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SECTION 222
Applicability; general provisions of grade crossing elimination
Transportation (TRA) CHAPTER 61-A, ARTICLE 10
§ 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.