N.Y. Railroad Law § 90: New streets across railroads

§ 90. New streets across railroads. When a new street, avenue, highway

or road or new portion or additional lane of a street, avenue, highway

or road shall hereafter be constructed across a steam surface railroad,

other than pursuant to section ninety-one, such street, avenue, highway,

or road or new portion or additional lane of a street, avenue, highway

or road, shall pass over or under such railroad whenever such

construction is practicable. Notice of intention to lay out such

street, avenue, highway or road, or such new portion or additional lane

of a street, avenue, highway or road, across a steam surface railroad

shall be given to such railroad corporation by the municipal corporation

at least fifteen days prior to the making of the order laying out such

street, avenue, highway or road or such new portion or additional lane

of a street, avenue, highway or road by service personally on the

president or vice-president of the railroad corporation or any general

officer thereof. Such notice shall designate the time when and place

where a hearing will be given to such railroad corporation, and such

railroad corporation shall have the right to be heard before the

authorities of such municipal corporation upon the question of the

necessity of such street, avenue, highways or road or such new portion

or additional lane of a street, avenue, highway or road on the question

of the location of such highway. If the municipal corporation determines

such street, avenue, highway or road or such new portion or additional

lane of a street, avenue, highway or road to be necessary, such

municipal corporation shall then apply to the commissioner of

transportation before any further proceedings are taken, to determine

whether such street, avenue, highway or road or such new portion or

additional lane of a street, avenue, highway or road shall pass over or

under such railroad or at grade. The commissioner of transportation

shall thereupon appoint a time and place for hearing such application,

and shall give such notice thereof as he shall judge reasonable to the

railroad corporation whose railroad is to be crossed by such new street,

avenue, highway or road, or such new portion or additional lane of a

street, avenue, highway or road, to the municipal corporation, the

owners of land adjoining the railroad and that part of the street,

avenue, highway or road to be opened, extended or constructed and such

other parties deemed by him to be interested in the proceeding. The

commissioner of transportation shall determine whether such street,

avenue, highway or road or such new portion or additional lane of a

street, avenue, highway or road shall be constructed over or under such

railroad or at grade. If the commissioner of transportation shall

determine that such street, avenue, highway or road or such new portion

or additional lane of a street, avenue, highway or road shall be carried

across such railroad above the grade thereof, he shall determine the

height, the length and the material of the bridge or structure by means

of which such street, avenue, highway or road or such new portion or

additional lane of a street, avenue, highway or road shall be carried

across such railroad, and the length, character and grades of the

approaches thereto. If the commissioner of transportation shall

determine that such street, avenue, highway or road or such new portion

or additional lane of a street, avenue, highway or road shall be

constructed or extended below the grade of such railroad, he shall

determine the manner and method in which the same shall be so carried

under, and the length, character and grades of the approaches. If the

commissioner of transportation shall determine that it is impracticable

to construct or extend such street, avenue, highway or road or such new

portion or additional lane of a street, avenue, highway or road across

such railroad above or below the grade thereof, he shall determine the

manner and method in which the same shall be carried across such

railroad at grade and what safeguards shall be maintained. The decision

of the commissioner of transportation as to the manner and method of

carrying such new street, avenue, highway or road, or such new portion

or additional lane of a street, avenue, highway or road across such

railroad shall be final, subject however to the right of appeal

hereinafter given, the decision of the commissioner of transportation

rendered in any proceeding under this section shall be communicated,

after final hearing, to the railroad corporation, the municipal

corporation and all other parties who appeared at such hearing by

counsel or in person. This section shall not apply to any state highway

or any other street, avenue, highway or road or new portion or

additional lane of a street, avenue, highway or road which the

commissioner of transportation proposes to construct across a railroad

pursuant to the highway law. Highway as used in this article shall

include any highway, road, street, alley, avenue, thoroughfare or public

driveway which is open to the public and publicly maintained.