§ 222 — Applicability; general provisions of grade crossing elimination

§ 222. Applicability; general provisions of grade crossing\nelimination. 1. This article shall apply to all highway-railroad grade\ncrossing eliminations the construction work for which is commenced on or\nafter March first, nineteen hundred seventy-one, except that any such\nprojects authorized pursuant to the provisions of the highway law may be\nconstructed in accordance therewith. Construction commenced on\nhighway-railroad grade crossing elimination projects before March first,\nnineteen hundred seventy-one pursuant to orders of the public service\ncommission shall be completed in accordance with this article.\n 2. The commissioner shall report not later than December first in each\nyear to the governor, the chairman of the finance committee of the\nsenate and the chairman of the ways and means committee of the assembly,\nthe projects which have been completed during the preceding twelve\nmonths, those under construction, those ordered but upon which\nconstruction work has not been started, the amount expended on the\ncompleted and partially completed work, an estimate of the cost of work\nnot completed and an estimate of the cost of eliminations ordered\nrespecting which no expenditures have been made.\n 3. The governing body of any municipality in which a highway-railroad\ngrade crossing is located or any railroad company for any railroad\noperated by it which has railroad tracks that are crossed at grade by a\nhighway may petition the commissioner to institute grade crossing\nelimination procedures pursuant to this article. The commissioner shall\nhold public hearings on any elimination requested by such petition which\nin his judgment warrants examination. Upon his own motion, the\ncommissioner may investigate any other highway-railroad grade crossing\nwhich he determines should be considered for elimination. The\ncommissioner, upon such notice as he shall deem reasonable to the\nmunicipality in which the highway-railroad grade crossing is located,\nthe railroad company whose railroad tracks are crossed at grade by the\nhighway and any other party deemed by the commissioner to be interested\nin the elimination procedure, shall hold public hearings to consider any\nsuch elimination. The commissioner shall promulgate rules and\nregulations concerning the procedure to be followed at such hearings and\nthe matters to be considered at such hearings.\n 4. After the conclusion of such hearings, the commissioner shall, by\norder, determine whether it is in the public interest to require the\nelimination of such highway-railroad grade crossing. Any elimination\norder shall also determine the manner in which such elimination shall be\nmade including a determination as to the alteration to be made in such\ncrossing, its approaches, the method of crossing, the character of the\nstructure and approaches, the type and extent of pavement, the location\nof the crossing, the closing and discontinuance of a crossing and the\ndiversion of traffic from an existing crossing to an existing or a new\nhighway, road, street or crossing, or the opening of an additional\ncrossing and also including, if so determined by the commissioner, a\nchange in the location of the railroad when necessary to effect the\nelimination of such crossing. Whenever the commissioner shall have, by\norder, determined that it is in the public interest to require the\nelimination of two or more grade crossings, and if it appears that the\ncost would not substantially exceed the cost of the eliminations at the\npresent locations, and if the public interest is better served and the\nnumber of such eliminations could be reduced by relocating the railroad,\nthe commissioner after a hearing may order such relocation. Such\nhearing shall be held upon such notice as the commissioner shall deem\nreasonable, but not less than ten days, to the railroad company\ninvolved. Notice shall also be given to the municipalities and persons\ndeemed by the commissioner to be interested in the elimination\nprocedure. The commissioner shall serve a certified copy of all orders\non the comptroller, the railroad, the municipalities affected thereby\nand all other parties to the proceeding.\n 5. In connection with a grade crossing elimination project, the\ncommissioner shall determine the work on the railroad tracks or other\nrailroad facilities which is to be performed by railroad company forces,\nshall direct the railroad company to perform such work and shall direct\nthe railroad company to prepare plans and estimates of cost for such\nwork and submit such plans and estimates to the commissioner for\napproval.\n 6. After the commissioner shall have issued an elimination order in\nconnection with a grade crossing elimination project, the department of\ntransportation, except for the work on the railroad tracks or other\nrailroad facilities to be performed by railroad company forces, shall\ncause to be prepared the plans, specifications and estimates of cost of\nsuch elimination project. Such plans shall specifically show that part\nof the work of the elimination which when completed shall be maintained\nby the railroad company and that part which shall be maintained by the\nstate or the municipality in which the work of the elimination is\nlocated, as provided in the highway law where a state highway is\ninvolved and in the railroad law where a highway other than a state\nhighway is involved, and such plans shall also show that part of the\nwork of the elimination which shall be otherwise maintained.\n 7. If a state department, agency or commission, public authority or\nmunicipality in which the work of the elimination is located, desires to\nmake or cause to have made changes or additions which in the opinion of\nthe commissioner are other than necessary for the elimination, and\ndesires such changes and/or additions to be done in connection with the\nwork of the elimination, the commissioner shall hold a hearing to\ndetermine if such changes and/or additions shall be included in the\nplans and specifications. However, in any case where the interested\nparties shall have agreed in writing to such changes and/or additions no\nhearing shall be required unless the commissioner shall so direct. The\ncommissioner in an order containing findings shall specify which such\nchanges and/or additions are approved and shall be included in the plans\nand specifications for the elimination project. Such order shall also\nstate an estimated cost of such desired changes and/or additions other\nthan necessary for the elimination, and the portions thereof chargeable,\nrespectively, to the state department, agency or commission, public\nauthority or municipality in which the work of the elimination is\nlocated.\n Prior to the award of any contract containing changes and/or additions\nother than necessary for the elimination, the state department, agency\nor commission desiring such changes and/or additions shall certify to\nthe commissioner that the funds necessary for the payment of the cost of\nsuch desired changes and/or additions other than necessary for the\nelimination, have been made available for that purpose. In the case of a\npublic authority or municipality, such public authority or municipality\nshall deposit the necessary funds with the comptroller, who shall\nreceive and accept the same for the purposes hereof, subject to the\ndraft or requisition of the commissioner. When the elimination project\nhas been completed and the cost thereof shall have been paid by the\nstate, the commissioner shall render to such public authority or the\ngoverning body of such municipality an itemized statement showing in\nfull (a) the amount of money that has been deposited by such public\nauthority or municipality with the comptroller as hereinbefore provided,\nand (b) all disbursements which have been made hereunder. Any surplus\nmoney shall be paid to such public authority or municipality on the\nwarrant of the comptroller on vouchers therefor approved by the\ncommissioner. In the event, upon the completion of the elimination\nproject, it is determined by the commissioner that the amount of the\ncost to be borne by such public authority or municipality is in excess\nof the amount deposited by such public authority or municipality with\nthe comptroller, then, in such event, such public authority or\nmunicipality shall within ninety days of the receipt of the notice from\nthe commissioner of the amount of the deficiency required to fully\ncompensate the state for the public authority's or municipality's cost\nfor such desired changes and/or additions other than necessary for the\nelimination, pay such amount to the comptroller.\n 8. If a municipality desires to have the elimination accomplished in a\nmanner or by a method which is different and more costly than that\nordered by the commissioner, such municipality may petition the\ncommissioner to consider such different manner or method. The\ncommissioner may consider such petition if he deems the filing thereof\nto be timely and, after a public hearing for such purpose, determines\nthat the different manner or method is feasible and will serve the\npublic interest as well as that originally proposed and ordered by him.\nThe commissioner shall cause to be prepared an estimate of cost for the\nelimination project utilizing the different manner or method, as well as\nan estimate of cost for the elimination project as originally proposed.\nThe municipality shall be advised of the estimated additional costs and\nexpenses to be borne by such municipality to provide for such different\nmanner or method of construction. The commissioner may amend the\nelimination order so as to include the different manner or method of\nconstruction provided the governing body of such municipality shall by\nresolution assume the responsibility for the additional costs and\nexpenses to provide such different manner or method of construction.\nAfter the elimination order has been amended, the commissioner shall\ncause to be prepared the plans, specifications and estimates of cost of\nsuch elimination project. When such municipality approves such plans,\nspecifications and estimates of cost, it shall by resolution appropriate\nthe funds necessary to provide for the portion of the costs and expenses\nof the project to be borne by such municipality. Such funds shall, prior\nto the advertisement for bids for the elimination project, be deposited\nby such municipality with the comptroller, who is authorized to receive\nand accept the same for the purposes hereof, subject to the draft or\nrequisition of the commissioner, and a certified copy of such resolution\nshall be filed with the comptroller and with the commissioner. The\nmoneys so required shall be raised by tax or pursuant to the local\nfinance law or in accordance with any local charter or law, as the case\nmay be. Upon the completion of the elimination project the commissioner\nshall transmit to the governing body of such municipality an itemized\nstatement showing in full (a) the amount of money that has been\ndeposited by such municipality with the comptroller as hereinbefore\nprovided, and (b) all disbursements which have been made hereunder. Any\nsurplus money shall be paid to such municipality on the warrant of the\ncomptroller on vouchers therefor approved by the commissioner. In the\nevent, upon the completion of the elimination project, it is determined\nby the commissioner that the amount of the cost to be borne by such\nmunicipality is in excess of the amount deposited by such municipality\nwith the comptroller, then, in such event, such municipality shall\nwithin ninety days of the receipt of the notice from the commissioner of\nthe amount of the deficiency required to fully compensate the state for\nthe municipality's cost for such different manner or method of\nconstruction, pay such amount to the comptroller. Two or more\nmunicipalities may share the cost for such different manner or method of\nconstruction in such proportions as they shall mutually agree. Whenever\nsuch a different manner or method of construction is utilized in a grade\ncrossing elimination project, the determination of the net benefit to\nthe railroad company shall be based on the estimate of cost for the\nelimination project as originally proposed.\n 9. A railroad company may request railroad improvements not an\nessential part of the elimination and such improvements may be included\nin the elimination order provided the commissioner determines that such\nimprovements do not adversely affect the project and the comptroller\napproves the inclusion of such improvements in the project. Such\napproval may contain such conditions, in respect to repayment, as the\ncomptroller may deem necessary in the interest of the state. If the\ncommissioner determines that such improvements will affect the\nmunicipality in which the work of the elimination is located or the\nproperty owners adjacent to such project, he may hold a public hearing\nto consider such improvements prior to issuance of the elimination\norder.\n 10. Any elimination order made by the commissioner shall specify\nincidental improvements, if any, rendered necessary or desirable because\nof such elimination and which reasonably can be included in the\nengineering plans therefor.\n