Kennewick and Richland might finally be able to extend Center Parkway so it becomes a through street instead of coming to a dead end at a roundabout near Columbia Center mall.
Benton County Superior Court Judge Bruce Spanner on Tuesday affirmed a state Utilities and Transportation Commission decision allowing the cities to extend the road over the rail lines to connect with Tapteal Drive.
Tri-City Railroad, which leases the rail lines from the Port of Benton, sued the commission, claiming that the commission should not have used economic development, broader public policy and deference to local governments as reasons to approve the long embattled crossing.
William C. Schroeder, the company’s Spokane attorney, argued that the commission can only use public safety when weighing if there is more of a need for the crossing than there is risk to the public by adding a place where vehicles and trains meet.
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And public safety wasn’t a good enough reason, even with the flashing lights, automatic gates and other measures the cities propose to install at the crossing, Schroeder said.
“These crossing accidents happen all the time,” he said.
The commission consistently interprets state law to call for a balancing test of public need versus public risk when considering at-grade crossings, said Julian Beattie, assistant state attorney general, who represented the commission.
Spanner agreed that the balance of public need and public risk historically had been applied by the commission and become a normal part of the consideration of crossings.
And he said he did find evidence of public need for the crossing within the record, including testimony and a report by J-U-B Engineers.
Approval from the commission was required for Kennewick and Richland to build the last 800 feet of road needed to finish connecting it to Tapteal Drive. The commission overruled an administrative law judge decision that denied the crossing, saying that decision focused too much on the single issue of public safety and overlooked a broad public need for the crossing. The cities had appealed the administrative law judge denial to the three-member commission.
Extending Center Parkway would mean that drivers would be able to travel from the traffic circle at Gage Boulevard near P.F. Chang’s and Olive Garden north to businesses near Kohl’s department store. The extension has been in the works for about 15 years, but it has hit a number of hurdles and roadblocks.
Richland and Kennewick worked to resolve issues with Union Pacific and BNSF Railway Co. and simplified the project after the commission previously denied a crossing for the project about seven years ago. The cities paid Union Pacific $2.1 million to buy property for the road to be built on and to reimburse the company for building a replacement for its two tracks elsewhere.
The cities initially proposed moving the passing line west so the proposed crossing would only have to cross one set of tracks. However, when the railroad’s representatives testified during the commission proceedings that it did not want the track moved, the plan was changed to crossing the two tracks, Richland officials previously told the Herald.
However, Schroeder claimed the commission used authority it didn’t have by approving the removal of the 1,900-foot passing track Tri-City Railroad uses.
Stephen DiJulio, a Seattle attorney who represented the cities, argued that nothing in the commission’s decision allows the cities to remove the siding track. The track does not have to be removed for the road to be extended.
And this is not the time to argue property interest, he said. The cities will pay just compensation for the right of way to extend the road over the rail lines, he said. But that is separate from the commission’s approval of the crossing.
Spanner said he did not find that the commission ordered removal of the passing rail line. He said discussion of property interests should be left to a different lawsuit Tri-City Railroad filed against the cities seeking damages.
The company also filed separate claims with Kennewick and Richland alleging damages of at least $2.5 million, but it isn’t clear if the company is seeking at least $2.5 million total or at least $2.5 million from each city.
Richland officials previously said it did not make sense to compensate Tri-City Railroad for the interest it has in the tracks through its lease with the Port of Benton until after the cities received approval from the commission to proceed. They wouldn’t need the rights to the property if the crossing was denied.