HomeMy WebLinkAboutCOW 2011-05-09 Item 3C - Resolution - Oppose Federal Preemption of Local Land Use Authority Regarding Railroads COUNCIL AGENDA SYNOPSIS
Galt I ITEM NO.
Meeting Date Prepared by or zeu I Co uav l review
05/09/11 I Co
05/16/11 CO
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t y ITEM INFORMATION
CAS NUMBERI 11-050 STAFF SPONSOR: STEVE LANCASTER I ORIGINAL AGENDA DATE: MAY 9, 2011
AGI ?NDA ITn MTrn.r: A resolution opposing Federal preemption regarding railroads.
C;\'rt:GORY Discussion Motion Resolution Ordinance BidAward Public Hearing Other
nitg Date 519111 Mtg Date Mtg Date 5/16/11 Mtg Date Mtg Date Mtg Date Mtg Date
SPC )NSC IZ Council Mayor Adm Svcs DCD Finance Fire Legal P&R Police PWW
SPONSOR'S The Burlington Northern Santa Fe Railroad (BNSF) asserts that federal law preempts the
SUI\IMARY City's authority to enforce its land use regulations with regard to railroad activities. This
resolution would urge the U.S. Congress to take steps to ensure local jurisdictions have
reasonable control over such activities.
*The Community Affairs and Parks Committee requested additional Whereas clauses to
reflect discussion and citizen input received at the 4/25 CAP. They have been included.
Ri -xiH ED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 04/25/11 COMMITTEE CHAIR: SEAL
RECOMMENDATIONS:
SPONsoR /ADMIN. City Administration
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
EXhI ".NDITUR1i: REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
Fund Source:
MTG. DATE I RECORD OF, COUNCIL ACTION
5/9/11
MTG. DATE J ATTACHMENTS
5/9/11 Informational Memorandum dated 4/20/11
Draft Resolution- revised AFTER CAP (changes shown in strike through underline format)
Letter from BNSF dated 3/21/11
Resolution of the 66" Annual Conference of Mayors opposing federal preemption
5/16/11
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City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs and Parks Committee
FROM: Steve Lancaster
DATE: April 20, 2011
SUBJECT: Resolution Opposing Federal Preemption re: Railroads
ISSUE
BNSF Railway asserts that federal law preempts the City's authority to enforce its land use
regulations with regard to railroad activities. The attached draft Resolution would urge the U.S.
Congress to take steps to ensure local jurisdictions have reasonable control over such activities
(Attachment A).
BACKGROUND
BNSF operates an intermodal freight yard in the Allentown neighborhood of Tukwila. BNSF has
recently acquired adjacent property designated by Tukwila's Comprehensive Plan and Zoning
Code for Low Density Residential use. BNSF applied for a Comprehensive Plan amendment
and a rezone to designate the newly acquired property for manufacturing and industrial use.
Upon learning that the City Administration would recommend that the City Council deny this
request, BNSF withdrew its application and asserted that federal law preempts the City from
enforcing its land use and environmental regulations with regard to railroad activities (see
Attachment B).
DISCUSSION
As interpreted by the Ninth U.S. Circuit Court of Appeals, the Interstate Commerce Commission
Termination Act (ICCTA) grants to the Surface Transportation Board (STB) "exclusive
jurisdiction" over various railroad related construction projects, and states that the legal
remedies contained in the United States Code (40 U.S.C. 10501(b)) "are exclusive and preempt
the remedies provided under Federal or State Law" (City of Auburn v. United States
Government). The Court also noted that federal law provides that rail carriers are "exempt from
the antitrust laws and from all other laws, including state and municipal law, as necessary to let
that rail carrier hold, maintain, and operate property" (49 U.S.C. 11323 -25).
Whether it was the intent of Congress to completely preempt local land use and environmental
authority has been questioned in the past, but never definitively resolved. For example, the
U.S. Conference of Mayors in 1998 adopted a resolution opposing federal preemption of local
authority and requesting that the U.S. Congress enact clarifying legislation (Attachment C).
The attached draft City of Tukwila Resolution (Attachment A) would urge Congress to
1. Hold hearings on the existing federal law; and
2. Direct the Surface Transportation Board to investigate the power exercised by the
railroads over local environmental and land use planning authority, and take steps to
remedy the imbalance of power; and
3. Enact legislation clarifying that federal law does not preempt local law as it relates to the
expansion of rail yards in urbanized areas.
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INFORMATIONAL MEMO
Page 2
RECOMMENDATION
That the Community Affairs and Parks Committee recommend City Council review and adoption
of the proposed resolution opposing federal preemption of local land use authority related to
railroads and urging Congress to clarify its intent regarding local authority.
The Council is being asked to consider this item at the May 9, 2011 Committee of the Whole
meeting and subsequent May 16, 2011 Regular Meeting.
ATTACHMENTS
A. Draft Resolution of the City of Tukwila
B. Letter from BNSF dated March 21, 2011
C. Resolution of the 66 In Annual Conference of Mayors opposing federal preemption
WA2011 Info Memos\BNSF Resolution Info Memo.doc
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D"' OR' AFT
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, OPPOSING FEDERAL PREEMPTION
OF LOCAL LAND USE AUTHORITY RELATED TO RAILROADS,
AND URGING THE UNITED STATES CONGRESS TO CLARIFY
ITS INTENT REGARDING LOCAL AUTHORITY.
WHEREAS, the City of Tukwila recognizes the important role played by intermodal
freight transport in the regional and national economies; and
WHEREAS, freight rail intermodal yard operations generate noise, vibration, dust,
air pollutants, heavy truck traffic, risk of explosion and hazardous substance release,
and other significant adverse environmental and land use impacts; and
WHEREAS, these adverse environmental and land use impacts negatively affect the
quality of life and economic value of established residential neighborhoods in Tukwila
and across the nation; and
WHEREAS, the BNSF Railwav Companv (BNSF) South Seattle Intermodal Facilitv
lies within the Allentown neighborhood, adiacent to the Duwamish River; and
WHEREAS, the Duwamish River is home to a federallv listed, threatened run of
Chinook, and millions of federal, state and local dollars are being spent on salmon
recovery, and the responsible parties associated with the federal suoerfund site situated
downstream are hiahly concerned with onaoinq source control issues and their potential
for neqative impacts on the remediation efforts: and
WHEREAS, the potential for the BNSF to supersede SEPA and other environmental
protections could areativ increase these negative impacts, and
WHEREAS, Tukwila's Comprehensive Plan, adopted in 1995 and reviewed
annually, includes as its top priority "to improve and sustain residential neighborhood
quality and livability and
WHEREAS, the City of Tukwila has relied on its Comprehensive Plan and invested
extensively in public facilities and infrastructure in the Allentown neighborhood in order
to preserve and enhance its residential quality and livability; and
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WHEREAS, property owners have responded by investing in the construction of 65
new single family homes in the Allentown neighborhood since adoption of the City's
Comprehensive Plan; and
WHEREAS. the Allentown neiahborhood provides affordable housing which
addresses the Growth Manaaement Act targets set by Kina Countv and is also rich in
diversitv with families of newly landed immigrants, multi qenerations living together; and
WHEREAS, the -BNSF has recently purchased land in the
Allentown neighborhood of Tukwila that is designated by Tukwila's Comprehensive Plan
and by Tukwila's Zoning Ordinance exclusively for Low Density Residential use; and
WHEREAS, BNSF has indicated its intention to expand its adjacent multimodal
freight yard facility and activities onto these newly acquired residential properties, and
has claimed a right to do so under the preemptive effect of federal law; and
WHEREAS, such expansion of the BNSF multimodal rail yard into an established
residential neighborhood would violate Tukwila's Comprehensive Plan and Zoning
Ordinance, and would increase the negative effects of its current operation upon
residents and on residential property values; and
WHEREAS, heavy truck traffic associated with the existing BNSF operation causes
excessive wear and damage to residential streets and bridges, which wear and damage
will only be increased by the expansion of the multimodal rail yard; and
WHEREAS, the United States Court of Appeals, Ninth Circuit, has ruled in City of
Auburn v. U.S. Govemment that all state and local permitting laws and environmental
regulations are explicitly preempted by the Interstate Commerce Commission
Termination Act; and
WHEREAS, many of the federal laws concerning railroads in the United States are
derived from laws adopted in the 19th century and do not reflect the societal, land use
and environmental values and priorities of today; and
WHEREAS, the legislative history of the Interstate Commerce Commission
Termination Act indicates it was Congress' intent to preempt only economic regulation
of rail transportation, and to reserve for the states the essential police powers required
to protect the health and safety of citizens; and
WHEREAS, the U.S. Conference of Mayors has adopted a resolution opposing the
federal preemption of local authority related to railroads; and
WHEREAS, the City of Tukwila does not seek to interfere with interstate commerce,
but believes that railroads should be subject to the same federal, state and local laws
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and regulations that other private businesses and transportation facilities must meet in
order to protect the public health, safety and welfare;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
The City of Tukwila urges the United States Congress to:
1. Hold hearings on existing federal law governing railroads; and
2. Direct the Surface Transportation Board to immediately open an investigation into
the inordinate power exercised by the railroads over local environmental and land
use planning laws and take immediate steps to remedy an imbalance of power
through regulatory action if possible; and
3. Enact legislation clarifying that federal law does not preempt state and local
environmental and land use planning laws in terms of the expansion of rail yards in
urbanized areas when such expansion is inconsistent with locally adopted
Comprehensive Land Use Plans.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this day of 2011.
Jim Haggerton, Mayor Allan Ekberg, Council President
ATTEST /AUTH ENTICATED:
Christy O'Flaherty, CMC, City Clerk
APPROVED AS TO FORM BY:
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Shelley M. Kerslake, City Attorney
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Attachment B
r Richard P. Chamberlain BNSF Railway Company
Senior General Attorney P.O. Box 961039
I�'AIL WA Y Fort Worth, TX 76161
2500 Lou Menk Drive, AOB -3
Fort Worth, TX 76131 -2828
(817) 352 -2308 Phone
(817) 352 -2398 Fax
richard.chamberlai nerbnsf.cdrim
Via E -Mail and Fax
March 21, 2011
Mr. Steve Lancaster
City Manager
Tukwila City Ifall
6200 Southcenter Blvd.
Tukwila, WA 98188
Re: BNSF Comprehensive Plan and Zoning Map Amendments
File Nos. L10 -073, L1 M74, L1 -075 and L1.0 -076
Dear Mr. Lancaster:
1 ant writing on behalf of BNSF to withdraw its request for the comprehensive plan and zoning ;;reap
amendments that the City has been considering and that are the subject of tonight's City Council .meeting.
Please remove these items from the Council's agenda this evening.
BNSF remains interested in working with the City to'identify landscaping and buffering measures that
may be taken in connection with our planned construction project, which measures- BNSF would
voluntarily implement Without waiving the preemptive effect of applicable federal law. BNSF's project
representatives will contact the City in the near future to discuss this topic filrther.
Thank you for your attention to this request.
Yours truly,
BN RAILWAY COMPANY
Richard. P. Chamberlain
Senior General Attorney
cc: City Clerk
Mr. Jack Pace Director Community Development
Ms. Rebeca Fox, Senior Planner
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Resolutions Adopted at the 66th Annual Conference of Mayors OPPOSING FEDERAL Page 1 of 1
Attachment C
b r T ;A
soluttotis
r
P TRANSPORTATION AND COMMUNICATIONS
OPPOSING FEDERAL PREEMPTION OF LOCAL AUTHORITY RELATED TO
RAILROADS
WHEREAS, freight rail operations in the United States are expanding through mergers,
increased intermodal freight transport, addition of new routes and new or expanded rail
yards, and longer and higher speed trains, as well as abandonment of some smaller
operations; and
WHEREAS, cities throughout the United States are adversely affected by these freight rail
operations; and
WHEREAS, many of the federal laws concerning railroads in the United States stem from
laws adopted in the 19th century and do not reflect the societal and land use or
environmental changes which have occurred since the time; and
WHEREAS, the U.S. Surface Transportation Board "STB in 1996 and 1997 issued
decisions (STB Finance Docket No. 33095 and No. 33200) upholding a national railroad
corporation's contention that the Interstate Commerce Commission Termination Act of
1995 "ICCTA preempts all local and state environmental review and requirements for
permitting and mitigation of railroad activities that normally would be applied by local and
state jurisdictions, thereby burdening local and state jurisdictions with the costs of
environmental mitigation while allowing private railroad companies to reap additional
profits from expanded freight rail services; and
WHEREAS, railroads have cited the STB decisions to avoid compliance with state and
federal environmental law and local permitting requirements; and
WHEREAS, local jurisdictions do not seek to interfere with interstate commerce, but
believe that railroads should be subject to the same federal, state and local environmental
laws under which interstate highways and airports must abide, said laws providing
opportunity for mitigation of negative impacts of new or enhanced facilities, operations, or
both,
NOW, THEREFORE, BE IT RESOLVED that The U.S. Conference of Mayors urges the
United States Congress to hold hearings on existing federal law governing railroads and
enact legislation clarifying that current federal law does not preempt state and local
environmental and land use planning laws.
i
Return to Previous Page.
62 http: /www.usmayors.org/ resolutions /66th conference /federal tra.html 03/25/2011
Communitv Affairs Parks Committee Minutes April 25, 2011— Paae 2
C. Resolution: Onnosing Federal Preemption of Land Use Authoritv related to Railroads
Mayor Haggerton is seeking Council approval of a resolution which opposes federal preemption of local
land use authority related to railroads. Additionally, the draft resolution urges the Unites Stated Congress to
clarify its intent regarding local authority.
This draft resolution is the direct result of recent property acquisition and a request for a rezone via a
Tukwila Comprehensive Plan amendment from Burlington Northern Santa Fe Railway (BNSF). The
Comprehensive Plan amendment requested a rezone from Low Density Residential (LDR) use to
Manufacturing and Industrial use. The amendment was ultimately withdrawn by BNSF upon City staff
recommendation to deny the request. BNSF declared that federal law preempts the City from enforcing its
land use and environmental laws in regards to railroad activities.
After discussion, it was suggested that reference to the following concepts be included in the resolution:
The extremely diverse population of this area will negatively impact families including property
devaluation of the moderately priced housing stock which is inhabited by multi generational families
that include recent immigrant and ethnic minorities.
An expansion of railroad operations could be harmful (i.e.: run -off) to work that is being done to
restore the river and the fish habitat as well as the interruption of other natural habitats, nesting and a
continuous balanced eco- system. The river is already a Super Fund site and ongoing source control
continues to be a concern.
The City of Tukwila already has limited housing stock, which makes meeting Growth Management
Act (GMA) requirements challenging. The expansion and continued property acquisition by the
railroad -will reduce the City's available housing stock.
The proximity of yard operations and potential expansion to the Duwamish Riverbend Preserve may
be of substantial concern to the Duwamish Tribe, who considered a large portion of the Preserve to be
sacred.
Committee Chair Seal requested that, once discussed at Council, the Mayor sign the resolution with the
Council President in order to show the solidarity of the legislative and administrative branches of
government on this issue. Staff will incorporate items suggested above in the draft resolution which is sent
to full Council. UNANIMOUS APPROVAL. FORWARD TO MAY 9 COW FOR DISCUSSION.
D. Parks Recreation Events Calendar
As an information only item, Committee Members reviewed the Parks Recreation calendar for May and
June. INFORMATION ONLY.
III. MISCELLANEOUS
Meeting adjourned at 6:21 p.m.
Next meeting: Monday, March 28, 2011— 5:00 p.m. Conference Room #3
Committee Chair Approval
Mi tes b KAM. Reviewed by St SL.
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