Greene Township Board of Supervisors v. Pennsylvania Public Utility Commission

668 A.2d 615, 1995 Pa. Commw. LEXIS 576
CourtCommonwealth Court of Pennsylvania
DecidedDecember 13, 1995
StatusPublished
Cited by11 cases

This text of 668 A.2d 615 (Greene Township Board of Supervisors v. Pennsylvania Public Utility Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene Township Board of Supervisors v. Pennsylvania Public Utility Commission, 668 A.2d 615, 1995 Pa. Commw. LEXIS 576 (Pa. Ct. App. 1995).

Opinion

PELLEGRINI, Judge.

The Greene Township Board of Supervisors (Township) appeals a decision of the [617]*617Pennsylvania Public Utility Commission (Commission) directing the Township to reimburse Consolidated Rail Corporation (Conrail) for the costs it must incur in preparing plans, providing materials, removing and constructing a roadway on fill at Crossing No. 1, a wooden, one lane bridge traversing railroad tracks and located within the Township.

On June 2, 1989, Conrail filed an application with the Commission, seeking to abolish thirty-one rail highway crossings on its Clarion Secondary Track. The parties were unable to agree on the disposition of four of these crossings, including Crossing No. 1. Hearings were held before an administrative law judge (ALJ) concerning Conrail’s application with respect to the four disputed crossings. Following these hearings, the ALJ recommended that the bridge be removed and that the right of way be filled in so that a roadway could be constructed thereon. The ALJ also recommended that the Township reimburse Conrail for fifty percent of the costs associated with performing this work.

The Township filed exceptions to the ALJ’s recommended decision, contending that it was unfair to require it to reimburse Conrail for fifty percent of the costs associated with removing a bridge built solely for the convenience of Conrail. The Commission did not address the basis of the Township’s exceptions, and instead, remanded the matter to the ALJ for reconsideration of the matter under the Rails to Trails Act1 and directed that the Pennsylvania Department of Environmental Resources and the Pennsylvania Game Commission be made parties to the proceedings.

On remand, the ALJ recommended that Mercer County prepare the plans and perform the work necessary for the removal of the bridge as well as the construction of the roadway on the fill. Reasoning that Conrail would be the primary beneficiary of the removal of the bridge, the ALJ recommended that it reimburse Mercer County for one hundred percent of its costs in performing the work. The Commission then modified the ALJ’s recommended decision by directing Conrail to prepare the plans and perform the work associated with removing the bridge and installing a new roadway. The Commission also directed the Township to reimburse Conrail for fifty percent of its costs. Without making any findings of fact or setting forth its reasoning, the Commission stated that the apportionment was appropriate since the road was a Township road and the Township would benefit from the removal of the bridge.

The Township then appealed to this Court, contending that the Commission’s order directing it to reimburse Conrail for fifty percent of its costs was not based upon substantial evidence. This Court, citing to the fact that the Commission failed to set forth the factors that it considered in determining that the Township should bear fifty percent of the costs of removing the bridge and replacing the road, vacated and remanded the Commission’s order. This Court directed the Commission to make additional findings of fact and to set forth a discussion of the factors which it took into consideration in equally apportioning the costs between Conrail and the Township. Greene Township Board of Supervisors v. Pennsylvania Public Utility Commission, 164 Pa.Cmwlth. 88, 642 A.2d 541 (1994).

On remand, the Commission made additional findings of fact with respect to the benefits each party would receive from the removal of Crossing No. 1. The Commission determined that Crossing No. 1 is necessary for fire and safety equipment and that, if it were removed, it would increase the amount of time that it would take to provide emergency services. The Commission also found that Crossing No. 1 is more convenient to the Township maintenance crew and the residents of the Township, noting that an alternate route would be over two miles longer. Additionally, the Commission concluded that, if the limited weight limitations imposed on Crossing No. 1 were not in place, more cars and school buses would probably use the crossing. The Commission further found that the Township’s preference was to keep Rogers Road open and that the Township would favor the removal of the bridge, filling [618]*618in the void, and replacing the roadway. The Commission also found that Conrad would receive no additional benefit from the reconstruction or repair of the bridge at Crossing No. 1, and that it would not benefit Conrail to have the bridge removed.

Based upon these findings, the Commission reasoned that “preserving the connection between the eastern and western portions of Rogers Road across the bridge will be of significant benefit to the Township and its residents as amply and clearly demonstrated by the testimony” of the Township Supervisors. The Commission further reasoned that the bridge structure could not remain in place at Crossing No. 1 due to the quantifiable traffic flow and the bridge’s weight limitations. In directing the Township to reimburse Conrail for fifty percent of the costs associated with removing the bridge, filling in Crossing No. 1, and building a roadway on the fill, the Commission stated that:

[w]hile Conrail may benefit to a greater degree than the Township would from the removal of the bridge, the Township and its residents clearly benefit to a greater extent than Conrail will from the continued existence of Rogers Road. The continued existence of Rogers Road is dependent upon the fill and road restoration work. Accordingly, we conclude that, on balance, it is appropriate to apportion the costs of the removal, the fill, and the road restoration work equally between Conrail and the Township.

The Township again appeals to this Court.2

The Township contends that the Commission’s allocation of fifty percent of the costs of removing the bridge and constructing a new roadway to the Township is not just and reasonable. Citing to the facts that the bridge was built by, maintained by, and ben-efitted only Conrail and its predecessors, the Township argues that none of the costs associated with its removal should be assessed against the Township. Conceding that there is a Township road that passes over the bridge, the Township argues that, given the limited amount of traffic that uses the road,3 it should decide whether it wishes to keep the road open, at which point, it would be required to construct a roadway. This does not mean, the Township argues, that it should be responsible for paying to remove the bridge and to replace the fill that had originally been removed by Conrail’s predecessor.

Pursuant to Section 2704(a) of the Public Utility Code, 66 Pa.C.S. § 2704(a), the Commission is vested with the authority to determine who shall bear the costs associated with the relocation or abolition of a railroad crossing and the facilities at or adjacent to such crossing. In exercising this authority, the Commission is not limited to any fixed rate with respect to the allocation of costs, but instead, may take all relevant factors into consideration. Department of Transportation v. Pennsylvania Public Utility Commission, 79 Pa.Cmwlth. 266, 469 A.2d 1149 (1983).

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Bluebook (online)
668 A.2d 615, 1995 Pa. Commw. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-township-board-of-supervisors-v-pennsylvania-public-utility-pacommwct-1995.