Private Crossing Pits Residents Against Railroad

     ALBANY, N.Y. (CN) - New York transportation officials erred in ordering Canadian Pacific Railway to bear most of the cost of upgrading a dangerous private crossing that should be closed, the railroad claims in state court.
     The crossing, on Canadian Pacific's Main Line between Schenectady and Montreal, is used by two dozen homeowners who live on a gravel road near a lake about 20 minutes north of Schenectady.
     That section of the line sees four Amtrak passenger trains and 16 freight trains daily, traveling at speeds up to 60 mph, the railroad says in a complaint in Albany County Supreme Court.
     The track could become part of New York's planned High Speed Rail Corridor, on which Amtrak trains would travel at 79 mph, the railroad says.
     But when Canadian Pacific tried to work with the homeowners to close or change the crossing, they balked, leading the railroad to petition the state Department of Transportation in 2010 for permission to close the crossing.
     Last fall, an administrative law judge for the DoT recommended that the crossing remain open and that Canadian Pacific underwrite at least 50 percent of the cost of adding warning lights and safety gates there, the complaint states.
     The judge also recommended that the cost to the homeowners for the upgrades be capped at $150,000.
     The recommendations are contrary to state and federal laws that seek to reduce the number of railroad crossings in the country in the interest of public safety, Canadian Pacific contends, and to statutes that recognize that railroads should not be liable for the costs associated with upgrading crossings.
     "The Report and Recommendation was unlawfully based upon the ALJ's [administrative law judge] creation, and application, of rules for apportionment of liability that find no support in applicable statute or any rule or regulation promulgated by NYSDOT," the railroad says.
     Named as defendants are the Department of Transportation and Commissioner Joan McDonald; Administrative Law Judge Robert Rybak; the town of Ballston in Saratoga County, through which the Main Line runs; and three of the affected homeowners, Susan Musto and Thomas and Adele Grasso.
     The 31-page complaint claims the recommendations for the crossing, in addition to being arbitrary and capricious, violate state railroad law and the state constitution.
     Canadian Pacific took over the Main Line when it acquired the Delaware and Hudson Railway Co. in 1991. The Calgary-based railroad owns more than 14,000 miles of track stretching across six Canadian provinces and 13 U.S. states, and serves major cities in both countries.
     The company's complaint notes that crossings have been around as long as railroads have, growing to about 10 crossings per mile by U.S. Department of Transportation estimates.
     But with crossings come accidents that can injure occupants of motor vehicles and of trains, too, the complaint states. And collisions can lead to derailments, with environmental implications if fuel or chemical cargoes spill.
     Since the 1970s, "the federal government has remained steadfast in its intention to upgrade or eliminate as many crossings as possible," Canadian Pacific says.
     While the government has held that railroads "not be liable for costs associated with upgrading crossings," federal funding "is, and has always been, limited to public crossings," according to the complaint.
     "Public" crossings are on highways used by the public, and motorists are alerted to approaching trains by safety gates, bells and flashing lights.
     "Private" crossings are on privately owned roads and offer no warning devices, just pavement markings and crossbuck signs, according to the complaint.
     "[W]hile the installation of warning devices is often used to improve eligible crossings, both the United States and the State of New York recognize that the most effective manner to increase safety is to eliminate or close a crossing," Canadian Pacific says.
     With that in mind, the railroad says, it decided to eliminate Main Line private crossings on three roads within a couple of miles of each other in the town of Ballston. Just to the north of the three is a public crossing with warning devices.
     While homeowners on two of the roads agreed to close their private crossings, those on Connolly Road did not.
     After petitioning the state Department of Transportation, which regulates private crossings, Canadian Pacific says, Rybak, the administrative law judge, ordered it to hold meetings with the affected homeowners on "whether a legal private or public crossing could be established, or, in the alternative, whether a safe means of ingress and egress" was available for the public crossing just to the north.
     The railroad offered a half-dozen options, but the homeowners "refused to negotiate in good faith because of their misconception that they have a legal right to use the crossing," according to the complaint.
     Canadian Pacific says it wasn't until 19 months after the proceedings wrapped up that Rybak issued his recommendations, which the Department of Transportation fully adopted.
     "While the ALJ credited the safety concerns raised by CP, accepted testimony in support of the petition, and acknowledged that the impacted residents refused CP's proposals, he nonetheless apportioned liability at odds with the Railroad Law and the Report and Recommendation's factual findings," Canadian Pacific says.
     The railroad wants the court to overturn the recommendations that Connolly Road be upgraded to a fully equipped crossing by Dec. 31, and that the affected homeowners pay only part of the cost of the improvements and future maintenance.
     Stephen Buhr of Greenberg Traurig in Albany represents Canadian Pacific.
     A state transportation spokesman could not be reached for comment Sunday.