The opinion of the court was delivered by: Dan Pellegrini, Judge
AND NOW, this 8th day of January, 2009, the opinion filed October 9, 2008, in the above-captioned matter shall be designated Opinion rather than Memorandum Opinion, and it shall be reported.
Argued: September 10, 2008
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
Before this Court are cross-appeals filed by Norfolk Southern Railway Company (Norfolk Southern)*fn1 and North Lebanon Township, the City of Lebanon and Lebanon County (collectively, Municipalities) from an order of the Pennsylvania Public Utility Commission (Commission) adopting the recommendation of the Administrative Law Judge (ALJ) that the 11th Avenue rail crossing should not be abolished and ordering the Municipalities to pay for future costs of maintaining the new crossing gates and lights at the rail crossing.
Norfolk Southern is the owner and operator of the rail line at the 11th Avenue crossing in the township which is at the center of this appeal. On February 28, 2006, Norfolk Southern filed an application with the Commission to close the 11th Avenue crossing of its railway system alleging safety issues, infrequent usage and that the crossing was unnecessarily redundant because there were other nearby crossings which were more heavily used and had better sight distances and warning devices. Norfolk Southern stated in its application that it would agree to perform the work and pay the costs to effect the abolition of the crossing to the extent that such costs would not be reimbursable by federal monies.
After a field investigation and conference, a request was made by the Commission's Rail Safety Division to have the proceeding assigned to an ALJ for a hearing on the matter. At the hearing, Norfolk Southern presented the testimony of William R. Hughes (Hughes), Manager of Grade Crossing Safety, whose duties entailed working with the Division Grade Crossing/Trespass Committees in the inspection of highway/rail grade crossings for any conditions that warranted improvements such as signals and identification of redundant crossings. He testified that the western half of the crossing was located in the City of Lebanon and the eastern half was located in North Lebanon Township. There were currently two tracks at the 11th Avenue crossing over which Norfolk Southern ran approximately 60 trains per day, including freight, intermodal, coal and road railer trains. The crossing was presently equipped with flashing lights but not with gates. Within the past five years, Hughes stated that there had been three accidents which had occurred at the crossing involving vehicle-train collisions, all occurring during daylight hours by drivers who did not stop at the crossing or who had proceeded in front of a train.*fn2 Two additional accidents occurred more than five years ago and were the result of drivers not stopping at the crossing.*fn3 He stated that it was Norfolk Southern's position that the 11th Avenue crossing should be closed because it was dangerous as the exit road from several businesses, Aldi and AutoZone, paralleled the tracks, and a person who wanted to see if a train was coming from the west would have to look sharply behind him or turn around in his seat. Also, there was a wooded area that affected a person's vision of a train approaching from the east.
Hughes also testified that the crossing was unnecessary as found by its traffic experts, Grove Miller Engineering, Inc. (Grove Miller). Norfolk Southern believed that every crossing created the potential for a driver to ignore the warning devices, so any unnecessary crossing should be eliminated, especially where there were alternatives. Hughes stated that approximately 40% of the traffic from the 11th Avenue crossing would be diverted to the Route 422 separated grade crossing to the east where there was no opportunity for a vehicle-train collision. Hughes did not believe that installing gates at the 11th Avenue crossing would eliminate the hazard because national statistics showed that 52% of all accidents at public grade crossings occurred at locations equipped with gates, lights and bells. However, if the crossing closure was not granted, Hughes believed that the best alternative was to install gates and additional lights. Hughes also testified regarding the adjacent crossings at 8th Avenue, 15th Avenue and East Street, stating that all three crossings were equipped with flashing lights and gates.
Gregory E. Creasy (Creasy), a partner and Vice President of Engineering for Grove Miller, also testified on behalf of Norfolk Southern stating that his firm conducted a traffic study to evaluate the changing travel patterns that would result if the 11th Avenue crossing were closed and to study the impact of the diversion of the traffic to the intersections -- from 15th Avenue to the east, 8th Avenue to the west, and then Route 422 to the south. Based on daily traffic volume of around 1,450 vehicles per day on 11th Avenue, the results of that study indicated that approximately 60% of the traffic would be diverted to 8th Avenue and 40% would be diverted to 15th Avenue. Creasy stated that there was virtually no effect on travel times due to the crossing closure on two businesses near the crossing, Aldi and AutoZone. In the worst case scenario, travel time would increase approximately two minutes and up to .9 of a mile.
As for emergency responders in the area of the closure, Creasy stated that the study looked at hospitals as well as police and fire departments and also found minimal or no delays. Only responders from the Avon Fire Company could experience increased travel times if they were responding to a call in the area north of the railroad between 8th Avenue and 15th Avenue in North Lebanon Township or the city. However, Creasy stated that response time could be reduced by the addition of emergency vehicle preemption devices to the traffic signals at Route 422 and 15th Avenue and Route 422 and Bowman Street. Overall, it was Creasy's opinion based on the study that the surrounding roadway network could accommodate the diverted trips from 11th Avenue if the crossing was closed without an impact on the levels of service. The expected diversion of 40% of the traffic from 11th Avenue that would be expected to go east on Lehman Street to 15th Avenue would not have to cross the railroad at a crossing to access Route 422, and that the reduction in the number of trips crossing the railroad at a crossing would improve safety for traffic. On cross-examination, Creasy admitted that the delay analysis was performed in late morning and not at peak hours.
In opposition to the closing of the 11th Avenue crossing was testimony by Cody Broaddus (Broaddus), District Manager for the AutoZone store, a car parts store located in Lebanon, Pennsylvania. He testified regarding the effect the closing of the 11th Avenue crossing would have on his business stating that the store was located at 101 North 11th Avenue, on the northwest corner of the intersection of Route 422 East and North 11th Avenue. It was opened three-andone-half years ago and was accessible to vehicle traffic when the store decided to open. The accessibility of the location via the 11th Avenue crossing was a factor in the store's decision to open at that particular location. Broaddus stated that approximately 130 customers visited the store daily, and if the 11th Avenue crossing was closed, the customers and staff of 10 would have to travel at least an additional mile to reach the store. Further, it would affect business because customers would have to pass a competitor to reach the store by taking a different route. Lindsay Hu (Hu), District Manager for Aldi, Inc., a retail grocery store located at 105 North 11th Avenue, on the northwest corner of Route 422 East and North 11th Avenue, echoed Broaddus' testimony regarding the location and the loss of customers due to rerouting and competition. Hu also stated that the location was the deciding factor in opening the store at its current location.
Also testifying in opposition was Curtis E. Kulp (Kulp), Manager for South Lebanon Township, who stated that the 11th Avenue crossing did not lie within the municipal boundaries of South Lebanon Township. However, the South Lebanon Township transportation system benefited from the 11th Avenue crossing because it provided an additional outlet from a congested area of South Lebanon Township to the businesses and streets north of the township. Additionally, South Lebanon Township had mutual aid agreements with the City of Lebanon and North Lebanon Township, and the 11th Avenue crossing provided access for police and fire from South Lebanon Township to the north side of Route 422, the major highway through the County of Lebanon, in performance of the mutual aide and protection of the public.
Jonathan Beers (Beers), the Public Works Director and City Engineer for the City of Lebanon, testified that the city maintained the western half of the right-of-way of 11th Avenue on the southern side of the rail crossing. He stated that the City conducted a traffic study at the crossing from July 29, 2006, through July 31, 2006, and determined that it would have a detrimental effect on the businesses located off of 11th Avenue because the only entrance and exit to them would be directly onto Route 422. The 11th Avenue crossing provided an alternative for entering and exiting both Aldi's and AutoZone. Further, the closing of 11th Avenue would create two dead-end streets, and they would be difficult to maintain with street sweeping and snow plowing. It was Beers' opinion that a gate on both the north and south side of the crossing would improve safety conditions at the crossing and decrease any accidents, and the Lebanon County Metropolitan Planning Organization (MPO) had funding to install the gates.
Edward A. Brensinger (Brensinger), Road Foreman for North Lebanon Township and one of the three members of the Board of Supervisors for that township, testified that the Board of Supervisors opposed the closing of the 11th Avenue railroad closing and believed that placement of gates at the crossing along with the train signals which already existed would correct any safety issues. He stated that North Lebanon Township was willing to continue to provide financially for the road markings and signs on 11th Avenue approaching the crossing on the North Lebanon Township side. It was his belief that if 11th Avenue was closed, the township and the City of Lebanon would have a snow removal problem which they did not have currently. There would be a problem of finding a place to deposit the snow when plowing, and there would be a problem because there would not be a place to turn around at the railroad tracks. Further, there would be numerous areas impacted because many residential areas were being developed; seven lots had been approved on Kimmerlings Road; there was an ongoing development known as Briar Lake with 109 approved residential lots on 8th Avenue; and there was a current plan for a development known as Spring Creek in the approval process with another 75 lots to be built in the next five years. There was also significant acreage not yet built on but the subject of development in the future. He stated that 11th Avenue handled 1,300 vehicles per day, and it would be essential in the future to handle the overload of traffic in the area.
Thomas A. Kotay (Kotay), a transportation consultant to the MPO, also testified that the County Commissioners and the MPO believed it was necessary to keep the 11th Avenue crossing open because it was a small but critical part of a highway grid system in that part of Lebanon County. He explained that grid systems helped to evenly distribute local traffic and thru traffic, and that the roadway helped to provide direct access to local businesses and residential properties. Kotay explained that the MPO made this crossing its number one priority for funding with federal railroad crossing funds and/or federal safety funds. The MPO wanted to see signals, gates, signs and pavement markings installed at this location and was willing to provide the funds for the needed improvements. He stated ...