnson was the mayor of Vinita in 2005 and is the mayor of Vinita now. Jot Hartley, one of the
attorneys who signed the application in this Cause, was the City Attorney in 2005.
11.
Hearing Exhibit No. 5, which was a set of the Accident/Incident reports for the
Delaware Avenue crossing, was introduced. Mr. Enyart indicated he was not familiar with the
accident reports, but did not dispute their accuracy. The accident reports are for 3 non-fatal
accidents at the Delaware Avenue crossing, in 1993, 1999, and 2008. He indicated that there
have been no accidents at the Delaware Avenue crossing since the crossing was closed, but kids
are crossing the track at Delaware Avenue even though there is no formal crossing.
12.
Mr. Enyart testified that if a second crossing needed to be closed to satisfy the
requirements for a corridor project, the Flint Avenue crossing could be closed.
13.
Mr. Enyart acknowledged that the ball fields, Wal-Mart and the car dealership
that he referenced as affecting traffic on Delaware and Canadian Avenues, were present in 2005
when the corridor project was being discussed. He further testified that the City of Vinita has a
traffic engineer on retainer at the present time and also had access to a traffic engineer in 2005.
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 5 of 13
It was the testimony of Mr. Enyart that Euclid Avenue, which was originally
14.
scheduled for a traffic signal upgrade as part of the 2005 corridor project, is not a major artery in
town and is about 3-4 blocks from Delaware Avenue. The next crossing to the North of the
Delaware crossing is the Canadian Avenue crossing and the next crossing to the South of the
Delaware crossing is Excelsior Avenue, both of which have lights and gates. Mr. Enyart
indicated that no car counts were done by the City of Vinita on First or Second Street, either
before or after the closure of the Delaware crossing, to show the effect of the Delaware crossing
closure on the traffic count of First and Second Streets. Additionally, Mr. Enyart was unable to
offer any evidence of a change in emergency vehicle response time to the SE quadrant of Vinita,
as a result of the closure of the Delaware crossing.
Mr. Enyart testified that the City of Vinita passed a resolution to obligate funds to
15.
pay for the reopening of the Delaware Avenue crossing, in the amount of $50,000 - 60,000. It
was his belief that the ODOT would pay for part of the cost to reopen the Delaware crossing and
that Union Pacific would also pay some of the costs to reopen the crossing. He stated that his
estimated cost to the City of Vinita was based upon emails he had exchanged with John
Dougherty at ODOT. He acknowledged that if the Delaware crossing is reopened, Union Pacific
will have to take on the care and maintenance of the lights and gates in the future. He indicated
that the City of Vinita has not discussed the installation of sidewalks along 1St and 2'' Streets, nor
has the City considered sidewalks along Canadian Avenue as a possible solution to the
pedestrian issues caused by the closure of the Delaware crossing.
According to Mr. Enyart's testimony, use of the Excelsior crossing by pedestrians
16.
would be more dangerous than use of the Canadian crossing, since the Excelsior crossing is used
by trucks that are seeking to avoid the Canadian Avenue crossing. With regard to pedestrians
using 1st Street to go from Delaware Avenue to Canadian Avenue, Mr. Enyart testified that 1st
Street is only 15 feet wide and 2 cars cannot pass comfortably, so pedestrians need to walk in the
ditch or the grass. With regard to pedestrian use of
Street, it was his testimony that because
of the open cut ditches along 2' Street and the lack of sidewalks, parents are more likely to give
their children a ride rather than allow them to walk down 2 Street.
Mr. Enyart further testified that initially, Union Pacific wanted to close the Flint
17.
Avenue crossing rather than the Delaware crossing, but the City Council did not want to close
the Flint Avenue crossing. He acknowledged that the resolution passed by the city of Vinita,
Resolution 2009-3424 (Hearing Exhibit 6), did not provide any documentation to indicate that
ODOT has set aside any money for signalization at the Delaware crossing.
Joe Johnson testified that he has been the Mayor of Vinita since 1994. He stated
18.
that since the time the Delaware Avenue crossing was closed, people in the SE quadrant of
Vinita, many of whom are of Native American or African American descent, have indicated that
they feel separated from the rest of Vinita.
Mi. Johnson indicated that there are about 6,400 residents of Vinita and there is
19.
only one convenience store that is close to Delaware Avenue and the city park located south of
the railroad tracks on Delaware Avenue. Because Delaware Avenue used to be a through street
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 6 of 13
across the railroad tracks, Delaware is the preferred route of the community, across the railroad
track.
20.
Mr. Johnson explained that the City of Vinita has agreed to pay $50,000 toward
the costs of re-opening the Delaware crossing, which the City of Vinita believes will be the city's
share of re-opening the Delaware crossing. It was his belief that the ODOT was willing to pay
the costs above the $50,000 for the re-opening of the Delaware crossing and he agreed to supply
an exhibit, to be marked as late filed hearing exhibit 7, which would consist of a statement from
the ODOT regarding their willingness to pay for the project.
21.
Upon cross-examination, Mr. Johnson acknowledged that there has not been
much change in the population demographics of Vinita since the Delaware railroad crossing was
closed. Mr. Johnson also indicated that even if the Canadian crossing were to be improved to
make it pedestrian friendly, he was not confident that the citizens of Vinita would use it, because
of their preference to use Delaware crossing. He further indicated that Vinita does not have
sidewalks along other streets that cross the railroad.
With regard to the Flint Avenue crossing, it was explained that Union Pacific and
22.
Burlington Northern hold trains close to the Flint crossing, for the purpose of allowing oncoming
trains to pass.
23.
With regard to vehicle traffic, Mr. Johnson testified that a lot of people would use
Delaware Avenue rather than Canadian Avenue, if the crossing were to be re-opened. If the
Delaware crossing were to be re-opened, signal lights would be installed, which would be much
safer than the situation now, which is a total lack of signals, a situation that could create more
danger for the pedestrians who go around the barricade to go across the tracks.
Berry Armstrong testified that he was the Police Chief of the City of Vinita and
24.
had been with the police department of Vinita for a total of 19 years. During his tenure with the
police department he attended training regarding safety at railroad crossings. He testified that
the Delaware crossing provided a valuable crossing for both vehicles and pedestrians, prior to its
closure. Since the closure, there has been an increase in the traffic on 1st and
streets, to get to
Canadian Avenue and Excelsior Avenue. It was his opinion that this increased traffic has
negatively affected the ability of emergency vehicles to respond to emergencies in the area. It
was his opinion that re-opening the Delaware crossing would facilitate responses by emergency
vehicles.
25.
On cross-examination, Mr. Armstrong acknowledged that he had not done any
studies before or after the closure of Delaware Avenue, regarding actual response times by
emergency vehicles.
John Parker II testified that he is a Vinita resident and is a safety manager for a
26.
mental health services company. He has been a Vinita city council member for about 1 year and
the people he represents live in the area around the Delaware crossing. When he was
campaigning for city council, his constituents had a number of complaints regarding the closure
of the Delaware crossing. He indicated the people feel isolated by the closure of the Delaware
crossing and he has not been told by a single person that the Delaware crossing should not be re-
Cause No. TD 201000012— Report of Administrative Law Judge
Page 7 of 13
opened. As the result of the input he received from his constituents, he determined that many
people feel like Delaware Avenue is the main access to the SE part of Vinita.
With regard to safety, he has been approached by parents who were concerned
27.
that their children had to walk outside the view of the parent, in order to get to the convenience
store. He is a coach and has observed children carrying bicycles around the bather at Delaware
Avenue rather than riding to a nearby crossing.
He further testified that he has observed increased traffic on 1St and 2 d Streets and
28.
Excelsior Avenue and it has increased since the Delaware crossing was closed.
With regard to the city council meeting at which the corridor project was
29.
approved, he was unaware of anyone suggesting that the item had not been properly noticed to
be heard, although he was not part of the city council when the vote was taken.
Opal All testified that she has lived in Vinita most of her 81 years. She filed an
30.
affidavit and indicated she stands by her statement. She testified that prior to the closure of the
Delaware crossing, she always used Delaware as a main street in the area of the SE quadrant of
Vinita. She testified that Delaware has always been a main street through the SE quadrant,
because of the school and park in the area. She stated that because of the closure of the
Delaware crossing, there is a lot of traffic now on 1st , 2nd and 3' streets. Ms. Allen stated that in
order for her daughter to go to work at the Shout and Sack, the convenience store on Delaware
north of the tracks, she has to go several blocks out of the way before arriving at the Shout and
Sack. Ms. Allen testified that her personal safety would be enhanced if the Delaware crossing
were to be re-opened. She also indicated that she and her neighbors feel isolated from the
remainder of Vinita now that the Delaware crossing has been closed.
Glenda Downing testified that she has been actively seeking to re-open the
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Delaware crossing since its closure. She is employed by the Vinita Public Schools and works at
the Attucks Alternative Academy. There are a number of single parents in the area located south
of the Delaware crossing and they historically walk to the store. She helped compile a group of
SE citizens and has been trying to get the city council to change the plan to close the Delaware
crossing since the time it was approved by the city council.
Ms. Downing testified that parents can no longer watch their kids walk up
32.
Delaware Avenue to reach the Shout and Sack, a convenience store on the other side of the
railroad tracks. She testified that the community is united to get the Delaware crossing reopened. She further testified that children must walk home from the Attucks Alternative Center
down some busy streets now that the Delaware crossing is closed.
On cross-examination, she testified that she and her neighbors first became aware
33.
that the Delaware crossing would be closed, after the first city council meeting that addressed the
closure of the Delaware crossing. She did not get actively involved until after the city had voted
to allow the closure of the Delaware crossing. She attended a city council meeting to express her
concerns regarding the closure of the Delaware crossing, after the Delaware crossing had been
voted to be closed by the city council and expressed her concern that there should have been
more discussion regarding the closure of railroad crossings before a final decision was made.
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 8 of 13
Ms. Downing testified that the City of Vinita has a newspaper that prints a copy of the city
council agenda and the chamber of commerce has a TV channel but she was not certain whether
the TV channel lists the agenda of the city council.
Ms. Downing stated it was frustrating that two crossings that are within a block of
34.
each other were closed: Attucks Avenue and Delaware Avenue. She stated that there is an
underpass at Sequoyah Avenue, where pedestrians can walk beneath the railroad.
Chuck Hoskin testified that he is a State Representative for District 6, which
35.
includes the City of Vinita. He has received more calls regarding the Delaware crossing, than he
has received regarding any other issue. He stated that auto traffic has been affected by the
closure of the Delaware crossing. He stated that even as a child, be was not permitted to use
Canadian Avenue to go to the ball field. Instead, his mother made him use Delaware Avenue.
He has noticed a change in traffic patterns since the closure of the Delaware crossing,
particularly on 1st 2nd 3rd and 4 th Streets. He testified that Hearing Exhibit 8 is a letter from
himself and other legislators that supports the re-opening of the Delaware crossing. He stated
that he believed people would be safer if the Delaware crossing were to be reopened. It was his
further testimony that people in the SE quadrant of Vinita feel like they have lost their
connection to Vinita since the Delaware crossing has been closed.
On cross-examination by the AIJ regarding funding from the State of Oklahoma
36.
to help pay for the re-opening of the Delaware crossing, Representative Hoskin testified that he
would do what he could to help find State funding to re-open the Delaware crossing, if that were
necessary.
Public comment was given by City Council members Lynnda Scooter and Skip
37.
Briley. Each stated that they would like to see the Delaware crossing re-opened, because at the
time the decision was made to close the crossing, the city council did not fully appreciate the
negative impact the closure would have on the residents of the SE quadrant of Vinita and the city
council would like to "make it right."
Late filed Exhibit 7 contained a series of emails and memos between John
38.
Dougherty at ODOT, David Streb at ODOT, Joe Kyle at ODOT, and Charles Felkins at Union
Pacific, as well as correspondence with Charlie Enyart, the City Administrator for the City of
Vinita. A copy of Exhibit 7 is attached hereto as "Attachment A" and incorporated herein by
reference. Exhibit 7 reflects that ODOT and the City of Vinita and the Union Pacific railroad
had discussions between October 17, 2008, and January 29, 2009, regarding the reconfiguration
of the corridor project previously approved for the City of Vinita and the re-opening of the
Delaware crossing. Exhibit 7 documents discussions between the City of Vinita and ODOT that
the corridor project could be modified to remove Scraper Street and Euclid Street, because those
two streets are county locations and not within the city limits of the City of Vinita. Additionally,
the Delaware Avenue crossing would be re-opened, as a stand-alone project. This would reduce
the previously approved corridor project to: State Hospital Road, Flint Avenue, Canadian
Avenue, and Attucks Avenue. Since Attucks Avenue was closed, this would meet the guideline
of closing 25% of the crossings included within a corridor project.
Cause No. TD 201000012 - Report ofAdministrative Law Judge
Page 9 of 13
Exhibit 7 also reflects an agreement to request federal funding for 90% of the cost
39.
of the railroad signals and surface at Delaware Avenue, with the City of Vinita to pay 10% of the
cost of the railroad signals and surface at Delaware Avenue, 100% of the cost of removing the
barricades at the Delaware crossing, and 100% of the cost to file an application to re-open the
Delaware crossing. The City's share of these costs was estimated to be about $44,900.
Additionally, the City would be responsible for the cost to reconstruct Delaware Avenue on both
sides of the crossing, drainage, obtaining permits from the Union Pacific for use of the Union
Pacific easement to construct the crossing, and the cost of pavement on both approaches. It was
anticipated by the correspondence in Exhibit 7 that Union Pacific would not be responsible for
any construction costs associated with the re-opening of Delaware Avenue and the reconstruction
of the Delaware Avenue railroad crossing.
40.
Exhibit 7 also indicates that new agreements with Union Pacific would be
necessary. It was further indicated by the correspondence that Union Pacific had not made any
new estimates with regard to the cost to re-open the Delaware crossing and it was unknown
whether new engineering studies would need to be performed to enable the railroad signaling
equipment that was originally planned for Euclid Street to be utilized at a newly opened
Delaware Avenue crossing.
E.
Findings of Fact and Conclusions of Law
The correct DOT # for the Delaware Avenue crossing, prior to it being closed,
1.
was DOT #413-524D not DOT # 413-5240 as is stated in the Application.
The Delaware Avenue crossing in the City of Vinita was closed pursuant to Order
2.
No. 527528 issued July 18, 2006, in Cause No. TD 200600031, which approved a corridor
project in the City of Vinita that affected a total of seven crossings:
a)
b)
c)
d)
e)
f)
g)
Eastern State Hospital Road - Lights and gates
Canadian Avenue - Lights and gates
Flint Avenue - Lights and gates
Euclid Avenue - Lights and gates (later modified by Order No. 567806)
Scraper Street - Flashing Lights
Attucks Avenue - Closure
Delaware Avenue - Closure
The corridor project was developed after a diagnostic review team found that the
3.
affected crossings either warranted upgraded signalization or warranted closure, based upon the
standards set forth in the May 21, 1998, Final Report of the Oklahoma Railroad Grade Crossing
Safety Task Force, as well as all pertinent state and federal regulations.
Subsequent to the issuance of Order No. 527528 in Cause No. TD 200600031, the
4.
Commission amended Order No. 527528 in Cause No.TD 200900013, by the issuance of Order
No. 567806, which removed the improvements at Euclid Avenue from the improvements to be
made as a part of the corridor project, for the reason that Euclid Avenue was outside the city
limits of Vinita and the crossing at that location served one residence. The City of Vinita did not
object to the change regarding the Euclid Avenue crossing, indicating that Euclid is a dead end
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 10 of 13
road that ends in a flood plane, so it is unlikely that there will be further development on Euclid
Avenue.
The application filed in TI) 200900013 indicated "[u]pon information and belief,
5.
the City of Vinita intends to petition the Commission to re-open the currently closed Delaware
Avenue crossing and ask for leave to have lights and gates installed." At the time of the hearing
in TD 200900013, the attorney for Union Pacific advised the court that Union Pacific had been
made aware that the City of Vinita would seek to reopen the Delaware Avenue crossing.
Counsel further stated that Union Pacific would not join in the application to reopen the
Delaware Avenue crossing.
6.
At the time of the hearing in ID 200900013, the Administrator for the City of
Vinita, Travis Parker, gave public comment to indicate that the City of Vinita was in agreement
with the removal of the Euclid crossing from the corridor project previously approved by Order
No. 527528. Mr. Hartley further indicated that the City of Vinita planned to seek re-opening of
the Delaware crossing at some time in the future.
7.
The ALJ finds that any modification to a Commission order must pass or fail
upon its own merits and that any agreement between Union Pacific and the City of Vinita as to
objections or no objections to be raised by a party, should not be considered relevant to the
Commission's decision regarding modification of the corridor project in the City of Vinita.
8.
Notice of the application in this Cause was served upon the ODOT by the
Applicant. ODOT did not appear at the hearing in this cause. Because MOT had notice of the
hearing, their non-participation in this proceeding should not be a reason to deny the applicant
the relief requested.
9.
It is apparent from the testimony that the closure of Delaware Avenue resulted in
some "unintended consequences" from the standpoint that, among other things, the closure
eliminated the regular route for residents desiring to go from two ball fields located south of the
Delaware Avenue crossing to the Shout and Sack convenience store, Snow Cone Stand and
fitness center located on the north side of the tracks. Additionally, the community feels "cut off'
from the north side of Vinita as a result of the closure of the Delaware crossing.
10.
Although there are other streets nearby that continue to have railroad crossings
with adequate signals and gate arms, those streets are not perceived by the general public as
being good alternative routes, because of the speed of traffic upon them and the lack of
sidewalks along those streets.
The ALJ finds that the closure of the Delaware crossing has created a safety
11.
hazard because children have been observed riding and walking their bicycles around the barrier
that closes the Delaware crossing, so that they can continue to go to the Shout and Sack
convenience store and Snow Cone stand, in the most direct route from the two ball parks.
12.
Although counsel for the City of Vinita argued that there is no longer a corridor
project because of the removal of the Euclid crossing from the planned crossing modifications,
the AILJ finds that federal funding was received based upon the seven crossings being part of a
Cause No. TD 201000012 - Report ofAdministrative Law Judge
Page 11 of 13
corridor project. The modification to Order No. 527528 with regard to the Euclid crossing does
not automatically change the reason federal money was forthcoming to improve the crossings
that were within the corridor project approved by Order No. 527528 issued in Cause No. TD
200600031.
The Application filed by the City of Vinita indicates that the City of Vinita will
13.
bear the cost of re-opening the Delaware crossing. The Application does not, however, address
the financial responsibility for any engineering studies to determine the appropriate signalization
nor the expenses associated with installing and maintaining the signalization.
Exhibit 6, City Council resolution No. 2009-3424, dated February 3, 2009, states
14.
that the City of Vinita will be responsible for the re-opening of Delaware Avenue at an estimated
cost of $50,000. The same resolution states that installation of Pedestal Flashing Signals with
Gates Utilizing Prediction Circuitry and the installation of a 32 foot Full Depth Concrete Surface
at Delaware Avenue, is estimated to cost $300,000. This same resolution states that Railroad,
City, and Federal funds will be used to jointly fund the listed safety improvements, at an
estimated total cost of $350,000.
15.
Late filed Exhibit 7, which was filed July 28, 2010, and was therefore, not
available for scrutiny and cross-examination through a witness at hearing, is a compilation of
memos and emails dated between the dates of October 17, 2008, and January 29, 2009. These
memos, which are between John Dougherty at ODOT, Joe Kyle at ODOT, David Streb at
ODOT, Charles Felkins at Union Pacific, and Charlie Enyart with the City of Vinita, indicate
that an agreement was reached wherein federal funds and funds from the City of Vinita would be
used for the purpose of installing signalization and re-opening the railroad crossing at Delaware
Avenue, to include new concrete surfaces and road surfaces that interface with the crossing.
16.
Although there has been a crossing at Delaware Avenue in the past, the ALJ finds
that once a crossing has been closed, the crossing location should be evaluated for the
establishment of a re-opened crossing in the same manner that a new crossing would be
evaluated, under the guidelines set forth in the May 1988 Final Report of the Oklahoma Railroad
Grade Crossing Safety Task Force ("Final Report").
17.
The Commission has previously determined, and the Oklahoma Court of Civil
Appeals has affirmed', that the Final Report, which contains criteria for opening and closing
railroad crossings, is to be viewed as a recommendation, rather than equated to a set of rules.
Nevertheless, when the guidelines of the Final Report are applied, the ALJ finds it is appropriate
to establish a railroad crossing at Delaware Avenue.
18.
Pursuant to the Final Report, any new crossing should be evaluated by asking, "if
the crossing were an existing crossing, would it be a candidate for closure?" The ALJ finds that
if the information regarding the use of Delaware Avenue as a main thoroughfare from the SE
Quadrant of Vinita had been presented in the manner presented in this Cause, when a decision to
'BNSF Railway Company v. Board of County Commissioners of Tulsa County, 2011 Ok Civ App 32., 250 P3rd
906.
Cause No. IV 201000012— Report of Administrative Law Judge
Page 12 of 13
close the Delaware crossing was made in 2006 in Cause No. TD 200600032, it is unlikely that
the Delaware Avenue crossing would have been considered a good candidate for closure.
Utilizing the guidelines set forth in the Final Report for opening a new crossing
19.
and the testimony given regarding the ability to watch a pedestrian reach their destination at the
Shout and Sack, while standing on Delaware Avenue south of the railroad tracks, the ALJ finds
that the Delaware crossing will have:
a)
b)
c)
adequate sight distance for the motor vehicle driver to see a train
occupying the crossing
a sufficient "sight triangle" distance on the right and the left to allow the
motor vehicle driver to make a safe stop if a train is approaching at its
authorized speed; and
adequate sight distance for slower moving buses and commercial vehicles
to cross safely.
Additionally, the ALJ finds that the Delaware crossing, when open in the past had:
a)
b)
a good track record regarding a low incident of accidents;
sufficient number of motor vehicles that utilize the crossing daily to justify
the safety risk and financial expense.
The ALJ further finds:
a)
b)
C)
there is no reason to believe that emergency vehicles will be subject to
being blocked by train activity at the crossing;
there is a single track, so there is no need to evaluate whether more than
one train can occupy the tracks at the same time; and
adequate warning devices will be required as a condition of opening the
Delaware crossing.
The ALJ finds that prior to the opening of the Delaware crossing, adequate
20.
warning devices must be installed at the crossing. Additionally, the stop markings at the
crossing must be established to allow at least 200 feet between the stop markings and the
roadway clearance point, for vehicle storage. These requirements are consistent with the Final
Report. The appropriate warning devices and the proper type of grade crossing for the Delaware
Avenue crossing should be determined by the Union Pacific Railroad in conjunction with the
Oklahoma Department of Transportation and a new application filed with the Commission for
approval of the warning devices.
The ALJ finds that under the guidelines of the Final Order, the Commission
21.
should consider whether a different crossing should be closed, as a condition of opening the new
crossing. The ALJ finds that with the Attucks Avenue crossing closed, which is the next major
street south of Delaware, and the amount of traffic on Canadian Avenue, which is the next major
street north of Delaware, there is no need to close another crossing prior to opening the Delaware
crossing, in order to enhance the safety of the traveling public in the City of Vinita. Instead, it
was the testimony at the hearing that opening the Delaware Avenue crossing should remedy
increased traffic upon the narrow streets of the Southeast quadrant of the City of Vinita, which
will provide increased safety for the citizens by reducing traffic upon streets without sidewalks,
Cause No. TD 201000012— Report ofAdministrative Law Judge
Page 13 of 13
and which are not designed to accommodate the increased traffic in an area of town where there
are many pedestrians traveling said streets.
The ALJ finds that pursuant to late filed hearing exhibit 7, the City of Vinita and
22.
ODOT have reached a tentative agreement regarding the assessment of the cost of creating a new
crossing at Delaware, as between themselves. Accordingly, the ALJ fmds that the final decision
regarding the apportionment of costs between the City of Vinita and ODOT should be left to the
discretion of ODOT and the City of Vinita.
23.
The AIJ finds that Union Pacific was not actively involved in the 2005 decision
by the city council of Vinita and ODOT to select the Delaware crossing as a crossing to be
closed as part of the corridor project. Accordingly, the AIJ finds that Union Pacific should not
be assessed any part of the cost that will be incurred in re-establishing a crossing at Delaware
Avenue, whether for the determination of the appropriate signalization, or for the warning and
signal equipment or for the construction of a crossing. Union Pacific should however bear the
costs associated with maintaining the warning signals in the future at Delaware crossing, as the
signals are for the mutual benefit of the railroad and the traveling public, and because there are
no winners when an accident occurs at a railroad crossing.
24.
The Commission has jurisdiction in this Cause pursuant to Article IX, Section 18
of the Oklahoma Constitution, and 17 0. S. § § 81, et seq.
F.
Recommendation
The ALJ recommends the Commission find that it is appropriate to open a new railroad
crossing at Delaware Avenue in the City of Vinita. The ALJ further recommends the
Commission direct the cost of opening the new crossing, for any engineering studies,
construction of the approaches, construction of the crossing surface, signalization, and any
related costs, be borne by the City of Vinita and ODOT, pursuant to their agreement regarding
allocation of costs. The ALJ further recommends the Commission find that no costs for the
opening of the new crossing should be borne by Union Pacific, but the cost for future
maintenance of the signalization and crossing surface at the Delaware Avenue crossing should be
the responsibility of Union Pacific.
The ALJ recommends the Commission find that identification of the appropriate
signalization at the Delaware Avenue crossing should be determined and approved by the
Commission, after notice and hearing, in a separate cause. A new cause for this purpose should
be filed once ODOT, Union Pacific, and the City of Vinita have agreed upon the best
signalization for the prevention of accidents between the pedestrian public, the motoring public,
and the railroad, at the Delaware Avenue crossing.
Respectfully submitted this
23
day of June, 2011.
MARIBETH D. SNAPP
Administrative Law Judge
Attachment "A"
BEFORE THE CORPORATION COMMISSION OF THE
STATE OF OKLAHOMA
APPLICANT:
THE CITY OF VINITA, OKLAHOMA.
TD-2010-12
RELIEF SOUGHT: AN ORDER OF THE CORPORATION
COMMISSION AMENDING THE
ORDER PREVIOUSLY ISSUED IN
TD-2006-00031 BY CANCELING THE
PORTION CLOSING THE CROSSING
AT DELAWARE AVENUE WITHIN
THE CITY OF VINITA, CRAIG
COUNTY, OKLAHOMA.
ILE
JUL 28 2010
COURT CLERK'S OFFICE - OKC
CORPORATION COMMISSION
OF OKLAHOMA
APPLICANT'S LATE FILED EXHIBIT #7
John Douherty/ODOT
1011712008 11:30 AM
To CHARLESFELXINSUP.COM
cc David Streb/[email protected] , Joe
Kyle/[email protected]
.bcc
Subject Vbiita Corridor Project
A meeting was held in Vinita an October 14th, 200810 discuss possible changes to the existing corridor
project. STP-1 18D(099)R, JIP#24647(04), in the City of Vinita.
Attendance:
David Streb, Director of Engineering
John Dougherty, Rail Programs
Charlie Enyart, Vinita City Administrator
Joe Johnson, Mayor
Mike Kyser, consultant engineer
The existing corridor project proposed the following improvements 1 - State Hospital Road, gate arms
2. Flint Avenue, gate arms
3. Canadian Avenue, gate arms
4. Euclid Avenue, gate arms
S. Scraper Street, upgrade electronics in the existing signals
6. Delaware Avenue, close7. Attucks Avenue, close
All the improvements listed above have been basically completed with the exception of Euclid Avenue.
Railroad signal equipment has been ordered but not shipped (as requested by 0001 to put Euclid
Avenue on hold).
The City of Vinita has now indicated that it is their d esire to reopen Delaware Avenue as a public railroad
crossing across the Union Pacific Railroad tracks.
It has been now determined that Euclid Avenue and Scraper Street are county locations End not within the
city limits of the City of Vinita,
Although covered In the original resolulion and city agreement, the City of Vinila has no authonty over
Euclid Avenue and Scraper Street and should not be considered part of the original corridor project
To keep withing the requirements of a corridor project (25%) closure, the new adjusted corridor project
will now be the closure of Attucks Avenue, safety improvements at State Hospital Road, Flint Avenue and
Canadian Avenue, with the Union Pacific Railroad Company picking up the city's 10% share of these
improvements. (If approved by the Oklahoma Corporation Commission through a modified Application,
filed by the Union Pacific Railroad Company). Delaware Avenue, Scraper Street and Euclid Avenue may
also have to addressed in this modified application.
Delaware Avenue (currently close) will be proposed to be reopened as a stand alone project. Project cost
will be modified to reflect the City of Vinita picking up the 10% share of both the signals and surface,
pavement markings and advance warning signs. The City of Vinita will be responsible for the already
completed crossing removal and barricading at Delaware Avenue. The City of Vinila will also, at their
own cost reconstruct Delaware Avenue on both sides of the railroad crossing including obtaining any
permits required by the railroad to build said city street on railroad right of way. The City of Vinita will be
responsible for any railroad engineering cost to utilize the proposed Euclid railroad signal equipment at
Delaware Avenue The City of Vinita will be responsible for any necessary fillings with the Oklahoma
Corporation Commission to reopen Delaware Avenue, with assistance from the Department, If necessary.
Federal funds will be requested to pick up the 90% share of the railroad signals and surface at Delaware
Avenue
New, seperaté agreements with the city and the railorad will be required for the Delaware Avenue project.
If approved by the Department, Union Pacific and the Oklahoma Corporation Commission, the completion
of all the improvements at Deleware Avenue is not tied to the existing corridor project or the proposed
modified corridor project.
Cost for the Scraper Street improvements (proposed to be removed from the original corridor project) wilt
be paid in accordance with the original corridor project.
Union Pacific Railroad cost breakdown associated with the above modification
This will be a "ballparr cast figure not an official estimate The City of Vinita Will have to agree to this
cost prior to any advancement of the above modifications.
[email protected]
M
10/22/2008 12:14 PM
10 jdoughertyODQT.ORG , [email protected]
cc
bcc
Subject Re: Vini.taCórridor Project
Jason Please see Johns note below. Can you check the WO at Euclid Street WO# 58700 and
Delaware St..WO# 58705. 1 need to know what has been spent on these. ODOT is looking at
asking the City for reimbursement on both of these projects.
John: I will probably charge the Corp Comm Fees to the Euclid W011 58700 since that is the part
of the project we are changing They usually run around $1 000,00 Signal going in at Delaware
will be a new design and will basically have to start from scratch.
D
jdoughertyODOT.ORG
1doug1iertvJOD
OT.ORG
10/22/2008 11:32
AM
ToCI4ARLESrELKINS'wUP.COM
cc
SubjectRe: Vinita Corridor Project
Charlie,
1 appreciate your reply with some estimated cost figures. I will
also need
your actual cost of removing the Delaware Street crossing and
barricades.
I'm looking at ding a 90/10 with the city on the signals, 100%
city cost
on the surface and 100% city cost for the removal and barricading
at
Delaware Street. No railroad cost at Delaware Street. Will the
railroad
charge any attorney cost for 0CC filing or any re-engineering
cost for any
of the changes?
Thanks,
John
This message and any attachments contain information from Union Pacific which may be
confidential and/or privileged.
If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of
the contents of this message is strictly prohibited by law. If you receive this message in error,
please contact the sender immediately and delete the message and any attachments.
4..
To Joe Kyle/[email protected] . John
Dougherty/[email protected]
cc
David StrebJ000T
01/05/2009 06:47 AM
bcc.
Subject Fw:Vinita corridor * STP-118D(099)R,J/P#24647(04)
fyi
—forwarded by OavldStreb/ODOT on 01/05/2009 06:51 AM *
'chariie
<charlie@cityofvinitacam>
To 'dstreb" <[email protected] >
12/31/2008 1122 AM
cc
Subject RE: Vinita corridor -SW-i 18D099)R, J/P#2464704)
David,
You are a hard man to reach by telephone. I have left messages for you and
we Just haven't made contact Then City of Vinita has discussed your
proposal and we are ready to engage in a contract with 000T to reopen
Delaware Street crossing. Please contact me at your earliest convenience to
discuss this further.
Thanks and have a Happy .New Year! !:U!1!!!!HH!1H
Charlie Enyart, City Administrator
City of Vinita
P.O. Bo:: 329
104 E. Illinois
Vinita OK, 74301
(916) 256-8552 office
(918) 323-0155 fax
[email protected]
-----Original Message----From: dstzeb rnai1to :dstráb@ODOT. ORG )
Sent: Friday, December 05, 2008 8:03 N4
To: [email protected]
Cc: Joe_Kyle/ODOT@fd9ns0l.ôkladot.state.okus;
John Dougherty/ODOT@fd9ns0l. okiadot. state. ok.us
Subject: Fw: Vinita corridor - STP-118D(099)R, J/P#24647 (04)
Charlie,
Here is the email referenced in our phone conversation yesterday afternoon.
Since that conversation we have determined that the $62,000 cost to
resurface the crossing can be funded at 90 federal and 10 city making the
total anticipated cost to the City of Vnita to be approximately $45,000
We feel that this is the best opportunity to meet the needs of the City
since there was no desire by the City to switch closures. Let inc know when
you want to discuss.
Thanks,
David
David Streb
Director of Engineering
Oklahoma DOT
•405-521-6916:
Forwarded by DvId Streb/ODOT on. 12/04/2006 05:02 PM
John
DoughertyiODOT
12/04/2008 04:02
PM
To
David
StrebfODOTfd9n0i okiadot. state. ok
.us, Joe
Kyle/ODOT@fd9nsOl . ókladot . state. ok.
us
CC
Subject
Vinita corridor - STP-11BD(099)R,
J/P#24647(04)
Mr. Streb,
In connection with the above subject, O'DOT is recommending a modified
corridor project for the City of Vinita. The two county crossings, Scraper
Street (railroad improvements completed) and Euclid Avenue (improvements
not installed) will be removed from the existing corridor project. The
City of Vinita's railroad crossings improved under the corridor project
were State Hospital Road, Flint Avenue, Canadian Avenue--all are completed.
Delaware Avenue and Attuc}:s Avenue were closed and removed as part of the
corridor project. It is now the desire of the City, of Vinita that Delaware
Avenue be reopened.
ODOT's best proposal to the City, upon approval and acceptance by the
Oklahoma Corporation Commission and the Union Pacific Railroad Company is
as follows:
CITY COST
TOTAL COST
FEDERAL FUNDS.
$240,300.00
1. Railroad signals with gate arms $267,06O.00
$26,700.00
55,800.00
2. New crossing surface
62,000.00
6,200.00
11,000.00
3. Delaware barricade cost
0
11,000.00
1,000.00
4. Railroad attorney cost to re-file
0
1,000.00
TOTALS
$44,900.00
$341,000.0.0
$296,100.00
The cost for the railroad signals and gate arms and new crossing surface
are "in house" estimates and do not. reflect new estimates from the Union
Pacific Railroad Company. Actual, estimates and city cost may be higher.
The City will also be responsible for the reconstruction of Delaware
Street, drainage, Union Pacific Railroad permitting and pavement cost on
both approaches.
New agreements will be required with the City of:Vinita andthe. UP Railroad
Company..
These are the major items for the modified corridor and may not be all
inclusive.
John
FYI-
Clay NorreR/ODOT
01129/2009 09:38 AM
To chathe@cityotvinitanet
cc David [email protected] , Joe
Kylè/ODOT©fd9ns01.oki6dot.stateok.us . John
Dough"/[email protected] . Annette
bcc
Subject Delaware Street Resolution
Mr. Enyart,
Attached, please find the resolution and cover letter for Delaware Street I will send hard copy by mail If
you have any questions, please give me a call.
Thanks,
Clay Norreli, Trans. Spec.
ODOT Rail Programs Div.
200 NE 2lst'St. Rm 30-6
OKC,OI< 73105
405-521-4299
500-522-8181
1Ei
DelawateStReolution
RESOLUTION NO.____
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VINITA, OKLAHOMA
WHEREAS, the City of Vinita, in Craig County, Oklahoma, desires to reopen the Delaware
Street crossing with the Union Pacific Railroad Company track which will qualify for safety
improvements under the State of Oklahoma at-grade Railroad Safety Program.
WHEREAS, representatives from the Union Pacific Railroad Company, the City of Vinita,
and the Oklahoma Department of Transportation recommend the following engineering
improvements as follows:
1)
2)
3)
The City of Vinita will file an application to the Oklahoma Corporation Commission to reopen Delaware Street.
The installation of Pedestal Flashing Signals with Gates Utilizing Prediction Circuitry and
the installation of a 32' Full Depth Concrete Surface at Delaware Street at an estimated cost
of $300,000.00.
The City of Vinita will be responsible for the re-opening of Delaware Street at an estimated
cost of $50,000.00.
WHEREAS, Railroad, City, and Federal funds will be utilized to jointly fund the listed
safety improvements at an estimated total cost of $350,000.00
WHEREAS, the City agrees to assume responsibility and to execute an agreement with the
State of Oklahoma for the maintenance of the railroad advance warning signs and pavement
markings after initial installation. This does not include other accessories such as signals or gates
which shall be maintained by the Union Pacific Railroad Company.
WHEREAS, the City will not hold the Oklahoma Department of Transportation liable for
any damages to city streets incurred during the rerouting of traffic.
NOW, THEREFORE, the City resolves to participate in this project and the Mayor shall
be authorized to execute such agreements as shall be necessary to implement this resolution.
The City of Vinita, C
By:
Mayor
V,
Attest:
City Clerk
Approved as to form, and legality this
City Attorney
day of
,2 juida'r