N.Y. Transportation Law § 222: Applicability; general provisions of grade crossing elimination

§ 222. Applicability; general provisions of grade crossing

elimination. 1. This article shall apply to all highway-railroad grade

crossing eliminations the construction work for which is commenced on or

after March first, nineteen hundred seventy-one, except that any such

projects authorized pursuant to the provisions of the highway law may be

constructed in accordance therewith. Construction commenced on

highway-railroad grade crossing elimination projects before March first,

nineteen hundred seventy-one pursuant to orders of the public service

commission shall be completed in accordance with this article.

2. The commissioner shall report not later than December first in each

year to the governor, the chairman of the finance committee of the

senate and the chairman of the ways and means committee of the assembly,

the projects which have been completed during the preceding twelve

months, those under construction, those ordered but upon which

construction work has not been started, the amount expended on the

completed and partially completed work, an estimate of the cost of work

not completed and an estimate of the cost of eliminations ordered

respecting which no expenditures have been made.

3. The governing body of any municipality in which a highway-railroad

grade crossing is located or any railroad company for any railroad

operated by it which has railroad tracks that are crossed at grade by a

highway may petition the commissioner to institute grade crossing

elimination procedures pursuant to this article. The commissioner shall

hold public hearings on any elimination requested by such petition which

in his judgment warrants examination. Upon his own motion, the

commissioner may investigate any other highway-railroad grade crossing

which he determines should be considered for elimination. The

commissioner, upon such notice as he shall deem reasonable to the

municipality in which the highway-railroad grade crossing is located,

the railroad company whose railroad tracks are crossed at grade by the

highway and any other party deemed by the commissioner to be interested

in the elimination procedure, shall hold public hearings to consider any

such elimination. The commissioner shall promulgate rules and

regulations concerning the procedure to be followed at such hearings and

the matters to be considered at such hearings.

4. After the conclusion of such hearings, the commissioner shall, by

order, determine whether it is in the public interest to require the

elimination of such highway-railroad grade crossing. Any elimination

order shall also determine the manner in which such elimination shall be

made including a determination as to the alteration to be made in such

crossing, its approaches, the method of crossing, the character of the

structure and approaches, the type and extent of pavement, the location

of the crossing, the closing and discontinuance of a crossing and the

diversion of traffic from an existing crossing to an existing or a new

highway, road, street or crossing, or the opening of an additional

crossing and also including, if so determined by the commissioner, a

change in the location of the railroad when necessary to effect the

elimination of such crossing. Whenever the commissioner shall have, by

order, determined that it is in the public interest to require the

elimination of two or more grade crossings, and if it appears that the

cost would not substantially exceed the cost of the eliminations at the

present locations, and if the public interest is better served and the

number of such eliminations could be reduced by relocating the railroad,

the commissioner after a hearing may order such relocation. Such

hearing shall be held upon such notice as the commissioner shall deem

reasonable, but not less than ten days, to the railroad company

involved. Notice shall also be given to the municipalities and persons

deemed by the commissioner to be interested in the elimination

procedure. The commissioner shall serve a certified copy of all orders

on the comptroller, the railroad, the municipalities affected thereby

and all other parties to the proceeding.

5. In connection with a grade crossing elimination project, the

commissioner shall determine the work on the railroad tracks or other

railroad facilities which is to be performed by railroad company forces,

shall direct the railroad company to perform such work and shall direct

the railroad company to prepare plans and estimates of cost for such

work and submit such plans and estimates to the commissioner for

approval.

6. After the commissioner shall have issued an elimination order in

connection with a grade crossing elimination project, the department of

transportation, except for the work on the railroad tracks or other

railroad facilities to be performed by railroad company forces, shall

cause to be prepared the plans, specifications and estimates of cost of

such elimination project. Such plans shall specifically show that part

of the work of the elimination which when completed shall be maintained

by the railroad company and that part which shall be maintained by the

state or the municipality in which the work of the elimination is

located, as provided in the highway law where a state highway is

involved and in the railroad law where a highway other than a state

highway is involved, and such plans shall also show that part of the

work of the elimination which shall be otherwise maintained.

7. If a state department, agency or commission, public authority or

municipality in which the work of the elimination is located, desires to

make or cause to have made changes or additions which in the opinion of

the commissioner are other than necessary for the elimination, and

desires such changes and/or additions to be done in connection with the

work of the elimination, the commissioner shall hold a hearing to

determine if such changes and/or additions shall be included in the

plans and specifications. However, in any case where the interested

parties shall have agreed in writing to such changes and/or additions no

hearing shall be required unless the commissioner shall so direct. The

commissioner in an order containing findings shall specify which such

changes and/or additions are approved and shall be included in the plans

and specifications for the elimination project. Such order shall also

state an estimated cost of such desired changes and/or additions other

than necessary for the elimination, and the portions thereof chargeable,

respectively, to the state department, agency or commission, public

authority or municipality in which the work of the elimination is

located.

Prior to the award of any contract containing changes and/or additions

other than necessary for the elimination, the state department, agency

or commission desiring such changes and/or additions shall certify to

the commissioner that the funds necessary for the payment of the cost of

such desired changes and/or additions other than necessary for the

elimination, have been made available for that purpose. In the case of a

public authority or municipality, such public authority or municipality

shall deposit the necessary funds with the comptroller, who shall

receive and accept the same for the purposes hereof, subject to the

draft or requisition of the commissioner. When the elimination project

has been completed and the cost thereof shall have been paid by the

state, the commissioner shall render to such public authority or the

governing body of such municipality an itemized statement showing in

full (a) the amount of money that has been deposited by such public

authority or municipality with the comptroller as hereinbefore provided,

and (b) all disbursements which have been made hereunder. Any surplus

money shall be paid to such public authority or municipality on the

warrant of the comptroller on vouchers therefor approved by the

commissioner. In the event, upon the completion of the elimination

project, it is determined by the commissioner that the amount of the

cost to be borne by such public authority or municipality is in excess

of the amount deposited by such public authority or municipality with

the comptroller, then, in such event, such public authority or

municipality shall within ninety days of the receipt of the notice from

the commissioner of the amount of the deficiency required to fully

compensate the state for the public authority's or municipality's cost

for such desired changes and/or additions other than necessary for the

elimination, pay such amount to the comptroller.

8. If a municipality desires to have the elimination accomplished in a

manner or by a method which is different and more costly than that

ordered by the commissioner, such municipality may petition the

commissioner to consider such different manner or method. The

commissioner may consider such petition if he deems the filing thereof

to be timely and, after a public hearing for such purpose, determines

that the different manner or method is feasible and will serve the

public interest as well as that originally proposed and ordered by him.

The commissioner shall cause to be prepared an estimate of cost for the

elimination project utilizing the different manner or method, as well as

an estimate of cost for the elimination project as originally proposed.

The municipality shall be advised of the estimated additional costs and

expenses to be borne by such municipality to provide for such different

manner or method of construction. The commissioner may amend the

elimination order so as to include the different manner or method of

construction provided the governing body of such municipality shall by

resolution assume the responsibility for the additional costs and

expenses to provide such different manner or method of construction.

After the elimination order has been amended, the commissioner shall

cause to be prepared the plans, specifications and estimates of cost of

such elimination project. When such municipality approves such plans,

specifications and estimates of cost, it shall by resolution appropriate

the funds necessary to provide for the portion of the costs and expenses

of the project to be borne by such municipality. Such funds shall, prior

to the advertisement for bids for the elimination project, be deposited

by such municipality with the comptroller, who is authorized to receive

and accept the same for the purposes hereof, subject to the draft or

requisition of the commissioner, and a certified copy of such resolution

shall be filed with the comptroller and with the commissioner. The

moneys so required shall be raised by tax or pursuant to the local

finance law or in accordance with any local charter or law, as the case

may be. Upon the completion of the elimination project the commissioner

shall transmit to the governing body of such municipality an itemized

statement showing in full (a) the amount of money that has been

deposited by such municipality with the comptroller as hereinbefore

provided, and (b) all disbursements which have been made hereunder. Any

surplus money shall be paid to such municipality on the warrant of the

comptroller on vouchers therefor approved by the commissioner. In the

event, upon the completion of the elimination project, it is determined

by the commissioner that the amount of the cost to be borne by such

municipality is in excess of the amount deposited by such municipality

with the comptroller, then, in such event, such municipality shall

within ninety days of the receipt of the notice from the commissioner of

the amount of the deficiency required to fully compensate the state for

the municipality's cost for such different manner or method of

construction, pay such amount to the comptroller. Two or more

municipalities may share the cost for such different manner or method of

construction in such proportions as they shall mutually agree. Whenever

such a different manner or method of construction is utilized in a grade

crossing elimination project, the determination of the net benefit to

the railroad company shall be based on the estimate of cost for the

elimination project as originally proposed.

9. A railroad company may request railroad improvements not an

essential part of the elimination and such improvements may be included

in the elimination order provided the commissioner determines that such

improvements do not adversely affect the project and the comptroller

approves the inclusion of such improvements in the project. Such

approval may contain such conditions, in respect to repayment, as the

comptroller may deem necessary in the interest of the state. If the

commissioner determines that such improvements will affect the

municipality in which the work of the elimination is located or the

property owners adjacent to such project, he may hold a public hearing

to consider such improvements prior to issuance of the elimination

order.

10. Any elimination order made by the commissioner shall specify

incidental improvements, if any, rendered necessary or desirable because

of such elimination and which reasonably can be included in the

engineering plans therefor.