                                                                             FILED
                                                                          JUNE 16, 2016
                                                                   In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

 TRI-CITY RAILROAD COMPANY,                      )
 LLC, a Washington corporation,                  )         No. 33031-1-111
                                                 )
                       Appellant,                )
                                                 )
           V.                                    )
                                                 )         OPINION PUBLISHED
 STATE OF WASHINGTON, UTILITIES                  )         IN PART
 AND TRANSPORTATION                              )
 COMMISSION,                                     )
                                                 )
                       Respondent.               )


       SIDDOWAY, J. -     Since 1937, Washington law has assigned to the Washington

Utilities and Transportation Commission or a predecessor commission 1 the authority and

responsibility to grant or deny the right to construct, at grade, a railroad across a road, or

a road across a railroad. Other than providing that the commission must require a

crossing over or under grade if it is practicable to construct one, applicable statutes do not

identify criteria the commission should apply in granting or denying a petition for

approval of an at-grade crossing.

       In this appeal, Tri-City Railroad Company, LLC (Tri-City) argues that in



       1
           The Public Service Commission of Washington.
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    approving construction of an at-grade crossing over its tracks based on a broad concept of

    public need, the commission deviated from its statutory obligation to regulate public

    safety, exceeding its statutory authority.

           The commission's consideration oflocal planning, including its consideration of

    the local government's economic development objectives, does not conflict with the plain

    language of the relevant statute. The legislature's broad authorization to the commission

    is most reasonably read as an implicit delegation of authority from the legislature to the

    commission to fill in a statutory gap. The commission's interpretation of the statute

    under which it operates is not unreasonable.

           For that reason, and because the commission does not appear to have improperly

    considered illustrative evidence-and if it did, Tri-City fails to show substantial

    prejudice-we affirm.

                         FACTS AND PROCEDURAL BACKGROUND

           For a decade, the cities of Richland and Kennewick have wanted to connect Center

    Parkway, a street in Kennewick, with Tapteal Drive, a street in Richland. Railroad tracks

    have long traversed the land that must be crossed to make that connection. An at-grade

    (ground level) railroad crossing2 connecting Central Parkway and Tapteal Drive has been


           2 RCW 81.53.010 defines "grade" crossing to mean "any point or place where a
    railroad crosses a highway or a highway crosses a railroad or one railroad crosses
    another, at a common grade." A grade separation exists where the road goes over or
    under the railroad tracks by means of some sort of bridge or tunnel.

                                                   2

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included as an essential public facility in the two cities' comprehensive plans, and in the

Regional Transportation Plan, since 2006.

       In light of risks inherent in at-grade crossings, Washington law has provided for

more than a century that "[a ]ll highways and extensions of highways hereafter laid out

and constructed shall cross existing railroads by passing either over or under the same,

when practicable, and shall in no instance cross any railroad at grade without authority

first being obtained from the commission to do so." LAWS OF 1913, ch. 30, § 2, presently

codified at RCW 81.53.020. An exemption, not applicable here, is provided for

construction of at-grade crossings within the limits of a first-class city. 3 RCW 81.53.240.

The cities of Kennewick and Richland concluded that given the cost of constructing a

bridge or tunnel and the amount of traffic at issue, separating grades for the desired

Central Parkway crossing was impracticable.

       In 2013, having resolved some issues and opposition to the proposed road

construction and railroad crossing, 4 Kennewick petitioned the commission for approval to




       3
          While Richland is a first-class city, Kennewick is not. The crossing will be
located within Kennewick's city limits.
        4
          In 2011, Richland successfully negotiated with Union Pacific Railroad Company
and Burlington Northern Santa Fe Railroad Company for the removal of two of the four
railroad tracks that would intersect with the proposed crossing. Union Pacific and
Burlington Northern had joined Tri-City in opposing an unsuccessful 2006 petition by the
cities for approval of an at-grade crossing at the same location. With relocation of the
two tracks, the 2013 petition sought an at-grade crossing of half as many tracks and faced
opposition by only one railroad.

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construct an at-grade crossing at the location. It proposed to install advanced signage,

flashing lights, an audible bell, automatic gates, and a raised median strip designed to

prevent drivers from going around lowered gates. The city of Richland intervened,

supporting Kennewick's position.

       The at-grade crossing would be constructed across two active tracks that Tri-City

leases from the Port of Benton and that it uses, along with a short, parallel spur, for

switching and storing rail cars. Tri-City opposed Kennewick's petition, arguing the

crossing would interfere with its operations.

       The petition was initially heard by an administrative law judge (ALJ). The parties

to the proceeding were the cities of Kennewick and Richland, Tri-City, and commission

staff, which supported the petition. After receiving pre-filed testimony from the parties,

the ALJ conducted a two-day evidentiary hearing. He conducted a public comment

hearing following the conclusion of the evidentiary hearing, in which three members of

the public testified, all favoring the project. Written public comments were accepted for

several additional weeks.

       Among evidence submitted by the cities was pre-filed testimony of Richland's

Development Services Manager, explaining and attaching the transportation and capital

facilities elements of the city's comprehensive plan and relevant portions of the Benton-

Franklin Council of Government's Regional Transportation Plan. Kennewick's

comprehensive plan was offered and admitted during the evidentiary hearing. Also

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admitted was a March 2013 traffic study prepared by J-U-B Engineers (JUB), which was

self-described as "summariz[ing] existing conditions, transportation need and benefit for

the project" in addition to providing traffic forecasts and making recommendations.

Clerk's Papers (CP) at 92. The cities offered pre-filed testimony of a railroad safety

engineer, who testified that "[t]he railroad signal technology proposed to be used at

Center Parkway will be the most current automatic warning system available today." CP

atl.518.

       Notwithstanding this other evidence, "[t]he [c]ities' almost exclusive focus" in its

presentation of evidence (as later found by the commission) was "on improved response

times for first responders." CP at 642. The cities' principal reliance on the

comprehensive plans and regional transportation plan was for their legal argument that

because the Growth Management Act (GMA), chapter 36.70A RCW, requires them to

adopt and implement comprehensive plans and requires state agencies to comply with

local governments' comprehensive plans, the inclusion of the crossing in their

comprehensive plans "mandated" approval of the Center Parkway crossing. CP at 412.

       The ALJ entered his initial order for the commission in February 2014, finding

that Kennewick failed to demonstrate sufficient public need to outweigh the inherent

risks presented by the proposed at-grade crossing, and denying its petition. He rejected

the cities' GMA-based argument, observing that "[t]aken to its logical end point, the

[c]ities' argument would require the [c]ommission to approve any at-grade crossing

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     planned for in a local jurisdiction's comprehensive planning process." CP at 441-42.

     The cities petitioned for administrative review by the commissioners.

            On review, the three-member commission unanimously rejected the ultimate

     conclusion of the initial order and granted Kennewick's petition. Like the ALJ, the

     commissioners found that improved emergency response time "does not weigh

     persuasively against even the demonstrated low level of 'inherent risk' at the proposed

     crossing." CP at 642. But the commissioners concluded that while the ALJ properly

     rejected the argument that local government planning under the GMA effectively trumps

     the commission's obligation to regulate public safety at rail crossings, he erred by ending

     his discussion of local comprehensive planning on that basis. They reasoned that chapter

     81.53 RCW and the GMA do not conflict and "the integrity of both statutes within the

     overall statutory scheme is preserved by reading the GMA together and in harmony with

     RCW 81.53." CP at 636. They went on to analyze how "harmony should be achieved in

     the context of the facts presented in this case." CP at 636-37.

            After citing heavily to the JUB Traffic Study; discussing the need, as a matter of

     policy, to give some deference to the cities' transportation and land use planning goals;

     and citing to the comments submitted by five members of the public, the commission

     concluded:

            [C]onsidering evidence the parties largely ignored that shows additional
            public benefits in the form of enhanced economic development
            opportunities, and considering the broader public policy context that gives a

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       degree of deference to local jurisdictions in the areas of transportation and
       land use planning, we determine that the Cities' petition for administrative
       review should be granted and their underlying petition for authority to
       construct the proposed at-grade crossing should be approved.

CP at 642-43.

       Tri-City petitioned for reconsideration, arguing that the commission's

consideration of economic and public policy interests was improper. The commission

denied reconsideration, pointing out that it had not deferred to the cities on the issue of

safety, but only gave "some weight to the [c]ities' transportation and urban development

planning when evaluating the issue of public need." CP at 708; and see CP at 709

(stating that the only discussion of deference in the final order "bears no relation

whatsoever to our weighing of the evidence concerning the balance between claimed

improvements in public safety and the inherent or demonstrated risk of an accident at the

proposed crossing").

       Tri-City petitioned for judicial review. The superior court affirmed the

commission's final order. Tri-City appeals.

                                        ANALYSIS

       Tri-City contends the ALJ correctly construed the commission's statutory

authority when he concluded that without a net improvement in public safety-in this

case, the cities' unproven contention that emergency response times would be

improved-Kennewick's petition for an at-grade crossing must be denied. Its first two



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assignments of error are related: it contends, first, that the commission had no statutory

authority to consider economic development interests, deference to local government, and

the broader public policy environment in determining whether to grant or deny

Kennewick's petition; and second, that the commission violated precedent when it found

that those factors alone, without improvement to public safety, could outweigh the

hazards inherent in at-grade crossings.

       Tri-City's third assignment of error is to an asserted violation by the commission

of its procedural rules when it considered five public comments as substantive evidence

without notice and an opportunity for cross-examination.

       We first address Tri-City's first and second assignments of error, which raise

issues of statutory construction and the significance, if any, of prior judicial and

commission decisions. We then tum to its arguments that the commission violated its

own procedural rules.

     I. Do the relevant statutes reflect a legislative intent that improvement in public
             safety is the essential criterion for approving at-grade crossings?

                        Standard of review and principles of construction

       RCW 34.05.570(3) governs judicial review of agency orders in adjudicative

proceedings. Chi. Title Ins. Co. v. Office of Ins. Comm 'r, 178 Wn.2d 120, 133, 309 P.3d

372 (2013). In reviewing an agency order, this court applies "the standards of RCW

34.05 directly to the record before the agency, sitting in the same position as the superior


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court." City ofRedmond v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd., 136 Wn.2d 38,

45,959 P.2d 1091 (1998). Under RCW 34.05.570(3),judicial relief from an agency

order is available in nine enumerated circumstances. Tri-City's first two assignments of

error implicate two: that "[t]he order is outside the statutory authority or jurisdiction of

the agency conferred by any provision oflaw," RCW 34.05.570(3)(b); and "[t]he agency

has erroneously interpreted or applied the law." RCW 34.05.570(3)(d). We review

challenges based on subsections (b) and (d) de novo. Kittitas County v. E. Wash. Growth

Mgmt. Hr'gs Bd., 172 Wn.2d 144,155,256 P.3d 1193 (2011).

       As always in interpreting a statute, "[t]he court's fundamental objective is to

ascertain and carry out the Legislature's intent." Dep 't ofEcology v. Campbell & Gwinn,

LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). "[l]fthe statute's meaning is plain on its face,

then the court must give effect to that plain meaning as an expression of legislative

intent." Id. at 9-10. To determine the plain meaning of the statute, the court looks "to the

text of the statutory provision in question, as well as 'the context of the statute in which

that provision is found, related provisions, and the statutory scheme as a whole.'" State

v. Ervin, 169 Wn.2d 815,820,239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wn.2d

596, 600, 115 P.3d 281 (2005)). "If the statutory language is susceptible to more than

one reasonable interpretation, then a court may resort to statutory construction, legislative

history, and relevant case law for assistance in discerning legislative intent." Christensen

v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007).

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       Where a statute dealing with an administrative agency's duties and operations is

ambiguous, we must also consider the possibility that a statute's ambiguity constitutes an

implicit legislative delegation to the agency to fill in the statutory gaps. See Sebastian v.

State, 142 Wn.2d 280, 293, 12 P.3d 594 (2000) (Talmadge, J., dissenting) (citing Food &

Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S. Ct. 1291,

146 L. Ed. 2d 121 (2000)). While an agency's action must be confined to its

legislatively-granted powers, 5 "it is an appropriate function for administrative agencies to

'fill in the gaps' where necessary to the effectuation of a general statutory scheme,"

including through statutory construction. Hama Hama Co. v. Shorelines Hr 'gs Bd., 85

Wn.2d 441,448,536 P.2d 157 (1975). This includes "determin[ing] specific factors

necessary to meet a legislatively mandated general standard." Tuerk v. Dep 't of

Licensing, 123 Wn.2d 120, 125, 864 P.2d 1382 (1994) (citing Asarco, Inc. v. Puget

Sound Air Pollution Control Agency, 51 Wn. App. 49, 751 P.2d 1229 (1988)).

                                     Statutory language

       Tri-City's "plain language" argument that the commission lacked a statutory basis

for considering factors such as economic development interests, deference to local



       5
         Because "' [a]dministrative agencies are creatures of the legislature without
inherent or common-law powers,'" they may exercise only those powers expressly
granted to them and those necessarily implied from their statutory delegation of authority.
Human Rights Comm 'n v. Cheney School Dist. No. 30, 97 Wn.2d 118, 125,641 P.2d 163
(1982) (quoting State v. Munson, 23 Wn. App. 522, 524, 597 P.2d 440 (1079).

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government, and broader public policy environment is that none of those are identified as

criteria in the grade crossing statutes. Of course, improved public safety does not appear

as a statutory criterion either.

       RCW 80.01.040 prescribes the general powers and duties of the commission,

which is required to "[ r]egulate in the public interest, as provided by the public service

laws, all persons engaging in the transportation of persons or property within this state for

compensation." RCW 80.01.040(2). RCW 81.53.020 and .030 govern the more

particular issue of grade crossings.

       Under RCW 81.53.030, when a local authority wishes to construct a new at-grade

railroad crossing, it must petition the commission, "setting forth the reasons why the

crossing cannot be made either above or below grade." The statute requires the

commission to investigate; give notice to affected railroad companies, local governments,

or state agencies; and reduce the evidence introduced to writing. At that point,

       If [the commission] finds that it is not practicable to cross the railroad or
       highway either above or below grade, the commission shall enter a written
       order in the cause, either granting or denying the right to construct a grade
       crossing at the point in question.

Id. It may condition authorization of an at-grade crossing on the railroad company's

installing, maintaining, or implementing safety devices or means. Id.

       RCW 81.53.020 identifies criteria to be considered in determining whether a grade




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separation is "practicable."6 By providing that all highways and extensions of highways

"shall" cross existing railroads "by passing either over or under the same, when

practicable," it also forbids construction of a grade crossing if the commission's finding

is that an overhead or under crossing is practicable. The commission's duty under RCW

81.53.030 to "enter a written order ... granting or denying the right to construct a grade

crossing" is, by contrast, standardless, apart from the legislature's general grant of

authority to "regulate in the public interest."

       The commissioners considered a related statute to be relevant in construing the

scope of public interest. Their final order discusses RCW 81.53.240, which exempts

first-class cities from chapter 81.53 RCW. Observing that the exemption for first-class

cities has existed since 1909, the commission concluded it reflected legislative respect for

our state constitution's deference to local jurisdictions on matters deemed best left to

local control. Since the legislature had determined that state regulation of crossing safety


       6
          RCW 81.53.020 provides that "[i]n determining whether a separation of grades
is practicable, the commission shall take into consideration the amount and character of
travel on the railroad and on the highway; the grade and alignment of the railroad and the
highway; the cost of separating grades; the topography of the country, and all other
circumstances and conditions naturally involved in such an inquiry." The cities argue
that the language "all other circumstances" supports the commission's consideration of
economic development and local planning. Br. of Richland and Kennewick at 16-17.
But consideration of "all other circumstances" takes place in determining whether a grade
separation is practicable, not in deciding whether the commission will approve or deny a
petition once it finds a grade separation impracticable.



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should not trump local concerns in the case of first-class cities, the commission inferred

(not unreasonably) that the legislature would expect it to give some consideration to the

local concerns of those cities that are subject to the at-grade crossing approval process.

       Nothing in the plain language of the pertinent statutes supports Tri-City's

argument that the commission improperly considered local planning and development

concerns.

                            Judicial and commission precedent

       Tri-City's principal argument for its construction of the relevant statutes is that the

Washington Supreme Court has already construed the applicable statutes and found

public safety paramount in two decisions, Reines v. Chicago, Milwaukee, St. Paul &

Pacific Railroad Co., 195 Wash. 146, 80 P .2d 406 ( 193 8) and Department of

Transportation v. Snohomish County, 35 Wn.2d 247,251,212 P.2d 829 (1949). 7

       The earlier of the two decisions, Reines, was a tort case arising out of a collision

between an automobile and freight train on a foggy night, at an at-grade crossing that

lacked signal lights or warning devices. The complaint was dismissed for failure to state


       7
         Tri-City also argues that commission precedent supports its construction, but it
relies on two initial decisions of the commission, made by administrative law judges,
which became final because they were not appealed. By commission rule, such decisions
are not precedential. WAC 480-07-825(7)(c). We do not consider them further.
        Tri-City argues that the commission itself relies on an initial order for the
framework it applies to evaluate Kennewick's petition. We do not read the commission's
final order as treating the earlier initial order as precedential. It merely recognizes the
framework for evaluation in the earlier initial order as useful.

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    a claim. In holding that the complaint was not deficient for failure to allege that

    defendants were aware of the dangerousness of the crossing, the court stated "it is not to

    be supposed that anyone would deny that the crossing was dangerous," and "[t]he statute

    law of this state relating to grade crossings has for many years been based upon the

    theory that all grade crossings are dangerous." 195 Wash. at 150 (emphasis added). The

    court cited the statutory requirement for approval of at-grade crossings and the statutory

    preference for above or below grade crossings as examples.

           Reines does not purport to address the criteria applied when the commission

    decides whether to grant or deny authority to build an at-grade crossing. The inherent

    danger of at-grade crossings is the theory behind the regulatory procedure for at-grade

    crossing approval, but that does not mean that safety will be the only consideration in

    allowing at-grade crossings to be built.

           The second case, Snohomish, involved the closing of an at-grade crossing by the

    department of transportation, which at that time exercised the authority now held by the

    commission. The department's decision was appealed, and a superior court reversed it.

    The supreme court reversed the superior court, reinstating the department's closure.

           Most relevant to this appeal, and not helpful to Tri-City, is the court's observation

    in its decision that under predecessor statutes, "the legislature delegated very wide

    powers to the public service commission with regard to railroad and highway crossings."




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3 5 Wn.2d at. 250. 8 Also relevant is the range of evidence the department entertained

before making its decision. Notwithstanding that "all grade crossings are dangerous," the

department weighed just how dangerous the particular crossing would be against other

factors. Id. at 257 (internal quotation marks omitted). It considered automobile traffic

flow and impact of the closure; the material volume and high speeds of train traffic at the

crossing; the grade of, and visibility from, the subject road; and, finally, the "convenience

and necessity of those using the crossing and whether the need of the crossing is so great

that it must be kept open notwithstanding its dangerous condition." Id. at 254.

       Tri-City nonetheless contends the following language (language from the findings

of the department of transportation, not reasoning of the court) rules out economic

development as a factor in granting or denying the right to construct an at-grade crossing:

              It is contended by residents of Mukilteo that the closing of this
       crossing would damage business property due to the fact that the closing of
       the crossing would result in making the north portion of Park A venue a
       dead end street. The department has no jurisdiction to consider damage to
       property as such. Other remedies may be provided by law to compensate
       owners for damage to property, if any. The department may only consider
       whether or not convenience and necessity justifies the closing of the
       crossing.

Id. at 255 (internal quotation marks omitted).



       8
         The statute in Snohomish is Rem. Rev. Stat. § 10514 (Supp. 1940), re codified as
RCW 81.53 .060. Though the particular section is not identical (here RCW 81.53 .020-
.030 are at issue), the statement relates to the commission's broad powers and is
applicable to RCW 81.53 in general.

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       To begin with, Tri-City fails to consider the significance of the words

"jurisdiction" to consider, and damage to property "as such." "Jurisdiction" in its subject

matter sense used in the passage means the authority to adjudicate the type of controversy

involved in the action; "[a] tribunal lacks subject matter jurisdiction when it attempts to

decide a type of controversy over which it has no authority to adjudicate." Marley v.

Dep't of Labor & Indus., 125 Wn.2d 533,539,886 P.2d 189 (1994). Thus understood,

and read in context with the court's discussion of damages "as such," and "other

remedies ... to compensate ... for damage to property," the department appears to have

been saying that it could consider damage to property only insofar as it bears on "whether

or not convenience and necessity justifie[d] the closing of the crossing"-it could not

award damages. Snohomish, 35 Wn.2d at 255 (internal quotation marks omitted).

       More importantly, the court did not attribute any meaning to this statement by the

department or endorse it as a fair application of the predecessor to RCW 81.53.030.

Rather, after reciting many department findings in the grade crossing decision at issue,

the court noted that the power to close grade crossings had been delegated to various

commissions,

       not to the courts. . . . [W]e have consistently held that the courts should
       not, without grave cause, interfere with the orders of such commissions,
       such as the public service commission, the department of public works, or
       the department of transportation. In In re Stolting, 131 Wash. 392, 230 P.
       405, the court said: "Time and again we have held that we will not interfere
       with the action of the department of public works on matters of this nature,
       unless its members have acted unfairly, arbitrarily, or in disregard of the

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       testimony. [Citing a long list of cases.] There is nothing in this case to
       indicate that the department did not fully consider the testimony and
       honestly exercise its judgment. Such being the case, there is nothing for us
       to do but affirm the judgment, which is done."

Id. at 257 (alteration in original). 9

       Tri-City's arguments based on asserted precedent are not persuasive.

                                         Legislative history

       The history ofRCW 81.53.030 and its predecessor provisions reflects legislative

balancing of local concerns. As originally adopted, the predecessor to RCW 81.53.030

accorded complete deference to a local government applicant for an at-grade crossing if

the commission found an over or under crossing to be impracticable. Before 1937, the

predecessor to RCW 81.53.030 stated that if the commission found that an over or under

crossing was not practicable, it "shall make and file a written order in the cause, granting

the right and privilege to construct a grade crossing." REM. 1915 CODE§ 8733-3



       9
         A third case, cited in Tri-City's reply brief, is clearly inapposite. In re City of
Seattle, 96 Wn.2d 616, 625-26, 638 P.2d 549 (1981) is cited for the proposition that
though a project may be in the "public interest," it may not constitute a "public need" if
the purpose is private economic development. Reply Br. at 10. Seattle addresses
whether, for purposes of eminent domain, private development is a public use. Neither
the page that Tri-City cites, nor the majority opinion in its entirety, ever uses the term
"public need." Its analysis is consistently couched in terms of "public use" and "public
purpose." (Only Justice Utters uses the term "public need," in his dissent, in which he
would find a public need for the private development).
       This is not an eminent domain case.




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(emphasis added). 10 In State ex rel. Toppenish v. Public Service Commission, 114 Wash.

301, 194 P. 982 (1921), the Washington Supreme Court reviewed a commission order

that had found grade separation impracticable but denied a petition on the basis that the

benefits of the at-grade crossing were "outweighed by the dangerous condition of the

proposed crossing, and other considerations." Id. at 303-04 (internal quotation marks

omitted). In reversing the order, the court held that under the statute, once the

commission determined that grade separation was impracticable, it became its "plain

duty" to permit the grade crossing that "city authorities [had decided] should be

established." Id. at 308.

       The legislature responded some years later by amending the statute to provide that

if the commission found it impracticable to cross the railroad above or below grade, then

"it shall make and file a written order ... granting the right and privilege to construct a


       10
         The earliest legislation, enacted in 1909 and that delegated decision making
authority to the Railroad Commission, did not contain a statutory concept of
impracticability and provided in relevant part:
       If the Commission finds that it ought not to require such highway or
       railroad to be so constructed as to cross above or below the grade of the
       existing railroad or highway, it shall by resolution filed in the cause and
       duly entered upon its minutes, grant the right and privilege to construct
       such railroad or highway across such established railroad or highway at
       grade.
LAWS OF 1909, ch. 162, § 2 (emphasis added). The 1909 legislation was repealed and
replaced in 1913 by legislation containing the concept of practicability and imposing a
duty to grant authority to construct at-grade crossings unless they were determined to be
impracticable. LAWS OF 1913, ch. 30, § 3.

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grade crossing or denying the application and right to construct a grade crossing in toto."

LAWS OF 1937, ch. 22, § 1 (some emphasis added). Amendment to the current language

(that the commission shall enter a written order "either granting or denying the right to

construct a grade crossing at the point in question") was enacted in 1955. LA ws OF 1955,

ch. 310, § 3.

       Although the 193 7 change made the commission the final authority when a non-

first-class city proposes to construct an at-grade crossing, this legislative history is

consistent with the commission's inference of a legislative intent that it should consider

local interests going beyond public safety.

                                         Construction

       Considering all, by broadly charging the commission to "regulate in the public

interest" and assigning it the standardless authority and responsibility to grant or deny

petitions for at-grade crossings, the legislature implicitly delegated to the commission the

responsibility to interpret "public interest" in the first instance. We will not substitute our

construction of the statute for a reasonable interpretation by the commission. Hama

Hama, 85 Wn.2d at 448. The commission's construction of its charge and of the breadth

of "public interest" is reasonable.

       Affirmed.




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    No. 33031-1-111
    Tri-Cities R.R. v. Util. & Transp. Comm 'n


           The remainder of this opinion has no precedential value. Therefore, it will be filed

    for public record in accordance with RCW 2.06.040, the rules governing unpublished

    opm10ns.

               II. Asserted reliance on illustrative exhibits as substantive evidence

           Tri-City's remaining assignment of error is that the commission violated its

    procedural rules when it considered five public comments as substantive evidence

    without notice and an opportunity for cross-examination. This assignment of error

    implicates another statutory circumstance in which judicial relief from an agency order is

    available: "The agency has engaged in unlawful procedure or decision-making process,

    or has failed to follow a prescribed procedure." RCW 34.05.570(3)(c).

           Even if an agency engages in unlawful procedure, a petitioner for judicial review

    is not entitled to relief unless it can show that it was "substantially prejudiced by the

    action complained of." RCW 34.05.570(l)(d); Densley v. Dep 't ofRet. Sys., 162 Wn.2d

    210, 226, 173 P.3d 885 (2007). Tri-City argues that if the improperly-considered public

    comment is excluded, substantial evidence does not support the commission's order

    granting Kennewick's petition. This implicates a fourth statutory circumstance in which

    judicial relief from an agency order is available: "The order is not supported by evidence

    that is substantial when viewed in light of the whole record." RCW 34.05.570(3)(e).

           We review a challenge based on RCW 34.05.570(3)(c) de novo. Kittitas County,

    172 Wn.2d at 155. The standard we apply in determining whether the order is supported

l                                                 20


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No. 33031-1-III
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by substantial evidence is whether the evidence is sufficient "' to persuade a fair-minded

person of the truth or correctness of the order."' King County v. Cent. Puget Sound

Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543,553, 14 P.3d 133 (2000) (quoting Callecodv.

Wash. State Patrol, 84 Wn. App. 663,673,929 P.2d 510 (1997)). The evidence is

viewed "' in the light most favorable to the party that prevailed in the highest forum

exercising fact-finding authority.'" Affordable Cabs, Inc. v. Dep 't of Emp 't Sec., 124

Wn. App. 361, 367, 101 P.3d 440 (2004) (quoting Schofield v. Spokane County, 96 Wn.

App. 581, 586-87, 980 P.2d 277 (1999)).

       The commission's procedural rules provide:

       When a member of the public presents a document in conjunction with his
       or her testimony, the commission may receive the document as an
       illustrative exhibit. The commission may receive as illustrative exhibits
       any letters that have been received by the secretary of the commission and
       by public counsel from members of the public regarding a proceeding.
       Documents a public witness presents that are exceptional in their detail or
       probative value may be separately received into evidence as proof of the
       matters asserted after an opportunity for cross-examination.

WAC 480-07-490(5). Elsewhere, the commission's rules provide that such comments

are "treated as an illustrative exhibit that expresses public sentiment received concerning

the pending matter." WAC 480-07-498.

       In its final order granting Kennewick's petition, the commission mentioned public

comments by five individuals. The public comments are not exceptional in their detail or

probative value and the ALJ did not invite cross-examination after receiving the comments.


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       Arguably, the commission considered the public comments only as expressing

public sentiment on the city's proposal. We say this based on the placement in the final

order of the commission's discussion of the public comments (it follows discussion of the

parties' evidence) and on the language used to describe the public comments (e.g., as

"underscor[ing]" the project's potential, "emphasiz[ing] community expectations,"

"illustrat[ing] the local importance of recognizing the broader public policy

environment," and "support[ing] the proposed project"). CP at 639-42.

      But the clearest basis on which to reject this challenge by Tri-City is that it has not

demonstrated substantial prejudice, even if the public comments were treated as

substantive evidence by the commission. Tri-City argues that it was prejudiced because

if the public comments are disregarded, three of the commission's findings and

conclusions are not supported by the record. We disagree.

      The first finding that Tri-City argues is not supported by substantial evidence is

the commissioners' ultimate finding 8, which appears at paragraph 37 of the final order:

      37     (8) The Center Parkway extension, including the proposed at-grade
             railroad crossing, is a long-planned and important component of the
             Cities' transportation system. The project will improve traffic
             movement between two important and growing commercial areas in
             Richland and Kennewick, thus promoting economic development.
CP at 644.

      The fact that the Central Parkway extension is a long-planned and important

component of the Cities' transportation system is supported by the JUB Traffic Study


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("For several years the city of Richland has pursued the extension of Center Parkway to

connect between Gage Boulevard on the south to Tapteal Drive on the north," CP at 92);

evidence of the cities' unsuccessful 2006 petition for approval of an at-grade crossing;

and the evidence that the connection had, since 2006, been included as an essential public

facility in the two cities' comprehensive plans and in the Regional Transportation Plan.

       The fact that the proposed crossing will improve traffic movement is supported by

the JUB Traffic Study, which states that a purpose of the connection is to "[p]rovide

relief to congested arterial facilities," CP at 92; and elsewhere states:

              Currently to get from the Columbia Center Mall to businesses on
       Tapteal Drive, traffic must make a left tum to go north on Columbia Center
       Boulevard, which is often congested, then proceed to go east on
       Yellowstone A venue, south on Bel fair Street and then proceed west on
       Tapteal Loop to access Tapteal Drive. With the Center Parkway
       connection, traffic will be able to exit the Mall area on the west side and go
       north at the roundabout at Gage Boulevard and proceed directly north to
       Tapteal Drive.

CP at 97.

       The fact that the proposed crossing will connect two growing commercial areas in

Richland and Kennewick, thus promoting economic development, is supported by several

statements in the JUB Traffic Study including that a purpose for the connection is to

"[p ]rovide improved access to commercial areas and developable land," CP at 92; that, in

that connection, "nearly 60 developable acres of commercial land between the railroad

and SR 240 which has desirable visibility will have improved access and will gain the



                                              23
No. 33031-1-III
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synergy that commercial areas often seek," CP at 105; and, elaborating elsewhere on the

60 acres, that "[t]oday [the 60 acres] has all utilities and collector roadway access on

Tapteal Drive, however it is not as close to the rest of the commercial areas as it could be

without Center Parkway, because of the barrier created by the railroad." CP at 97.

          In addition, Richland's development services manager, Rick Simon, testified that

the Center Parkway connection and crossing "establishes a complete road network" and

provides "significant relief to [traffic] congestion" and "improved access to developable

lands." CP at 831-32. Elsewhere, he testified that it "also helps to promote economic

development of the community." CP at 829. Viewed in the light most favorable to the

city of Kennewick, substantial evidence supports the commissioners' ultimate finding 8.

          Tri-City next challenges the record's support for the commission's mixed finding

and conclusion 9, which appears at paragraph 38 of the commissioners' final order. It

states:

          38    (9) The record includes substantial competent evidence showing
                sufficient public need to outweigh the inherent risks presented by the
                proposed at-grade crossing.

CP at 644.

          Given the commissioners' reasonable construction ofRCW 81.53.030 as

authorizing consideration of a broad concept of public need, their finding 8 supports the

commissioners' conclusion that the record includes substantial competent evidence

showing public need.

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No. 33031-1-111
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       Their finding that the evidence of public need outweighs the risk presented by the

at-grade crossing is supported by finding 8, and by the testimony of Susan Grabler, the

railroad engineer, who testified, among other matters:

              The automatic warning devices used on all new at-grade highway-
      railroad crossings by all railroads along with sound traffic engineering and
      civil engineering design practices will provide a safe at-grade highway-
      railroad crossing. Especially for a crossing with 7,000 [average daily
      traffic] and low train volumes as proposed in this case.
              With the addition of medians on the approaches to the crossing to
      keep motorists from driving around the gates, the existing train speed of 35-
      MPH or less and the average of six trains per day, along with the most
      current automatic warning devices, should be sufficient to create a safe at-
      grade highway-railroad crossing.

             The railroad signal technology proposed to be used at Center
      Parkway will be the most current automatic warning system available
      today. Additionally, with the traffic and civil engineering practices
      employed by the City of Richland, this crossing will be designed and built
      to provide the public a safe at-grade crossing as well as providing the
      public the convenience they have sought at this location.

CP at 1515, 1518. Viewed in the light most favorable to the city of Kennewick,

substantial evidence supports mixed finding and conclusion 9.

      Finally, Tri-City challenges the commission's conclusion 10, which appears at

paragraph 39 of the commissioners' final order. It states:

       39     (IO) The Commission should grant the City of Richland's and City
              of Kennewick's petition for authority to construct an at-grade
              crossing at the proposed extension of Center Parkway.

CP at 644. The conclusion follows naturally from the commission's preceding findings.

      Because Tri-City has not demonstrated that it was substantially prejudiced even if

                                             25
j

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     No. 33031-1-III
     Tri-Cities R.R. v. Util. & Transp. Comm 'n


     the commission considered the public comments as substantive evidence, it is not entitled

     to judicial relief. RCW 34.05.570(l)(d).

                                             Attorney fees

            Tri-City requests an award of costs and fees under RAP 18.1 and under RCW

     4.84.350, which provides for an award of fees and expenses when a qualified party

     prevails in a judicial review of an agency action. Because Tri-City has not obtained relief

     on any significant issue, the statute does not apply.

            Affirmed.




     WE CONCUR:




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