WSDOT asking $4 million insurance for private crossings

Jana Mathia, Gazette Reporter | Feb 01, 20180

A private railroad crossing which has been used for more than 80 years could now cost a homeowner $4 million dollars insurance a year to attain a crossing permit.

Richard Old of Pullman brought the matter to Whitman County Commissioners Jan. 22 after seeking a resolution with State Department of Transportation for the past five years.

“Basically what this is is extortion,” Old commented to commissioners.

The issue came about in 2013 when Old approached the Whitman County planner to build homes on land his family owns. Old lives between Pullman and Albion and crosses the now-unused tracks to get to his house. He was told the planner could not issue a building permit as the crossing was closed and therefore there was no legal access to get to the property. Old was told he had no easement to cross the railroad.

“When I contacted the Washington State Department of Transportation (WSDOT) in August of 2013 I was told, ‘There are no private crossings in the section between Pullman and Colfax,’” a letter from Old to commissioners states.

This was surprising as there are 23 private crossings. Old pressed forward with research and found all 23 crossings were designated as closed and posted with No Trespassing signs. Sixteen of those crossings had been marked closed since WSDOT took possession of the line in 2007.

“You’ve gotta have access to your property,” Old told commissioners.

“The crossings in question are those that were established, recognized, maintained (including the installation of grade fill, gates, planking, cattle guards, etc.) and insured by the railroad for many decades. These crossings are still in use and essential for landowners to access their land and/or residences,” Old’s letter states.

Old approached WSDOT about receiving an easement for the crossing. What he was given was an 11-page lease agreement with terms he said were not acceptable. Among points he found troubling were the transfer of all costs for maintaining the crossing to the existing landowner; charging an unspecified yearly fee for the access which could be raised at WSDOT’s discretion; and the property owner required to get $4 million in liability insurance per crossing.

“How can everything be free for over 100 years and now all of the sudden you need a permit?” Old questioned in an interview with the Gazette. Old has three crossings, one for home and two for farming, and each would require $4 million in insurance.

Not only can landowners who have to cross the tracks not build or develop, the “closed” crossing designation means they may not be able to sell, either. Old was advised by a realtor that “the inability to provide access in perpetuity may negate the salability of the property.” Upon further review, Old also discovered an indemnification clause that is troubling.

“It’s a whole can of worms,” Old told the Gazette.

“These actions by WSDOT are an undue and unwarranted burden on the adjacent landowners and constitute a ‘taking’ of property rights and value. WSDOT, by purchasing the property, should assume all obligations that have been historically been the responsibility of the owners of the right-of-way. All existing crossings should be ‘grandfathered’ in and proved with easements reflective of the historical nature of the crossings,” Old’s letter stated.

Old has been going back and forth with WSDOT, which works with the attorney general’s office, on the issue for nearly five years now, trying to get an agreement that is palatable. In the earlier version, WSDOT wanted $10 million in insurance. For a while Old could not get any replies to fix it. He had to contact Senator Mark Schoesler’s office which helped get the conversation going again. According to Krista Winters, Schoesler’s senior executive assistant, that is the extent of the senator’s office’s involvement at the time, but if the need arises later, they may get involved more.

“That’s not right,” Board of County Commissioners Chair Dean Kinzer said after hearing about Old’s predicament. The commissioners agreed to send a letter to Schoesler’s office in support of Old’s fight and look at other ways they could help his situation as well.

Old added that a neighbor who had put in a new crossing had to pay $2,200 in 2000 to install it and is supposed to pay $200 per year on an agreement that may be terminated with 30 days notice. Old stressed the long-standing crossings should be grandfathered in and retain the same privileges granted for decades.

The issue was also new to Public Works Director Mark Storey who was at the workshop Old attended. He and his department are researching the matter more. Storey told the Gazette that railroads were granted rights from the federal level and topics like right-of-way and easements are different than those at the county or state level. By state law, an easement used for 10 years becomes legal. While Old’s crossing has been used for eight times that long, it is not subject to the same status.

Old’s situation is extra confounding as the track he crosses is no longer actively used. The track became nothing more than storage after a trestle fire in 2006 and now sits vacant. The situation is not constrained to his area either as a recent home purchase on the west side of the county was also given the same crossing permit to sign for a home located across the active tracks for more than 100 years.

Even if Old did want to sign the current agreement, he may not be able to fulfill the demands placed on him. Conversations with multiple insurance agents have yielded no real way to meet the insurance demand and confused agents; especially for Old’s unused line. Old was told that underwriters were finding no way to cover the demand. Old emphasized the point that you generally do not pay insurance on land you do not own.

If WSDOT is not moved, it could stymie or halt the development or sale of land–personal or farm–that requires a rail crossing to reach.

“I think they (WSDOT) can be moved, but not by me,” Old told commissioners.

Commissioner Art Swannack recalled the move by state parks a few years ago when Parks started charging an exorbitant fee to landowners who had to cross the John Wayne Trail. There was so much back-lash from the move that Parks dropped the fee.

Changes start to surface

Richard Old, Pullman, informed the Gazette Tuesday afternoon he was contacted by WSDOT and some changes have been made to the permit. The changes only apply to crossings along the discontinued section of line between Colfax and Pullman; any crossing with an active line would still be asked to sign the original agreement.

The changes presented to Old include no permit or annual fee. The insurance was lowered to $2 million, but Old is still unsure where such insurance can be obtained. Multiple crossings owned by one person can also be lumped together for insurance and permitting instead of being handled separately.

The indemnification clause also remains.