Section 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.