90. New streets across railroads. 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 president or vice-president of the railroad corporation or any general officer 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. If the municipal corporation determines such street, avenue, highway 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 shall determine whether such street, avenue, highway or road or such new portion or additional lane of a street, avenue, highway or road shall be constructed over or under such railroad or at grade. If the commissioner of transportation shall determine that 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 above the grade thereof, he 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. If the commissioner of transportation shall determine that such street, avenue, highway or road or such new portion or additional lane of a street, avenue, highway or road shall be constructed or extended below the grade of such railroad, he shall determine the manner and method in which the same shall be so carried under, and the length, character and grades of the approaches. If the commissioner of transportation shall determine 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 shall determine the manner and method in which the same shall be carried across such railroad at grade and what safeguards shall be maintained. 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 transportation rendered in any proceeding under this section shall be communicated, after final hearing, to the railroad corporation, the municipal corporation and all other parties who appeared at such hearing by counsel or in person. 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 transportation 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.
Last modified: February 3, 2019