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Silenced train horns: Worth the cost and risk?

BY JAMES GELUSO, Californian staff writer
e-mail: jgeluso@bakersfield.com | Saturday, Jun 7 2008 12:00 PM

Last Updated: Wednesday, Jun 11 2008 10:57 AM

Unrentable houses, unfilled hotel rooms. Students, unable to sleep at home, falling asleep in school. Businesses required to erect sound walls.

And the collapse of property values along the three-mile stretch of track through downtown and east Bakersfield that sees 38 trains a day.

That’s what will happen, predicts resident and business owner Dean Gardner, if the city doesn’t work to keep the quiet zone that, except for 21⁄2 headache-filled years, kept trains from blowing their horns.

But the quiet zone comes with a cost — and a risk that could drive that cost up, and up and up.

The Bakersfield City Council is set to decide the matter Wednesday. Millions of taxpayer dollars, and the ability to sleep through the night for thousands of residents, hang in the balance.

‘HELL ON EARTH’

Ernest Raft has lived about 70 yards from the tracks for the last 11 years, he said. He liked the noise of the train — the gentle rattling, the ding ding ding of the bells as a train went by the crossing.

But when the train horns started blowing in the summer of 2005, he said “it was absolute hell on earth.”

His 10-year-old son, Sean, stopped sleeping in his bed and moved to the couch. It didn’t help much.

“He couldn’t sleep. His schooling, his grades dropped drastically,” Raft said.

At rental houses down the road, he saw people move in and then out two weeks later.

What will he do If the train horns start up again?

“I’m outta here,” he said. “I am leaving. That’s it.”

Could he even sell his house?

“I don’t even care,” he said. “Finances are one thing. Whether you can live with your peace of mind is a different story.”

A MATTER OF NUMBERS

It’s been a blessed three months of quiet for downtown and east Bakersfield.

Bakersfield got its quiet zone back In March, ending the blowing of horns as trains approached crossings from L Street to Sumner and Miller streets.

But it’s a temporary quiet, unless Bakersfield pays for additional improvements. And the full cost is impossible to truly know. Under federal regulations, the city can qualify for a quiet zone by simply closing Beale, 21st and Gage streets, stopping traffic from crossing the tracks on those streets.

The Federal Railroad Administration — which uses a formula to determine whether a quiet zone is safe enough to be allowed — would allow that under current standards.

The whole thing could be done for as little as the cost of closing three streets, although a more comprehensive plan would run at least $3 million.

And Gardner said railroads love closing streets — so much that they have a pool of money available to help with the closure, if the city is willing to be persistent.

It’s in the real world of accidents, lawyers and juries that things get more complicated — and more expensive.

BNSF Railway, which owns the tracks, and the state Public Utilities Commission could recommend more and more expensive safety improvements.

Those recommendations won’t carry any weight with the feds, said FRA spokesman Warren Flatau.

“The comments are for the benefit of the community, not for the benefit of FRA,” he said.

But if someone is injured or killed in a train-car collision, lawyers could blame the city in an attempt to win money, said City Attorney Ginny Gennaro. She spelled out the basic argument: “The PUC told you to do this and you didn’t do that.”

Gardner said he believes the city wouldn’t be liable as long as the city meets federal standards.

Gennaro doesn’t buy that for a second.

“You are now entering an area where you are exposed to liability, period, end of discussion,” she said.

There have been no accidents on the stretch in the last five years, and no fatal accidents since 1998, according to a city report.

Bob Houle, a lawyer in Bakersfield, said he believes the city could be held liable if it doesn’t do what it can. There is state, federal and railroad money available, and $3 million is a drop in the bucket when it comes to city finances.

Gennaro doesn’t agree. “I don’t know how he could sue the city for not doing something,” she said.

But judges and juries aren’t predictable on this issue either, Houle said. And they’re only human.

“i have heard judges complain about the train horns, and those are the particular judges who will deal with that at the trial level,” he said.

BALANCING INTERESTS

City Manager Alan Tandy said the city is facing a balancing act. “The more you invest in the safety hardware, the less you’re liable,” he said.

Exactly how much the city could be liable for is unknown, Gennaro said. The new quiet zone regulations are a new area of law, and it isn’t clear how much liability the courts will saddle cities with.

But what is clear is what will happen if the city doesn’t act, Gardner said.

“There’s a 100 percent chance people will be injured by train horns,” he said.

That’s the decision facing the city council.

And there’s a deadline. By June 24, the city must submit a plan for how it will meet the federal requirements. And then the city will have two years to install and pay for the improvements.

But there’s another catch.

Some of the improvements the city could install are designed to make the signals at crossings more reliable. There’s “constant time warning systems,” which cause the gates to close when the train is a certain time away from the crossing, not a certain distance. And there are power-out indicators, which tell engineers that the gates and bells aren’t working, so they should blow their horns.

But the city can’t install improvements directly on the tracks. BNSF will do that, and then bill the city. That makes those costs uncertain, Tandy said.

COUNCIL UNDECIDED

Councilwoman Sue Benham, whose ward includes the quiet zone, said she’s ready to vote to submit a plan.

“If we submit the plan, we’re still in the game, and the horns stay quiet for the time being,” she said.

The city then can take the time it needs to study the issue, get a better handle on costs and try to move forward.

“I think it’s too early to give up on this,” she said.

And that includes, she said, trying to find a way to pay for the improvements.

Councilman David Couch agreed that the city should at least try.

“I think our position needs to be that if there’s a way to provide for these quiet zones, we have to take a look at doing that,” he said. “We owe it to the people that are very affected by this to do our part in fixing this problem.”

But, he said, “we have to weigh the potential liability of anything we do with the potential positive effects of anything we do.”

He noted that Gennaro’s job is to protect the city from liability, and it’s the council’s job to consider all the issues.

But some other council members said the liability — and the potential resulting costs — worry them.

“I’m sympathetic to these people, but my god we’ve got to be reasonable,” said Councilman Harold Hanson. “If we are found liable, what do we do? Do we stop building roads?”

And Councilman Zack Scrivner said he wants to hear more from the public and from city staff so he can “make a decision that hopefully strikes a good balance between quality of life impacts of the train horns and the cost to the city.”

“I am continuing to have conversations with staff and others regarding this issue,” said Councilman Ken Weir. “Before making my decision, I will carefully listen to staff’s presentation and comments from the public and my colleagues at the council meeting.”