Part 3. Closure RR Xing, Indian Hill Rd: Public Hearings

rr cross bucks

Updated Nov 4,  2022  

Question: Was a public hearing required or just a recommended step by the commissioners before deciding to close the railroad crossing at Indian Hill Road?

Additional Background Information

Oct 19, 2022. A NEW DIRECTION: Commissioners exploring alternative Tecumseh Trail route  For more than two years, hikers traversing the Tecumseh Trail have had to stray from the original path due to a closure at the Indian Hill Road railroad crossing. ….

Post of the article at Brown County Matters: by Tim J. Clark.

    • The alternate trail is a distraction, poses more risk to hikers, and delays opening the Tecumseh trail to pedestrian traffic.
    • FACTS: Like Stark County, Brown County Commissioners could have denied Indiana Rail Road’s request to close the crossing and pedestrian trail. The State would have supported the county’s decision.
    • A public hearing was not held to discuss the closing and no legal statute has been cited by the County attorneys to justify not having a public hearing on the closing. Further, the commissioners have not published a documented legal opinion by the county attorneys regarding the requirements cited by the Railroad for opening the crossing to pedestrian traffic.
      • Minutes_Starke_County_Commissioners_Meeting-07-18-22 FINAL.In 2nd paragraph of section titled “Highway Monthly Report:  “……. Commissioner Gourley asked if Superintendent Dipert has requested any new information about the railroad crossing request. Superintendent Dipert advised he did talk to him and the offer is still at $60,000 plus the grant from INDOT. Commissioner Gourley advised given the feedback he will make a motion to reject the request to close the crossing on 225 S. Commissioner Cavender seconded the motion and the motion was approved with all ayes. ….”
    • Advocacy. Commissioner Biddle has been the advocate for closing the crossing and pedestrian crossing with support from the other two commissioners and Indiana Rail Road. Tony Abbott of the Trail Association has made the case that the crossing can be opened for pedestrian traffic at a minimal cost. Commissioner Pittam stated he would support this option and has since backed down from his support?
    • Commissioner Biddle’s second term as commissioner ends this year and a new commissioner may be more open to identifying the best options going forward.
    • There has also been no evidence presented of accidents or near misses concerning the overall safety of the crossing. Context and background information on the closing is provided in the following post.

Oct 8, 2022. Commissioner Meeting Notes of Oct 5, 2022. — Additional information”

  • Oct 5, 2022. Commissioner Meeting Notes.  Commissioners agreed (prior to the meeting) to support a new route developed by the Hoosier Hiker Council that would NOT require access to Indiana Hill Road. The Hoosier Hiker Council has not provided any input at the commissioner’s meetings on this topic.  They have identified the risks to safety: “Note that the reroute involves a one-mile walk on State Road 45 from West Lost Branch Road to the Sycamore Land Trust parking lot for Trevlac Bluffs. SR 45 is a busy highway with little to no shoulder, so walk at your own risk or get a shuttle.”
    • AUDIO – Discussion Begins at the 40:40 mark
      1. Tecumseh discussion by Commissioners begins at around 00:40:40.
      2. R. Pflueger discussion begins at 00:45:23.
      3. Tim Clark comments begin at 01:04:43.
      4. Maddison Miller comments begin at 01:11:40.
      5. End of Tecumseh discussion at 01:17:30.
    • Commissioners minutes 10-5-22 – prepared by the Auditor’s Office
    • Note: Commissioner Biddle has acknowledged that her brother works for the RailRoad.
      She also misrepresented KHTAs development and the presentation of an amendment allowing for a pedestrian crossing. Commissioner Pittman expressed his support for a pedestrian crossing and stated that county’s legal council would be reviewing/drafting any final amendment. (See Aug 3, 2022 Commissioner Meeting Notes.
  • Sep 7, 2022. Commissioner Meeting. The status of opening the trail for pedestrians is still under discussion with the county attorneys, KHTA, and the RR.
    • AUDIO: Jerry Pittman, and county attorney Mike Moga -beginning at ~00:41:54 and ending at ~00:43:07.
  • Sep 5, 2022. Update – Accidents and Train Speed

Aug 26, 2022.  Follow-up information – requirements regarding pedestrian crossings – RR Signs/Signals:  Facebook Post – Brown County Matters

      • PART 8 – TRAFFIC CONTROL FOR RAILROAD AND LIGHT RAIL TRANSIT GRADE CROSSINGS.
      • Morton Marcus: Railing about rail crossings.
        • On May 26, 2022, the Norfolk Southern Railroad called the Starke County Highway superintendent about closing a rail crossing. The railroad then sent a letter – a petition – to the county commissioners who were advised by the County Attorney to hold a public meeting which took place on July 5th. The overwhelming response from Starke County citizens was against closure. Ten days later the Commissioners denied the petition. Matter closed, not the crossing.
        • Compare that with a similar situation in Brown County. The Indiana Railroad Company petitioned on May 20, 2019, the county commissioners to close the crossing at Indian Hill Road near Trevlac.
        • The commissioners approved the petition on May 6, 2020, despite the fact the law requires a public hearing. Without that public hearing, the Commissioners did not know their decision cut the popular Tecumseh Trail in two.

Aug 19, 2022. Creek Crossing – Concrete SlabPhoto taken on 19th. Zoom to verify no additional barricades. Check recorded dialogue and transcript of the commissioner meeting (Aug 17) at 00:30:00 to verify Mike Magner’s statements as to new barricades.

Indian Hill Rd Creek Crossing Concrete Slab

Aug 17, 2022. Commissioner meeting – Notes from Transcript

    • 00:28:30 Jerry Pittman (JP) Moving on to other business — the Indian Hill proposal.
    • 00:28:38 Diana Biddle (DB) DB Asks for Mike Moga  (MM) discussion of RR quotation.
    • 00:28:45 Mike Moga: Moga states RR has agreed to “allow” BC to open a pedestrian/bicycle crossing. The RR sent a cost estimate based on FRA (Federal RR Administration) requirements. Moga states that something — perhaps the requirements or the elements of estimate — are required by law (reference? )   “We (BC) would like to discuss estimate at this meeting, to determine how we will pay for it and what our next move will be.”
    • 00:30:20 ff: Auditor: “I have contacted the insurance company on the insurance question but have not heard back yet.
    • 00:30:50 ff: DB: The RR wants to know that we (BC) actually have insurance.
    • 00:33:30 ff: DB: “… You’re looking at a fully engineered … that’s what has to be done according to Federal standards.”
    • 00:33:55 ff Mike Moga: “I am told by the RR that the arm/guard warning is something that is in RR inventory; we can expect a discount …”
    • 00:34:20 ff DB: Reminds us that RR wanted another crossing closed if DOT# 292 193F were to be opened. Now that is off the table!
    • 00:34:45 ff DB: (had pre 7:30 am conversation with Darren Bridges) “BC can’t pay for all. Perhaps DNR — they have an interest. HHC might hold a fundraiser. Need to determine how much BC will need to put into the pot.”
    • 00:36:00 ff: DB states slab no longer viable. Mike Magnor (MM) states he just barricaded the slab. Biddle checks him — he says yes. DB continues stating slab “… was already cracked and in three or four pieces …”.
    • 00:36:40 ff: Tony Abbott begins rebuttal.
    •  00:56:15 ff: Tony concludes the presentation and asks for questions.
    • 00:56:18 ff: Jerry Pittman agrees with Tony.
    • 00:57:00 ff: Auditor chimes in: “…the RR owns the property. If you’re going to do it, you’re going to do it their way!”   Tony rebuts. 
    • 00:58:45 ff: DB launches discussion of what would have happened if BC had denied petition to close crossing, i.e. BC wouldn’t have received direct payment of $3750, and INRD would have appealed to INDOT.
    • 1:00:00 ff: DB launches discussion (based on her assumptions) of track speed versus signal type. goes on to talk about “slow orders”. Tony rebuts.
    • 1:00:30 ff: DB mentions that HHC did not ask for easement when Tecumseh first built. An absurd statement, reflecting that she has no concept of right-of-way. 
    • 1:02:00 ff: DB offers to call Mr. Ray and Mr. McDonald(sp?) — each with INRD — to reach out … Offers that somehow federal standards of crossing signals are required. Tony rebuts re iNDOT and federal standards are the same. DB replies that speed will likely have to be changed.
    • 1:03:25 ff: MM indicated he wants time to review INDOT standards introduced by Tony. MM also wants to look at slab.
    • 1:03:30 ff: MM indicates that foot traffic over slab poses liability for BC.  However local property owner is taking 9000lb loads of hay over slab at that time!
    • 1:05:00 ff: Tony indicates INRD has not responded to letters, Koch invitation, BC meetings.
    • 1:06:00 ff: Jerry Pittman agrees with Tony. Talks Mexico.
    • 1:10:00 ff: DB talks Thailand.
    • Tim Clark speaks for Amendment.
    • 1:14:42 ff: DB I’ll reach out to the railroad, with your (Jerry Pittman’s) approval, and/to see if I can breathe some common sense into …” -Jerry Pittman (interrupts) Please, please, anything you can do would be appreciated … -DB “… It might be easier to do that than letting the lawyers duke it out.”

Aug 17, 2022.  Commissioner Meeting Notes. Audio – Discussion on the Pedestrian Crossing begins at the 28:30 mark. Tony Abbott’s rebuttal at the 36:40 mark. My comments at 1:11.

    • Indiana Hill RR Crossing – Update. The Railroad agreed to open the crossing to pedestrian and bicycle traffic.  They “estimated” a cost to the county of $155, 575.00 and added requirements that are not on other pedestrian trail crossings in Indiana and throughout the country.   Commissioner Biddle accepted the scope of work and this estimate without challenge.
    • Tony Abbott, President, of Knobstone Hiking Trail Association (KHTA), did challenge the premise of the estimate and provided examples and references supporting his argument that the pedestrian crossing could be re-opened at little expense (less than 2K which would signage).  He reinforced that KHTA was just asking the commissioners to sign an amendment to the road closure ordinance that identifies that their intent was to close the road BUT NOT the pedestrian crossing that provided access to the Knowbstone Trail.   Commissioner Pittman stated that he agrees with allowing a pedestrian crossing.
    • (1) KHTA is not advocating for bicycle traffic. (2) Based on prices of commercially available passive warning signs — used at Indian Hill Road crossing DOT# 292 193F at least as long as Tecumseh Trail has existed —  initial estimates indicate that  two 1st class Reflectorized Cross-Bucks can be had for less than $2K.   An amount Commissioner Pittman agreed to fund.
    • Next Step?  TBD. Commissioners can vote on the amendment to the ordinance allowing a pedestrian crossing and access to the trail.
    • Facebook Post – Brown County Matters

Aug 10, 2022.  ‘Unintended consequence’: Trail supporters request pedestrian crossing for Indian Hill railroad by Suzannah Couch.

    • For more than 20 years hikers have traveled through Brown County on the Tecumseh Trail, making their way across the Indian Hill Road railroad crossing on their trek down one of the longest hiking trails in the state. … Now hikers take a 5- to 6-mile walking detour around the railroad crossing following its closure two years ago at the request of the Indiana Rail Road.
    • Abbott then said that severing the Tecumseh Trail could have been identified as a compelling reason if the commissioners had held a public hearing before the crossing was closed. Under Indiana Code, a public hearing should be held not more than 60 days after a petition is received to close a railroad crossing.

Aug 3, 2022. Commissioner meeting.  Indiana Hill RR Crossing – Update.  38:10 mark on audio. Legal aspects still in the discussion phase. Commissioner Biddle provided a deed to the county attorney of the crossing and stated that per the deed, the RR owns 150 feet on both sides.  She also stated that she believes (no supporting evidence) that individuals coming within 50′ of the crossing would be committing trespassing on federal property because train right of way is considered federal.  Audio.

Tecumseh Trail – Impact of Railroad Crossing Closure.  The presentation on July 20, 2022, at the Commissioners Meeting by Tony Abbott, President, of Knobstone Hiking Trail Association included information that suggested a public hearing may have been recommended if not required to be held by the Commissioners.

The fact that a public hearing was never considered should be a concern and something to prevent in the future. Information and examples of a public hearing on the closing of a railroad crossing in Starke County are provided below.

Legal Opinion – Brown County Attorney: 

    • “Barnes and Thornburg attorney Veronica Schilb, who represents the county, said last June that because the county and the railroad company came to an agreement on the closing, no public hearing was required before it was closed.” (Ref: Closed ahead: Tecumseh Trail users lobbying for pedestrian crossing at Indian Hill, By  Suzannah Couch, 
    • QUESTION?  What are the supporting statutes that support this opinion?
Starke County – Railroad Crossing – Discussion, Public Hearings, Rejection of the Closure

June 22, 2022. In contrast, Starke County Commissioners Look for Resident Input on Proposed Railroad Crossing Closure,  Anita Goodan, WKVI

    • County Attorney Justin Schramm suggested waiting until the next meeting to discuss it more in order to get more information about why Norfolk Southern has identified this crossing as one to close. Additionally, Schramm advised the commissioners to gather comments from the property owners before making a decision and they agreed. Letters will be sent to the property owners in that area to attend the next meeting on July 5 or send correspondence concerning their opinions on the matter.

July 5, 2022. Starke County Commissioners to Meet Tonight, by Anita Goodan, WKVI

    • During the commissioner’s last meeting, Starke County Highway Superintendent Dan Dipert brought the request from Norfolk Southern officials to the attention of the commissioners stating that the railroad and INDOT would pay the county money to close the crossing, which could cover the cost of the maintenance of those roads, if the commissioners agree to the closure.
    • It was a goal of the commissioners to explore the railroad company’s need to close the crossing, as well as get input from residents in that area about the request.
    • ….  It has been railroad philosophy for years to try and eliminate as many highway crossings as possible. In general he would say that if the residents of the road are against it then they should not agree to have it closed. He advised that if they choose to close the crossing they need to get as much as possible from the railroad and it should be negotiated. Richard Beachamp also spoke up and said he has property on 225 S. He said if they closed the crossing it would make the travel time longer for emergency vehicles to get to their location.

July 7, 2022. Starke County Commissioners Discuss Railroad Closure Proposal by Anita Goodan, WKVI

    • With the majority of the residents voicing opposition to the railroad closure, the commissioners are leaning toward denying the request from Norfolk Southern officials. 
  • July 18, 2022 Minutes_Starke_County_Commissioners_Meeting-07-18-22 FINAL.In 2nd paragraph of section titled “Highway Monthly Report:  “……. Commissioner Gourley asked if Superintendent Dipert has requested any new information about the railroad crossing request. Superintendent Dipert advised he did talk to him and the offer is still at $60,000 plus the grant from INDOT. Commissioner Gourley advised given the feedback he will make a motion to reject the request to close the crossing on 225 S. Commissioner Cavender seconded the motion and the motion was approved with all ayes. ….”

July 19, 2022Denial of the petition: Starke County Commissioners Reject Proposed Railroad Crossing Closure, July 19, 2022. By Mitch Columbe, WKVI

    • After hearing from the public and with majority of the residents voicing opposition to the railroad closure, the commissioners voted to deny the request from Norfolk Southern officials. 
Background Information – Brown County – Indian Hill Rd. RR Crossing Closure

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