NY Transp L § 222 (2021)
2021 New York Laws TRA - Transportation Article 10 - Grade Crossing Elimination 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.