§ 8-6-3-1 — Percentage allocation; railroads and public entities

(a) Whenever the separation of grades at the
intersection of a railroad or railroads (as defined in IC 8-3-1-2) and a
public street or highway is constructed, the railroad or railroads shall
pay five (5) percent of the cost of the grade separation as provided in
this chapter.
(b) This chapter shall apply to an existing crossing, a new crossing,
or the reconstruction of an existing grade separation.
(c) If more than one (1) railroad (as defined in IC 8-3-1-2) is
involved in a separation, the railroads involved shall divide the amount
to be paid by the railroads by agreement between the railroads. If the
railroads fail to agree, the circuit court, superior court, or probate court
of the county in which the crossing is located shall have jurisdiction,
upon the application of a party, to determine the division of the amount
to be paid by the railroads. The decision of the court is final, unless one
(1) or more parties deeming themselves aggrieved by the decision of
the court shall appeal therefrom to the court of appeals of Indiana
within thirty (30) days, or within additional time not exceeding ninety
(90) days, as may be granted by the court. The appeal shall be taken in
substantially the same manner as an appeal in a civil case from the
circuit court, superior court, or probate court.
(d) If a grade separation shall involve a state highway that is a part
of the state highway system of Indiana, or a street or highway selected
by the Indiana department of transportation as a route of a highway in
the state highway system, the state, out of the funds of the Indiana
department of transportation or funds appropriated for the use of the
Indiana department of transportation, shall pay ninety-five percent
(95%) of the cost of the grade separation.
(e) Before the Indiana department of transportation shall proceed
with a grade separation within a city or town, the Indiana department
of transportation shall first obtain the consent of the city, by a
resolution adopted by the board or officials of the city having
jurisdiction over improvement of the streets of the city, and any
material modification of the plans upon which the consent was granted
shall first be approved by the city by a similar resolution.
(f) If such grade separation is on a highway or street not a part of the
highways under the jurisdiction of the Indiana department of
transportation, or a part of a route selected by it, but is within any city
or town of the state, the city or town shall pay one-half (1/2) of
ninety-five percent (95%) of the total of such cost and the county in
which the crossing is located shall be liable for and pay one-half (1/2)
of the ninety-five percent (95%).
(g) If a grade separation that involves a state highway that is a part
of the state highway system of Indiana, or a street or highway selected
by the Indiana department of transportation as a route of a highway in
the state highway system, necessitates the grade separation on other
highways or streets, not a part of the highways under the jurisdiction of
the Indiana department of transportation but within any city of the state
of Indiana, then of the total cost of the grade separation on a highway
or street not under the jurisdiction of the Indiana department of
transportation but necessitated by the grade separation involving a
highway or street which is a part of the state highway system, the city
shall pay one-fourth (1/4) of ninety-five percent (95%) and the county
in which the crossing is located shall be liable for and pay one-fourth
(1/4) of the ninety-five percent (95%) of the total of the costs and the
state out of the funds of the Indiana department of transportation or
funds appropriated for the use of the Indiana department of
transportation, shall be liable for and pay one-half (1/2) of the
remaining portion.
(h) If a crossing is not within any city or town and does not involve
a highway under the jurisdiction of the Indiana department of
transportation, then the county in which the crossing is located shall
pay the ninety-five percent (95%) of the total cost which is not paid by
the railroad or railroads.
(i) The division of the cost of grade separation applies when the
grade separation replaces and eliminates an existing grade crossing at
which active warning devices are in place or ordered to be installed by
a state regulatory agency, but when the grade separation does not
replace nor eliminate an existing grade crossing the state, county or
municipality, as the case may be, shall bear and pay one hundred
percent (100%) of the cost of the grade separation.
(j) In estimating and computing the cost of the grade separation,
there shall be considered as a part of costs all expenses reasonably
necessary for preliminary engineering, rights-of-way and all work
required to comply with the plans and specifications for the work,
including all changes in the highway and the grade thereof and the
approaches to the grade separation, as well as all changes in the
roadbed, grade, rails, ties, bridges, buildings, and other structural
changes in a railroad as may be necessary to effect the grade separation
and to restore the railroad facilities aforesaid to substantially the same
condition as before the separation.
(k) The required railroad share of the cost shall be based on the
costs for preliminary engineering, right-of-way, and construction within
the limits described below:
(1) Where a grade crossing is eliminated by grade separation, the
structure and approaches for the number of lanes on the existing
highway and in accordance with the current design standards of
the governmental entity having jurisdiction over the highway
involved.
(2) Where another facility, such as a highway or waterway,
requiring a bridge structure is located within the limits of a grade
separation project, the estimated cost of a theoretical structure and
approaches as described under subdivision (1) to eliminate the
railroad-highway grade crossing without considering the presence
of the waterway or other highway.
(3) Where a grade crossing is eliminated by railroad or highway
relocation, the actual cost of the relocation project, or the
estimated cost of a structure and approaches as described under
subdivision (1), whichever is less.
(l) If the Indiana department of transportation or any city, town, or
county is unable to reach an agreement with a railroad company after
determining that construction or reconstruction of a grade separation,
which replaces or eliminates the need for a grade crossing, is necessary
to protect travelers on the roads and streets of the state, the appropriate
unit or combination of units of government shall give a written notice
of its intention to proceed with the construction or reconstruction of a
grade separation to the superintendent or regional engineer of the
railroad company. The notice of intention shall be made by the
adoption of a resolution stating the need for the grade separation. If,
after thirty (30) days, the railroad has not agreed to a division of
inspections, plans and specifications, the number and type of jobs to be
completed by each agency, a division of costs, and other necessary
conditions, the Indiana department of transportation, city, town, or
county may proceed with the grade separation exercising any and all of
its powers to construct or reconstruct a bridge and, notwithstanding
other provisions of this chapter, may pay for up to one hundred percent
(100%) of the cost of the project. If the railroad is unable, for good
cause, to pay the share of the cost required by this section, the city,
town, or county may certify the amount owed by the railroad to the
county auditor who shall prepare a special tax duplicate to be collected
and settled for by the county treasurer in the same manner and at the
same time as property taxes are collected. However, before the Indiana
department of transportation, city, town, or county undertakes to do the
work themselves they shall notify an agent of the railroad as to the time
and place of the work.
Formerly: Acts 1939, c.41, s.1; Acts 1975, P.L.82, SEC.1. As
amended by Acts 1976, P.L.27, SEC.1; Acts 1980, P.L.74, SEC.63;
P.L.18-1990, SEC.71; P.L.146-2008, SEC.361; P.L.84-2016,
SEC.48.