(The following article by Cindy Schroeder was posted on the Cincinnati Enquirer website on July 29.)
COVINGTON, Ky. — CSX Transportation has violated the city’s nuisance code and must come up with a plan by Nov. 10 to fix a railroad bridge that has deteriorated for decades, the city’s code enforcement board ruled Wednesday.
The delay gives CSX time to submit its own engineer’s report on the structural integrity of the bridge.
Fed up with CSX Transportation’s failure to respond to years of complaints about the railroad bridge along 15th Street, city officials said they were left with no choice but to cite the railroad last month.
A state transportation employee wrote in a July 8 memo to the city that the state’s most recent inspection in July 2002 found that some ballast on the bridge rail could fall, all the drain pipes are broken, paint is peeling and there’s moderate to heavy rusting.
“Whenever you have a bridge that hasn’t been painted for 30 years and it’s a metal bridge and you have an excessive amount of rust … and you can see the structural parts (or) crossties have started to rust in half, you have a problem with the bridge,” said Elaine Hollis, a code enforcement officer. “When the state department of transportation comes back with a report and tells them that they need to repair this bridge because there’s a structural problem with it, you have a problem with the bridge.”
Mayor Butch Callery and a representative of the Austinburg neighborhood said they were disappointed by the board’s decision. Both said that CSX, whose 15th Street bridge has triggered numerous complaints for years, should have been given less time to address the problems it acknowledged at Wednesday’s hearing.
“I would have liked to have seen them ordered to come back in 30 days with a plan to address the situation.” Callery said.
CSX was cited with violating the city’s nuisance code and ordered to appear before the Covington Code Enforcement Board after it failed to contest its June 21 citation.
The code enforcement board can let those fines stand, or reduce them after its review on Nov. 10.
CSX attorney Rod Payne told the board that federal law pre-empts Covington’s local ordinance and prevents the city from abating the violation or fining the railroad for failing to fix the problems that resulted in the local citation.
He said the courts have overturned three or four cases in which cities tried to enforce local public nuisance laws against the railroad.
“They’ve all been overturned because the courts have fundamentally held that to enforce such a statute against a railroad is in violation of interstate commerce, and it’s something that’s pre-empted by federal law,” Payne said.
Jeff Otis, a Covington assistant city solicitor, said the city believes it does have the authority “in certain situations to go out there and abate the violations or issue fines for those violations.”
“There’s case law in point out of the 6th Circuit (Court of Appeals), and we will advise the board accordingly come November 10,” Otis said.
Payne suggested that Covington follow the lead of Nashville, Tenn., which he said has applied for a matching grant from the federal Department of Transportation to cover the cost of painting a railroad bridge.
Rick Ludlum, president of the Austinburg Neighborhood Association, said his group had tried to do a public art project on the CSX bridge two years ago but was turned down by a state committee because it was privately owned property.
“My question would be to the (CSX) attorney, ‘You say that CSX works with other cities to do this. Give us a success story,’ ” Ludlum said. “I don’t think it should be the city’s or the neighborhood’s responsibility to take on what I feel is being a good neighbor and doing the right thing.”