CO Code § 40-4-106 (2021)
2021 Colorado Code|Title 40 - Utilities|Article 4 - Service and Equipment|§ 40-4-106. Rules for Public Safety - Crossings - Civil Fines - Allocation of Expenses

     The commission may, after a hearing on its own motion or upon complaint, make general or special orders, promulgate rules, or act by other means to require each public utility to maintain and operate its lines, plant, system, equipment, electrical wires, apparatus, tracks, and premises in such a manner as to promote and safeguard the health and safety of its employees, passengers, customers, subscribers, and the public and to require the performance of any other act that the health or safety of its employees, passengers, customers, subscribers, or the public may demand.    If, pursuant to this subsection (1), the commission issues an order or promulgates a rule requiring a railroad company to comply with railroad crossing safety regulations, the commission may impose a civil penalty pursuant to article 7 of this title 40, in an amount not to exceed the maximum amount set forth in section 40-7-105 (1), against a railroad company that fails to comply with the order or rule.         The commission has the power to determine, order, and prescribe, in accordance with the plans and specifications to be approved by it, the just and reasonable manner including the particular point of crossing at which the tracks or other facilities of any public utility may be constructed across the facilities of any other public utility at grade, or above or below grade, or at the same or different levels, or at which the tracks or other facilities of any railroad corporation may be constructed across any public highway at grade, or above or below grade, or at which any public highway may be constructed across the tracks or other facilities of any railroad corporation at grade, or above or below grade and to determine, order, and prescribe the terms and conditions of installation and operation, maintenance, and warning at all such crossings that may be constructed, including the posting of personnel or the installation and regulation of lights, block, interlocking, or other system of signaling, safety appliance devices, or such other means or instrumentalities as may to the commission appear reasonable and necessary to the end, intent, and purpose that accidents may be prevented and the safety of the public promoted.    Whenever the commission orders in any proceeding before it, regardless of by whom or how such proceeding was commenced, that automatic or other safety appliance signals or devices be installed, reconstructed, or improved and operated at any crossing at grade of any public highway or road over the tracks of any railroad corporation, the commission shall also determine and order, after notice and hearing, how the cost of installing, reconstructing, or improving such signals or devices shall be divided between and paid by the interested railroad corporation whose tracks are located at the crossing on the one hand and the chief engineer and the interested city, city and county, town, county, or other political subdivision of the state on the other hand. In determining how much of the cost shall be paid by the railroad corporation, consideration shall be given to the benefit, if any, that will accrue from the signals or devices to the railroad corporation, but in every case the part to be paid by the railroad corporation shall be not less than twenty percent of the total cost of the signals or devices at any crossing, and the orders shall provide that every signal or device installed will be maintained by the railroad corporation for the life of the crossing to be so signalized. In order to compensate for the use of the crossings by the public generally, the commission shall also order that such part of the cost of installing, reconstructing, or improving the signals or devices as will not be paid by the railroad corporation be divided between the highway-rail crossing signalization fund and the city, town, city and county, county, or other political subdivision in which the crossing is located, and the commission shall fix in each case the amount to be paid from the highway-rail crossing signalization fund and the amount to be paid by the city, town, city and county, county, or other political subdivision. Any order of the commission under this section for the payment of any part of any such costs from the highway-rail crossing signalization fund is authority for the state treasurer to pay out of said fund to the person, firm, or corporation entitled thereto under the commission's order the amount so determined to be paid from said fund. The requirement of notice and hearing in this section is deemed to have been complied with by the commission's giving notice of and holding a hearing upon the question of whether any such signals or devices are required at any crossing; but in such cases the notice shall state that the question of how the costs will be borne and paid will be considered at and determined as a result of the hearing for which the notice is given. This paragraph (b) shall not apply to any grade crossing when all or any part of the cost of the installation, reconstruction, or improvement of the signals or devices at the crossing will be paid from funds available under any federal or federal-aid highway act.           The commission also has power upon its own motion or upon complaint and after hearing, of which all the parties in interest including the owners of adjacent property shall have due notice, to order any crossing constructed at grade or at the same or different levels to be relocated, altered, or abolished, according to plans and specifications to be approved and upon just and reasonable terms and conditions to be prescribed by the commission, and to prescribe the terms upon which the separation should be made and the proportion in which the expense of the alteration or abolition of the crossing or the separation of the grade should be divided between the railroad corporations affected or between the corporation and the state, county, municipality, or public authority in interest. (a) (I)The commission also has power upon its own motion or upon complaint and after hearing, of which all the parties in interest including the owners of adjacent property shall have due notice, to order any crossing constructed at grade or at the same or different levels to be relocated, altered, or abolished, according to plans and specifications to be approved and upon just and reasonable terms and conditions to be prescribed by the commission, and to prescribe the terms upon which the separation should be made and the proportion in which the expense of the alteration or abolition of the crossing or the separation of the grade should be divided between the railroad corporations affected or between the corporation and the state, county, municipality, or public authority in interest.    Notwithstanding the provisions of subparagraph (I) of this paragraph (a), the affected railroad corporation, the commission, the department of transportation, or the local government responsible for supervising and maintaining the intersecting public highway or road may abolish any crossing at grade of any public highway or road over the tracks of a corporation if:   The crossing is without gates, signals, alarm bells, or warning personnel and is located within one-quarter mile of a crossing with gates, signals, alarm bells, or warning personnel or a separated grade crossing;    The crossing is not the only crossing that provides access to property;    No less than sixty days prior to the proposed abolition date, the railroad corporation, commission, department of transportation, or local government posts conspicuous notice of the proposed abolition at the crossing and gives written notice of the proposed abolition to all other entities authorized to initiate abolition of the crossing pursuant to this subparagraph (II); and    Neither any entity given notice nor any other interested party files an objection to the abolition pursuant to subparagraph (III) of this paragraph (a).       A crossing shall not be abolished pursuant to subparagraph (II) of this paragraph (a) if an entity given notice pursuant to sub-subparagraph (C) of subparagraph (II) of this paragraph (a) or any other interested party, within sixty days of receiving such notice, files with the commission and provides to the entity that gave notice of the proposed abolition a written objection to the abolition. The written objection shall include a statement by a professional engineer licensed to practice in Colorado that indicates that the engineer is familiar with the requirements of subparagraph (II) of this paragraph (a) and all relevant aspects of the crossing and has examined the crossing and believes that it is safe as designed. However, nothing in this subparagraph (III) shall preclude the abolition of the crossing pursuant to subparagraph (I) of this paragraph (a).           The commission is authorized to approve individual projects wherein the allocation of the total expenses of the separation of grades to be paid by the railroad corporation or railroad corporations may exceed two million five hundred thousand dollars. The commission may approve more than one project, the sum totals of which may exceed the two-million-five-hundred-thousand-dollar cap set forth in this subparagraph (I), but in no event shall an individual class I railroad corporation pay more than two million five hundred thousand dollars of the cost of a single project or the cost of more than one project in any calendar year. Nothing in this subparagraph (I) shall preclude any railroad corporation from voluntarily contributing more than its allotted share for grade separation construction in one year, and, in such event, all amounts contributed by such railroad exceeding its allotted share in any one year shall be credited to and shall serve to reduce any payment for grade separation construction expenses by that railroad in subsequent years. (b) (I) (A) The commission is authorized to approve individual projects wherein the allocation of the total expenses of the separation of grades to be paid by the railroad corporation or railroad corporations may exceed two million five hundred thousand dollars. The commission may approve more than one project, the sum totals of which may exceed the two-million-five-hundred-thousand-dollar cap set forth in this subparagraph (I), but in no event shall an individual class I railroad corporation pay more than two million five hundred thousand dollars of the cost of a single project or the cost of more than one project in any calendar year. Nothing in this subparagraph (I) shall preclude any railroad corporation from voluntarily contributing more than its allotted share for grade separation construction in one year, and, in such event, all amounts contributed by such railroad exceeding its allotted share in any one year shall be credited to and shall serve to reduce any payment for grade separation construction expenses by that railroad in subsequent years.    Repealed.       If the cost of a project is such that it calls for payment by a railroad corporation in more than one calendar year or if the amount due from the railroad corporation exceeds two million five hundred thousand dollars and thus must be made in consecutive calendar years, nothing in this section shall be construed to require that the approved project must be subjected to reapplication or rereview by the commission.    In determining how much of the total expense of the separation of grades shall be paid by the railroad corporation or railroad corporations and by the state, county, municipality, or public authority in interest, consideration shall be given to the benefits, if any, which accrue from the grade separation project and the responsibility for need, if any, for such project. The railroad corporation or railroad corporations and the state, county, municipality, or public authority in interest shall share the costs for that portion of the project which separates the grades and constructs the approaches thereto. The commission shall consider the costs of obtaining rights-of-way, the costs of construction, and the costs of engineering. To the extent that the requirements of the railroad corporation or railroad corporations and the state, county, municipality, or public authority in interest generate additional costs beyond that necessary to provide the grade separation, such costs shall be borne by the responsible entity.    This paragraph (b) shall not apply to any project for the elimination of hazards at any railway-highway crossing when all or any part of the cost of such project will be paid from moneys made available for expenditure under title 23, U.S.C.; except that any amount paid by a railroad corporation for such an exempt project shall be credited against the two-million-five-hundred-thousand-dollar cap set forth in subparagraph (I) of this paragraph (b).         The state, county, municipality, or public authority, at its discretion, may withdraw its request for allocation determination at any time prior to the issue of the final order of the commission. (c) (I) The state, county, municipality, or public authority, at its discretion, may withdraw its request for allocation determination at any time prior to the issue of the final order of the commission.    The state, county, municipality, or public authority, at its discretion, after the hearing and prior to final order of the commission, may make a motion for a declaratory ruling on the cost allocation. In response to such a request, the commission shall make a declaratory ruling and shall provide the movant reasonable time to withdraw the request for allocation determination.    After the final order is issued, the project shall proceed, unless the commission revises the order after consideration of a request for change by the state, county, municipality, or public authority in interest.       The commission shall not order the abolition of any crossing for which a grade separation is determined to be necessary until this separation is constructed.       Repealed.       Repealed.     History. Source: L. 13: P. 478, § 29. L. 17: P. 415, § 1. C.L. § 2940. CSA: C. 137, § 30. L. 41: P. 602, § 1. L. 43: P. 476, § 1. CRS 53: § 115-4-6. L. 55: P. 698, § 1. L. 63: P. 758, § 1. C.R.S. 1963: § 115-4-6. L. 65: P. 926, § 1. L. 69: Pp. 935, 964, §§ 24, 75. L. 72: P. 615, § 144. L. 80: (4) added, p. 750, § 1, effective April 16. L. 81: (1) amended, p. 1918, § 1, effective June 19. L. 83: (3) amended, p. 1558, § 1, effective July 1. L. 86: (3)(b) and (3)(c) R&RE and (3)(e) and (3)(f) repealed, pp. 1157, 1158, §§ 1, 2, effective July 1. L. 91: (2)(b) amended, p. 1075, § 62, effective July 1. L. 93: (3)(b)(I)(B) repealed, p. 2063, § 15, effective July 1. L. 99: (3)(b)(I), (3)(b)(II), and (3)(b)(IV) amended, p. 140, § 1, effective August 4. L. 2003: (2)(b) amended, p. 1702, § 11, effective May 14. L. 2007: (3)(a) amended, p. 313, § 1, effective August 3. L. 2008: (2) amended, p. 1794, § 12, effective July 1. L. 2015: (2)(b) amended,(HB 15-1209), ch. 64, p. 173, § 2, effective March 30. L. 2019: (1) amended,(SB 19-236), ch. 359, p. 3311, § 14, effective May 30. History. Source: L. 13: P. 478, § 29. L. 17: P. 415, § 1. C.L. § 2940. CSA: C. 137, § 30. L. 41: P. 602, § 1. L. 43: P. 476, § 1. CRS 53: § 115-4-6. L. 55: P. 698, § 1. L. 63: P. 758, § 1. C.R.S. 1963: § 115-4-6. L. 65: P. 926, § 1. L. 69: Pp. 935, 964, §§ 24, 75. L. 72: P. 615, § 144. L. 80: (4) added, p. 750, § 1, effective April 16. L. 81: (1) amended, p. 1918, § 1, effective June 19. L. 83: (3) amended, p. 1558, § 1, effective July 1. L. 86: (3)(b) and (3)(c) R&RE and (3)(e) and (3)(f) repealed, pp. 1157, 1158, §§ 1, 2, effective July 1. L. 91: (2)(b) amended, p. 1075, § 62, effective July 1. L. 93: (3)(b)(I)(B) repealed, p. 2063, § 15, effective July 1. L. 99: (3)(b)(I), (3)(b)(II), and (3)(b)(IV) amended, p. 140, § 1, effective August 4. L. 2003: (2)(b) amended, p. 1702, § 11, effective May 14. L. 2007: (3)(a) amended, p. 313, § 1, effective August 3. L. 2008: (2) amended, p. 1794, § 12, effective July 1. L. 2015: (2)(b) amended,(HB 15-1209), ch. 64, p. 173, § 2, effective March 30. L. 2019: (1) amended,(SB 19-236), ch. 359, p. 3311, § 14, effective May 30.    Editor's note:   Subsection (4)(b) provided for the repeal of subsection (4), effective July 1, 1982. (See L. 80, p. 750 .)   Cross references:   For liability under provisions of subsection (2) of this section, see § 43-4-216 ; for rule-making procedures, see article 4 of title 24.   ANNOTATION   Commission to determine property required by railroad. The public utilities commission (PUC) has the power to determine what property a condemning railroad can use as a “particular point of crossing”, so the commission determines what property the railroad requires. Colo. & S. Ry. v. District Court, 177 Colo. 162 , 493 P.2d 657 (1972).   Commission's approval not necessary before condemnation for certain construction by railroad. Approval of the PUC for the construction of dust levees by a railroad is not required as a prerequisite to the condemnation of lands required for the proposed construction. Buck v. District Court, 199 Colo. 344 , 608 P.2d 350 (1980).   No power to open street across right-of-way. The PUC has no power by an order, without proceedings in eminent domain, to open a street across a railroad right-of-way. Chicago, B. & Q. R. R. v. Pub. Utils. Comm'n, 69 Colo. 275 , 193 P. 726 (1920).   Commission's exercise of authority. In the interest of public safety, the PUC has authority to order electric company to bury or relocate a transmission line which constitutes a safety hazard for an airport, and such authority may be exercised whether or not the commission participated in the prior approval of the location of such line. The statute is not an unlawful delegation of power to an administrative agency. Mtn. View Elec. Ass'n v. P.U.C., 686 P.2d 1336 (Colo. 1984).   Section applicable to construction of apportionment of costs for viaducts. The construction of an apportionment of costs for viaducts is not such a subject as was intended to fall within the domain of local self-government, and therefore § 35 of art. V, Colo. Const., (delegation of power) does not prohibit the public utility commission's exercise of powers granted it under this section. Denver & R. G. W. R. R. v. City & County of Denver, 673 P.2d 354 (Colo. 1983).   Section empowers commission to apportion cost of constructing railroad crossing protection devices between the railroad that owns the track on one hand and the department of highways, and interested town, city, or county on the other hand, with a portion of the latter cost allocable to the highway crossing protection fund to compensate for general public benefit. Union P. R. R. v. Pub. Utils. Comm'n, 170 Colo. 514 , 463 P.2d 294 (1969).   Subsection (3)(b) supersedes city charter. The construction of an apportionment of costs for viaducts is a matter of mixed local and state-wide concern, and where there is a conflict between a city charter and subsection (3)(b) (costs for grade separation projects), this section must supersede the charter. Denver & R. G. W. R. R. v. City & County of Denver, 673 P.2d 354 (Colo. 1983).   Commission held not to have abused its discretion in the allocation of grade separation costs between the city of Denver and the affected railroads pursuant to subsection (3)(c)(I) of this section (now subsection (3)(b)(III)). Atchison, Topeka & Santa Fe Ry. v. P.U.C., 763 P.2d 1037 (Colo. 1988).   Applied in Hassler & Bates Co. v. Pub. Utils. Comm'n, 168 Colo. 183 , 451 P.2d 280 (1969); City of Craig v. Pub. Utils. Comm'n, 656 P.2d 1313 (Colo. 1983).