FILED
JUNE 16, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
TRI-CITY RAILROAD COMPANY, )
LLC, a Washington corporation, ) No. 33031-1-111
)
Appellant, )
)
V. )
) OPINION PUBLISHED
STATE OF WASHINGTON, UTILITIES ) IN PART
AND TRANSPORTATION )
COMMISSION, )
)
Respondent. )
SIDDOWAY, J. - Since 1937, Washington law has assigned to the Washington
Utilities and Transportation Commission or a predecessor commission 1 the authority and
responsibility to grant or deny the right to construct, at grade, a railroad across a road, or
a road across a railroad. Other than providing that the commission must require a
crossing over or under grade if it is practicable to construct one, applicable statutes do not
identify criteria the commission should apply in granting or denying a petition for
approval of an at-grade crossing.
In this appeal, Tri-City Railroad Company, LLC (Tri-City) argues that in
1
The Public Service Commission of Washington.
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approving construction of an at-grade crossing over its tracks based on a broad concept of
public need, the commission deviated from its statutory obligation to regulate public
safety, exceeding its statutory authority.
The commission's consideration oflocal planning, including its consideration of
the local government's economic development objectives, does not conflict with the plain
language of the relevant statute. The legislature's broad authorization to the commission
is most reasonably read as an implicit delegation of authority from the legislature to the
commission to fill in a statutory gap. The commission's interpretation of the statute
under which it operates is not unreasonable.
For that reason, and because the commission does not appear to have improperly
considered illustrative evidence-and if it did, Tri-City fails to show substantial
prejudice-we affirm.
FACTS AND PROCEDURAL BACKGROUND
For a decade, the cities of Richland and Kennewick have wanted to connect Center
Parkway, a street in Kennewick, with Tapteal Drive, a street in Richland. Railroad tracks
have long traversed the land that must be crossed to make that connection. An at-grade
(ground level) railroad crossing2 connecting Central Parkway and Tapteal Drive has been
2 RCW 81.53.010 defines "grade" crossing to mean "any point or place where a
railroad crosses a highway or a highway crosses a railroad or one railroad crosses
another, at a common grade." A grade separation exists where the road goes over or
under the railroad tracks by means of some sort of bridge or tunnel.
2
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included as an essential public facility in the two cities' comprehensive plans, and in the
Regional Transportation Plan, since 2006.
In light of risks inherent in at-grade crossings, Washington law has provided for
more than a century that "[a ]ll highways and extensions of highways hereafter laid out
and constructed shall cross existing railroads by passing either over or under the same,
when practicable, and shall in no instance cross any railroad at grade without authority
first being obtained from the commission to do so." LAWS OF 1913, ch. 30, § 2, presently
codified at RCW 81.53.020. An exemption, not applicable here, is provided for
construction of at-grade crossings within the limits of a first-class city. 3 RCW 81.53.240.
The cities of Kennewick and Richland concluded that given the cost of constructing a
bridge or tunnel and the amount of traffic at issue, separating grades for the desired
Central Parkway crossing was impracticable.
In 2013, having resolved some issues and opposition to the proposed road
construction and railroad crossing, 4 Kennewick petitioned the commission for approval to
3
While Richland is a first-class city, Kennewick is not. The crossing will be
located within Kennewick's city limits.
4
In 2011, Richland successfully negotiated with Union Pacific Railroad Company
and Burlington Northern Santa Fe Railroad Company for the removal of two of the four
railroad tracks that would intersect with the proposed crossing. Union Pacific and
Burlington Northern had joined Tri-City in opposing an unsuccessful 2006 petition by the
cities for approval of an at-grade crossing at the same location. With relocation of the
two tracks, the 2013 petition sought an at-grade crossing of half as many tracks and faced
opposition by only one railroad.
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construct an at-grade crossing at the location. It proposed to install advanced signage,
flashing lights, an audible bell, automatic gates, and a raised median strip designed to
prevent drivers from going around lowered gates. The city of Richland intervened,
supporting Kennewick's position.
The at-grade crossing would be constructed across two active tracks that Tri-City
leases from the Port of Benton and that it uses, along with a short, parallel spur, for
switching and storing rail cars. Tri-City opposed Kennewick's petition, arguing the
crossing would interfere with its operations.
The petition was initially heard by an administrative law judge (ALJ). The parties
to the proceeding were the cities of Kennewick and Richland, Tri-City, and commission
staff, which supported the petition. After receiving pre-filed testimony from the parties,
the ALJ conducted a two-day evidentiary hearing. He conducted a public comment
hearing following the conclusion of the evidentiary hearing, in which three members of
the public testified, all favoring the project. Written public comments were accepted for
several additional weeks.
Among evidence submitted by the cities was pre-filed testimony of Richland's
Development Services Manager, explaining and attaching the transportation and capital
facilities elements of the city's comprehensive plan and relevant portions of the Benton-
Franklin Council of Government's Regional Transportation Plan. Kennewick's
comprehensive plan was offered and admitted during the evidentiary hearing. Also
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admitted was a March 2013 traffic study prepared by J-U-B Engineers (JUB), which was
self-described as "summariz[ing] existing conditions, transportation need and benefit for
the project" in addition to providing traffic forecasts and making recommendations.
Clerk's Papers (CP) at 92. The cities offered pre-filed testimony of a railroad safety
engineer, who testified that "[t]he railroad signal technology proposed to be used at
Center Parkway will be the most current automatic warning system available today." CP
atl.518.
Notwithstanding this other evidence, "[t]he [c]ities' almost exclusive focus" in its
presentation of evidence (as later found by the commission) was "on improved response
times for first responders." CP at 642. The cities' principal reliance on the
comprehensive plans and regional transportation plan was for their legal argument that
because the Growth Management Act (GMA), chapter 36.70A RCW, requires them to
adopt and implement comprehensive plans and requires state agencies to comply with
local governments' comprehensive plans, the inclusion of the crossing in their
comprehensive plans "mandated" approval of the Center Parkway crossing. CP at 412.
The ALJ entered his initial order for the commission in February 2014, finding
that Kennewick failed to demonstrate sufficient public need to outweigh the inherent
risks presented by the proposed at-grade crossing, and denying its petition. He rejected
the cities' GMA-based argument, observing that "[t]aken to its logical end point, the
[c]ities' argument would require the [c]ommission to approve any at-grade crossing
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planned for in a local jurisdiction's comprehensive planning process." CP at 441-42.
The cities petitioned for administrative review by the commissioners.
On review, the three-member commission unanimously rejected the ultimate
conclusion of the initial order and granted Kennewick's petition. Like the ALJ, the
commissioners found that improved emergency response time "does not weigh
persuasively against even the demonstrated low level of 'inherent risk' at the proposed
crossing." CP at 642. But the commissioners concluded that while the ALJ properly
rejected the argument that local government planning under the GMA effectively trumps
the commission's obligation to regulate public safety at rail crossings, he erred by ending
his discussion of local comprehensive planning on that basis. They reasoned that chapter
81.53 RCW and the GMA do not conflict and "the integrity of both statutes within the
overall statutory scheme is preserved by reading the GMA together and in harmony with
RCW 81.53." CP at 636. They went on to analyze how "harmony should be achieved in
the context of the facts presented in this case." CP at 636-37.
After citing heavily to the JUB Traffic Study; discussing the need, as a matter of
policy, to give some deference to the cities' transportation and land use planning goals;
and citing to the comments submitted by five members of the public, the commission
concluded:
[C]onsidering evidence the parties largely ignored that shows additional
public benefits in the form of enhanced economic development
opportunities, and considering the broader public policy context that gives a
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degree of deference to local jurisdictions in the areas of transportation and
land use planning, we determine that the Cities' petition for administrative
review should be granted and their underlying petition for authority to
construct the proposed at-grade crossing should be approved.
CP at 642-43.
Tri-City petitioned for reconsideration, arguing that the commission's
consideration of economic and public policy interests was improper. The commission
denied reconsideration, pointing out that it had not deferred to the cities on the issue of
safety, but only gave "some weight to the [c]ities' transportation and urban development
planning when evaluating the issue of public need." CP at 708; and see CP at 709
(stating that the only discussion of deference in the final order "bears no relation
whatsoever to our weighing of the evidence concerning the balance between claimed
improvements in public safety and the inherent or demonstrated risk of an accident at the
proposed crossing").
Tri-City petitioned for judicial review. The superior court affirmed the
commission's final order. Tri-City appeals.
ANALYSIS
Tri-City contends the ALJ correctly construed the commission's statutory
authority when he concluded that without a net improvement in public safety-in this
case, the cities' unproven contention that emergency response times would be
improved-Kennewick's petition for an at-grade crossing must be denied. Its first two
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assignments of error are related: it contends, first, that the commission had no statutory
authority to consider economic development interests, deference to local government, and
the broader public policy environment in determining whether to grant or deny
Kennewick's petition; and second, that the commission violated precedent when it found
that those factors alone, without improvement to public safety, could outweigh the
hazards inherent in at-grade crossings.
Tri-City's third assignment of error is to an asserted violation by the commission
of its procedural rules when it considered five public comments as substantive evidence
without notice and an opportunity for cross-examination.
We first address Tri-City's first and second assignments of error, which raise
issues of statutory construction and the significance, if any, of prior judicial and
commission decisions. We then tum to its arguments that the commission violated its
own procedural rules.
I. Do the relevant statutes reflect a legislative intent that improvement in public
safety is the essential criterion for approving at-grade crossings?
Standard of review and principles of construction
RCW 34.05.570(3) governs judicial review of agency orders in adjudicative
proceedings. Chi. Title Ins. Co. v. Office of Ins. Comm 'r, 178 Wn.2d 120, 133, 309 P.3d
372 (2013). In reviewing an agency order, this court applies "the standards of RCW
34.05 directly to the record before the agency, sitting in the same position as the superior
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court." City ofRedmond v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd., 136 Wn.2d 38,
45,959 P.2d 1091 (1998). Under RCW 34.05.570(3),judicial relief from an agency
order is available in nine enumerated circumstances. Tri-City's first two assignments of
error implicate two: that "[t]he order is outside the statutory authority or jurisdiction of
the agency conferred by any provision oflaw," RCW 34.05.570(3)(b); and "[t]he agency
has erroneously interpreted or applied the law." RCW 34.05.570(3)(d). We review
challenges based on subsections (b) and (d) de novo. Kittitas County v. E. Wash. Growth
Mgmt. Hr'gs Bd., 172 Wn.2d 144,155,256 P.3d 1193 (2011).
As always in interpreting a statute, "[t]he court's fundamental objective is to
ascertain and carry out the Legislature's intent." Dep 't ofEcology v. Campbell & Gwinn,
LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). "[l]fthe statute's meaning is plain on its face,
then the court must give effect to that plain meaning as an expression of legislative
intent." Id. at 9-10. To determine the plain meaning of the statute, the court looks "to the
text of the statutory provision in question, as well as 'the context of the statute in which
that provision is found, related provisions, and the statutory scheme as a whole.'" State
v. Ervin, 169 Wn.2d 815,820,239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wn.2d
596, 600, 115 P.3d 281 (2005)). "If the statutory language is susceptible to more than
one reasonable interpretation, then a court may resort to statutory construction, legislative
history, and relevant case law for assistance in discerning legislative intent." Christensen
v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007).
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Where a statute dealing with an administrative agency's duties and operations is
ambiguous, we must also consider the possibility that a statute's ambiguity constitutes an
implicit legislative delegation to the agency to fill in the statutory gaps. See Sebastian v.
State, 142 Wn.2d 280, 293, 12 P.3d 594 (2000) (Talmadge, J., dissenting) (citing Food &
Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S. Ct. 1291,
146 L. Ed. 2d 121 (2000)). While an agency's action must be confined to its
legislatively-granted powers, 5 "it is an appropriate function for administrative agencies to
'fill in the gaps' where necessary to the effectuation of a general statutory scheme,"
including through statutory construction. Hama Hama Co. v. Shorelines Hr 'gs Bd., 85
Wn.2d 441,448,536 P.2d 157 (1975). This includes "determin[ing] specific factors
necessary to meet a legislatively mandated general standard." Tuerk v. Dep 't of
Licensing, 123 Wn.2d 120, 125, 864 P.2d 1382 (1994) (citing Asarco, Inc. v. Puget
Sound Air Pollution Control Agency, 51 Wn. App. 49, 751 P.2d 1229 (1988)).
Statutory language
Tri-City's "plain language" argument that the commission lacked a statutory basis
for considering factors such as economic development interests, deference to local
5
Because "' [a]dministrative agencies are creatures of the legislature without
inherent or common-law powers,'" they may exercise only those powers expressly
granted to them and those necessarily implied from their statutory delegation of authority.
Human Rights Comm 'n v. Cheney School Dist. No. 30, 97 Wn.2d 118, 125,641 P.2d 163
(1982) (quoting State v. Munson, 23 Wn. App. 522, 524, 597 P.2d 440 (1079).
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government, and broader public policy environment is that none of those are identified as
criteria in the grade crossing statutes. Of course, improved public safety does not appear
as a statutory criterion either.
RCW 80.01.040 prescribes the general powers and duties of the commission,
which is required to "[ r]egulate in the public interest, as provided by the public service
laws, all persons engaging in the transportation of persons or property within this state for
compensation." RCW 80.01.040(2). RCW 81.53.020 and .030 govern the more
particular issue of grade crossings.
Under RCW 81.53.030, when a local authority wishes to construct a new at-grade
railroad crossing, it must petition the commission, "setting forth the reasons why the
crossing cannot be made either above or below grade." The statute requires the
commission to investigate; give notice to affected railroad companies, local governments,
or state agencies; and reduce the evidence introduced to writing. At that point,
If [the commission] finds that it is not practicable to cross the railroad or
highway either above or below grade, the commission shall enter a written
order in the cause, either granting or denying the right to construct a grade
crossing at the point in question.
Id. It may condition authorization of an at-grade crossing on the railroad company's
installing, maintaining, or implementing safety devices or means. Id.
RCW 81.53.020 identifies criteria to be considered in determining whether a grade
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separation is "practicable."6 By providing that all highways and extensions of highways
"shall" cross existing railroads "by passing either over or under the same, when
practicable," it also forbids construction of a grade crossing if the commission's finding
is that an overhead or under crossing is practicable. The commission's duty under RCW
81.53.030 to "enter a written order ... granting or denying the right to construct a grade
crossing" is, by contrast, standardless, apart from the legislature's general grant of
authority to "regulate in the public interest."
The commissioners considered a related statute to be relevant in construing the
scope of public interest. Their final order discusses RCW 81.53.240, which exempts
first-class cities from chapter 81.53 RCW. Observing that the exemption for first-class
cities has existed since 1909, the commission concluded it reflected legislative respect for
our state constitution's deference to local jurisdictions on matters deemed best left to
local control. Since the legislature had determined that state regulation of crossing safety
6
RCW 81.53.020 provides that "[i]n determining whether a separation of grades
is practicable, the commission shall take into consideration the amount and character of
travel on the railroad and on the highway; the grade and alignment of the railroad and the
highway; the cost of separating grades; the topography of the country, and all other
circumstances and conditions naturally involved in such an inquiry." The cities argue
that the language "all other circumstances" supports the commission's consideration of
economic development and local planning. Br. of Richland and Kennewick at 16-17.
But consideration of "all other circumstances" takes place in determining whether a grade
separation is practicable, not in deciding whether the commission will approve or deny a
petition once it finds a grade separation impracticable.
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should not trump local concerns in the case of first-class cities, the commission inferred
(not unreasonably) that the legislature would expect it to give some consideration to the
local concerns of those cities that are subject to the at-grade crossing approval process.
Nothing in the plain language of the pertinent statutes supports Tri-City's
argument that the commission improperly considered local planning and development
concerns.
Judicial and commission precedent
Tri-City's principal argument for its construction of the relevant statutes is that the
Washington Supreme Court has already construed the applicable statutes and found
public safety paramount in two decisions, Reines v. Chicago, Milwaukee, St. Paul &
Pacific Railroad Co., 195 Wash. 146, 80 P .2d 406 ( 193 8) and Department of
Transportation v. Snohomish County, 35 Wn.2d 247,251,212 P.2d 829 (1949). 7
The earlier of the two decisions, Reines, was a tort case arising out of a collision
between an automobile and freight train on a foggy night, at an at-grade crossing that
lacked signal lights or warning devices. The complaint was dismissed for failure to state
7
Tri-City also argues that commission precedent supports its construction, but it
relies on two initial decisions of the commission, made by administrative law judges,
which became final because they were not appealed. By commission rule, such decisions
are not precedential. WAC 480-07-825(7)(c). We do not consider them further.
Tri-City argues that the commission itself relies on an initial order for the
framework it applies to evaluate Kennewick's petition. We do not read the commission's
final order as treating the earlier initial order as precedential. It merely recognizes the
framework for evaluation in the earlier initial order as useful.
13
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a claim. In holding that the complaint was not deficient for failure to allege that
defendants were aware of the dangerousness of the crossing, the court stated "it is not to
be supposed that anyone would deny that the crossing was dangerous," and "[t]he statute
law of this state relating to grade crossings has for many years been based upon the
theory that all grade crossings are dangerous." 195 Wash. at 150 (emphasis added). The
court cited the statutory requirement for approval of at-grade crossings and the statutory
preference for above or below grade crossings as examples.
Reines does not purport to address the criteria applied when the commission
decides whether to grant or deny authority to build an at-grade crossing. The inherent
danger of at-grade crossings is the theory behind the regulatory procedure for at-grade
crossing approval, but that does not mean that safety will be the only consideration in
allowing at-grade crossings to be built.
The second case, Snohomish, involved the closing of an at-grade crossing by the
department of transportation, which at that time exercised the authority now held by the
commission. The department's decision was appealed, and a superior court reversed it.
The supreme court reversed the superior court, reinstating the department's closure.
Most relevant to this appeal, and not helpful to Tri-City, is the court's observation
in its decision that under predecessor statutes, "the legislature delegated very wide
powers to the public service commission with regard to railroad and highway crossings."
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3 5 Wn.2d at. 250. 8 Also relevant is the range of evidence the department entertained
before making its decision. Notwithstanding that "all grade crossings are dangerous," the
department weighed just how dangerous the particular crossing would be against other
factors. Id. at 257 (internal quotation marks omitted). It considered automobile traffic
flow and impact of the closure; the material volume and high speeds of train traffic at the
crossing; the grade of, and visibility from, the subject road; and, finally, the "convenience
and necessity of those using the crossing and whether the need of the crossing is so great
that it must be kept open notwithstanding its dangerous condition." Id. at 254.
Tri-City nonetheless contends the following language (language from the findings
of the department of transportation, not reasoning of the court) rules out economic
development as a factor in granting or denying the right to construct an at-grade crossing:
It is contended by residents of Mukilteo that the closing of this
crossing would damage business property due to the fact that the closing of
the crossing would result in making the north portion of Park A venue a
dead end street. The department has no jurisdiction to consider damage to
property as such. Other remedies may be provided by law to compensate
owners for damage to property, if any. The department may only consider
whether or not convenience and necessity justifies the closing of the
crossing.
Id. at 255 (internal quotation marks omitted).
8
The statute in Snohomish is Rem. Rev. Stat. § 10514 (Supp. 1940), re codified as
RCW 81.53 .060. Though the particular section is not identical (here RCW 81.53 .020-
.030 are at issue), the statement relates to the commission's broad powers and is
applicable to RCW 81.53 in general.
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To begin with, Tri-City fails to consider the significance of the words
"jurisdiction" to consider, and damage to property "as such." "Jurisdiction" in its subject
matter sense used in the passage means the authority to adjudicate the type of controversy
involved in the action; "[a] tribunal lacks subject matter jurisdiction when it attempts to
decide a type of controversy over which it has no authority to adjudicate." Marley v.
Dep't of Labor & Indus., 125 Wn.2d 533,539,886 P.2d 189 (1994). Thus understood,
and read in context with the court's discussion of damages "as such," and "other
remedies ... to compensate ... for damage to property," the department appears to have
been saying that it could consider damage to property only insofar as it bears on "whether
or not convenience and necessity justifie[d] the closing of the crossing"-it could not
award damages. Snohomish, 35 Wn.2d at 255 (internal quotation marks omitted).
More importantly, the court did not attribute any meaning to this statement by the
department or endorse it as a fair application of the predecessor to RCW 81.53.030.
Rather, after reciting many department findings in the grade crossing decision at issue,
the court noted that the power to close grade crossings had been delegated to various
commissions,
not to the courts. . . . [W]e have consistently held that the courts should
not, without grave cause, interfere with the orders of such commissions,
such as the public service commission, the department of public works, or
the department of transportation. In In re Stolting, 131 Wash. 392, 230 P.
405, the court said: "Time and again we have held that we will not interfere
with the action of the department of public works on matters of this nature,
unless its members have acted unfairly, arbitrarily, or in disregard of the
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testimony. [Citing a long list of cases.] There is nothing in this case to
indicate that the department did not fully consider the testimony and
honestly exercise its judgment. Such being the case, there is nothing for us
to do but affirm the judgment, which is done."
Id. at 257 (alteration in original). 9
Tri-City's arguments based on asserted precedent are not persuasive.
Legislative history
The history ofRCW 81.53.030 and its predecessor provisions reflects legislative
balancing of local concerns. As originally adopted, the predecessor to RCW 81.53.030
accorded complete deference to a local government applicant for an at-grade crossing if
the commission found an over or under crossing to be impracticable. Before 1937, the
predecessor to RCW 81.53.030 stated that if the commission found that an over or under
crossing was not practicable, it "shall make and file a written order in the cause, granting
the right and privilege to construct a grade crossing." REM. 1915 CODE§ 8733-3
9
A third case, cited in Tri-City's reply brief, is clearly inapposite. In re City of
Seattle, 96 Wn.2d 616, 625-26, 638 P.2d 549 (1981) is cited for the proposition that
though a project may be in the "public interest," it may not constitute a "public need" if
the purpose is private economic development. Reply Br. at 10. Seattle addresses
whether, for purposes of eminent domain, private development is a public use. Neither
the page that Tri-City cites, nor the majority opinion in its entirety, ever uses the term
"public need." Its analysis is consistently couched in terms of "public use" and "public
purpose." (Only Justice Utters uses the term "public need," in his dissent, in which he
would find a public need for the private development).
This is not an eminent domain case.
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(emphasis added). 10 In State ex rel. Toppenish v. Public Service Commission, 114 Wash.
301, 194 P. 982 (1921), the Washington Supreme Court reviewed a commission order
that had found grade separation impracticable but denied a petition on the basis that the
benefits of the at-grade crossing were "outweighed by the dangerous condition of the
proposed crossing, and other considerations." Id. at 303-04 (internal quotation marks
omitted). In reversing the order, the court held that under the statute, once the
commission determined that grade separation was impracticable, it became its "plain
duty" to permit the grade crossing that "city authorities [had decided] should be
established." Id. at 308.
The legislature responded some years later by amending the statute to provide that
if the commission found it impracticable to cross the railroad above or below grade, then
"it shall make and file a written order ... granting the right and privilege to construct a
10
The earliest legislation, enacted in 1909 and that delegated decision making
authority to the Railroad Commission, did not contain a statutory concept of
impracticability and provided in relevant part:
If the Commission finds that it ought not to require such highway or
railroad to be so constructed as to cross above or below the grade of the
existing railroad or highway, it shall by resolution filed in the cause and
duly entered upon its minutes, grant the right and privilege to construct
such railroad or highway across such established railroad or highway at
grade.
LAWS OF 1909, ch. 162, § 2 (emphasis added). The 1909 legislation was repealed and
replaced in 1913 by legislation containing the concept of practicability and imposing a
duty to grant authority to construct at-grade crossings unless they were determined to be
impracticable. LAWS OF 1913, ch. 30, § 3.
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grade crossing or denying the application and right to construct a grade crossing in toto."
LAWS OF 1937, ch. 22, § 1 (some emphasis added). Amendment to the current language
(that the commission shall enter a written order "either granting or denying the right to
construct a grade crossing at the point in question") was enacted in 1955. LA ws OF 1955,
ch. 310, § 3.
Although the 193 7 change made the commission the final authority when a non-
first-class city proposes to construct an at-grade crossing, this legislative history is
consistent with the commission's inference of a legislative intent that it should consider
local interests going beyond public safety.
Construction
Considering all, by broadly charging the commission to "regulate in the public
interest" and assigning it the standardless authority and responsibility to grant or deny
petitions for at-grade crossings, the legislature implicitly delegated to the commission the
responsibility to interpret "public interest" in the first instance. We will not substitute our
construction of the statute for a reasonable interpretation by the commission. Hama
Hama, 85 Wn.2d at 448. The commission's construction of its charge and of the breadth
of "public interest" is reasonable.
Affirmed.
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The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opm10ns.
II. Asserted reliance on illustrative exhibits as substantive evidence
Tri-City's remaining assignment of error is that the commission violated its
procedural rules when it considered five public comments as substantive evidence
without notice and an opportunity for cross-examination. This assignment of error
implicates another statutory circumstance in which judicial relief from an agency order is
available: "The agency has engaged in unlawful procedure or decision-making process,
or has failed to follow a prescribed procedure." RCW 34.05.570(3)(c).
Even if an agency engages in unlawful procedure, a petitioner for judicial review
is not entitled to relief unless it can show that it was "substantially prejudiced by the
action complained of." RCW 34.05.570(l)(d); Densley v. Dep 't ofRet. Sys., 162 Wn.2d
210, 226, 173 P.3d 885 (2007). Tri-City argues that if the improperly-considered public
comment is excluded, substantial evidence does not support the commission's order
granting Kennewick's petition. This implicates a fourth statutory circumstance in which
judicial relief from an agency order is available: "The order is not supported by evidence
that is substantial when viewed in light of the whole record." RCW 34.05.570(3)(e).
We review a challenge based on RCW 34.05.570(3)(c) de novo. Kittitas County,
172 Wn.2d at 155. The standard we apply in determining whether the order is supported
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by substantial evidence is whether the evidence is sufficient "' to persuade a fair-minded
person of the truth or correctness of the order."' King County v. Cent. Puget Sound
Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543,553, 14 P.3d 133 (2000) (quoting Callecodv.
Wash. State Patrol, 84 Wn. App. 663,673,929 P.2d 510 (1997)). The evidence is
viewed "' in the light most favorable to the party that prevailed in the highest forum
exercising fact-finding authority.'" Affordable Cabs, Inc. v. Dep 't of Emp 't Sec., 124
Wn. App. 361, 367, 101 P.3d 440 (2004) (quoting Schofield v. Spokane County, 96 Wn.
App. 581, 586-87, 980 P.2d 277 (1999)).
The commission's procedural rules provide:
When a member of the public presents a document in conjunction with his
or her testimony, the commission may receive the document as an
illustrative exhibit. The commission may receive as illustrative exhibits
any letters that have been received by the secretary of the commission and
by public counsel from members of the public regarding a proceeding.
Documents a public witness presents that are exceptional in their detail or
probative value may be separately received into evidence as proof of the
matters asserted after an opportunity for cross-examination.
WAC 480-07-490(5). Elsewhere, the commission's rules provide that such comments
are "treated as an illustrative exhibit that expresses public sentiment received concerning
the pending matter." WAC 480-07-498.
In its final order granting Kennewick's petition, the commission mentioned public
comments by five individuals. The public comments are not exceptional in their detail or
probative value and the ALJ did not invite cross-examination after receiving the comments.
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Arguably, the commission considered the public comments only as expressing
public sentiment on the city's proposal. We say this based on the placement in the final
order of the commission's discussion of the public comments (it follows discussion of the
parties' evidence) and on the language used to describe the public comments (e.g., as
"underscor[ing]" the project's potential, "emphasiz[ing] community expectations,"
"illustrat[ing] the local importance of recognizing the broader public policy
environment," and "support[ing] the proposed project"). CP at 639-42.
But the clearest basis on which to reject this challenge by Tri-City is that it has not
demonstrated substantial prejudice, even if the public comments were treated as
substantive evidence by the commission. Tri-City argues that it was prejudiced because
if the public comments are disregarded, three of the commission's findings and
conclusions are not supported by the record. We disagree.
The first finding that Tri-City argues is not supported by substantial evidence is
the commissioners' ultimate finding 8, which appears at paragraph 37 of the final order:
37 (8) The Center Parkway extension, including the proposed at-grade
railroad crossing, is a long-planned and important component of the
Cities' transportation system. The project will improve traffic
movement between two important and growing commercial areas in
Richland and Kennewick, thus promoting economic development.
CP at 644.
The fact that the Central Parkway extension is a long-planned and important
component of the Cities' transportation system is supported by the JUB Traffic Study
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("For several years the city of Richland has pursued the extension of Center Parkway to
connect between Gage Boulevard on the south to Tapteal Drive on the north," CP at 92);
evidence of the cities' unsuccessful 2006 petition for approval of an at-grade crossing;
and the evidence that the connection had, since 2006, been included as an essential public
facility in the two cities' comprehensive plans and in the Regional Transportation Plan.
The fact that the proposed crossing will improve traffic movement is supported by
the JUB Traffic Study, which states that a purpose of the connection is to "[p]rovide
relief to congested arterial facilities," CP at 92; and elsewhere states:
Currently to get from the Columbia Center Mall to businesses on
Tapteal Drive, traffic must make a left tum to go north on Columbia Center
Boulevard, which is often congested, then proceed to go east on
Yellowstone A venue, south on Bel fair Street and then proceed west on
Tapteal Loop to access Tapteal Drive. With the Center Parkway
connection, traffic will be able to exit the Mall area on the west side and go
north at the roundabout at Gage Boulevard and proceed directly north to
Tapteal Drive.
CP at 97.
The fact that the proposed crossing will connect two growing commercial areas in
Richland and Kennewick, thus promoting economic development, is supported by several
statements in the JUB Traffic Study including that a purpose for the connection is to
"[p ]rovide improved access to commercial areas and developable land," CP at 92; that, in
that connection, "nearly 60 developable acres of commercial land between the railroad
and SR 240 which has desirable visibility will have improved access and will gain the
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synergy that commercial areas often seek," CP at 105; and, elaborating elsewhere on the
60 acres, that "[t]oday [the 60 acres] has all utilities and collector roadway access on
Tapteal Drive, however it is not as close to the rest of the commercial areas as it could be
without Center Parkway, because of the barrier created by the railroad." CP at 97.
In addition, Richland's development services manager, Rick Simon, testified that
the Center Parkway connection and crossing "establishes a complete road network" and
provides "significant relief to [traffic] congestion" and "improved access to developable
lands." CP at 831-32. Elsewhere, he testified that it "also helps to promote economic
development of the community." CP at 829. Viewed in the light most favorable to the
city of Kennewick, substantial evidence supports the commissioners' ultimate finding 8.
Tri-City next challenges the record's support for the commission's mixed finding
and conclusion 9, which appears at paragraph 38 of the commissioners' final order. It
states:
38 (9) The record includes substantial competent evidence showing
sufficient public need to outweigh the inherent risks presented by the
proposed at-grade crossing.
CP at 644.
Given the commissioners' reasonable construction ofRCW 81.53.030 as
authorizing consideration of a broad concept of public need, their finding 8 supports the
commissioners' conclusion that the record includes substantial competent evidence
showing public need.
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Their finding that the evidence of public need outweighs the risk presented by the
at-grade crossing is supported by finding 8, and by the testimony of Susan Grabler, the
railroad engineer, who testified, among other matters:
The automatic warning devices used on all new at-grade highway-
railroad crossings by all railroads along with sound traffic engineering and
civil engineering design practices will provide a safe at-grade highway-
railroad crossing. Especially for a crossing with 7,000 [average daily
traffic] and low train volumes as proposed in this case.
With the addition of medians on the approaches to the crossing to
keep motorists from driving around the gates, the existing train speed of 35-
MPH or less and the average of six trains per day, along with the most
current automatic warning devices, should be sufficient to create a safe at-
grade highway-railroad crossing.
The railroad signal technology proposed to be used at Center
Parkway will be the most current automatic warning system available
today. Additionally, with the traffic and civil engineering practices
employed by the City of Richland, this crossing will be designed and built
to provide the public a safe at-grade crossing as well as providing the
public the convenience they have sought at this location.
CP at 1515, 1518. Viewed in the light most favorable to the city of Kennewick,
substantial evidence supports mixed finding and conclusion 9.
Finally, Tri-City challenges the commission's conclusion 10, which appears at
paragraph 39 of the commissioners' final order. It states:
39 (IO) The Commission should grant the City of Richland's and City
of Kennewick's petition for authority to construct an at-grade
crossing at the proposed extension of Center Parkway.
CP at 644. The conclusion follows naturally from the commission's preceding findings.
Because Tri-City has not demonstrated that it was substantially prejudiced even if
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the commission considered the public comments as substantive evidence, it is not entitled
to judicial relief. RCW 34.05.570(l)(d).
Attorney fees
Tri-City requests an award of costs and fees under RAP 18.1 and under RCW
4.84.350, which provides for an award of fees and expenses when a qualified party
prevails in a judicial review of an agency action. Because Tri-City has not obtained relief
on any significant issue, the statute does not apply.
Affirmed.
WE CONCUR:
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