§ 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.