senate Bill S5765

2013-2014 Legislative Session

Relates to public hearings and to repeal certain obsolete provisions to the railroad law

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Jun 13, 2013 referred to transportation

S5765 - Bill Details

See Assembly Version of this Bill:
A7691
Current Committee:
Law Section:
Railroad Law
Laws Affected:
Amd §§89, 90, 91, 97, 97-a & 81, rpld §§51, 57, 57-a, 58 - 60, 71 - 74, 76, 77, 80 & 82, Rail L

S5765 - Bill Texts

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Relates to public hearings and repeals certain obsolete provisions to the railroad law.

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BILL NUMBER:S5765

TITLE OF BILL: An act to amend the railroad law, in relation to
public hearings and to repeal certain provisions of such law, relating
to the weight of rail, rates of fare, excess charges and penalties,
mileage books, duties imposed, inspections, inspectors, care of steam
locomotives, use of furnaces, equipment of engines, couplers and
Canadian thistles

Purpose of the Bill: This proposal would authorize the Commissioner
of Transportation (Commissioner) to solicit comments from the public
in cases involving the creation, alteration or modification of
railroad crossings and would repeal certain provisions of the Railroad
Law that are preempted by federal law and regulations. If requested,
however, a hearing would still be required.

Summary of Provisions:

Sections 1 through 5 would amend Railroad Law §§ 89, 90, 91, 97, and
97-a, respectively, to authorize the Commissioner to solicit comments
from interested parties in addition to conducting a public hearing in
certain circumstances when the Commissioner deems one to be
appropriate or a hearing is requested by the petitioner, the railroad,
or a municipality.

Section 6 would repeal Railroad Law § 51 which is preempted by 49 CFR
Part 213.

Sections 7, 8, 9, 10 and 11 would repeal Railroad Law §§ 57, 57-a, 58,
59 and 60 respectively, which are preempted by 49 USC §§ 10501 and
10704.

Sections 12 would repeal Railroad Law §§ 71, 72 and 73 which are
preempted by 49 CFR Part 230, Part 229, and Parts 212, 229 and 230.

Section 13 would repeal Railroad Law § 72 which is preempted by 49 CFR
Part 229

Section 14 would repeal Railroad Law § 73 which is preempted by 49 CFR
Part 212, Part 229, and Part 230.

Section 15 would repeal Railroad Law §§ 74 and 76 which are preempted
by 49 CFR Part 230, and 49 CFR Parts 230 and 238, respectively.

Section 17 would repeal Railroad Law § 77 which is preempted by 49 CFR
Part 229, Part 230 and Part 232.

Section 18 would repeal Railroad Law § 80 which is preempted by 49 CFR
Part 215. Section 19 would repeal Railroad Law § 82 which is preempted
by 49 CFR Part 213.

Section 20 would amend Railroad Law § 81 to eliminate references to
sections of the Railroad Law repealed by this bill.

Section 21 provides for an immediate effective date.


Existing Law: The Railroad Law requires the Commissioner to conduct a
public hearing for every case in which a railroad crossing is being
created, altered or closed. It also contains provisions that are no
longer relevant or have been preempted by federal law and regulations.

Prior Legislative History: This is a new proposal.

Statement in Support: Conducting a public hearing in every instance
in connection with a railroad crossing is a time-consuming process
that may unduly delay the construction of a project beneficial to a
community. Moreover, there are equally effective ways in which to
solicit public input. For example, holding a public hearing generally
results in a delay of between 60 and 90 days while waiting for a
transcript to be prepared and reviewed. Hearings axe also costly for
the Department of Transportation ("DOT"), the railroad, and the
proponent of a project. This bill would give the Commissioner the
discretion to solicit written comments in addition to or instead of a
holding a public hearing. But if the petitioner, the railroad, or the
municipality in which a crossing is located requests a hearing, the
Commissioner would have to conduct a public hearing.

The repeal of sections of the Railroad Law that are preempted by
federal law eliminates unnecessary and conflicting provisions for the
benefit of regulated parties.

Budget Implications: This bill is expected to save the Department
several thousand dollars per year in staff time and expenses.

Local Impact: None.

Effective Date: This act shall take effect immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5765

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 13, 2013
                               ___________

Introduced  by Sen. FUSCHILLO -- (at request of the Department of Trans-
  portation) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Transportation

AN  ACT to amend the railroad law, in relation to public hearings and to
  repeal certain provisions of such law, relating to the weight of rail,
  rates of fare, excess charges and  penalties,  mileage  books,  duties
  imposed,  inspections,  inspectors,  care of steam locomotives, use of
  furnaces, equipment of engines, couplers and Canadian thistles

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section 89 of the railroad law, as amended by chapter 267
of the laws of 1970, is amended to read as follows:
  S 89. New railroads across streets.  1. All [steam] surface  railroads
built  after the first day of July, eighteen hundred [and] ninety-seven,
except additional switches and sidings, must be  so  constructed  as  to
avoid  all  public  crossings at grade, whenever practicable [so to do].
Whenever AN application is made to the commissioner [of  transportation]
under section nine of this chapter OR THIS SECTION, there shall be filed
with  the  commissioner  [of  transportation] a map showing the streets,
avenues,  highways  and  roads  proposed  to  be  crossed  by  the   new
construction,  and  the commissioner [of transportation] shall determine
whether such crossings shall be under or  over  the  proposed  railroad,
except  where  the commissioner [of transportation] shall determine such
method of crossing to be impracticable.
  2. Whenever SUCH an application is made [under this section] to deter-
mine the manner of crossing, the commissioner [of  transportation  shall
designate  a  time  and  place when and where a hearing will be given to
such railroad company, and shall notify the municipal corporation having
jurisdiction over the streets, avenues, highways or roads proposed to be
crossed by the new railroad, persons owning land in the vicinity of  the
proposed  crossing  and such other parties deemed by the commissioner of
transportation to be interested in the proceeding. The  commissioner  of
transportation  shall  give  public  notice  of  such hearing. Upon such
notice and after a hearing,  the  commissioner  of  transportation]  MAY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09118-02-3

S. 5765                             2

CONDUCT  A HEARING AND PROVIDE NOTICE OF SUCH A HEARING OF NOT LESS THAN
TEN DAYS TO PARTIES DEEMED TO  HAVE  AN  INTEREST  IN  THE  APPLICATION.
PROVIDED,  HOWEVER,  THAT  THE COMMISSIONER SHALL CONDUCT A HEARING UPON
THE  REQUEST OF THE RAILROAD COMPANY MAKING THE APPLICATION, THE MUNICI-
PAL CORPORATION HAVING JURISDICTION OVER THE STREETS, AVENUES,  HIGHWAYS
OR ROADS PROPOSED TO BE CROSSED BY THE NEW RAILROAD OR THE CITY, TOWN OR
VILLAGE  IN WHICH THE CROSSING IS LOCATED. IF SUCH A REQUEST IS NOT MADE
AND IF THE COMMISSIONER DETERMINES THAT A HEARING IS NOT REQUIRED, HE OR
SHE SHALL SOLICIT COMMENTS FROM PARTIES DEEMED TO HAVE  AN  INTEREST  IN
THE  APPLICATION  WHO  SHALL  BE  PROVIDED WITH NO LESS THAN TEN DAYS TO
COMMENT ON THE APPLICATION. PARTIES DEEMED TO HAVE AN  INTEREST  IN  THE
APPLICATION  SHALL  INCLUDE THE RAILROAD COMPANY MAKING THE APPLICATION,
THE MUNICIPAL CORPORATION HAVING JURISDICTION OVER THE STREETS, AVENUES,
HIGHWAYS OR ROADS PROPOSED TO BE CROSSED BY THE NEW RAILROAD, THE  CITY,
TOWN  OR  VILLAGE  IN  WHICH  THE CROSSING IS LOCATED, PERSONS OWNING OR
OCCUPYING PROPERTY IN THE VICINITY OF THE PROPOSED  CROSSING  AND  OTHER
PARTIES  DEEMED  BY  THE COMMISSIONER TO BE AFFECTED BY THE APPLICATION.
AFTER A HEARING, IF ONE WAS HELD, OR THE EXPIRATION OF THE COMMENT PERI-
OD, THE COMMISSIONER [may] SHALL determine [that] WHETHER alterations or
changes may be made in any existing highway at or in the vicinity  of  a
proposed crossing for the purpose of avoiding a crossing at grade.
  3.  If the commissioner [of transportation shall determine] DETERMINES
that any such railroad shall be carried across a street, avenue, highway
or road below the grade thereof, [said commissioner  of  transportation]
HE  OR SHE shall determine the height, the length[,] and the material of
the bridge or structure by means of which such street,  avenue,  highway
or  road  shall  be  carried over such railroad, and the length, charac-
ter[,] and grades of the approaches thereto.
  4. If the commissioner [of transportation shall determine]  DETERMINES
that  such railroad shall be constructed above the grade of such street,
avenue, highway or road, [said commissioner of transportation] HE OR SHE
shall determine the manner and method in which such  railroad  shall  be
constructed  over  such street, avenue, highway or road, and the length,
character and grades of the undercrossing approaches.
  5. If the commissioner [of transportation shall determine]  DETERMINES
that  it  is impracticable to construct such railroad below or above the
grade of such street, avenue, highway or road, [said commissioner] HE OR
SHE shall determine the manner and method in which  the  same  shall  be
constructed  across  such  street, avenue, highway or road at grade, and
what safeguards shall be maintained.
  6. The decision of the commissioner [of  transportation]  rendered  in
any  proceedings  under this section shall be [communicated, after final
hearing, to the railroad company,  the  municipal  corporation  and  all
other  parties  who  appeared  at  said hearing by counsel or in person]
FINAL, SUBJECT TO THE RIGHT OF APPEAL AS HEREINAFTER PROVIDED, AND SHALL
BE SENT AFTER A HEARING, IF ONE WAS  HELD,  OR  THE  EXPIRATION  OF  THE
COMMENT  PERIOD,  TO  ALL  PARTIES WHO PARTICIPATED IN THE PROCEEDING OR
REQUESTED TO BE ADVISED OF THE DECISION.
  7. ANY PERSON AGGRIEVED BY SUCH A DECISION AND WHO WAS A PARTY TO SAID
PROCEEDING MAY, WITHIN SIXTY DAYS, APPEAL  THEREFROM  TO  THE  APPELLATE
DIVISION  OF  THE SUPREME COURT IN THE DEPARTMENT IN WHICH SUCH CROSSING
IS SITUATED, AND TO THE COURT OF APPEALS, IN THE SAME  MANNER  AND  WITH
LIKE  EFFECT  AS IS PROVIDED IN THE CASE OF APPEALS FROM AN ORDER OF THE
SUPREME COURT.
  S 2. Section 90 of the railroad law, as amended by chapter 267 of  the
laws of 1970, is amended to read as follows:

S. 5765                             3

  S  90.  New  streets  across  railroads. 1. 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 presi-
dent  or vice-president of the railroad corporation or any general offi-
cer 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.
  2.  If the municipal corporation determines such street, avenue, high-
way 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] MAY CONDUCT A HEAR-
ING AND PROVIDE NOTICE OF SUCH A HEARING OF NOT LESS THAN  TEN  DAYS  TO
PARTIES  DEEMED TO HAVE AN INTEREST IN THE APPLICATION. PROVIDED, HOWEV-
ER, THAT THE COMMISSIONER SHALL CONDUCT A HEARING UPON  THE  REQUEST  OF
THE  MUNICIPAL  CORPORATION  MAKING THE APPLICATION, THE RAILROAD CORPO-
RATION WHOSE RAILROAD IS TO BE CROSSED BY SUCH NEW STREET, AVENUE, HIGH-
WAY OR ROAD OR THE CITY, TOWN  OR  VILLAGE  IN  WHICH  THE  CROSSING  IS
LOCATED.  IF  SUCH  A REQUEST IS NOT MADE AND IF THE COMMISSIONER DETER-
MINES THAT A HEARING IS NOT REQUIRED, HE OR SHE SHALL  SOLICIT  COMMENTS
FROM  PARTIES DEEMED TO HAVE AN INTEREST IN THE APPLICATION WHO SHALL BE
PROVIDED WITH NO LESS THAN TEN  DAYS  TO  COMMENT  ON  THE  APPLICATION.
PARTIES  DEEMED TO HAVE AN INTEREST IN THE APPLICATION SHALL INCLUDE THE
MUNICIPAL CORPORATION MAKING THE APPLICATION, THE  RAILROAD  CORPORATION
WHOSE  RAILROAD  IS TO BE CROSSED BY SUCH NEW STREET, AVENUE, HIGHWAY OR
ROAD, PERSONS OWNING OR  OCCUPYING  PROPERTY  IN  THE  VICINITY  OF  THE
PROPOSED  CROSSING  AND  OTHER  PARTIES DEEMED BY THE COMMISSIONER TO BE
AFFECTED BY THE APPLICATION.  AFTER A HEARING, IF ONE WAS HELD,  OR  THE
EXPIRATION  OF  THE  COMMENT  PERIOD,  THE  COMMISSIONER shall determine
whether such street, avenue, highway or road  or  such  new  portion  or

S. 5765                             4

additional   lane  of  a  street,  avenue,  highway  or  road  shall  be
constructed over or under such railroad or at grade.
  3.  If the commissioner [of transportation shall determine] DETERMINES
that such street, avenue, highway or road or such new portion  or  addi-
tional lane of a street, avenue, highway or road shall be carried across
such  railroad  above  the  grade thereof, he OR SHE 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.
  4. If the commissioner [of transportation shall determine]  DETERMINES
that  such  street, avenue, highway or road or such new portion or addi-
tional lane of a street, avenue, highway or road shall be constructed or
extended below the grade of such railroad, he OR SHE shall determine the
manner and method in which the same shall be so carried under,  and  the
length, character and grades of the approaches.
  5.  If the commissioner [of transportation shall determine] DETERMINES
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  OR  SHE shall determine the manner and method in which the
same shall be carried across such railroad at grade and what  safeguards
shall be maintained.
  6.  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 trans-
portation  rendered in any proceeding under this section shall be commu-
nicated, after final hearing, to the railroad corporation, the municipal
corporation and all other parties who appeared at such hearing by  coun-
sel  or  in person] AND SHALL BE SENT, AFTER A HEARING, IF ONE WAS HELD,
OR THE EXPIRATION OF THE COMMENT PERIOD, TO ALL PARTIES WHO HAVE PARTIC-
IPATED IN THE PROCEEDING OR REQUESTED TO BE ADVISED OF THE  DECISION  OF
THE COMMISSIONER.
  7.  ANY  PERSON AGGRIEVED BY SUCH DECISION AND WHO WAS A PARTY TO SAID
PROCEEDING MAY, WITHIN SIXTY DAYS, APPEAL  THEREFROM  TO  THE  APPELLATE
DIVISION  OF  THE SUPREME COURT IN THE DEPARTMENT IN WHICH SUCH CROSSING
IS SITUATED, AND TO THE COURT OR APPEALS, IN THE SAME  MANNER  AND  WITH
LIKE  EFFECT  AS IS PROVIDED IN THE CASE OF APPEALS FROM AN ORDER OF THE
SUPREME COURT.
  8. 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  transporta-
tion]  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.
  S 3. Section 91 of the railroad law, as amended by chapter 539 of  the
laws of 1978, is amended to read as follows:
  S 91. Alteration or rehabilitation of existing crossing.  1. The mayor
or  city  manager and common council of any city, the president or mayor
and trustees of any village, the town board of any town,  the  board  of
supervisors or county executive and the county legislature of any county
having  jurisdiction  over street, avenue, highway or road which crosses

S. 5765                             5

or is crossed by a surface railroad at grade, below grade or above grade
by structures heretofore constructed, or  any  surface  railroad  corpo-
ration whose railroad crosses or is crossed by a street, avenue, highway
or  road  at  grade,  below  or above grade, may bring their petition in
writing to the commissioner [of transportation], therein  alleging  that
public  interest requires rehabilitation, an alteration in the manner of
such crossing, its approaches, the method of crossing, the  location  of
the  crossing, a change in the existing structure by which such crossing
is made, the closing and discontinuance of a crossing and the  diversion
of  the travel thereon to another street, avenue, highway road or cross-
ing, or if not practicable to change such  crossing  from  grade,  below
grade or above grade or to close or discontinue the same, the opening of
an  additional  crossing  for  the  partial diversion of travel from the
grade, below grade or above grade crossing and praying that the same may
be ordered.
  2. Upon any such petition being brought, the commissioner  [of  trans-
portation  shall  appoint a time and place for hearing the petition, and
shall give such notice thereof as he shall judge reasonable, of not less
than ten days, however, to such petitioner,  the  railroad  corporation,
the  municipality in which such crossing is situated, and if such cross-
ing is in whole or in part in an  incorporated  village  having  not  to
exceed twelve hundred inhabitants, also to the supervisor or supervisors
of  the  town  or  towns  in which such crossing is situated, and in all
cases to the owners of the lands adjoining such crossing  and  adjoining
that  part of the street, avenue, highway or road to be changed in grade
or location or to be discontinued, or the land to be opened  for  a  new
crossing and to such other parties deemed by him to be interested in the
proceeding.  The commissioner of transportation shall give public notice
of  said  hearing;  and upon such notice and after a hearing or hearings
the commissioner of transportation shall determine what  alterations  or
changes, if any, shall be made] MAY CONDUCT A HEARING AND PROVIDE NOTICE
OF SUCH A HEARING OF NOT LESS THAN TEN DAYS TO PARTIES DEEMED TO HAVE AN
INTEREST IN THE PETITION. PROVIDED, HOWEVER, THAT THE COMMISSIONER SHALL
CONDUCT  A HEARING UPON THE REQUEST OF THE PARTY MAKING THE APPLICATION,
THE RAILROAD CORPORATION WHOSE RAILROAD IS TO BE AFFECTED BY THE  ALTER-
ATIONS OR THE CITY, TOWN OR VILLAGE IN WHICH THE CROSSING IS LOCATED. IF
SUCH  A  REQUEST  IS  NOT MADE AND IF THE COMMISSIONER DETERMINES THAT A
HEARING IS NOT REQUIRED, HE OR SHE SHALL SOLICIT COMMENTS  FROM  PARTIES
DEEMED TO HAVE AN INTEREST IN THE PETITION WHO SHALL BE PROVIDED WITH NO
LESS THAN TEN DAYS TO COMMENT ON THE PETITION. PARTIES DEEMED TO HAVE AN
INTEREST  IN  THE  PETITION SHALL INCLUDE THE PARTY FILING THE PETITION,
THE RAILROAD CORPORATION WHOSE RAILROAD IS AFFECTED BY THE  ALTERATIONS,
PERSONS  OWNING  OR  OCCUPYING  PROPERTY IN THE VICINITY OF THE PROPOSED
ALTERATIONS AND SUCH OTHER PARTIES DEEMED  BY  THE  COMMISSIONER  TO  BE
AFFECTED BY THE PETITION. AFTER A HEARING, IF ONE WAS HELD, OR THE EXPI-
RATION OF THE COMMENT PERIOD, THE COMMISSIONER SHALL THEN DETERMINE WHAT
ALTERATIONS OR CHANGES, IF ANY, SHALL BE MADE.
  3.  The  decision  of the commissioner [of transportation] rendered in
any proceeding under this section shall be  [communicated,  after  final
hearing,  to  the  petitioner,  the  railroad corporation, the municipal
corporation and all other parties who appeared at said hearing by  coun-
sel or in person] FINAL, SUBJECT HOWEVER TO THE RIGHT OF APPEAL AS HERE-
INAFTER  GIVEN,  AND SHALL BE SENT, AFTER A HEARING, IF ONE WAS HELD, OR
THE EXPIRATION OF THE COMMENT PERIOD, TO ALL PARTIES  WHO  HAVE  PARTIC-
IPATED  IN  THE PROCEEDING OR REQUESTED TO BE ADVISED OF THE DECISION OF
THE COMMISSIONER.

S. 5765                             6

  4. Any person aggrieved by such  decision,  [or  by  a  decision  made
pursuant  to  sections  eighty-nine  and ninety,] and who was a party to
said proceeding, may, within sixty days, appeal therefrom to the  appel-
late  division  of  the  supreme  court  in the department in which such
crossing  is  situated,  and to the court of appeals, in the same manner
and with like effect as is provided in the case of appeals from an order
of the supreme court.
  5. This section shall not apply to a state highway or any other  high-
way upon which the commissioner [of transportation] proposes to alter an
existing  crossing  of a railroad pursuant to any section of the highway
law.
  S 4. Subdivisions 2 and 3 of section 97 of the railroad law, as  added
by chapter 515 of the laws of 1994, are amended to read as follows:
  2.  No new private rail crossings shall be established in an intercity
rail passenger service corridor until an application has  been  made  to
and  approved  by the commissioner. Whenever an application is made, the
commissioner [shall] MAY conduct a hearing AND PROVIDE NOTICE OF SUCH  A
HEARING  OF NOT LESS THAN TEN DAYS TO PARTIES DEEMED TO HAVE AN INTEREST
IN THE APPLICATION to determine if a private rail crossing is  justified
or  if an existing public or private crossing could be used to avoid the
creation of a new PRIVATE RAIL crossing.   PROVIDED, HOWEVER,  THAT  THE
COMMISSIONER  SHALL  CONDUCT  A  HEARING  UPON  THE REQUEST OF THE PARTY
MAKING THE APPLICATION,  THE  RAILROAD  CORPORATION  WHOSE  RAILROAD  IS
AFFECTED  BY  THE  CROSSING  OR  THE  CITY, TOWN OR VILLAGE IN WHICH THE
CROSSING IS LOCATED. IF SUCH A REQUEST IS NOT MADE AND  IF  THE  COMMIS-
SIONER DETERMINES THAT A HEARING IS NOT REQUIRED, HE OR SHE SHALL SOLIC-
IT  COMMENTS  FROM PARTIES DEEMED TO HAVE AN INTEREST IN THE APPLICATION
WHO SHALL BE PROVIDED WITH NO LESS THAN  TEN  DAYS  TO  COMMENT  ON  THE
APPLICATION  TO  DETERMINE IF A PRIVATE RAIL CROSSING IS JUSTIFIED OR IF
AN EXISTING PUBLIC OR PRIVATE  CROSSING  COULD  BE  USED  TO  AVOID  THE
CREATION  OF  A  NEW  PRIVATE  RAIL  CROSSING. PARTIES DEEMED TO HAVE AN
INTEREST IN THE APPLICATION SHALL INCLUDE THE PARTY MAKING THE  APPLICA-
TION,  THE RAILROAD CORPORATION WHOSE RAILROAD IS AFFECTED BY THE CROSS-
ING, THE CITY, TOWN OR VILLAGE IN WHICH THE CROSSING IS LOCATED, PERSONS
OWNING OR OCCUPYING PROPERTY IN THE VICINITY OF  THE  PROPOSED  CROSSING
AND  SUCH OTHER PARTIES DEEMED BY THE COMMISSIONER TO BE AFFECTED BY THE
APPLICATION. If the commissioner determines that a crossing is justified
and is in the best interest of the people of the state of New York,  the
commissioner  shall  determine the manner of the crossing, whether it is
to  be  at-grade  or  grade-separated,  the  location,  the  manner   of
protection  and  the apportionment of responsibility for the maintenance
of any such crossing, including any warning devices.
  3. A. In order to insure public safety, the commissioner may, if he or
she determines it appropriate, FILE A PETITION TO require alterations in
an existing private rail crossing, including a farm crossing,  which  is
located  in  an  intercity rail passenger service corridor and is hereby
authorized to participate in the cost of such alterations. In the  event
that  an  agreement  on  such  alterations cannot be reached between the
railroad owning the crossing, property owners who are directly  impacted
by the crossing and the department, the commissioner [shall] MAY conduct
a hearing AND PROVIDE NOTICE OF SUCH A HEARING OF NOT LESS THAN TEN DAYS
TO  PARTIES  DEEMED  TO HAVE AN INTEREST IN THE PETITION on the need for
such alterations and  whether  any  other  alternatives  are  available,
including  the  use of an alternate route or the closure of the crossing
and shall, where applicable, determine the apportionment of responsibil-
ity for the alteration and maintenance of any such  crossing,  including

S. 5765                             7

any  warning  devices.    PROVIDED, HOWEVER, THAT THE COMMISSIONER SHALL
CONDUCT A HEARING UPON THE REQUEST OF THE PARTY MAKING THE  APPLICATION,
THE  RAILROAD  CORPORATION WHOSE RAILROAD IS AFFECTED BY THE CROSSING OR
THE  CITY,  TOWN  OR VILLAGE IN WHICH THE CROSSING IS LOCATED. IF SUCH A
REQUEST IS NOT MADE AND IF THE COMMISSIONER DETERMINES THAT A HEARING IS
NOT REQUIRED, HE OR SHE SHALL SOLICIT COMMENTS FROM  PARTIES  DEEMED  TO
HAVE  AN INTEREST IN THE PETITION AND PROVIDE THEM WITH NO LESS THAN TEN
DAYS TO COMMENT ON THE NEED FOR SUCH ALTERATIONS AND WHETHER  ANY  OTHER
ALTERNATIVES  ARE  AVAILABLE, INCLUDING THE USE OF AN ALTERNATE ROUTE OR
THE CLOSURE OF THE CROSSING AND SHALL, WHERE APPLICABLE,  DETERMINE  THE
APPORTIONMENT  OF  RESPONSIBILITY  FOR THE ALTERATION AND MAINTENANCE OF
ANY SUCH CROSSING, INCLUDING ANY WARNING DEVICES. PARTIES DEEMED TO HAVE
AN INTEREST IN THE PETITION SHALL INCLUDE THE RAILROAD CORPORATION WHOSE
RAILROAD IS AFFECTED BY THE ALTERATIONS, THE CITY, TOWN  OR  VILLAGE  IN
WHICH  THE  CROSSING IS LOCATED, PERSONS OWNING OR OCCUPYING LAND IN THE
VICINITY OF THE CROSSING AND SUCH OTHER PARTIES DEEMED  BY  THE  COMMIS-
SIONER TO BE AFFECTED BY THE ALTERATIONS.
  B.  Public  comment  shall  be  sought  on  any proposed alteration or
closure which will impact public access to lands open to the public  for
recreational  use. Comments received from the public shall be considered
in any decision to alter or close such a  crossing.  No  crossing  which
provides  direct  access  to  public  state  recreational lands shall be
closed unless the commissioner, in consultation with  the  state  agency
with  jurisdiction  over  such  lands,  finds that there is a reasonable
alternate route to such lands that maintains public access  to  and  the
public recreational value of such lands.
  S 5. Subdivision 2 and paragraph a of subdivision 3 of section 97-a of
the  railroad  law,  as  added  by  chapter 230 of the laws of 2002, are
amended to read as follows:
  2. No new private rail crossings shall be established  in  a  commuter
rail service corridor until an application has been made to and approved
by  the  commissioner. Whenever an application is made, the commissioner
[shall] MAY conduct a hearing AND PROVIDE NOTICE OF SUCH  A  HEARING  OF
NOT  LESS  THAN  TEN  DAYS  TO PARTIES DEEMED TO HAVE AN INTEREST IN THE
APPLICATION to determine if a private rail crossing is justified  or  if
an  existing  public  or  private  crossing  could  be used to avoid the
creation of a new private rail crossing.  PROVIDED,  HOWEVER,  THAT  THE
COMMISSIONER  SHALL  CONDUCT  A  HEARING  UPON  THE REQUEST OF THE PARTY
MAKING THE APPLICATION,  THE  RAILROAD  CORPORATION  WHOSE  RAILROAD  IS
AFFECTED  BY  THE  CROSSING  OR  THE  CITY, TOWN OR VILLAGE IN WHICH THE
CROSSING IS LOCATED. IF SUCH A REQUEST IS NOT MADE AND  IF  THE  COMMIS-
SIONER DETERMINES THAT A HEARING IS NOT REQUIRED, HE OR SHE SHALL SOLIC-
IT  COMMENTS  FROM PARTIES DEEMED TO HAVE AN INTEREST IN THE APPLICATION
WHO SHALL BE PROVIDED WITH NOT LESS THAN TEN  DAYS  TO  COMMENT  ON  THE
APPLICATION. PARTIES DEEMED TO HAVE AN INTEREST IN THE APPLICATION SHALL
INCLUDE  THE  RAILROAD  CORPORATION  WHOSE  RAILROAD  IS AFFECTED BY THE
CROSSING, THE CITY, TOWN OR  VILLAGE  IN  WHICH  THE  CROSSING  WILL  BE
LOCATED,  PERSONS  OWNING  LAND  ADJACENT TO THE CROSSING AND SUCH OTHER
PARTIES DEEMED BY THE COMMISSIONER TO BE AFFECTED BY  THE  CROSSING.  If
the  commissioner  determines that a new private rail crossing is justi-
fied and is in the best interest of the people of the state of New York,
the commissioner shall determine the manner of the crossing, whether  it
is  to  be  at-grade  or  grade-separated,  the  location, the manner of
protection and the apportionment of responsibilities and costs  for  the
construction, inspection and maintenance of any such private rail cross-
ing, including any warning devices.

S. 5765                             8

  a.  In  order  to insure public safety, the commissioner may, if he or
she determines it appropriate, FILE A PETITION TO require alterations in
an existing private rail crossing, including a farm crossing,  which  is
located  in  a  commuter rail service. In the event that an agreement on
such  alterations  cannot  be  reached  between  the railroad owning the
crossing, property owners who are  directly  impacted  by  the  existing
private  rail  crossing and the department, the commissioner [shall] MAY
conduct a hearing AND PROVIDE NOTICE OF SUCH A HEARING OF NOT LESS  THAN
TEN  DAYS  TO  PARTIES DEEMED TO HAVE AN INTEREST IN THE PETITION on the
need for such alterations and whether any other alternatives are  avail-
able,  including  the  use  of  an alternate route or the closure of the
private rail crossing and shall, where applicable, determine the  appor-
tionment of responsibilities and costs for the alteration, construction,
inspection  and maintenance of any such private rail crossing, including
any warning devices. PROVIDED,  HOWEVER,  THAT  THE  COMMISSIONER  SHALL
CONDUCT  A  HEARING  UPON  THE REQUEST OF THE RAILROAD CORPORATION WHOSE
RAILROAD IS AFFECTED BY THE CROSSING OR THE CITY,  TOWN  OR  VILLAGE  IN
WHICH  THE CROSSING IS LOCATED. IF SUCH A REQUEST IS NOT MADE AND IF THE
COMMISSIONER DETERMINES THAT A HEARING IS NOT REQUIRED, HE OR SHE  SHALL
SOLICIT COMMENTS FROM PARTIES DEEMED TO HAVE AN INTEREST IN THE PETITION
WHO  SHALL  BE  PROVIDED  WITH  NOT LESS THAN TEN DAYS TO COMMENT ON THE
PROPOSED ALTERATIONS. PARTIES DEEMED TO HAVE AN INTEREST IN THE PETITION
SHALL INCLUDE THE RAILROAD CORPORATION WHOSE RAILROAD IS AFFECTED BY THE
CROSSING, THE CITY, TOWN OR VILLAGE IN WHICH THE  CROSSING  IS  LOCATED,
PERSONS OWNING LAND IN THE VICINITY OF THE CROSSING AND SUCH OTHER PARI-
TIES  DEEMED  BY  THE COMMISSIONER TO BE AFFECTED BY THE PROPOSED ALTER-
ATIONS.
  S 6. Section 51 of the railroad law is REPEALED.
  S 7. Section 57 of the railroad law is REPEALED.
  S 8. Section 57-a of the railroad law is REPEALED.
  S 9. Section 58 of the railroad law is REPEALED.
  S 10. Section 59 of the railroad law is REPEALED.
  S 11. Section 60 of the railroad law is REPEALED.
  S 12. Section 71 of the railroad law is REPEALED.
  S 13. Section 72 of the railroad law is REPEALED.
  S 14. Section 73 of the railroad law is REPEALED.
  S 15. Section 74 of the railroad law is REPEALED.
  S 16. Section 76 of the railroad law is REPEALED.
  S 17. Section 77 of the railroad law is REPEALED.
  S 18. Section 80 of the railroad law is REPEALED.
  S 19. Section 82 of the railroad law is REPEALED.
  S 20. Section 81 of the railroad law, as amended by   chapter  787  of
the laws of 1986, is amended to read as follows:
  S  81.  Violation of sections [seventy-seven,] seventy-seven-c, seven-
ty-eight[,] AND seventy-nine[, and eighty]. Any railroad or other compa-
ny hauling or permitting to be hauled on its line or lines any train  in
violation  of  any of the provisions of sections [seventy-seven,] seven-
ty-seven-c, seventy-eight[,] AND seventy-nine[,  and  eighty]  shall  be
liable  to  a  fine of one hundred dollars for each and every violation.
Such fine shall be imposed by the commissioner [of  transportation]  and
deposited  in  the  general fund of the state of New York. Imposition of
any such fine shall be subject to judicial review under  the  provisions
of article seventy-eight of the civil practice law and rules.
  S 21. This act shall take effect immediately.

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