HomeMy WebLinkAbout31. 12-90FEBRUARY 28, 2012 12 -90 ORDINANCE
FIRST READING
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: REPEAL OF SECTION 27 -16 OF MUNICIPAL CODE PERTAINING
TO RAILROAD OBSTRUCTION OF STREETS
INITIATED BY: TRANSPORTATION DEPARTMENT AND CITY ATTORNEY
A GENERAL ORDINANCE OF THE CITY OF OSHKOSH REPEALING SECTION 27 -16
OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO OBSTRUCTING STREETS.
The Common Council of the City of Oshkosh do ordain as follows:
SECTION 1. That Section 27 -16 of the Oshkosh Municipal Code pertaining to
obstructing streets is hereby repealed.
SECTION 2. This ordinance shall be in full force and effect from and after its
passage and publication.
SECTION 3. Publication Notice. Please take notice that the City of Oshkosh
enacted ordinance #12 -XXX (A GENERAL ORDINANCE OF THE CITY OF OSHKOSH
REPEALING SECTION 27 -16 OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO
OBSTRUCTING STREETS) on March 13, 2012. The ordinance removes the code
section relating to railroad cars blocking streets.
The full text of the ordinance may be obtained at the Office of the City Clerk, 215
Church Avenue and through the City's website at www.ci.oshkosh.wi.us Clerk's phone
920/236-5011.
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City of Oshkosh - Transportation Department ON THE WATER
926 Dempsey Trail, Oshkosh, WI 54902 (920) 232 -5342 (920) 232 -5343 fax
MEMORANDUM
TO: Honorable Mayor and Members of the Common Council
FROM: Christopher Strong, P.E., Director of Transportation
Lynn Lorenson, City Attorney
DATE: February 22, 2012
RE: ORDINANCE TO REPEAL SECTION 27 -16 RELATED TO RAILROAD
OBSTRUCTION OF STREETS
Background
Section 27 -16 of the Oshkosh Municipal Code declares it unlawful for a train engine or railroad
car(s) to block a street or alley for longer than 10 minutes. The current code language has been in
place for many years and reads as follows:
SECTION 27 -16 OBSTRUCTING STREETS
It shall be unlawful for any person or railroad company or any contractor, employee, agent
or servant of any railroad company to obstruct any street, highway, sidewalk or alley or
any part thereof in the City by leaving any engine, car or cars standing upon, within or
across any street, highway, sidewalk or alley for any period in excess of ten (10) minutes.
The City has recently received several inquiries about enforcement of this code section, based on
complaints that trains have been blocking crossings for longer than the 10- minute time period.
Concerns have focused on the potential increases to emergency response time, as well as
increased congestion and delay on City streets.
Analysis
This type of complaint is not uncommon with railroads in urban environments and has occurred in
other Wisconsin communities. Historically, many cities passed ordinances similar to the current
Oshkosh ordinance and, in some cases, the railroad agreed to pay nominal fines to cities for code
violations. However, more recent litigation has called into question whether the City has any
ability to enforce this code.
A decision by the Illinois Supreme Court in January 2008 ruled that the Federal Railroad Safety
Authorization Act prevented the city of Mundelein, Illinois from enforcing a street obstruction
ordinance that had substantially similar language to the ordinance currently contained in Section
27 -16. The Court ruled that Federal regulations related to railroads, including limitations on
maximum operating speed, requirements for stopping before proceeding through certain
City of Oshkosh — Department of Transportation
Ordinance to Repeal Section 27 -16 Related to Railroad Obstruction of Streets
crossings, and testing requirements for air brake systems, cover essentially the same areas that are
considered in an anti - obstruction ordinance. As such, the Federal regulations pre -empt regulations
that may be established by a lower jurisdiction. The case was appealed to the U.S. Supreme Court
which, by declining to review the case, affirmed the lower court's interpretation.
The State Statutes allow municipalities to enact anti - blocking ordinances, and Wisc. Stats.
192.292 deals with obstruction of grade crossings outside of municipalities. However, based on
an opinion by Attorney General J.B. Van Hollen on October 14, 2008 (see
http: / /www.doistate.wi.us /news /files /101408_03.pdf this portion of the statute is likely
unenforceable as well.
The current ordinance also does not include any exemptions for emergencies (for example, a train
hitting a vehicle, a derailment, or maintenance activities). During longer duration emergencies, the
railroad company routinely notifies the Fire and Police Departments, so they can make
adjustments in emergency response routes if needed.
Fiscal Impact
The City has historically not pursued enforcement actions under Section 27 -16. A claim would
require documented evidence that verifies a train blocked the crossing for more than 10 minutes.
Even once a claim is verified, legal action would need to be pursued to successfully fine the
railroad company. Based on the current legal interpretation, success in legal action is not
anticipated, so pursuing these cases would divert staff attention from other concerns.
Therefore, approving the ordinance would result in no loss in enforcement revenues to the City,
and would avoid the potential costs that would be associated in pursuing enforcement actions
against the railroad.
Recommendation
We recommend the Common Council approve this ordinance change.
Respe t W d
t h " r - istop E. Lynn Lorenson
Director of Transportation City Attorney
Approved:
Mark A. Rohloff
City Manager
City of Oshkosh — Department of Transportation