Link to Final Agency Decision

 

11-3001-17351-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF TRANSPORTATION

 

 

In the Matter of the Petition of the

City of Cologne for the Establishment of an At-Grade Crossing over the Twin Cities & Western Railroad Line South of CSAH 36 in the City of Cologne, Minnesota, pursuant to Minn. Stat. § 219.072 (2004)

 

FINDINGS OF FACT,

CONCLUSIONS AND RECOMMENDATION

 

          The above matter came on for hearing before Administrative Law Judge Barbara L. Neilson on August 17, August 24, September 18, September 19, and October 10, 2006.  The hearing on August 24 was held at the City Hall in Cologne, Minnesota; the other days of hearing were held in the courtrooms of the Office of Administrative Hearings in Minneapolis, Minnesota. 

Following the conclusion of the hearing, a transcript of the tape recording of the hearing was prepared.  The parties thereafter submitted post-hearing briefs.  A post-hearing Motion to Supplement the Record was also submitted by the Twin Cities & Western Railroad on January 29, 2007, and further briefs were filed by both parties with respect to that motion.  The OAH record closed on May 7, 2007. 

R. Lawrence Harris and Racheal M. Holland, Attorneys at Law, Melchert, Hubert, Sjodin, P.L.L.P., 121 West Main Street, Suite 200, Waconia, MN  55387, represented the City of Cologne. 

Thomas V. Seifert, Attorney at Law, Head, Seifert & Vander Weide, 333 South Seventh Street, Suite 1140, Minneapolis, MN  55402, represented the Twin Cities & Western Railroad. 

STATEMENT OF THE ISSUE

          Should an at-grade crossing be established across the track of the Twin Cities & Western Railroad south of County State Aid Highway 36 in the City of Cologne?

          The Administrative Law Judge concludes that the City should be permitted to establish the grade crossing at the proposed location.

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

The Parties and Roadway System

1.               The City of Cologne (the City) is located along Trunk Highway (T.H.) 212, approximately 35 miles southwest of Minneapolis.  T.H. 284, which is the main street in the currently developed portions of Cologne, runs north to Waconia from its intersection with T.H. 212 in Cologne, and County State Aid Highway (CSAH) 53 runs south toward Belle Plaine from its intersection with T.H. 212 in Cologne.

2.               The portion of T.H. 212 that extends from Glencoe to the Twin Cities, and runs directly through Cologne, is considered by the Minnesota Department of Transportation (Mn/DOT) to be a “High Priority” Interregional Corridor route.  It links the regional trade centers along T.H. 212 with the Twin Cities.[1] 

3.               The Federal Highway Administration’s Roadway Functional Classification Hierarchy identifies four classification categories: principal arterials, which are designed to connect large urban areas at high speeds; minor arterials, which are designed to connect smaller cities with urban areas and move regional traffic; collector roadways, which are designed to collect traffic from local streets and distribute them to the minor and principal arterial system; and local streets.  The Metropolitan Council recognizes the FHA’s Roadway Functional Classification Hierarchy in its planning services for the Twin Cities seven-county metropolitan area.[2]

4.               Mn/DOT is currently constructing a new four-lane freeway segment of T.H. 212 that will run approximately 12 miles between Eden Prairie and Carver, where it will reconnect to existing T.H. 212.[3]  T.H. 212 turns into a four-lane expressway as it goes through the City of Cologne.[4] 

5.               The City is experiencing rapid growth due to its close proximity to the Twin Cities metropolitan area, and the construction of the new segment of T.H. 212.  This growth has led to concerns about pedestrian safety and traffic flow within the City.[5] 

6.               Twin Cities and Western Railroad (TCW) is a regional grain-hauling railroad that owns and operates approximately 144 miles of track from St. Paul, Minnesota, to Milbank, South Dakota.  The TCW’s tracks runs east/west in the area surrounding Cologne.  As the tracks enter Cologne from the east, they run north of T.H. 212 through the City’s downtown area.  Just west of downtown, the tracks go under the bridge that carries T.H. 212 as it curves to the north.  The tracks thereafter continue in a westerly direction just south of and roughly parallel to T.H. 212.[6]  TCW also operates the Minnesota Prairie Line (MPL) over 94 miles of track owned by the Minnesota Valley Regional Rail Authority running from west of Cologne at Norwood-Young America to Hanley Falls, which is located southwest of Granite Falls.[7]  

7.               The current railroad crossings of the TCW’s tracks in the vicinity of the City include:  an at-grade crossing located on T.H. 284 (north of T.H. 212, in the downtown area of Cologne); another at-grade crossing located on Adams Street just a few blocks east of the T.H. 284 crossing (also north of T.H. 212); an at-grade crossing located east of the City on Market Boulevard (north of T.H. 212); an at-grade crossing located west of the City on CSAH 153 (south of T.H. 212); and two private at-grade crossings west of the downtown area accessing farms (south of T.H. 212).[8]

8.               To the east of the City of Cologne, Market Boulevard[9] runs north from T.H. 212 and intersects with CSAH 36.  CSAH 36 is a two-lane roadway that travels east-west through the City.  It begins outside the City limits east of Market Boulevard, where it has a free-flow right connection from westbound T.H. 212.  CSAH 36 proceeds to the west into the City, past Market Boulevard and T.H. 284.  It then curves to the southwest, continues under the northerly bay of the bridge that carries T.H. 212, and runs parallel to the Village at Cologne Development and the TCW tracks until it finally accesses T.H. 212 once again on the west side of the City.[10]

9.               CSAH 36 is designated as a “collector” roadway in the Federal Highway Administration’s Functional Classification Hierarchy.[11]  Collectors are meant to facilitate shorter, localized trips, providing efficient circulation of local trips as well as connecting trip origins or destinations with principal (T.H. 212) and minor (CSAH 53/T.H. 284) arterials.[12]  As it currently operates, CSAH 36 moves traffic to the already-developed portions of the City and onto a minor arterial (T.H. 284), or carries traffic directly to a principal arterial (T.H. 212).[13]  

10.           Currently, the City’s primary business and residential development is located in the area north of T.H. 212, including a number of recently-built homes.[14]  However, development is now also being planned for the area south of T.H. 212.  Beginning in approximately 2003, Hans Hagen Homes (HHH) began to acquire land in the City and consider various development alternatives.  Ultimately, HHH provided the City with a request and concept plan to develop more than 500 acres of land just south of T.H. 212, and west of CSAH 53.  The proposed development, called the “Village at Cologne,” includes 1,400 residential units, a new community center, a new city hall, a new elementary school, a new park area and a retail shopping center.[15]  It is anticipated that the build-out of the project will take 10 to 12 years and that over 4,000 people will ultimately live in the new development.[16]

11.           The City desires to maintain a connection between the existing City and the new Village at Cologne Development so that its residents may easily access the residential, commercial and retail options that will be located both north and south of T.H. 212.  Given this desire and the lack of an easy access to the Development from the existing City, the City began exploring ways to physically connect the already-developed portions of the City with the Village at Cologne Development.[17] 

12.           At the present time, the only access to the area involved in the Village at Cologne Development from downtown Cologne is by traveling south on T.H. 284/CSAH 53 past the intersection with T.H. 212 and turning west onto Village Parkway.  Because of the possibility that a single access point could be blocked by roadwork, utility work, accidents, etc., the City and HHH deemed it critical that there be a second access point to the Village of Cologne Development that provided a grade-separated crossing of T.H. 212.[18] 

13.           The speed limit for T.H. 212 through Cologne is 65 miles per hour.[19]   The intersection of T.H. 212 and T.H. 284/CSAH 53 in Cologne is very busy, and has only a yellow/red blinking light at the present time.[20] It is difficult for pedestrians and vehicles to cross that intersection.  The City wants to ensure that other access points exist so that residents do not have to cross a four-lane highway to go from one side of town to another.[21] 

14.           The City would like to have full traffic signals at the intersection of T.H. 212 and CSAH 53/T.H. 284, but thus far there have not been sufficient traffic volumes to justify signals at that location.[22]  At some point, Mn/DOT anticipates that a traffic signal will be warranted at the intersection.  If City growth and the HHH development progress as planned, it is expected that a traffic signal will be justified at that intersection in about the year 2010.  However, Mn/DOT will only allow a traffic signal to be placed on a High Priority Interregional Corridor such as T.H. 212 on an interim basis, conditioned upon a plan for the eventual removal of the signal and closure of the intersection or upgrade to an interchange.[23]  Mn/DOT eventually plans to close this intersection with T.H. 212.[24] 

15.           134th Street is a narrow gravel road that runs east-west just south of the area of the Village at Cologne Development.   The orderly annexation agreement between the City and the Township pertaining to the Village at Cologne Development stipulates that non-emergency access to 134th Street will not be allowed.  Moreover, expected commuting patterns will bring traffic from the Village at Cologne Development to the north and east, and not to the south.[25]  

16.           Various alternatives were examined by HHH and the City, and one of HHH’s consultants developed a partial interchange concept.  Mn/DOT became involved in the discussion at the request of the City and opposed the partial interchange that was being proposed at the time.  Mn/DOT’s area manager suggested that it was an appropriate time to conduct a special study of transportation issues in the City.  Mn/DOT funded the study and selected a consultant (the firm of Short Elliot Hendrickson (“SEH”)) to conduct the study.[26]  Due to the size of the development, an Alternative Urban Areawide Review (AUAR) was also necessary to evaluate the environmental impact of the development.[27]

 

Cologne Transportation Planning Study

17.           In June of 2004, the City, Carver County, and Mn/DOT conducted a transportation planning study of the T.H. 212 area in the City in order to “prepare a coordinated, phased approach to solve the short- and long-term future access needs of Highway 212.”  The study was initiated due to (1)  the Village at Cologne Development proposed by HHH, which would need access to T.H. 212 and was expected to generate the need for an interim traffic signal at the intersection of T.H. 212 and T.H. 284/CSAH 53 when its peak development was achieved after 2010; and (2)  concerns of the City and Carver County about the safety, design, efficiency, right-of-way width, and at-grade railroad crossing of T.H. 284 as it passes through the community, particularly in light of the anticipated significant growth in the near future and the County’s initiation of planning for a new north-south minor arterial corridor that would likely replace T.H. 284 in the Cologne area.  Representatives from Mn/DOT, Carver County, the City, and surrounding townships participated on a Project Management Team and in several local workshops to develop potential study solutions.[28] 

18.           One of the access concepts considered and rejected by the Planning Study was the creation of a vehicular overpass at the intersection of T.H. 212 and CSAH 53/T.H. 284.  This concept was ultimately rejected by the Planning Study because construction of a bridge and ramps with the appropriate elevation and slopes would result in the destruction of property and businesses that the City was trying to preserve.[29] 

19.           The Cologne Transportation Planning Study was completed in October of 2004.  After considering 15 access concepts, the Planning Study’s preferred concept included: (1)  creating a new diamond interchange with T.H. 212 to the east of Cologne, at Market Boulevard; (2)  closing the intersection access at CSAH 53/T.H. 284 and T.H. 212; (3)  building a grade-separated crossing of the TCW railroad track at the Market Boulevard intersection of T.H. 212; and (4)  “[n]o disturbance to the City’s planned Louis Street extension and railroad relocation (connectivity goal).”[30]

20.           The City, County, and Mn/DOT all agreed that the best long-term location for an interchange with T.H. 212 would be at Market Boulevard.  The recommended new interchange at Market Boulevard and T.H. 212 would be .76 miles east of the existing interchange at T.H. 212 and CSAH 53/T.H. 284.  Mn/DOT usually spaces interchanges on a High Priority Interregional Corridor at least one mile apart.  If an interchange were installed at Market Boulevard, the signalized intersection expected to exist at T.H. 212 and T.H. 284/CSAH 53 would be closed, along with the intersections at County Road 41 and CSAH 36 to the east of the City.[31]  It is likely that the intersection of CSAH 36 with T.H. 212 on the west would remain open.[32] 

21.           The Planning Study’s recommendation to close the intersection of CSAH 53/T.H. 284 and T.H. 212 would remove the current primary entry point into the City from T.H. 212 and eliminate the current direct connection from the existing City to the Village at Cologne Development.[33] 

22.           The Planning Study anticipated that further adjustment and revision may be necessary, as reflected in the study’s conclusion that “[t]he study partners should continue to meet periodically with the completion of this study to ensure that the short and long-range plans are consistent with development proposals and to determine if any adjustments need to be made.”[34]  It is not unusual for modifications to occur in transportation plans.[35] 

23.           On October 18, 2004, the Cologne City Council passed a resolution approving the Planning Study.[36]  

24.           MnDOT does not have a date planned for when the T.H. 212 and CSAH 53/T.H. 284 intersection will be closed, or when the new interchange at Market Boulevard and T.H. 212 will be created.  Decisions regarding these interchanges will depend largely on funding, safety and congestion issues, and community growth.  However, creation of the Market Avenue/T.H. 212 interchange does appear in the Mn/DOT’s 20-year long range transportation system plan for the metropolitan district as an “unfunded need” in the 2008-2014 time frame.[37]

 

Alternatives Evaluated

25.           The City evaluated two alternatives in addition to the Proposed Crossing (which is described in detail below) based upon such factors as the feasibility and costs of construction, safety issues, right-of-way concerns, and possible effects on the local transportation system.[38]

26.           The first alternative was not to make any changes.  This option was rejected by the City primarily because of the safety issues and traffic concerns caused by having only one access point to the large Village at Cologne Development.  The City considers it vital that there be a strong connection and easy access to the newly developing area, without requiring residents to drive a circuitous route.  In addition, Mn/DOT’s plan to close the T.H. 212 and CSAH 53/T.H. 284 intersection in the future would eliminate the only connection between the already developed portions of the City and the new Development.[39]  

27.           The second alternative evaluated was the Louis Street extension and railroad relocation plan (“the Louis Street Extension Alternative”).[40]  This alternative involved use of the three bays under the bridge that carries T.H. 212 over CSAH 36 and the TCW tracks just west of downtown Cologne.  Currently, CSAH 36 runs through the northerly bay, the TCW runs through the southerly bay, and the middle bay is empty.[41]  In late 2003, HHH and the City initiated talks with TCW to explore the possibility of relocating approximately 2,200 feet of TCW’s track from the southerly bay to the middle bay of the T.H. 212 overpass and extending Louis Street from its current termination point located just east of the T.H. 212 bridge near downtown Cologne, through the southerly bay of the T.H. 212 overpass, until its intersection with Village Parkway.  Under this approach, Louis Street would be extended to access the Village at Cologne Development and an at-grade crossing of TCW’s tracks in the area of the Development would be avoided.[42] 

28.           The Louis Street Extension Alternative would have required relocating railroad track through property owned by TCW and leased to a business owner named Charlie Storms.  The property leased by Mr. Storms is located to the east of the railroad track and T.H. 212, on the north side of the tracks but south of CSAH 36.  Mr. Storms uses the land primarily for outside storage of equipment and other materials.  TCW informed HHH that it would have to bear any costs associated with disruption of Mr. Storms’ operations.  HHH attempted to negotiate an agreement with Mr. Storms to modify or terminate his lease but was not successful.  Among other things, Mr. Storms demanded that HHH grade and construct for him a nine-ton parking lot, grade and fill in a road ditch (located within the County road right-of-way), move utility poles, and handle all of the permits and engineering on his behalf to allow him to continue to operate his storage business in a new location.[43]  HHH estimated the cost of satisfying Mr. Storms’ demands to be about $212,500.[44]   

29.           The Louis Street Extension Alternative would also have made it necessary to move an MCI fiber optic cable line that is located in TCW’s right-of-way under the T.H. 212 overpass.  MCI estimated the cost of relocating its fiber optic cable line to be about $500,000.[45] 

30.           During the period of time that HHH was exploring the Louis Street Extension Alternative, it tried to persuade Mn/DOT to use the existing bridge structure to install an interchange to T.H. 212.  Mn/DOT rejected that concept because the proposed interchange would not have connected to an arterial roadway.  Mn/DOT will not allow new interchanges unless they meet that standard.[46]

31.           In March 2005, after many discussions between HHH and TCW that took place over the course of two years, TCW presented HHH with a Proposed Agreement for the Louis Street Extension Alternative.  The terms of the Proposed Agreement required HHH to: (1)  bear all costs associated with modifying or terminating the lease between Charlie Storms and TCW; (2)  acquire 50 feet of right-of-way from Carver County and MnDOT to relocate the tracks; (3) bear all costs associated with the track relocation project; (4) provide $25 million of railroad protective liability insurance, $25 million of commercial general liability insurance, and $25 million of business automobile insurance; (5)  indemnify TCW and hold it harmless from any losses, including environmental claims; (6)  provide TCW with a minimum of $50,000 for administrative, management and legal fees; and (7)  pay for the cost of relocating the MCI fiber optic cable line running adjacent to the track in TCW’s right-of-way.[47]  Although HHH did not submit a written response to the Proposed Agreement, HHH representatives met with TCW representatives and communicated their disagreement.  TCW did not express willingness to negotiate on any of these points.[48]

32.           HHH estimated that the costs of the Louis Street Extension Alternative would total more than $3,965,463.[49]  Included in the total estimated amount was $1,106,518 for improvements to Louis Street between the T.H. 212 overpass and Conrad Street, $1,248,694 for improvements to Louis Street from Conrad Street to Louis Street’s current termini point, and $1,610,250 for railroad relocation work.[50] 

33.           The HHH cost estimate for the Louis Street Extension Alternative did not include costs associated with voluntary clean-up of diesel organic compounds identified within the groundwater near the bridge.  Such costs are difficult to predict.[51]

34.           The Louis Street Extension Alternative was discussed by HHH and TCW for approximately two years (2004-2005),[52] and was referenced in the Planning Study as a possible access point to the Village at Cologne.[53]  Negotiations between HHH and TCW regarding the Louis Street Extension Alternative eventually broke down in 2005, primarily over costs and traffic routing issues.[54]  HHH found the terms of TCW’s Proposed Agreement to be unacceptable, and HHH and the City concluded that the Louis Street Extension Alternative was not financially feasible.  In addition, Mn/DOT’s recommendation in the Cologne Planning Study that the interchange at T.H. 212 and CSAH 53/T.H. 284 be closed in the future made the Louis Street Extension plan less desirable than the Proposed Crossing (described below).[55] 

35.           The recommendations of the Planning Study prompted the City to re-evaluate its overall transportation system.[56]  As part of this re-evaluation, the City determined that the Louis Street Extension Alternative would not provide for the best circulation of local traffic nor would it be consistent with the Federal Highway Administration’s Roadway Functional Classification Hierarchy since, rather than facilitating local travel through the use of local and collector roadways, it would require local traffic to use minor arterial roadways (T.H. 284 and CSAH 53).[57] 

36.           The City ultimately rejected the Louis Street Extension Alternative for the following reasons:

a.       Assuming the Louis Street Extension was constructed to intersect with Village Parkway, all traffic exiting the Village at Cologne Development would be routed from Village Parkway, east on Louis Street, north on T.H. 284 over two sets of TCW tracks (where sight lines do not meet AASHTO design standards), through the existing downtown, to the intersection of T.H. 284 with CSAH 36.[58]  This would result in a high volume of traffic using a minor arterial for local trips, and a local roadway and minor arterial to access a principal arterial, both or which would cause traffic congestion and trip delay in violation of the Functional Classification Hierarchy.[59]

b.       The City’s Fire Department is located on Louis Street, and its operations could be adversely affected by increased traffic on the road.[60]

c.       Assuming the Louis Street Extension was constructed to intersect with Village Parkway, Louis Street could also be extended east to intersect directly with CSAH 36 and ultimately reach the Market Boulevard interchange, thereby avoiding the use of a minor arterial (heading north on T.H. 284) and the need for traffic to pass through the City’s existing downtown.[61]  However, an eastward extension of Louis Street would require the taking of private property, the destruction of an agricultural area, another at-grade crossing of the railroad, and a large amount of time and money to construct a brand new road when CSAH 36 is already constructed.[62]

d.       Louis Street goes through a residential area, and the Louis Street Extension would greatly increase the volume of traffic in a residential neighborhood and on a residential street.[63]

e.       Louis Street was designed as a local roadway.  The portion of Louis Street to the east of T.H. 284 is not aligned with the portion to the west of T.H. 284, and the street and its shoulders are narrow compared to the wider corridor offered by CSAH 36, which already serves as a collector.  Louis Street also terminates just a few blocks east of T.H. 284 at the present time.  Upgrading Louis Street to serve as a collector would require extensive reconstruction to the roadbed, and the roadway itself would need to be widened and straightened to adequately serve a higher volume of traffic, resulting in the condemnation of at least two homes.[64] 

37.           The City did not consider building an overpass over the TCW in the area of the Proposed Crossing.[65]  There are no plans to build an overpass or underpass at the intersection of T.H. 212/T.H. 284/CSAH 53.[66]  The building of an interchange at that location, including bridging and ramps, was considered as part of the transportation study, but construction of such an interchange would result in the loss of businesses rather than their preservation.[67]

General Description of the Proposed Grade Crossing

38.           The Proposed Crossing is located on Village Parkway, .60 miles west of the existing railroad crossing at T.H. 284, and 1.75 miles east of the existing railroad crossing at CSAH 153.[68]

39.           Village Parkway is a local roadway that will primarily run east/west through the entire Village at Cologne Development, with branches stemming off into the residential areas.  It is anticipated that the portion of Village Parkway approximately 1.75 miles east of CSAH 153 will turn and run north/south, terminating at CSAH 36.  The roadway will meet the TCW tracks and CSAH 36 in a perpendicular fashion.[69] 

40.           There is one set of tracks in the area of the Proposed Crossing.  The track is generally straight, and the speed of trains in this area is at a maximum 30 miles per hour.[70] 

41.           The Proposed Crossing would eliminate two private railroad crossings adjacent to the Proposed Crossing.  The land west of the Proposed Crossing is predominantly agricultural.  The land south of the Proposed Crossing is currently agricultural but is being developed into the Village at Cologne Development.  Current residential development and the City’s downtown area are located northeast of the Proposed Crossing.[71] 

42.           The topography in the area of the Proposed Crossing is relatively level with no large trees or mounds obstructing views.  The area is currently covered with brush and weeds.[72] 

43.           Village Parkway will have a bituminous surface.  In the area of the Proposed Crossing, it will have one northbound left turn lane, one northbound right turn lane, and one southbound lane.  The northbound turn lane will be separated from the southbound lane by a median currently planned to extend to within 50 feet of the TCW tracks.  The median could be extended further if warranted by safety considerations.[73] 

44.           To accommodate grade requirements at the Proposed Crossing, and elevation differences between CSAH 36 and TCW’s track, 1000 feet of CSAH 36’s roadbed will have to be raised with the maximum height of slightly over five feet achieved in the area near the Proposed Crossing.  This reconstruction will allow all AASHTO and Mn/DOT sight distance requirements on CSAH 36 to be met.[74] 

45.           As proposed, CSAH 36 will be reconstructed to include turn lanes and bypass lanes in the area from approximately 350 feet west of the proposed intersection with Village Parkway to 50 feet east of the intersection.[75] 

46.           Village Parkway is expected to have a speed limit of 30 miles per hour, but northbound cars will probably go more slowly as they go over the tracks and approach CSAH 36, where they will have to stop.  The speed limit on CSAH 36 where it intersects T.H. 212 on the west side of the City and at the proposed intersection of Village Parkway and CSAH 36 is 55 miles per hour.  Approximately 200 feet east of the proposed intersection, there is a posted speed limit on CSAH 36 of 45 miles per hour.[76] 

47.           Storm water drainage will flow east and west under Village Parkway to a culvert extending north under CSAH 36, carrying drainage away from the Proposed Crossing and north of CSAH 36.[77] 

48.           Under current plans, Village Parkway would have a two percent grade between the south line of CSAH 36 and the railroad tracks.[78]  This does not meet American Association of State Highway and Transportation Officials (AASHTO) standards, which call for no more than a one percent grade in order to prevent low-clearance vehicles from “high centering” on the railroad tracks.[79]  The 30 feet north of the rail line would need to meet a one percent grade on Village Parkway to satisfy that requirement.[80]  It would be feasible to modify the plans to achieve a one percent grade.  This could be achieved by raising the level of CSAH 36 slightly higher than the current plans (approximately six-tenths of a foot).[81]

49.           Line of sight requirements at the Proposed Crossing where Village Parkway intersects with TCW’s tracks meet all AASHTO design guidelines even if the crossing were unprotected by signs or signals.  Assuming a train moving at 30 miles per hour, the unobstructed sight triangles are as follows:  439 feet of sight distance down the track for a southbound vehicle moving at 10 miles per hour turning onto Village Parkway; 318 feet of sight distance down the track for a northbound vehicle moving at 20 miles per hour traveling on Village Parkway; and 721 feet of sight distance down the track from a stopped condition at the Proposed Crossing.[82] 

50.           If the Proposed Crossing is built, approximately one foot of additional fill will have to be added on top of a fiber optic line located on the north side of the railroad tracks, but the line will not have to be relocated.[83]  

51.           An eight-foot-wide bituminous trail is proposed along the west side of Village Parkway.  The trail would cross TCW’s tracks and would continue on to the north side of CSAH 36.  The trail would connect with the City’s current trail system and would provide a means by which pedestrian traffic could travel between the already-developed portions of the City and the Village at Cologne Development.[84] 

52.           At the point where the pedestrian trail along Village Parkway would cross CSAH 36, pedestrians would have to cross 48 feet of pavement that includes two lanes of traffic, a right turn lane, and a bypass lane.[85] 

 

Stacking Distance

53.           The daily traffic volume on Village Parkway at the Proposed Crossing, both north- and southbound, is projected to be 1,065 Average Daily Trips (ADT) in 2007 and 4,110 ADT in 2019, the expected year of the final build-out of the Village at Cologne Development.[86] 

54.           Consideration must be given to the amount of “stacking distance” that vehicles have in the area of the Proposed Crossing, i.e., the amount of room available to vehicles to safely form a queue and be clear of both the traffic on CSAH 36 and the railroad operations on the track.  The total distance between the south fog line of CSAH 36 and the north rail of the TCW track at the Proposed Crossing is approximately 73.5 feet.  If a stop sign is installed on Village Parkway at the intersection of CSAH 36, it will likely be located about six feet back from the fog line of CSAH 36.  In addition, for safety reasons, vehicles should be no closer than about 10 feet from the northerly rail.  Both of these factors would reduce the amount of stacking distance available for vehicles traveling northbound on Village Parkway that have crossed the TCW tracks at the Proposed Crossing from about 73.5 feet to about 57.5 feet.  That means that vehicles traveling northbound on Village Parkway that have crossed the TCW tracks at the Proposed Crossing, have about 57.5 feet of “stacking distance” to safely form a queue while waiting to turn either east or westbound on CSAH 36.[87]  Fifty-seven feet is adequate to stack about three automobiles.[88] 

55.           At the peak hour in the morning, it is estimated that the length of the queue for vehicles attempting to turn left onto CSAH 36 from Village Parkway will be 52 feet and the length of the queue for vehicles attempting to turn right onto CSAH 36 will be 76 feet.  At the peak hour in the evening, it is estimated that the length of the queue will be 46 feet for vehicles attempting to turn left and 71 feet for vehicles attempting to turn right.[89]  At all times of the day other than peak morning and evening hours, the queues will be shorter because the traffic volume is less.[90]

56.           If the queue lines are longer than the stacking distance north of the railroad tracks, the additional cars will have to stack south of the tracks.  If the crossing is permitted, a sign should be posted at the crossing reminding drivers not to block the tracks.[91] 

57.           Since Village Parkway will be one of the primary roads in the Village at Cologne Development, it is likely that school buses will use it to transport children from the northern part of the City to the elementary school that will be built south of T.H. 212.  School buses are generally 40 feet long but can be as long as 45 feet.[92]  A school bus stopped at a stop sign at CSAH 36 would clear the track by about 22.5 to 27.5 feet.[93] 

58.           The stacking distance between CSAH 36 and the north rail of the TCW line will be limited for 50- to 53-foot semi-tractor-trailer trucks or moving vans, and inadequate for maximum length (62- to 75-foot) tractor-trailer trucks.[94]  It is expected that very few maximum-length trucks would use Village Parkway.[95] 

59.           MnDOT is particularly concerned about stacking distance because, during the last three years, there have been two accidents at grade crossings located near T.H. 10 in Minnesota involving trains clipping the back end of semi-tractor trailers that had crossed the tracks and were waiting to turn onto T.H. 10.[96] 

60.           Concerns about the limited nature of the stacking distance could be alleviated by installing signals and gates at the Proposed Crossing, and a traffic signal at CSAH 36 with a pre-emption system if necessary.  In such a scenario, when the railroad signals activate, the traffic signal on CSAH 36 would be preempted so that vehicles going northbound on Village Parkway would be given a green light to enable them to move away from the track.[97]

 

Railroad Operations

61.           The track in Cologne includes a section of siding that both TCW and MPL use to interchange or “switch out” and store loaded and empty cars.  The siding starts approximately 1,350 feet west of the Proposed Crossing, and extends west for a distance of approximately 4,400 feet.[98]  The distance between the west side of the Proposed Crossing to the switch that diverts rail cars to the siding is about 909 feet.[99]

62.           The maximum speeds at which trains travel within the corporate limits of the City are 30 miles per hour.  During switching operations, train cars move at speeds ranging from walking speed to 10 miles per hour.[100] 

63.           At the time of the hearing, TCW ran approximately two trains per day, six days per week past the Proposed Crossing.  The MPL ran approximately two trains per day, two days per week across the Proposed Crossing.  The majority of TCW trains travel a route from Hopkins to Glencoe and back which is referred to as the “Glencoe Turn.”[101]  The Glencoe Turn tends to arrive in Cologne during nighttime hours.  TCW crews operating a train on the westbound leg of the Glencoe Turn typically leave empty cars on the siding in Cologne.[102] 

64.           The MPL comes in from the south and connects to TCW’s main line at Norwood-Young America, approximately six miles to the west of Cologne.  The MPL crew typically brings loaded cars to Cologne for interchanging to the TCW and uses the siding in Cologne as the interchange track.  The MPL crew will leave loaded cars on the Cologne siding and pick up empty cars from the siding to take back to the MPL.  To accomplish this, the MPL crew stops the train west of the west siding switch in Cologne, disconnects the loaded cars, and leaves them sitting on the tracks.  The crew throws the switch and the locomotive proceeds onto the siding.  The crew then hooks up the empty cars being picked up, and pushes the empty cars along the siding eastward toward Cologne and onto the main line.[103]  The MPL crew then disconnects the empty cars and leaves them sitting on the main line, returns to the loaded cars, hooks them up to the locomotive, and pulls them onto the siding.  The loaded cars are disconnected and left on the siding, to be picked up by another train.  The crew then goes to the east end of the siding onto the main line, connects the empty cars to the locomotives, and proceeds west toward Norwood-Young America.[104]  Later, a TCW crew operating a train on the eastbound leg of the “Glencoe Turn” pulls their train to a point where it clears the switch so they can still operate it manually, disconnects the cars from the locomotive, and pulls the locomotive past the siding switch and back onto the siding.  They then hook up the loaded cars sitting on the siding, pull back out so that the last car clears the switch, move the switch to allow operation on the main line, back up and reconnect to the original train, and then proceed eastward to the Twin Cities.[105]

65.           If the Proposed Crossing is signalized with protective gates, the gates will be activated to come down when a train, traveling at 10 mph, gets within 440 feet of the Proposed Crossing.  For a train moving at 30 mph, the gates would be activated when the train gets within 1,320 feet of the Proposed Crossing.[106] 

66.           If a train approaching the Proposed Crossing from the west triggered the predictor circuit, stopped west of the Crossing but east of the predictor circuit activation point, and then started to move forward again, the signals may activate suddenly and cause the gates to come down without giving the desired 30 second warning time.  If possible, this issue should be addressed in designing the system.[107] 

67.           The average length of a grain hopper car is 60 feet.  Given that the length of the track between the Proposed Crossing and the switch is about 909 feet (the length of approximately 15 train cars), and the signals and/or gate will be activated at 440 feet, the train has only 469 feet of space before the gate will be activated.  Therefore, during switching activities, there will be room for approximately 8 cars to be pushed onto the main line from the siding without activating the gate.  If all 25 cars are pushed out onto the main line, there will be approximately 1,500 feet of cars and the Proposed Crossing would be physically blocked.  In that scenario, the gates would be down for about 10-15 minutes during the switching operation.[108] 

68.           During 237 hours and 39 minutes of surveillance of the Proposed Crossing that occurred over a period of 15 days in July 2006, the area where the Proposed Crossing is to be built was unobstructed more than 99% of the time.  It was only obstructed for a total of one hour and 35 minutes.  During the surveillance period, the average obstruction time per occurrence was limited to only two minutes.[109]  A total of 25 trains passed over the Proposed Crossing during the dates of the surveillance.[110]  Only one of these occurrences involved a train that stopped in the area of the Proposed Crossing.  However, because the batteries needed for the surveillance ran out, it is unclear how long that train blocked the area of the Proposed Crossing.  Approximately 22 hours of surveillance were lost due to battery failure.[111]  Moreover, it does not appear that the surveillance encompassed train activity that occurred within 440 feet of the Proposed Crossing.[112]

69.           During the July 2006 surveillance period, 42 percent of the trains that were observed in the area of the Proposed Crossing arrived between the hours of midnight and 5:00 a.m., and most of TCW and MPL’s switching operations occurred between the hours of 9:00 p.m. and 12:00 a.m., or between 2:00 a.m. and 4:30 a.m.[113]  Due to problems with track expansion and “sun kinks” on the rails during hot weather, MPL operations occur at night during the summer to prevent additional stress on the rails.  After approximately Labor Day, however, MPL returned to daytime operations.[114] 

70.           An ethanol plant located in Winthrop, Minnesota, has recently completed its expansion from a 40-million-gallon facility to an approximately 100-million-gallon facility with rail access.[115]  Winthrop is on the MPL line.  Prior to the expansion, corn was trucked into the plant and the ethanol and by-products (distillers’ dried grains (DDGs)) were trucked out.  With the expansion and rail access completed in January 2007, MPL and TCW began transporting the plant’s ethanol and DDGs by rail.[116]  

71.           At the hearing, it was projected that the expansion of the Winthrop ethanol plant would more than double the number of cars moving in the MPL line from 3,000 to about 6,000-7,000 cars annually.[117]

72.           TCW intends to use unit trains of 75 to 90 cars to transport ethanol, and unit trains of 90 to 100 cars to transport DDGs from the ethanol plant.  TCW anticipates on average that two and one half loaded ethanol trains will depart from Winthrop each month and two unit trains carrying DDGs.  Once delivered, the empty cars will be taken down to Winthrop, resulting in approximately nine large trains per month coming through Cologne in connection with the Winthrop ethanol plant.[118]  TCW will accept empty cars from larger railroads for these new operations when they are ready, day or night.[119] 

73.           Because MPL operates on rail that is lighter weight in some locations (80-85 pound rail as opposed to TCW’s heavier 112-115 pound rail), TCW intends to bring 25 loaded cars at a time from the ethanol plant to the Cologne siding.  In order to assemble a 100-car unit train, TCW anticipates that it will need to make four separate trips to the Cologne siding with 25 cars each trip.  TCW estimates that it will need to bring groups of 25 cars to Cologne on 16 to 20 days a month in connection with the Winthrop ethanol plant.[120]  The TCW intends to use the Cologne siding in both directions to stage the loaded cars to go to the Twin Cities and the empty cars to go back to Winthrop.[121] 

74.           In late January 2007, the following switching operations occurred near the Proposed Crossing, when the first ethanol train was assembled:

a.       MPL crews brought 56 loaded ethanol tank cars from the Winthrop plant to Cologne and placed the loaded cars on the siding at Cologne.

b.       Thereafter, MPL crews brought two groups of 20 loaded cars to Cologne, which they disconnected and left on the main line. 

c.       The MPL crews took the locomotive to the east beyond the east end of the siding, threw the siding switch, and backed the locomotives onto the siding.  They connected the 56 loaded cars and pulled them out of the siding onto the main line toward the east.  

d.       The MPL crews then threw the east siding switch back to the main line, pushed the 56 cars west, connected them to the 40 cars they had left on the main line, and performed an air test of the 96-car train.

e.       Once the air test was completed, the MPL crews disconnected their locomotives, moved east of the switch, threw the switch to the siding, moved back west onto the siding, and waited for the TCW train to arrive.

f.        A TCW train thereafter arrived with 27 empty freight cars destined for MPL customers.  The TCW crew pulled up to the east switch, detached the empty freight cars, moved west on the main line, and connected to the 96 loaded ethanol cars.

g.       The MPL crews then lined the east switch for the siding, moved onto the main line, and connected their locomotives to the 27 empty freight cars.  After performing an air test of the brakes, the MPL crew pulled the 27 empty freight cars onto the siding.

h.       Once the MPL crew and freight cars had cleared the east siding switch, the TCW crew lined the switch for the main line and proceeded east with the 96-car train.  The train was delivered to the Burlington Northern and Santa Fe Railway in Minneapolis.

j.        It is estimated that that ethanol train will return to Cologne in 10 to 12 days.  When it returns, TCW will use the Cologne siding to store groups of empty ethanol tank cars to be brought down to Winthrop on the MPL.[122]

75.           The switching activities described above took approximately one hour to accomplish.[123]  However, it is not clear what time of day these activities occurred, or what length of time the area of the Proposed Crossing was blocked during these activities. 

76.           During late January of 2007, MPL crews also brought jumbo hopper cars loaded with DDGs from the ethanol plant in Winthrop and placed those cars on the siding at Cologne.  On Wednesday, January 31, 2007, the first unit train of 75 DDG cars was scheduled to move from TCW to the Union Pacific Railroad.[124] 

77.           Under Minnesota law, if a train occupies a crossing for more than 10 minutes, the railroad company is subject to a fine.[125] 

78.           Other than Cologne, there is no other siding location along the TCW line between Cologne and Norwood-Young America where TCW can store more than twenty cars and interchange unit trains.  There is a siding at Bongards (which is located between Norwood-Young America and Cologne), but only ten to twenty cars can be stored there.[126]  The Cologne siding is valued by TCW because it is relatively flat and there are 2.3 miles between the existing railroad crossings at T.H. 284 and CSAH 153.  Although there are several areas to the east where TCW has that much room between crossings, they are on an uphill grade, which is not desirable for switching activity.[127]  There are possible alternatives using the Glencoe location, but presently the ethanol is all being moved to the east.[128]

79.           There are 3,168 feet between the Proposed Crossing and the existing railroad crossing located to the east on T.H. 284.  If the TCW is pushing 25 cars off the siding onto the main line, it would be possible for it to avoid occupying the Proposed Crossing by shoving the cars past the Proposed Crossing and leaving them on the main line between the Proposed Crossing and the existing crossing at T.H. 284.[129]  The locomotive traveling back and forth to the siding would, however, trigger crossing gates at the Proposed Crossing each time it approached the crossing.[130]  If the signals or gates are activated by the switching activity, and the gates keep going up and down, the public may become complacent about the warning devices and start to disregard them.[131] 

80.           Sometime in the near future, TCW plans to extend the Cologne siding an additional 2,600 feet to the west to handle the increased train activity resulting from the Winthrop ethanol plant shipments.[132] 


Cost of Proposed Crossing

81.           The City estimates that the costs of the Proposed Crossing would total approximately $742,250.[133]  The estimated total cost of the Proposed Crossing includes $250,000 for constructing the railroad crossing itself (which encompasses construction of the concrete pad that goes between the rails and the cost of installation of railroad signals), and $225,000 for road construction improvements for CSAH 36.[134]  The cost of lights, gates, and preemption at the railroad crossing is likely to range between $150,000 and $200,000.[135] 

82.           It is likely that the actual costs of the Proposed Crossing will be higher than the City’s estimate.  For example, the City acknowledged that the cost of the improvements for CSAH 36 may reach $350,000.[136]  Although no crosswalk for CSAH 36 is shown on the plans, the Mayor and others anticipate that there would be a crosswalk.[137]  The cost estimate does not include the cost of a pedestrian path on the west side of Village Parkway, which would add an additional $2,500.[138]  In addition, to build the Proposed Crossing, the City would have to purchase an easement from TCW for approximately 8,000 feet of land, at an estimated cost of $18,365.[139]

83.           The City’s estimate does not include any cost for traffic signals at the intersection of Village Parkway and CSAH 36 because, while such signals may be warranted at some time in the future, the City and HHH do not believe that signals are required at that location at the present time.[140] 

84.           After examining the other alternatives, the City determined that the Proposed Crossing was the best alternative for providing access from the existing City to the Village at Cologne Development because it is the most feasible to construct, has the lowest construction cost, has the fewest right of way impacts on third parties, and will provide needed connectivity between the existing City and the Village at Cologne Development.[141] 


Public Safety Considerations

85.           The current access point to the Village at Cologne Development from the existing City requires travel on CSAH 53/T.H. 284 across T.H. 212.[142]  At this intersection, T.H. 212 has two lanes of westbound traffic, two lanes of eastbound traffic, a westbound right and left hand turn lane, and an eastbound right and left hand turn lane.  Pedestrians and vehicles would have to travel 200 feet across four lanes of traffic moving at 65 miles per hour, and four turn lanes in order to cross T.H. 212 and access the Village at Cologne Development from the existing City.[143]

86.           Based upon Mn/DOT figures from the year 2005, the average daily traffic volume on T.H. 212 at the CSAH 53/T.H. 284 intersection is 9,000 Average Daily Trips (ADT) for the westbound lane, and 8,500 ADT for the eastbound lane.[144]  The speed limit on T.H. 212 at the intersection is 65 miles per hour.  Eastbound lanes are banked and the intersection is not signalized (with the exception of a blinking light).[145]  There are 2,050 ADT on CSAH 53 and 3,100 ADT on T.H. 284.[146]

87.           The City Fire Department responds to more accident calls at the intersection of T.H. 212 with T.H. 284/CSAH 53 than any other intersection in their service area.  Accident report data shows that traffic accidents at that intersection are increasing, and are becoming more severe than they were five to ten years ago.[147]  There have been 69 total accidents at that intersection over the last 22 years, two of which resulted in fatalities.  Thirty-three accidents resulted in injuries, two of which were incapacitating injuries.  Three of the four fatality/incapacitating injury accidents occurred since 2001.  On average, accidents at this intersection have increased from 2.5 a year in 1984-1989, to 4.5 a year in 2000-2005.[148] 

88.           The speed of the traffic, length of the crossing, and number of vehicles traveling on T.H. 212 make the intersection of CSAH 53/T.H. 284 and T.H. 212 dangerous for vehicles and pedestrians.[149]  Currently it is the practice of the City’s Fire Department when responding to calls to come to a complete stop at the intersection, which slows their response time.[150]

89.           In contrast, the average daily traffic volume on CSAH 36 at the Proposed Crossing is currently 420 ADT.[151]  The speed limit on CSAH 36 in the vicinity of the Proposed Crossing is 45-55 miles per hour, and the speed limit on Village Parkway will be 30 miles per hour.  Pedestrians and vehicles would need to travel about 70 feet across two lanes of traffic and two turn lanes on CSAH 36, and about 65 feet across one set of tracks to access the Village at Cologne from the existing City.[152] 

90.           The Proposed Crossing would provide a safer crossing for vehicles and pedestrians than the T.H. 212 and CSAH 53/T.H. 284 intersection.[153]  The Proposed Crossing would particularly benefit bicyclists and pedestrians due to the lower traffic volume, more slowly-moving vehicles, fewer lanes of traffic, and availability of the pedestrian trail at the Proposed Crossing compared to the intersection at T.H. 212 and CSAH 53/T.H. 284.[154]

91.           A secondary access point into the Village at Cologne Development is important for emergency vehicle utilization and to assist with alleviating traffic congestion.[155]

92.           The hospital, police, and fire services in the City are all located north of the Proposed Crossing.  Without the Proposed Crossing, emergency response times to the Village at Cologne Development will be significantly higher.[156]  A slower response time causes a decrease in the chance of survival for residents requiring medical assistance, and an increased chance of death and destruction caused by fire due to fire spread, both of which compromise the health and safety of the City’s residents.[157]

93.           The City currently has a 28-member volunteer Fire Department.  The Fire Department also contracts with the neighboring townships of Benton, Dahlgren, Hancock and San Francisco to provide fire protection to their residents.  The area served by the City’s Fire Department extends 1½ miles north, 4½ miles east, 4 miles west, and 5½ miles south of the City limits.  The City’s volunteer fire fighters live in a fairly wide radius around the community.  If volunteer firefighters arrive more quickly at the station, it enhances the ability of the City fire department to respond to a fire.[158] 

94.           For providing fire protection services, access via the Proposed Crossing is preferable to the proposed Louis Street Extension plan because the road is wider and the area less congested.[159] 

95.           The time savings advantage of the Proposed Crossing for emergency vehicles is lost if the crossing is blocked by train activity.  If an emergency vehicle had to double back due to blockage of the crossing, the amount of time involved would absorb the initial advantage.[160]

96.           School buses are also likely to use the Proposed Crossing.  The Proposed Crossing will be a benefit to school bus operators because the time and distance required to carry children to school will be decreased, and the use of the Proposed Crossing is safer for school bus operators than trying to cross T.H. 212 or exit onto or off of T.H. 212, where the volume and speed of traffic are greater.[161]   If the Proposed Crossing is built, it would be advisable for the School District to place an adult crossing guard at the crossing during periods of increased pedestrian activity before and after school.[162]

97.           The City has agreed to provide crossing safety devices recommended by Mn/DOT, some of which may include vehicular and pedestrian lights and gates on Village Parkway and the adjacent trail.  If the crossing permit is granted, the exact crossing and safety devices will be determined in conjunction with Mn/DOT when the crossing design is finalized.[163]

98.           Under Mn/DOT policy, the installation of gates is recommended if the crossing involves a main line where maximum train speed is 26 miles per hour or greater.[164]  Potential railroad signals that may be appropriate for the Proposed Crossing include cantilever gates and end gates with a preemption system under which the railroad signals will preempt or take over the traffic signals at CSAH 36 to allow vehicles to clear the track in the event of a train.  A sign advising motorists not to stop on the tracks[165] and fencing and active warning devices for pedestrians[166] would also be appropriate. 

99.           Traffic control devices for CSAH 36 may also be appropriate, but no specific study has been conducted to determine whether signals would be warranted under applicable criteria.  Such devices would cost approximately $50,000.[167]

 

Other Considerations

100.       Public opinion supports the Proposed Crossing and accompanying trail as the access point from the existing City to the Village at Cologne Development.  The Proposed Crossing provides connectivity between the existing City and the new Development, includes a safer trail route for pedestrians to use, and compliments the overall transportation configuration and goals of the City.[168]  

101.       Once the CSAH 53/T.H. 284 and T.H. 212 intersection is closed, travel time from various points in the existing City to the Village at Cologne Development would be about three to five minutes shorter if the Proposed Crossing were used rather than the future Market Boulevard and T.H. 212 interchange.[169] 

102.       The Proposed Crossing at Village Parkway and CSAH 36 will connect the new Development with the existing City, and will enable local traffic or local trips to cross T.H. 212 without using capacity on the minor arterials or principal arterial system.  Without the Proposed Crossing, the length of local trips between the new Development and the existing City and amount of local traffic on minor and principal arterials will increase significantly.[170]   

 

Procedural History

103.       In the summer of 2003, the City and HHH requested approval from Twin Cities & Western Railroad (TCW) for an at-grade crossing of its tracks south of CSAH 36 in order to provide a secondary access point to the Village at Cologne Development.  TCW denied the request.[171] 

104.       On March 21, 2005, the City approved HHH’s preliminary plat for the Village of Cologne Development, which provides for an at-grade crossing of the railroad tracks on Village Parkway south of CSAH 36.[172]  The Planning Commission and City Council reviewed the grade crossing and agreed that it was appropriate.  Under the preliminary plat as approved by the City, HHH is obligated to pay for the railroad crossing, signals, and roadwork necessary to connect the City’s existing streets, and make the necessary improvements.[173]  The comprehensive plan was subsequently amended in May 2005.[174] 

105.       On March 28, 2006, the City submitted its petition to the Commissioner of MnDOT to approve an at-grade crossing of TCW’s tracks just south of CSAH 36 to access the Village at Cologne Development.[175] 

106.       The Commissioner issued a Notice of and Order for Hearing on June 27, 2006.  The Notice was served by mail on all interested parties.  The hearing was set for August 1, 2006, and Notice of the Hearing was published in the Rail and Motor Carrier Proceedings Notice and Hearing Bulletin on June 30, 2006.  The first hearing date was later changed from August 1, 2006, to August 17, 2006. 

107.       The hearing was held on August 17 and 24, September 18 and 19, and October 10, 2006.  At the conclusion of the hearing, the TCW requested that a transcript of the tape recordings of the hearing be prepared.  After the transcript was completed, post hearing briefs were submitted by both parties.

108.       On January 29, 2007, TCW filed a Motion to Supplement the Record with the Affidavit of Robert Suko.  The City filed a response in opposition to the motion on February 9, 2007, and TCW filed a reply brief with respect to the motion on February 23, 2007.  On March 15, 2007, the Administrative Law Judge issued an order granting the motion to supplement the record and stating that an additional day of hearing would be held to take testimony limited to the recent rail shipments from the Winthrop ethanol plant, the assemblage and storage of trains at the Cologne siding in connection thereto, and the impact, if any, of such activity on the proposed crossing area.  A telephone conference call was held on March 26, 2007, to discuss the procedure and schedule for taking the additional testimony.  At that time, the City elected to waive an opportunity for further testimony, withdrew its objection to the Motion to Supplement the Record with Mr. Suko’s Affidavit, and agreed that Mr. Suko’s Affidavit could be received as an exhibit in this matter.  Accordingly, the Affidavit of Robert Suko dated January 29, 2007, has been received as Exhibit 40.

 

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

1.              The Commissioner of Transportation and the Administrative Law Judge have jurisdiction in this matter under Minn. Stat. §§ 14.50 and 219.072.

2.              The Department of Transportation gave proper and timely notice of the hearing in this matter and has complied with all substantive and procedural requirements of law and rule.

3.              The City has the burden of proving by a preponderance of the evidence that an at-grade crossing should be constructed at the intersection of TCW’s track and the proposed Village Parkway extension.

4.              The Commissioner must approve the establishment of all new grade crossings and is authorized to adopt rules setting forth the standards that will be applied.[176]  In adopting standards, the statute specifies that the Commissioner “shall consider that the number of grade crossings in this state should be reduced and that public safety will be enhanced by reducing the number of grade crossings.”[177]

5.              New grade crossings must meet the design standards of the AASHTO design manual and comply with the Minnesota Manual on Uniform Traffic Control Devices for Streets and Highways (MMUTCD).[178] 

6.              A proposed new grade crossing must meet at least one of the criteria in items A to E:

A.       It will provide access to two or more private properties or to public lands, that have no alternate access route.

B.       It will provide access where an alternate grade crossing or grade separation is not available within one-quarter mile (0.4 kilometer) in an urban area or one mile (1.6 kilometers) in a rural area and will have an ADT of:

(1)             750 vehicles or more, if located in an urban area; or

(2)             150 vehicles or more, in a rural area.

C.       It will consolidate two or more existing grade crossings.

D.       It is required by the construction of a new rail line.

E.       It will increase public safety by eliminating another safety problem area such as an accident-prone roadway intersection.[179]

7.              The City has established that the proposed grade crossing satisfies Minn. R. 8830.2710, subp. 1B(1), because it would provide access where an alternate grade crossing is not available within one-quarter mile in an urban area and it would have an ADT of 750 vehicles or more.  The closest alternate grade crossing is located six tenths of a mile away in an urban area, and the proposed grade crossing will have an ADT of 1,065 in the year 2007.

8.              The City has also established that the proposed grade crossing satisfies Minn. R. 8830.2710, subp. 1(E), because it would increase public safety by eliminating the need to use the unsafe, increasingly accident-prone intersection of CSAH 53/T.H. 284 and T.H. 212 as a pedestrian and vehicle crossing from the already-developed portions of the City to the Village at Cologne development.

9.              A road authority that proposes a new grade crossing must perform an analysis of alternatives to the proposed new grade crossing.[180]

10.          The City of Cologne has performed an analysis of alternatives as required by Minn. R. 8830.2710, subp. 2.

11.          The Commissioner shall consider the following factors in determining whether a grade crossing may be established or relocated:

A.       Use of the grade crossing by emergency vehicles;      

B.              Use of the grade crossing by vehicles carrying hazardous materials, vehicles carrying passengers for hire, and school buses;

C.              Conformity of sight distances with the AASHTO design manual;

D.              Alignments of the roadway and the railroad track, and the angle of intersection of those alignments;

E.              Profile of the intersection of the roadway and the railroad track, and of the approaches to the intersection;

F.               Distance and travel time to an alternate crossing;

G.             Distance from the grade crossing to adjacent intersections or driveways;

H.              Volume of vehicular traffic and operating speed;

I.                 Volume of train traffic and operating speed;

J.               Use of the grade crossing by pedestrians, bicyclists, and recreational users;

K.              Type of warning devices proposed;

L.               Other factors that might adversely affect the safety of roadway users, pedestrians, bicyclists, and recreational users;

M.             Costs and benefits of constructing the grade crossing, and the cost participation that would be required of each of the parties involved, as well as the availability of funds; and

N.              Public opinion regarding the establishment or relocation of the grade crossing.[181]

12.          The City has established by a preponderance of the evidence all facts that may be necessary for favorable consideration of its petition to establish the Proposed Crossing.

13.          Based on public opinion, safety consideration, and its overall transportation plan, the City has established by a preponderance of the evidence that need exists for the Proposed Crossing. 

14.          These Conclusions are reached for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions.

          Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

IT IS HEREBY RECOMMENDED:  That the Commissioner GRANT the petition of the City of Cologne to establish a new grade crossing over the TCW Railroad Line south of CSAH 36 in the City of Cologne, Minnesota, subject to the Department’s recommendations concerning warning devices or other improvements necessary to safeguard the public, and contingent upon compliance with all relevant AASHTO and MMUTCD standards.

Dated:  June 1, 2007.

 

 

s/Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

 

 

Reported: Transcribed (five volumes); Transcript Prepared by Brennan & Associates, 3052 Woodlark Lane, Eagan, Minnesota  55121.

 

 

NOTICE

 

This report is a recommendation, not a final decision.  The Commissioner of Transportation will make the final decision after a review of the record.  The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations.  Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact Carol Molnau, Commissioner of Transportation, 395 John Ireland Boulevard, St. Paul, Minnesota 55155, to learn the procedure for filing exceptions or presenting argument.  Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

 

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

MEMORANDUM

 

Ruling on Motion to Strike

 

During the hearing, counsel for TCW moved to strike for lack of foundation the testimony of John Rask, former city planner and vice president of land development for Hans Hagen Homes, relating to the City’s cost estimates for constructing the Proposed Crossing contained in Exhibit 9.[182]  Counsel based his objection on the fact that Mr. Rask had testified earlier that he based the $250,000 cost estimates on information he obtained from the City’s consulting engineers and he was unable to break down the estimate between the construction costs and the costs for installing the signals at the Proposed Crossing.[183]  When counsel for TCW asked Engineer Kreg Schmidt (a later witness called by the City) if he was aware how the City arrived at the cost estimates on Exhibit 9, Mr. Schmidt responded that he was not aware of the cost estimates.[184]  The motion to strike was taken under advisement by the Administrative Law Judge and the parties were told that a ruling would be made in the final report. 

Mr. Rask prepared Exhibit 9, which breaks down, in general terms, the construction cost estimates for both the Louis Street Extension and the Proposed Crossing.  Mr. Rask testified that the estimated cost of constructing the Proposed Crossing (including the cost of the concrete pad around the tracks and the installation of railroad warning gates and signals) is $250,000.  He obtained the $250,000 figure for constructing the Proposed Crossing from Phil Gravel, an engineer with the consulting firm of Bonestroo, Rosene, Anderlik and Associates.  The overall figure provided did not specifically break down the total into the costs associated with the signals and the costs associated with constructing the actual crossing.  Mr. Rask further testified that the cost of reconstructing CSAH 36 (raising the grade, adding turn lanes, and making other improvements) would be $225,000.  He stated that he arrived at the $225,000 figure for reconstructing CSAH 36 by estimating the cost to be $200 per foot for 1,000 feet of road.  Based on his experience, Mr. Rask testified that he believed that $200 per linear foot “would certainly be reasonable” for construction costs, but he added an additional $25,000 to that amount for “miscellaneous things that may occur.”

After reviewing the record, TCW’s motion to strike Mr. Rask’s testimony for lack of foundation is denied.  As a former city planner and vice president of land development at HHH, Mr. Rask is qualified to estimate the costs of reconstructing and improving CSAH 36.  As for the $250,000 estimate for constructing the Proposed Crossing and installing signals, Mr. Rask acknowledged that the source of this information was Mr. Gravel.  Mr. Rask’s inability to set forth in detail how Mr. Gravel arrived at this figure does not warrant striking Mr. Rask’s testimony on this topic, and Kreg Schmidt’s inability to explain how Mr. Rask arrived at the cost estimate does not render Mr. Rask’s testimony lacking in foundation.  Moreover, Christopher Chromy, another City witness, provided testimony that the cost of signals could be as high as $200,000, and this figure that was corroborated by the testimony of TCW witness Susan Aylesworth that the cost of a signalized system with lights, gates and preemption at the Proposed Crossing would be about $150,000-$200,000,[185]  Accordingly, the motion to strike is denied. 

Application for Proposed Crossing

The Commissioner’s decision in this matter is governed by the provisions of Minnesota Statutes §§ 291.072 and 291.073, and by Minnesota Rules parts 8830.2700 and 8830.2710.  Minn. Stat. § 219.072 provides, in part as follows:

When establishment of a new grade crossing is desired, either by the public officials having the necessary authority or by the railroad company, and the public officials and the railroad company cannot agree as to need, location, or type of warning devices required, either party may file a petition with the commissioner setting forth the facts and submitting the matter for determination

In examining this statutory scheme in Matter of Resolution of the City of Austin,[186] the Minnesota Court of Appeals indicated that there is an implicit directive that the Commissioner must base the decision concerning whether to establish a new grade crossing on a finding of need.  The Court noted that the statute does not define “need” for the purposes of approving a new grade crossing, but it rejected the argument that “need means essential.”[187]   In the end, the Court decided the issue of need in the City of Austin on the facts, holding only that the particular grade crossing at issue there was “necessary to improve emergency vehicle access, pedestrian safety, traffic flow, and development.”[188]  The Court further found that potential disruption of rail operations was a legitimate factor to consider when balancing the issue of need, but noted that in City of Austin any disruption to the rail operations was purely “speculative.”[189]   

Minn. Stat. § 219.073 expresses a legislative policy to reduce the number of at-grade crossings.  However, the statute should not be read as creating a presumption against granting individual petitions for at-grade crossings.  Instead, the statute directs the Commissioner of Transportation to carry out this policy through rulemaking.  Minnesota Rules 8830.2700 and 8830.2710 were adopted to provide the mechanism by which the Commissioner may consider the requisite factors and evaluate the need for a new at-grade crossing.  By adopting Minnesota Rules 8830.2700 and 8830.2710, the Department has satisfied the legislature’s directive to “consider that the number of grade crossings in this state should be reduced and that public safety will be enhanced by reducing the number of grade crossings.”[190] 

The City has established that the Proposed Crossing is a candidate for establishment pursuant to Minn. Rule 8830.2710 because it would provide access where an alternative grade crossing is not available within one quarter mile in an urban area, and it would have an Average Daily Trip count of 750 vehicles or more.[191]  The City demonstrated that the closest crossings to the Proposed Crossing are located .60 miles to the east and 1.75 miles to the west.  Also, the projected ADT on Village Parkway in the area of the Proposed Crossing is 1,065 in 2007 and 4,110 in 2019, the projected year of the final build-out of the Village at Cologne development.  In addition, the City has demonstrated that the Proposed Crossing will increase public safety by eliminating the need to access the Village at Cologne Development by traveling through the intersection of T.H. 212 and CSAH 53/T.H. 284.  The evidence presented by the City established that serious accidents are increasing at this intersection and that it is a dangerous intersection for pedestrians and vehicles to cross.  Moreover, it is expected that that intersection will be closed in the future, and an interchange will be built at Market Boulevard further to the east, an area that will be even further away from the Development.  Finally, the Proposed Crossing has significantly better sight lines than the existing railroad crossing at T.H. 284[192] and, with the installation of appropriate signals, will be safer than the unsignalized crossing at Adams Street. 

 

The City also analyzed alternatives to the Proposed Crossing, as required by Minn. Rule 8830.2710, and presented sufficient evidence related to the fourteen factors the Commissioner must consider in determining the merits of a proposed crossing.  In presenting this evidence, the City established an overall need for the Proposed Crossing.  In short, the City made a sufficient demonstration that the Proposed Crossing will: (1)  improve emergency vehicle access to the Village at Cologne Development and other areas south of T.H. 212 served by the City’s Fire Department; (2)  provide a safer access route for pedestrians and vehicles traveling between the north and south areas of the City; (3)  improve vehicular traffic flow; (4)  complement the City’s overall transportation plan; and (5)  meet the City’s long-term goals of encouraging development both north and south of T.H. 212.  Based on this record, the Administrative Law Judge is persuaded that the petition to establish the Proposed Crossing should be granted. 

TCW has raised legitimate concerns regarding the stacking distance at the Proposed Crossing and the potential for disruption due to railroad switching operations.  It is evident that the Proposed Crossing is not ideal.  The stacking distance to the north of the tracks is limited and will be insufficient for maximum length vehicles (which are expected to use the roadway only very rarely).  However, there will be additional stacking distance to the south of the tracks.  And the City also has agreed to provide any warning devices recommended by MnDOT.  The Administrative Law Judge is persuaded that concerns about the stacking distance can be alleviated by signalizing the crossing with warning lights and gates, posting appropriate signs, and installing a traffic pre-emption system. 

TCW also pointed out that it has no efficient alternative location to perform its switching operations, and raised valid concerns that those operations will block the Proposed Crossing or activate the gates if the crossing is fully signalized.  If the Proposed Crossing was blocked and emergency vehicles had to be rerouted, the time savings associated with the Proposed Crossing would be lost.  However, the evidence demonstrated that the typical switching operations conducted at the Cologne siding would, at most, sporadically block the crossing for approximately 10-15 minutes at a time.  Even with the expansion of the Winthrop ethanol plant and related switching operations, the Proposed Crossing should remain unobstructed the vast majority of the time and residents living south of T.H. 212 would realize the benefits of faster emergency response times.  Moreover, it appears that the TCW could avoid blocking the Proposed Crossing (and the possibility of fines under Minn. Stat. § 219.383, subd. 3) by pushing train cars further to the east of the Proposed Crossing, so that the cars are positioned between the Proposed Crossing and the crossing at T.H. 284.  While locomotives traveling back and forth to the siding would trigger the signals and gates for a brief period of time, it appears that the total time involved would be fairly limited.  On balance, the Administrative Law Judge concludes that the potential disruption to the crossing by virtue of railroad operations is insufficient to outweigh the need for the Proposed Crossing. 

TCW also raises public safety concerns in connection with the Proposed Crossing.  In particular, TCW argues that switching activities will cause new dangers to pedestrians and bicyclists using the pedestrian path along Village Parkway.  It asserts that a stopped train is an attractive nuisance and that, when the gates are down and the lights are flashing, bicyclists and pedestrians, especially children, will try to walk under or through stationary railroad cars.[193]  Unfortunately, the proximity of the siding and switching operations to the new Village at Cologne Development makes this type of potential activity an issue regardless of whether a new crossing is established on Village Parkway.  Required construction of active warning devices, fencing, and other barriers should be considered to guard against this potentially dangerous situation.  Although TCW also contends that, if the signals are triggered by train movements but the crossing is not physically blocked, motorists and pedestrians may disregard the signals,[194] it appears that requiring gates at the crossing and extending the length of the planned median could, to a great extent, thwart attempts by motorists to ignore the signals.[195] 

The Administrative Law Judge concludes that the City has established a need for the proposed at-grade crossing that is based on the public interest in improving traffic flow and safety, and providing access to the new development.  The Administrative Law Judge further concludes that the City’s petition meets all requirements of statute and rule, and recommends that the Commissioner grant the petition subject to the Department’s recommendations regarding warning devices or other necessary improvements.   The granting of the petition should be conditioned upon compliance with relevant AASHTO and MMUTCD standards.  It may also be necessary to resolve issues relating to drainage and the new culvert that is planned as part of the Proposed Crossing.[196] 

B. L. N.


[1] Exhibits (Exs.) 1 and 10; Transcript (“T.”) 24 (Clarkowski), 111 (Chromy), and 425 (Schmidt).

[2] Ex. 5; T. 116-118 (Chromy).

[3] T. 325 (Swanson); see also  MN/DOT’s website at  www.projects.dot.state.mn.us/zrc/212/overview.html.

[4] August 24, 2006, Site Visit.

[5] Exhibits 1 and 2; Transcript 180 (Rask); 295, 309 (Swanson).

[6] Exs. 11, 13, and 37; T. 763 (Wegner).

[7] Site Visit; T. 615-617 (Jeske), 622, 625, 634 (Suko), 763 (Wegner).

[8] Exs. 11, 13, 14.

[9] At times, the exhibits and witnesses referred to this roadway as Market Avenue.

[10] Exs. 2, 11, 29; T. 309-315, 348 (Swanson).

[11] Ex. 5; T. 112-117 (Chromy). 

[12] Ex. 5; T. 111-114, 117 (Chromy).

[13] Ex. 11; T. 119 (Chromy), 437 (Schmidt).

[14] Site Visit; Ex. 10; T. 113-114 (Chromy), 298 (Swanson).

[15] Ex. 1 at 1-2; Ex. 2; T. 114 (Chromy), T. 180-183 and 191-192 (Rask), T. 304-306 (Swanson), 533 (Schmidt)

[16] T. 184, 191, 236 (Rask).

[17] Exs. 2 and 10; T. 119 (Chromy), 187-190 (Rask), 295-297 and 301-302 (Swanson).

[18] T. 189, 201 (Rask), 296-297 (Swanson), 429 (Schmidt).

[19] Ex. 12; T. 141 (Chromy), 352 (Swanson).

[20] Exs. 2 and 3; T. 40-41 (Clarkowski), 140-141 (Chromy), 383-387 and 397-398 (DeWolf).

[21] T. 303-304, 306-307 (Swanson), 366 (Joos); Site Visit conducted on August 24, 2006.

[22] T. 551-552 (Schmidt).

[23] T. 24-25 (Clarkowski), T. 426-428, 550-551 (Schmidt); Ex. 1 at 1, 7, 9, 11, 12, 21.

[24] Exs. 1 (at 5 and 6) and 2; T. 28-29 (Clarkowski), 187-189 (Rask), 312-313 (Swanson).

[25] T. 188 (Rask).

[26] T. 429-431 (Schmidt).

[27] T. 432-434 (Schmidt).

[28] Exs. 1 (at 2) and 2 (at 1); T. 23, 30-33 (Clarkowski), 421 (Schmidt).

[29] Ex. 12; T. 522-524 (Schmidt).

[30] Ex. 1 at 5 and 21; T. 29, 33 (Clarkowski).

[31] Exs. 1 (at 5-6), 2 and 13; T. 26-29 (Clarkowski), 426-427 (Schmidt).

[32] T. 426-427 (Schmidt).

[33] Ex. 1; T. 29 (Clarkowski), 426-427 (Schmidt).

[34] Ex. 1 at 27; T. 465-466 (Schmidt).

[35] T. 588 (Schmidt).

[36] Exs. 1 and 35; T. 327-329 (Swanson), 517 (Schmidt).

[37] T. 28, 54-56 (Clarkowski).

[38] Exs. 1 and 2; T. 192 (Rask), 444-461 (Schmidt).

[39] Ex. 1; T. 29 (Clarkowski), 190-193 (Rask).

[40] Ex. 2.

[41] T. 37 (Clarkowski), 167 (Chromy).

[42] Exs. 1, 2, 13, 24, and 26; T. 167-168 and 170-171 (Chromy), 193-215 (Rask), 704 (McKenzie).

[43] T. 194-195, 197-199 (Rask).

[44] T. 199 (Rask).

[45] T. 194, 212-213, 225, 278 (Rask), 802-803 (Wegner).

[46] T. 193-94 (Rask).

[47] Ex. 26; T. 203-213 and 265-279 (Rask), 794 (Wegner).

[48] T. 213, 264, 266, 278 (Rask), 801 (Wegner).

[49] Exs. 9, 32, 33, 34; T. 220-224 (Rask), 449-460 (Schmidt).

[50] Exs. 9, 32, 33 and 34; T. 220-224 (Rask), 449-460 (Schmidt).

[51] T. 464-65 (Schmidt).

[52] T. 195 (Rask).

[53] Ex. 1.

[54] Exs. 2 and 26; T. 204-205, 213 (Rask).

[55] T. 200-213 (Rask), 412-413 (DeWolf).

[56] Ex. 2 at 4; T. 444 (Schmidt).

[57] Ex. 5; T. 116-121 and 146-147 (Chromy), 435-437 (Schmidt). 

[58] Exs. 11 and 31; T. 132 (Chromy), 437, 485, and 586, 587 (Schmidt).

[59] T. 119-120 (Chromy). 

[60] T. 324 (Swanson), 376 (Joos).

[61] Ex. 13; T. 200 (Rask).

[62] T. 436-437, 444-449 (Schmidt).

[63] T. 435-36, 446, 512, and 586 (Schmidt).

[64] T. 227-229 (Rask), 323-324 (Swanson), 435, 444-449, 461 (Schmidt).

[65] T. 577 (Schmidt).

[66] T. 580, 584, 591.

[67] T. 523-524, 592 (Schmidt).

[68] Exs. 11, 12, 15 and 30; T. 115 (Chromy), 462-463 (Schmidt), 661 (Suko).

[69] Exs. 11, 12, 15, 30; T. 119 (Chromy), 462-463 (Schmidt).

[70] Ex. 2.

[71] Ex. 10; T. 576 (Schmidt).

[72] Site Visit. 

[73] Ex. 30; T. 468, 547, 555 (Schmidt).

[74] Exs. 15 and 21; T. 286 (Rask), 406-407 (DeWolf), 466-467 and 470-475, 556 (Schmidt). 

[75] Ex. 30; T. 468-469, 473, 547, 560 (Schmidt).

[76] Exs. 15, 30; T. 70-71 (Johnson), 177 (Chromy), 352-53 (Swanson), 380 (DeWolf), 468, 482 (Schmidt). 

[77] Exs. 15 and 30; T. 469-470 (Schmidt).

[78] Ex. 15; T. 466-67, 504-05 (Schmidt).

[79] Exs. 15 and 21; T. 466-467, 504 (Schmidt), 694-695 and 722 (McKenzie).

[80] T. 722 (McKenzie).

[81] T. 466-475, 504, 585 (Schmidt).

[82] Ex. 30; T. 476-482 (Schmidt).

[83] T. 471 (Schmidt).

[84] Exs. 15 and 30; T. 142-143 (Chromy), 547 (Schmidt), 301-302 (Swanson).

[85] Ex. 15; T. 153 (Chromy), 547 (Schmidt). 

[86] Ex. 3; T. 60-62, 92 (Johnson). 

[87] Exs. 3, 15, and 30; T. 64, 71, 82, and 86 (Johnson), 469, 534-535, 537, 539-540 and 573-574 (Schmidt), 604 (Jeske), 685-686 (McKenzie).

[88] T. 541 (Schmidt).

[89] Ex. 3; T. 63-64 (Johnson), 573 (Schmidt).

[90] T. 65 (Johnson).

[91] T. 574, 592-5933 (Schmidt).

[92] T. 77-79 (Johnson).

[93] T. 541 (Schmidt), 690-691 (McKenzie).

[94] T. 541-542, 572 (Schmidt), 742-743 (Aylesworth). 

[95] T. 96 (Johnson).

[96] T. 743 (Aylesworth).

[97] T. 686-688 (McKenzie). 

[98] Exs. 12 and 19; T. 383 (DeWolf), 622-623, 657 (Suko).

[99] Exs. 15 and 36; T. 605 (Jeske), 650-51 (Suko).

[100] Ex. 2; T. 379 (DeWolf), 482 (Schmidt), 651-652 (Suko). 

[101] Exs. 18 and 20; T. 379 (DeWolf), 620-621 and 632 (Suko), 769 (Wegner).

[102] T. 769 (Wegner).

[103] T. 622-628 (Suko). 

[104] T. 629-630 (Suko).

[105] T. 630-632, 646-651 (Suko).

[106] Exs. 15 and 36; T. 609-610 (Jeske).

[107] T. 740-742, 748-749 (Aylesworth).

[108] T. 630, 650-654, 661 (Suko), 787 (Wegner).

[109] Exs. 16, 17; T. 487-496 (Schmidt).

[110] T. 489.

[111] T. 492-93 (Schmidt).

[112] T. 673-674 (Suko).

[113] Exs. 16, 17; T. 487-496  (Schmidt).

[114] T. 767-769 (Wegner).

[115] T. 637-639 (Suko), 764 (Wegner).

[116] Ex. 40 (Affidavit of Suko); T. 637-639 (Suko), 764-765 (Wegner).

[117] T. 655 (Suko).

[118] T. 640-642 (Suko), 764-765 (Wegner).

[119] T. 772, 774-775 (Wegner).

[120] T. 642, 645-646 (Suko), T. 778-780 (Wegner).

[121] T. 645 (Suko), 768, 772-773 (Wegner). 

[122] Ex. 40 at ¶¶ 2-7.

[123] Ex. 40 at ¶ 6. 

[124] Ex. 40 at ¶ 9.

[125] T. 655 (Suko).  See Minn. Stat. § 219.383, subd.3 (2006).

[126] T. 646 (Suko), 779-780 (Wegner).

[127] T. 780 (Wegner)

[128] T. 781.

[129] T. 662-64 (Suko).

[130] T. 672 (Suko).

[131] T. 787-788 (Wegner).

[132] T. 657 (Suko), 821 (Wegner). 

[133] Exs. 9 and 15; T. 223-225, 279-286 (Rask).

[134] T. 223-224, 281-286 (Rask).  Mr. Rask estimated the cost of improvements for CSAH 36 to be $200 per foot for 1,000 feet of roadway.  He added $25,000 to this amount for miscellaneous things that may occur. 

[135] T. 169 (Chromy), 750 (Aylesworth).

[136] T. 561-563 (Schmidt).  Mr. Schmidt’s rough estimate of the cost of improvements for CSAH 36 was $350 per foot for 1,000 feet of roadway.

[137] T. 353-354 (Swanson), 405-406 (DeWolf), 548 (Schmidt).

[138] T. 570-571 (Schmidt).

[139] T. 563-566.

[140] T. 153 (Chromy), 281-282 (Rask), 353, 355 (Swanson), 405 (DeWolf), 549 (Schmidt).

[141] Exs. 2, 7, 9, 32, 33, 34; T. 119-120 (Chromy), 217 (Rask), 309 and 316 (Swanson), 437 and 461 (Schmidt).

[142] Exs. 1 and 10; T. 187-189 (Rask).

[143] Ex. 12; T. 140-141 (Chromy).

[144] Ex.12; T. 381-382 (DeWolf).

[145] Ex. 12; T. 24 (Clarkowski), 141 (Chromy), 388 (DeWolf), 550-553. (Schmidt).

[146] Ex. 12; T. 404-405 (DeWolf).

[147] Ex. 4; T. 366-367 (Joos), 383-387, 411 (DeWolf). 

[148] Ex. 4; T. 383-387 (DeWolf).

[149] Exs. 4 and 12; T. 140-142 (Chromy), 303-304 (Swanson), 385-386 (DeWolf), 720 (McKenzie).

[150] T. 366-367 (Joos).

[151] Ex. 12; T. 381 (DeWolf).

[152] Exs. 12, 15 and 30; T. 143 and 150-152 (Chromy), 380-381 (DeWolf).

[153] Ex. 12; T. 140-143 (Chromy), 309 and 355 (Swanson).

[154] T. 142 and 151-152 (Chromy), 104-105 (Johnson).

[155] T. 68-69 (Johnson), 189 (Rask).

[156] Ex. 6; T. 124-133 (Chromy), 360-364 and 376 (Joos), 550 (Schmidt).

[157] T. 360-362 (Joos).

[158] T. 362-363, 367, 368 (Joos).

[159] T. 376 (Joos).

[160] T. 754-755 (Aylesworth).

[161] T. 122-123 (Chromy).

[162] T. 143-144, 152.

[163] Ex. 15, 30; T. 144 (Chromy), 390 (DeWolf), 502 (Schmidt), 719-720 (McKenzie).

[164] T. 736 (Aylesworth).

[165] T. 686-687, 713-716 (McKenzie).

[166] T. 738-739 (Aylesworth).

[167] T. 716-717 (McKenzie), 750 (Aylesworth).

[168] T. 139 (Chromy), 301-302, 320-322, and 343 (Swanson).

[169] Exs. 11 and 13; T. 128-129 (Chromy).

[170] T. 119-123 (Chromy).

[171] T. 186-187 (Rask).

[172] T. 214-215 (Rask).

[173] T. 214-215, 217, 230 (Rask).

[174] T. 196 (Rask).

[175] Ex. 2.

[176] Minn. Stat. § 219.072; Minn. R. 8830.2700, subp. 1.

[177] Minn. Stat. § 219.073.

[178] Minn. R. 8830.2700, subp. 2.

[179] Minn. R. 8830.2710, subp. 1

[180] Minn. R. 8830.2710, subp. 2.

[181] Minn. R. 8830.2710, subp. 3.

[182] T. 558 (counsel for TCW).

[183] T. 283-285 (Rask).

[184] T. 558 (Schmidt).

[185] T. 750 (Aylesworth).

[186] 567 N.W.2d 529, 532-33 (Minn. App. 1997).

[187] Id.

[188] Id.

[189] Id.

[190] Minn. Stat. § 219.073.  See, In re Petition of the City of Burnsville, OAH Docket No. 4-3000-15793-2 (Order dated May 12, 2004).

[191] Minn. Rule 8830.2710, subp. 1B.

[192] Ex. 31; T. 485 (Schmidt).

[193] T. 693-694 (McKenzie), 749 (Aylesworth).

[194] T. 693-694, 721, and 729 (McKenzie), 749 (Aylesworth), 786-788 (Wegner). 

[195] T. 711-713 (McKenzie).

[196] See T. 696-702 (McKenzie).