§ 70 — Manner and limits of grade crossing abolitions; costs; apportionment

Section 70. The department of highways shall proceed to consider the abolition of grade crossings in the order established by the program orders as adopted and amended or revised under section sixty-five, and shall hold public hearings on each such grade crossing abolition, due notice of which shall be given to such railroad corporations, counties, cities and towns as may be required by law to bear part of the cost of abolition. After hearing as aforesaid, it shall by order determine the manner and limits of the grade crossing abolition, what part, if any, of an existing public or private way shall be discontinued, and whether or not a new way shall be substituted therefor, the grade for the railroad and the way, the changes to be made in the location and grades of a street railway having a location in the part of such public way where the crossing exists or in ways connecting therewith, the general method of construction, and what land or other property it considers necessary to be taken, including, in its discretion, an easement in land adjoining the location of a public or private way, or of a railroad, consisting of a right to have the land of the location protected by having the surface of such adjoining land slope from the boundary of the location in a manner specified by it; provided, that so much of any such order as relates to the foregoing shall not be effective unless the consent of the department of telecommunications and energy thereto shall first be obtained, but no consent shall be given by said department to an order requiring a change in the grade of a railroad or street railway until the carrier interested, if it so requests, has been given an opportunity to be heard before said department on the sole question of such change. The department of highways shall determine in such order when the work shall be commenced, who shall do the work and how much shall be done by each. All such work not done in whole or in part by the department of highways shall be done under its general supervision. Except as otherwise provided in this section and section eighty, the total cost of the alterations aforesaid, including therein, in addition to the cost of construction, all damages on account thereof, but excluding the actual cost to a street railway of changing its railway or location to conform to the order of abolition, which shall be borne by it, and also moneys allotted under the provisions of the national industrial recovery act or other federal statutes and enabling state legislation for expenditure on such alterations from funds designated by the federal authorities exclusively for grade crossing abolitions shall be apportioned, by a board of five members constituted as hereinafter provided, among the railroad or railroads affected, the commonwealth, the county and the city or town where the crossing is situated, equitably and in accordance with the relative benefit to be derived by each from such alterations; provided, that if in any case funds sufficient to cover the said total cost are allotted as aforesaid under the provisions of the said national industrial recovery act or other federal statutes and enabling state legislation, no such apportionment shall be made; and, provided further, that any of said parties aggrieved by said apportionment may petition the supreme judicial court, which shall appoint three commissioners to make such apportionment, subject to the approval of the court. Said board shall consist of the attorney general, the chairman of the commission having supervision and control of the department of telecommunications and energy and another member of said commission designated by said chairman, and the commissioner of highways and one of his associate commissioners designated by said commissioner. If the crossing is of a railroad and a private way, and no crossing of a public way is abolished in connection therewith, the total cost as aforesaid shall be paid by the parties affected by the abolition in such proportion as said department of highways may establish. Said department may require the railroad corporation or corporations and the cities, towns and counties affected by any such grade crossing abolition, or any of them, to cause to be prepared and submitted to it plans, specifications and estimates of the cost of such abolition. A copy of any order made under this section, after so much thereof as is required hereby to be consented to by the department of telecommunications and energy has been consented to as hereinbefore provided, shall be filed in the office of the department of highways and of the department of telecommunications and energy, and a copy thereof shall be served on the state comptroller, the railroad corporation or corporations, the county and city or town affected by such abolition. The department of highways shall include in its budget estimate in each year a sum sufficient to meet the cost of such portion of any abolition or abolitions of grade crossings, to be undertaken during the following year, as is to be paid by the commonwealth, counties and municipalities.