PROPOSED DECISION Agenda ID #16363 (Rev

ALJ/GK1/jt2 PROPOSED DECISION Agenda ID #16363 (Rev. 1) Ratesetting 4/26/18 Item #15 Decision PROPOSED DECISION OF ALJ KELLY (Mailed 3/15/18)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Application of the San Diego Association of Governments for an order authorizing construction of two light-rail vehicle tracks grade separated above I-5 (South), I-5 (North) Application 17-01-005 and grade separated below I-8, SR-52 in the City of San Diego, San Diego County, California.

Application 17-01-006 And Related Matters. Application 17-01-007 Application 17-01-008 Application 17-01-009

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Table of Contents

Title Page

DECISION APPROVING THE SETTLEMENT AGREEMENT BETWEEN THE SAN DIEGO ASSOCIATION OF GOVERNMENTS AND THE COMMISSION’S SAFETY AND ENFORCEMENT DIVISION AUTHORIZING THE SAN DIEGO ASSOCIATION OF GOVERNMENTS TO CONSTRUCT 35 GRADE-SEPARATED PEDESTRIAN AND BICYCLE CROSSINGS IN THE CITY OF SAN DIEGO, AS PART OF THE MID-COAST CORRIDOR LIGHT-RAIL TRANSIT PROJECT AND AUTHORITY TO CONSTRUCT 15 ADDITIONAL AT-GRADE CROSSINGS AT THE NINE NEW PROPOSED STATIONS ...... 1 Summary ...... 2 1. Background ...... 2 2. Scope of the Proceeding ...... 5 3. Terms of the Settlement Agreement ...... 6 4. The Settlement ...... 7 5. Resolution of Issues Presented in the Scoping Memo...... 10 6. Issues Not Resolved by the Settlement Agreement ...... 10 7. Agreement Concerning Submission of Application Material...... 14 8. Crossing Identification Numbers ...... 15 9. Environmental Review and CEQA Compliance ...... 19 10. Filing Requirements and Staff Recommendations ...... 21 11. Categorization and Need for Hearings ...... 21 12. Comments on Proposed Decision ...... 21 13. Assignment of Proceeding ...... 22 Findings of Fact ...... 22 Conclusions of Law ...... 23 ORDER ...... 24

Attachment A - Partial Settlement Agreement Between the Safety and Enforcement Division and the San Diego Association of Governments on Issues Presented in Application 17-01-005 et al.

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Summary This decision approves the proposed Settlement Agreement (Settlement Agreement) between the San Diego Association of Governments (SANDAG) and the Commission’s Safety and Enforcement Division. We find that the Settlement Agreement is reasonable in light of the whole record, consistent with law, and in the public interest, and approve it. SANDAG is authorized to construct 35 grade-separated pedestrian and bicycle crossings in the City of San Diego, located in San Diego County as part of the Mid-Coast Corridor Light-Rail Transit Project. The additional crossings at each of the nine proposed stations are at-grade crossings and are subject to the California Public Utilities Code provisions, the California Public Utilities Commission’s (Commission) Rules of Practice and Procedure, and the Commission’s General Orders. SANDAG submitted sufficient information with the Settlement Agreement for us to approve the 15 additional crossings associated with the nine new stations. The consolidated proceedings are closed.

1. Background On January 4, 2017, San Diego Association of Governments (SANDAG) filed Applications (A.) 17-01-005, A.17-01-006, A.17-01-007, A.17-01-008 and A.17-01-009, seeking authorization from the California Public Utilities

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Commission (Commission) to construct 35 grade-separated pedestrian and bicycle crossings of two light-rail vehicle tracks, all in the city of San Diego, located in San Diego County California, all of which are part of the Mid-Coast Corridor Light Rail Transit Project (Mid-Coast Project).1 Additionally, the Project will include nine new stations along the extension, four at-grade and five aerial, where the light-rail vehicles will stop to allow passengers to board and disembark from the trains. The Commission’s Safety and Enforcement Division (SED) filed protests2 to A.17-01-005, A.17-01-006, A.17-01-007 and A.17-01-009 on February 10, 2017.

1 The Mid-Coast Project includes an extension of the San Diego Trolley Blue Line from San Diego’s Old Town to University Towne Center in University City. In A.17-01-005 SANDAG requests authorization from the Commission to construct 12 grade-separated crossings of two light-rail tracks below Interstate 8 and State Route 52 and above Interstate 5 South and Interstate 5 North. In A.17-01-006 SANDAG requests authorization from the Commission to construct nine grade-separated crossings of two light rail-tracks above Ocean Beach Bike Path, Friars Road, Balboa Avenue, Genesee Ave/Regents Road, Eastgate Mall, Executive Drive, Executive Square, La Jolla Village Drive (East), and Esplanade Court. In A.17-01-007 SANDAG requests authorization from the Commission to construct eight grade-separated crossings below Tecolote Road and Clairemont Drive, La Jolla Colony Drive and Nobel Drive and above four segments along La Jolla Village Drive. In A.17-01-008 SANDAG requests authorization from the Commission to construct two light-rail vehicle only tracks grade-separated above the Los Angeles – San Diego – San Luis Obispo Rail (LOSSAN) Corridor tacks. In A.17-01-009 SANDAG requests authorization from the Commission to construct five grade-separated crossings of two light-rail tracks above Gilman Drive (South), Sixth Lane, Gilman Drive (North), Campus Point Drive, and Voigt Drive. 2 SED supported the construction of the grade separated rail crossings as well as the proposed design submitted in SANDAG’s application where the design physically separates vehicles and pedestrians from the proposed transit tracks. However, SED’s protest contends that other aspects of the design; such as the proposed pedestrian stations, requires pedestrians to cross the new light rail tracks at-grade. Therefore SED believes that SANDAG must obtain authority from the Commission prior to implementing the crossings at the proposed pedestrian stations. Specifically, SED contends that SANDAG needs authority from the Commission for the crossings at the following proposed pedestrian stations: Tecolote, Clairemont, Balboa, Nobel Drive, VA Hospital, Pepper Canyon, Voigt Drive, Executive Drive and UTC Transit Center. SANDAG disputes that pedestrian stations are crossings and contends that they are

Footnote continued on next page

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SED filed a motion to consolidate these applications.3 SANDAG filed a response to SED’s protests on February 21, 2017. A PHC was held in San Diego, California on March 3, 2017. SANDAG and SED were present at the PHC. SANDAG did not oppose the motion to consolidate, but requested that A.17-01-008 also be consolidated. The ALJ granted the motion to consolidate at the PHC and followed up with a ruling approving the consolidation on April 24, 2017. On March 23, 2017, SANDAG filed a motion for summary judgment (MSJ). On April 14, 2017, SED filed a response to the MSJ. On April 28, 2017, SANDAG filed a reply to SED’s response. On May 3, 2017, SED sought leave to file a response to SANDAG’s reply. The ALJ denied this request by e-mail ruling on May 5, 2017. The MSJ was denied by the ALJ on May 18, 2017. An evidentiary hearing was held on August 14, 2017 in San Diego. On November 16, 2017, SANDAG and SED filed a joint motion for approval of a partial settlement (Settlement Agreement).4 SED and SANDAG reached an agreement in principle on terms of settlement with the exception of the legal issue of whether pedestrian pathways at nine planned stations within the scope of the Mid-Coast Project constitute pedestrian crossings for which Commission authorization is required. pedestrian malls and as such, they are not crossings and therefore do not require Commission approval. 3 The motion to consolidate was granted by the Administrative Law Judge (ALJ) at the prehearing conference (PHC). Additionally, A.17-01-008 was consolidated with these proceedings. 4 The Settlement Agreement is attached as Attachment 1. Although SANDAG disagrees that pedestrian pathways are at-grade crossings, as part of the Settlement Agreement SANDAG and SED included all documentation and information required for grade-crossing applications that is relevant to the pedestrian pathways at the nine Mid-Coast pedestrian stations.

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Opening briefs were filed on November 16, 2017 and reply briefs were filed on December 15, 2017.

2. Scope of the Proceeding On April 25, 2017, a Scoping Ruling was issued setting forth the scope and schedule of this proceeding. The ultimate issues to be addressed in Applications 17-01-005, 17-01-006, 17-01-007 and 17-01-009 are as follows:

1. Are the applications in compliance with the applicable Commission safety rules, procedures, guidelines and criteria?

2. Is the Final Environmental Impact Report/Subsequent Environmental Impact Report adequate for decision making purposes?

3. Do Applications 17-01-005, 17-01-006, 17-01-007 and 17-01-009 require pedestrians to cross the new light-rail tracks at-grade with those tracks?

4. Is it in the public interest to have grade-separated crossings at each of the locations noted in footnote number two?

5. Has SANDAG met its burden and demonstrated that grade-separated crossings are impracticable?

6. Are the measures SANDAG intends to provide to prevent pedestrians from walking into the path of an approaching light-rail vehicle adequate?

7. Should the Commission grant SANDAG the authority it seeks in Applications 17-01-005, 17-01-006, 17-01-007 and 17-01-009?

The scope for A.17-01-008 is as follows:

1. Is the application in compliance with the applicable Commission safety rules, procedures, guidelines and criteria?

2. Is the Final Environmental Report/Subsequent Environmental Impact Report adequate for decision making purposes?

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3. Should the Commission grant SANDAG the authority it seeks in Application 17-01-008?

3. Terms of the Settlement Agreement The Settlement Agreement was entered into by SANDAG and SED on November 16, 2017. While the attached Settlement Agreement should be referred to for a detailed examination of its terms, some of the more important terms of the Settlement Agreement include:  SANDAG and SED agree that the Commission should authorize SANDAG to construct the 35 grade-separated crossings in each of the five applications.  SANDAG and SED agree that the Commission should authorize SANDAG to construct four pedestrian pathways across the tracks with specified safety treatments in each of the three planned Mid-Coast Project stations with ballasted tracks (Tecolote Road Station, Clairemont Drive Station, and Balboa Avenue Station).  SANDAG and SED agree that the Commission should authorize SANDAG to construct two pedestrian pathways across the tracks with specified safety treatments at each of the six planned Mid-Coast Project stations direct fixation tracks (Nobel Drive Station VA Medical Center Station, Pepper Canyon Station, Voigt Drive Station, Executive Drive Station and University Town Center Station).  SANDAG and SED agree that should the Commission find the pedestrian pathways to be at-grade crossings, then SED shall assign proposed unique Crossing Identification Numbers for each of the stations or pathways and submit those Crossing Identification Numbers to the Commission for inclusion in the final decision.  SANDAG and SED agree on a list of recommended resolutions to the questions presented in the April 25, 2017 Scoping Memo.

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4. The Settlement As the applicant, SANDAG bears the burden of proof to show that the regulatory relief it requests is reasonable in light of the whole record, consistent with the law, and in the public interest. In order for the Commission to consider whether a proposed settlement is in the public interest, the Commission must be convinced the parties had a thorough understanding of the application and all of the underlying assumptions and data included in the record. The requirements for adopting a settlement are set forth in Rule 12.1(a) of the Commission’s Rules of Practice and Procedure,5 which states: Parties may, by written motion any time after the first prehearing conference and within 30 days after the last day of hearing, propose settlements on the resolution of any material issue of law or fact or on a mutually agreeable outcome to the proceeding. Settlements need not be joined by all parties; however, settlements in applications must be signed by the applicant…. Rule 12.1(d) provides that: The Commission will not approve settlements, whether contested or uncontested, unless the settlement is reasonable in light of the whole record, consistent with the law, and in the public interest. Rule 12.5 limits the future applicability of a settlement: Commission adoption of a settlement is binding on all parties to the proceeding in which the settlement is proposed. Unless the Commission expressly provides otherwise, such adoption does not constitute approval of, or precedent regarding, any principle or issue in the proceeding or in any future proceeding.

5 All referenced Rules are the Commission’s Rules of Practice and Procedure.

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We must find whether the settlement complies with Rule 12.1(d), which requires a settlement to be “reasonable in light of the whole record, consistent with law, and in the public interest.” The record consists of all filed documents, served and filed testimony and associated exhibits, the additional exhibits received into evidence at the hearing, the proposed settlement and the motion for its adoption. The settlement resolves all issues with the exception of whether the designated arrangements for pedestrian movements across the track between the proposed station platforms constitute at-grade crossings. Both SANDAG and SED were represented by counsel. The settlement is the result of extensive and vigorous negotiations. The parties to the settlement have a thorough understanding of the issues and all of the underlying assumptions and data, and could therefore make informed decisions in the settlement process. The Commission could have resolved the issues in favor of either of the parties. Accordingly, the settling parties have balanced a variety of issues of importance to them and have agreed to the settlement as a reasonable means by which to resolve the issues. For the reasons discussed above, the settlement is reasonable in light of the record as a whole. There are no terms within the settlement agreement that would bind the Commission in the future or violate existing law. Additionally, the design and safety treatments of each grade-separated crossings and system stations proposed by the Applications are compliant with the Americans with Disabilities Act (ADA), other statutory requirements and the Commission’s General Orders. Therefore, we find the settlement consistent with the law.

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There is a public policy favoring the settlement of disputes to avoid costly and protracted litigation.6 The settlement satisfies this public policy preference for the following reasons: a. The sponsors of the settlement represent the interests of both SED and SANDAG. b. The settlement serves the public interest by promoting the safety concerns of both SANDAG and SED, while improving the public transportation services in San Diego. c. By reaching agreement, the parties avoid the costs and uncertainties of further litigation in this proceeding, and eliminate the possible litigation costs for rehearing and appeal. Approval of the settlement provides speedy and complete resolution of the issues. d. The settlement meets the applicable settlement standards of Rule 12.1(d), should be accorded the same deference the Commission accords settlements generally, and should be adopted. Adoption of the settlement is binding on all parties to the proceeding. However, pursuant to Rule 12.5, the settlement does not bind or otherwise impose a precedent in this or any future proceeding. The settlement promotes both the safety interest of SANDAG and SED and will benefit residents and visitors in San Diego with more extensive and safe public transportation services. We therefore conclude that the settlement is in the public interest.

6 Decision (D.) 88-12-083, 30 CPUC 2d 189, 221.

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5. Resolution of Issues Presented in the Scoping Memo As noted above, the Scoping Memo presented a series of questions which defined the scope of the proceeding. Based upon the Settlement Agreement, SED and SANDAG diligently discussed the issues in this proceeding. Based upon the information provided in the Settlement Agreement, we agree that the additional issues set forth in the Scoping Memo are now resolved.7

6. Issues Not Resolved by the Settlement Agreement As noted in the Settlement Agreement, three of the nine new stations planned for inclusion in the Mid-Coast Project (Tecolote Road, Clairement Drive and Balboa Avenue) are designed to include ballasted track. SANDAG’s design for these stations include open platforms with pedestrians guided to cross the tracks, at two ADA-compliant locations at either end of the platforms or at two mid-platform locations. SANDAG and SED reached an agreement on the specific pedestrian safety treatments that will be needed for each of these three stations. However, they disagree as to whether pedestrian movements across these tracks constitute at-grade crossings and are therefore subject to the Commission’s regulations governing at-grade crossings. Additionally, six of the nine new stations in the Mid-Coast Project (five aerial stations designated as Nobel Drive Station, Pepper Canyon Station, Voight Drive Station, Executive Drive Station and University Town Center Station and one at-grade station designated as VA Medical Center Station), were designed to be constructed with direct fixation track and precast pavers in the trackway, level with the top of rail, for the length of the station platform.

7 See, pages 9-10 of the Settlement Agreement, which is attached to this decision.

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SANDAG’s initial design for these stations provided open platforms allowing free movement of pedestrians between the station platforms including two ADA compliant locations near the ends of the platforms. Based on comments from SED, SANDAG modified the designs of these stations to provide for inter-track fencing for the length of the station platform between the two ADA compliant locations so that pedestrians can only cross the tracks at the ends of the stations. Executive Drive Station and University Town Center Stations will be situated on the aerial guideway over Genesee Avenue, with general public access at these stations over Genesee Avenue. These new pedestrian bridges will replace previously existing pedestrian bridges that were inconsistent with the guideway design and have been removed to allow construction of the project. As a consequence, some non-patron pedestrians are expected to cross the tracks at these two stations. Again, SED and SANDAG reached an agreement concerning the specific pedestrian safety measures needed for these six stations. However, they continue to disagree as to whether these pedestrian movements constitute at-grade crossings and therefore are subject to the Commission’s rules and regulations governing at-grade crossings. The remaining issue to be resolved is whether the arrangements for pedestrian movements across tracks between the proposed station platforms constitute at-grade crossings and thus should be subject to the California Public Utilities Code provisions, the Commission’s Rules of Practice and Procedure, and the Commission’s General Orders governing at-grade crossings with respect to any future plans or proposals for changes to those station platforms. The parties have requested to resolve these issues through briefing.

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SANDAG argues that there are no requirements under the Public Utilities Code or Commission regulations or decisions which would require SANDAG to obtain Commission authorization to construct the type of station platforms proposed by SANDAG for the Mid-Coast Project.8 SANDAG goes on to state at pages 16-17 of its reply brief that: For the Commission to institute new requirements for rail transit agencies to seek Commission authorization for light rail station designs providing for pedestrian movement across the tracks would be a major change in the Commission’s long-standing framework of rail safety regulations. Fairness to SANDAG and to other light rail system operators in California requires that the Commission, if it is inclined to take such action, propose, develop, and promulgate such new requirements through a formal rulemaking process.

SED disagrees with SANDAG on this matter. SED contends that the arrangements for pedestrian movement across the tracks at the proposed nine Mid-Coast stations are at-grade crossings. SED witness Kevin Schmacher, is responsible for evaluating the safety of proposed crossings and recommending safety treatments in compliance with the Commission’s General Orders and applicable state, federal and industry standard and guidelines actively participated in this proceeding. Mr. Schmacher reviewed all of the materials submitted by SANDAG. He concluded that at each of the nine new stations, pedestrians will be directed to

8 SANDAG Closing Brief at 16.

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cross the tracks at specific, marked, channelized, crossing points located along the station platform.9 As noted in SED’s Opening Brief, the Commission has defined an at-grade crossing as “a rail crossing where pedestrians and/or vehicle traffic cross the tracks at the same level as the train.”10 SED goes on to note that the “established interpretation at the Commission is thus that an at-grade crossing is anywhere pedestrians cross the tracks at grade with those tracks.”11 San Diego Metropolitan Transportation System Safety Program Plans provides a similar definition in that it states in relevant part that a highway rail grade crossing is … “a location where a pathway is dedicated for the use of non-vehicular traffic, including pedestrians, bicyclists, and others, that is not associated with a public highway, road, or street, or a private roadway, crosses one or more railroad tracks at grade.”12 As noted by ALJ Kelly in the ruling denying SANDAG’s MSJ: Based upon Mr. Schumacher’s Declaration and Exhibit N attached to his Declaration, it appears that the Project as submitted will result in pedestrians crossing at-grade with the trams. SANDAG’s MSJ fails to establish how the Projects proposed at-grade crossings station crossings are not at-grade crossings. Safety is extremely important to the Commission. It would be contrary to the Commission’s strong emphasis on public safety not to address the potential

9 SED Exhibit 1 at Exhibit N. 10 SED Opening Brief at 5, citing D.16-09-002 and SED Exhibit 1 at 2. 11 SED Opening Brief at 13. 12 SED Opening Brief at 15-16, referring to Exhibit SED 7 (MTS System Safety Program Plan) at 65.

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concerns SED raises with the proposed Project. Accordingly, SANDAG’s Motion for Summary Judgment is denied.13

We fail to see how the crossings at the nine stations are not actually crossings. Simply labeling something as a pedestrian mall does not mean that it is not an at-grade crossing. At each of these locations, pedestrians will cross the tracks at-grade with those tracks. Therefore, we find in this particular circumstance that they are at-grade crossings.

7. Agreement Concerning Submission of Application Material SANDAG and SED agreed that should the Commission find that the arrangement for pedestrian movements across the tracks at the proposed station platforms constitute crossings, that SANDAG has included in or attached to the settlement agreement all documentation and information required for grade-crossing applications that is relevant to the proposed pedestrian pathways at station platforms and that has not already been furnished in connection with SANDAG’s applications A.17-01-005 et al.14 We have reviewed all of the additional documentation submitted with the Settlement Agreement and agree that SANDAG has submitted all of the required and relevant application material which allows us to approve the configurations as presented in Attachments F and G in the Settlement Agreement.

13 ALJ Kelly’s Ruling Denying SANDAG’s Motion for Summary Judgment at 9. 14 A comprehensive listing of the attachments included with the Settlement Agreement can be found at 11 of the Settlement Agreement.

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8. Crossing Identification Numbers The consolidated applications seek authority for a total of 35 grade-separated pedestrian and bicycle crossings. Additionally, there are 15 additional crossings that will be constructed as a result of the Mid-Coast Project. The proposed crossing identification numbers for the 35 grade-separated crossings are as follows: A.17-01-005 USDOT Existing CPUC Proposed Crossing CALTRANS Crossing Location Crossing Crossing No. No. Bridge Number Number 106-263.96-A, 106-263.96-A, I-5 NB to I-8 EB 026851W Br No. 57-0550G 081MV-3.44-A 081MV-3.44-A Camino Del Rio W to I-8 106-263.92-A, 106-263.92-A, 966293A Br No. 57-0551G EB 081MV-3.48-A 081MV-3.48-A I-5 SB to I-8 EB and I-8 106-263.91-A, 106-263.91-A, 966292T Br No. 57-0568R EB 081MV-3.49-A 081MV-3.49-A Br No. 57-0568L I-8 WB to I-5 NB and I-8 106-263.89-A, 106-263.89-A, 966291L and WB 081MV-3.51-A 081MV-3.51-A Br No. 57-0569F I-8 WB to I-5 SB and 106-263.88-A, 106-263.88-A, 966290E Br No. 57-0551F Camino Del Rio W 081MV-3.52-A 081MV-3.52-A 106-257.96-A, I-5 NB to SR-52 EB 106-257.96-A 026844L Br No. 57-0518G 081MC-11.53-A I-5 SB & La Jolla 106-257.95-A, 106-257.95-A 967677M Br No. 57-0519F Parkway to SR-52 EB 081MC-11.54-A SR-52 WB to La Jolla 106-257.92-A, 106-257.92-A 967676F Br No. 57-0520L Parkway 081MC-11.57-A 106-257.87-A, SR-52 WB to I-5 SB 106-257.87-A 967675Y Br No. 57-0522F 081MC-11.62-A 106-257.85-A, SR-52 WB to I-5 NB 106-257.85-A 967674S Br No. 57-0523F 081MC-11.64-A I-5 South of Nobel Drive NA 081MC-15.34-B NA Br. No. 57-1256

I-5 (along Voigt Drive) NA 081MC-18.65-B NA Br. No. 57-1258

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A.17-01-006

Existing CPUC Proposed Crossing USDOT Crossing Crossing Location Crossing No. No. Number15 106-263.84-B, 106-263.84-B, Ocean Beach Bike Path 081MV-3.56-B, 966289K 081MV-3.56-B 081MC-3.80-B 106-263.70-B, Friars Road 106-263.70-B 026850P 081MC-3.95-B 106-260.50-B, Balboa Ave 106-260.50-B 026845T 081MC-7.18-B Genesee Ave and NA 081MC-19.23-B NA Regents Road Eastgate Mall NA 081MC-19.61-B NA

Executive Drive NA 081MC-19.78-B NA

Executive Square NA 081MC-19.86-B NA La Jolla Village Drive NA 081MC-19.96-B NA (East)

Esplanade Court NA 081MC-20.14-B NA

A.17-01-007 USDOT CALTRANS Existing CPUC Proposed Crossing Crossing Location Crossing Bridge Crossing No. No. Number Number 106-263.10-A, Tecolote Road 106-263.10-A 026848N N/A 081MC-4.54-A

15 SANDAG’s application included Exhibit E, which was a chart with the proposed crossing numbers for the grade-separated crossing. Exhibit E indicated for several of the crossings that a United States Department of Transportation (USDOT) number was “To Be Determined.” This was then carried over to the Proposed Decision’s list of Crossing Locations. However, some crossings are not required by federal regulation to be assigned USDOT crossing numbers, as federal crossing identification is optional for crossings without railroad operations (See, 49 CFR § 234.403.) Since these locations are only rail transit operations, and not railroad operations, the federal regulations do not require a USDOT crossing number. Therefore, TBD has been changed to NA.

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106-261.70-A, Clairemont Drive 106-261.70-A 026846A Br No. 57-0429 081MC-5.95-A Br No. La Jolla Colony Drive N/A 081MC-14.25-A NA 57C0859 Nobel Dr N/A 081MC-15.63-B NA N/A La Jolla Village Drive EB to N/A 081MC-15.86-B NA Br No. 57 1256 I-5 SB ramp La Jolla Village Drive N/A 081MC-15.90-B NA Br. No. 57 1256 La Jolla Village Drive WB N/A 081MC-15.91-B NA Br. No. 57 1256 to I-5 SB ramp I-5 SB to La Jolla Village N/A 081MC-15.97-B NA Br. No. 57 1256 Drive ramp

A.17-01-008 USDOT Existing CPUC Proposed Crossing Crossing Location Crossing Crossing No. No. Number LRT Crossing Above the LOSSAN 106-258.50-AT, N/A NA Corridor 081MC-11.07-BT

A.17-01-009 Existing CPUC Proposed Crossing USDOT Crossing Crossing Location Crossing No. No. Number Gilman Drive (South) N/A 081MC-18.14-B NA

Sixth Lane N/A 081MC-18.38-B NA

Gilman Drive (North) N/A 081MC-18.59-B NA

Campus Point Drive N/A 081MC-19.05-B NA

Voigt Drive N/A 081MC-19.11-B NA

As noted above, three of the nine new stations planned for inclusion in the Mid-Coast Project (Tecolote Road, Clairement Drive and Balboa Avenue) and six of the nine new stations in the Mid-Coast Project (five aerial stations designated as Nobel Drive Station, Pepper Canyon Station, Voight Drive Station, Executive

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Drive Station and University Town Center Station and one at-grade station designated as VA Medical Center Station contain-grade crossings subject to the Commission’s rules and regulations governing at-grade crossings. Since we have determined these crossings to be at-grade crossings, SED is required to provide the Unique Crossing Numbers for each of the Proposed Crossings listed below.

Existing CPUC Proposed Crossing USDOT Crossing Crossing Location Crossing No. No.16 Number Tecolote Station NA 081MC-4.48-D NA

Clairemont Station NA 081MC-5.90D NA

Balboa Station NA 081MC-7.09-D NA Nobel NA 081MC-11.73-D NA Pathway No. 1 Nobel NA 081MC-11.79-D NA Pathway No. 2 VA Hospital NA 081MC-12.24-D NA Pathway No. 1 VA Hospital NA 081MC-12.31-D NA Pathway No. 2 Pepper Canyon NA 081MC-12.60-D NA Pathway No. 1 Pepper Canyon NA 081MC-12.66-D NA Pathway No. 2 Voigt NA 081MC-13.23-D NA Pathway No. 1 Voigt NA 081MC-13.29-D NA Pathway No. 2 Executive NA 081MC-14.14-D NA Pathway No.1 Executive NA 081MC-14.20-D NA

16 SED’s proposed crossing numbers are based on the mileposts submitted in Attachment F to the Settlement Agreement. It is possible that, during the project construction, some mileposts numbers and thus the corresponding crossing numbers may change.

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Pathway No.2

UTC NA 081-MC-14.47-D NA Pathway No. 1 UTC NA 081MC-14.54-D NA Pathway No. 2

9. Environmental Review and CEQA Compliance The California Environmental Quality Act of 1970 (CEQA, as amended, Public Resources Code Section 21000 et seq.) applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to inform governmental decision-makers and the public about potential, significant environmental effects of the proposed activities. Since the project is subject to CEQA and the Commission must issue a discretionary decision in order for the project to proceed (i.e., the Commission has the exclusive authority to approve the project pursuant to Section 1202 of the Public Utilities Code), the Commission must consider the environmental consequences of the project by acting as either a lead or responsible agency under CEQA. The lead agency is either the public agency that carries out the project,17 or the one with the greatest responsibility for supervising or approving the project as a whole. Here, SANDAG is the lead agency for this project because the project is located within the Mid-Coast Corridor Transit Project and SANDAG is undertaking the project, and the Commission is a responsible agency because it has jurisdiction to issue a permit for the project. As a responsible agency under CEQA, the Commission must consider the lead agency’s environmental

17 CEQA Guidelines (Title 14 of the California Code of Regulations), Section 15367.

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documents and findings before acting on or approving this project.18 Also as a responsible agency, the Commission is responsible for mitigating or avoiding only the direct or indirect environmental effects of those parts of the project which it decides to carry out, finance, or approve.19 On November 21, 2014, SANDAG filed in the Office of the County Clerk in the County of San Diego, the Notice of Determination (NOD). The NOD advises that SANDAG certified the Final Supplemental Environmental Impact Report/Subsequent Environmental Impact Report (Final SEIS/SEIR) for the Mid-Coast Project and approved the project as the lead agency under CEQA. The Determination notes the following: 1. There will be a significant impact on the environment. 2. An SEIR was prepared pursuant to the provisions of CEQA in cooperation with the Federal Transit Administration, which prepared a SEIS pursuant to the National Environmental Policy Act. 3. Mitigation measures were made a condition of the approval. 4. A mitigation and monitoring program was adopted. 5. A statement of Overriding Considerations were adopted. 6. Findings were made pursuant to the provisions of CEQA. Impacts identified under CEQA relating to the modification and implementation of the subject crossings of the project are within the scope of the Commission’s jurisdiction. The Commission reviewed the Final SEIS/SEIR and considered the mitigation measures which were made a condition of the approval of the Mid-Coast Project. We find that the Final SEIS/SEIR along with

18 CEQA Guidelines, Sections 15050(b). 19 CEQA Guidelines Section 15096(g).

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the mitigation measures and monitoring program adopted for the Mid-Coast Project are adequate for our decision-making purposes. As long as SANDAG complies with the mitigation measures and monitoring program, the Mid-Coast Project is complaint with CEQA.

10. Filing Requirements and Staff Recommendations These applications are in compliance with the Commission’s filing requirements, including Rules 3.7 and 3.11 of the Rules of Practice and Procedure. The Commission’s SED, Rail Crossings and Engineering Branch, actively participated in this proceeding. During the course of this proceeding, the Rail Crossings and Engineering Branch inspected the site of the proposed crossings, reviewed and analyzed the plans submitted with the applications, reviewed the testimony and exhibits submitted by SANDAG and presented its own testimony and exhibits. Furthermore, the Settlement Agreement, which SED has signed, attests that the applications are in compliance with Commission safety rules, procedures, guidelines and criteria.

11. Categorization and Need for Hearings In Resolution ALJ 176-3391, dated January 19, 2017; the Commission preliminarily categorized this application as ratesetting, and preliminarily determined that hearings were necessary. Neither SANDAG nor SED objected to the categorization of the proceeding and hearings were conducted on August 14, 2017.

12. Comments on Proposed Decision The proposed decision in this matter was mailed in accordance with § 311 of the Pub. Util. Code and comments were allowed under Rule 14.3 of the Commission’s Rules of Practice and Procedure. Comments were filed on April 5, 2018 by SED. Reply comments were filed by SANDAG on April 9, 2018. We

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have considered these comments and incorporated the suggested edits, as appropriate into this decision.

13. Assignment of Proceeding Clifford Rechtschaffen is the assigned Commissioner and Gerald F. Kelly is the assigned ALJ to the proceeding.

Findings of Fact 1. SANDAG filed Applications 17-01-005, 17-01-006, 17-01-007, 17-01-008 and 17-01-009 on January 4, 2017. 2. SANDAG’s applications request authority to construct 35 grade-separated crossings as part of the Mid-Coast Project. 3. SED filed a protest to these applications on February 10, 2017. 4. The applications were consolidated on April 24, 2017. 5. Hearings were conducted on August 14, 2017. 6. SANDAG and SED reached a partial settlement on November 16, 2017 and requested the Commission to approve the partial settlement agreement. 7. SANDAG is the lead agency under CEQA. 8. On November 21, 2014, SANDAG filed the NOD certifying the Final SEIS/SEIR. 9. The Final SEIS/SEIR notes that there will be significant impact on the environment, but sets forth mitigation and monitoring protocols to reduce impacts to the environment. 10. The Commission is a responsible agency for this project and has reviewed and considered the lead agency’s Notice of Exemption, including Public Resources Code Section 21080.13.

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Conclusions of Law 1. Nothing in the Settlement Agreement contravenes any statute or Commission decision or rule. 2. The benefits to the public of the Settlement Agreement outweigh the benefits of continued litigation. 3. The Settlement Agreement is in the public interest. 4. The proposed terms and conditions of the Settlement Agreement are reasonable given the totality of the circumstances. 5. The Settlement Agreement should be approved. 6. The Commission is a responsible agency for this project and has reviewed and considered the lead agency’s NOD, Final SEIS/SEIR. 7. The NOD, Final SEIS/SEIR are adequate for our decision-making purposes. 8. The NOD, Final SEIS/SEIR were completed in compliance with CEQA. 9. The NOD, Final SEIS/SEIR reflects the Commission’s independent judgment and analysis. 10. The Mid-Coast Project will have a significant impact on the environment. 11. Mitigation and monitoring programs were adopted as part of the mitigation measures. 12. The applications should be granted as set forth in the Settlement Agreement and included as Attachment A. 13. The pedestrian movements across the tracks between the proposed station platforms constitute at-grade crossings. 14. These at-grade crossings are subject to the California Public Utilities Code provisions, the Commission’s Rules of Practice and Procedure and the Commission’s General Orders governing at-grade crossings.

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15. Pursuant to General Order 164-D, an at-grade crossing may not be constructed without having first secured the permission of the Commission. 16. SANDAG has included in or attached to the Settlement Agreement all documentation and information required for grade-crossing applications that is relevant to the proposed pedestrian pathways at the station platforms. 17. The consolidated Applications 17-01-005, 17-01-006, 17-01-007, 17-01-008 and 17-01-009 should be closed. 18. This decision should be effective today.

ORDER

IT IS ORDERED that: 1. The Settlement Agreement between the Safety and Enforcement Division and the San Diego Association of Governments, attached hereto as Attachment A, is approved. 2. The San Diego Association of Governments is authorized to construct 12 new grade-separated crossings as proposed in Application 17-01-005 as part of the Mid-Coast Corridor Light Rail Transit Project below Interstate 8, below State Route 52, above Interstate 5 (South) and above Interstate 5 (North), all in the City of San Diego. 3. The crossings associated with Application 17-01-005 will be identified as CPUC Crossing Numbers: 106-263.96-A, 081MV-3.44-A, 106-263.92-A, 081MV-3.48-A, 106-263.91-A, 081MV-3.49-A, 106-263.89-A, 081MV-3.51-A, 106-263.88-A, 081MV-3.52-A, 106-257.96-A, 081MC-11.53-A, 106-257.95-A, 081MC-11.54-A, 106-257.92-A, 081MC-11.57-A, 106-257.87-A, 081MC-11.62-A, 106-257.85-A, 081MC-11.64-A, 081MC-15.34-B and 081MC-18.65-B.

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4. The San Diego Association of Governments is authorized to construct nine new grade-separated crossings as proposed in Application 17-01-006 as part of the Mid-Coast Corridor Light Rail Transit Project above Ocean Beach Bike Path, Friars Road, Balboa Avenue, Genesee Avenue/Regents Road, Eastgate Mall, Executive Drive, Executive Square, La Jolla Village Drive (East) and Esplanade Court, all in the City of San Diego. 5. The crossings associated with Application 17-01-006 will be identified as CPUC Crossing Numbers: 106-263.84-B, 081MV-3.56-B, 081MC-3.80-B, 106-263.70-B, 081MC-3.95-B, 106-260.50-B, 081MC-7.18-B, 081MC-19.23-B, 081MC-19.61-B, 081MC-19.78-B, 081MC-19.86-B, 081MC-19.96-B and 081MC-20.14-B. 6. The San Diego Association of Governments is authorized to construct eight new grade-separated crossings as proposed in Application 17-01-007 as part of the Mid-Coast Corridor Light Rail Transit Project below Tecolote Road and Clairement Drive, La Jolla Colony Drive and Nobel Drive, and above four segments along La Jolla Village Drive, all in the City of San Diego. 7. The crossings associated with Application 17-01-007 will be identified as CPUC Crossing Numbers: 106-263.10-A, 081MC-4.54-A, 106-261.70-A, 081MC-5.95-A, 081MC-14.25-A, 081MC-15.63-B, 081MC-15.86-B, 081MC-15.90-B, 081MC-15.91-B and 081MC-15.97-B. 8. The San Diego Association of Governments is authorized to construct eight new grade-separated crossings as proposed in Application 17-01-008 as part of the Mid-Coast Corridor Light Rail Transit Project above the Los Angeles-San Diego-San Luis Obispo Rail Corridor tracks in the City of San Diego. 9. The crossing numbers associated with Application 17-01-008 will be identified as CPUC Crossing Numbers: 106-258.50-AT and 081MC-11.07-BT.

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10. The San Diego Association of Governments is authorized to construct five new grade-separated crossings as proposed in Application 17-01-009 as part of the Mid-Coast Corridor Light Rail Transit Project above Gilman Drive (South), Sixth Lane, Gilman Drive (North), Campus Point Drive and Voigt Drive, all in the City of San Diego. 11. The crossing numbers associated with Application 17-01-009 will be identified as CPUC Crossing Numbers: 081MC-18.14-B, 081MC-18.38-B, 081MC-18.59-B, 081MC-19.05-B and 081MC-19.11-B. 12. The crossings at the nine proposed stations are at-grade crossings. 13. The 15 crossings at the nine proposed stations will be identified as CPUC Crossing Numbers. The Commission’s Safety and Enforcement Division will provide the 15 crossing numbers. 14. The San Diego Association of Governments shall notify the Commission’s

Safety and Enforcement Division – Rail Crossing and Engineering Branch at least five (5) business days prior to opening the crossing. Notification should be made to [email protected]. 15. Within 30 days after completion of the work under this order, the San Diego Association of Governments (SANDAG) shall notify the Commission’s Safety and Enforcement Division – Rail Crossing Engineering

Section in writing, by submitting a completed Commission Standard Form G

(Report of Changes at Highway Grade Crossings and Separations), of the completion of the authorized work. Form G requirements and forms can be obtained at the California Public Utilities Commission web site Form G page at http://www.cpuc.ca.gov/general.aspx?id=2878. This report may be submitted electronically to [email protected] as outlined on the web page. In its Form G

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submittal, SANDAG shall confirm or provide updated mileposts numbers for each crossing location. 16. The San Diego Association of Governments shall comply with all applicable rules, including Commission General Orders and the California Manual on Uniform Traffic Control Devices. 17. This authorization shall expire if not exercised within five years, unless time is extended or if the above conditions are not satisfied. The Commission may revoke or modify this authorization if public convenience, necessity, or safety so require. 18. A request for extension of the five-year authorization period must be submitted to Commission’s Safety and Enforcement Division – Rail Crossing and Engineering Branch at least 30 days before the expiration of that period. A copy of the request must be sent to all interested parties 19. The Applications are granted as set forth above. 20. The consolidated Applications 17-01-005, 17-01-006, 17-01-007, 17-01-008 and 17-01-009 are closed. This order is effective today. Dated , at San Francisco, California.

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