SB531 SUB1/LLN
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 531
(By Senators Wiedebusch and Dittmar)
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[Originating in the Committee on Transportation;
reported March 29, 1993.}
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A BILL to amend chapter seventeen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article four-a, relating
to the planning, construction, maintenance and closure of
railroad crossings; creating the railroad crossing control
act; policy; proposal to lay out, construct, reconstruct,
widen, extend public road, street or highway across railroad
crossing; proposal to lay out, construct or extend track
across public road, street or highway; public service
commission authority to conduct hearing on same; location
and design of crossings; notice; decision by public service
commission; judicial review; railroad grade crossing expense
allocation; closing of grade crossings; private grade
crossing; transitional provisions; and promulgation of
rules.
Be it enacted by the Legislature of West Virginia:
That chapter seventeen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article four-a, to read
as follows:
ARTICLE 4A. RAILROAD CROSSING CONTROL ACT.
§17-4A-1. Policy.
It is the policy of the state to ensure the safety of the
public and promote interstate transportation by railroads through
the regulation and improvement of railroad crossings.
§17-4A-2. Location and design of crossings.
(a) Notwithstanding the provisions of article four of this
chapter, the following may occur only with authorization by the
public service commission pursuant to the provisions of this
article:
(1) The laying out, construction, reconstruction, widening
or extension of a public road, street or highway across any land
or right-of-way of any railroad company;
(2) The acquisition by condemnation, purchase or otherwise
of a property right, title or interest for purposes stated in
subdivision (1) of this subsection;
(3) The laying out, construction or extension of a railroad
track across a public road, street or highway; and
(4) The installation, modification or alteration of a
protective or crossing warning signal.
(b) Notwithstanding the provisions of subsection (a) of this
section, the division of highways of the department of
transportation has jurisdiction to open or close any public road
crossing on, under or over railroad tracks, whether the road ismaintained by a municipality, county or state.
§17-4A-3. Notice.
(a) Whenever the state or any political subdivision of the
state proposes to lay out, construct, reconstruct, widen or
extend, or cause to be laid out, constructed, reconstructed,
widened or extended, any public road, street or highway across,
over or under any railroad track, or along, through or across any
land or right-of-way of any railroad or to install, modify or
alter any necessary protective or crossing warning signals, or a
railroad company, hereinafter "railroad", proposes to lay out,
construct or extend its track across a public road, street or
highway, the entity proposing same (the proponent) shall serve
notice of its proposal or plan on the affected party (the state
or political subdivision with jurisdiction over the affected
road, street or highway or the affected railroad) and file same
with the public service commission.
(b) The notice required to be served and filed shall
include:
(1) The identity of the proponent;
(2) The location of the proposed crossing;
(3) A description of the proposed road, street or highway,
including the division of highways and local classification,
expected traffic count, physical dimensions, expected usage by
type, and all available design information;
(4) An engineering drawing of the proposed crossing type and
design;
(5) Reference to specific design standards as established in
Railroad-Highway Grade Crossing Handbook Second Edition FHWA-TS-86-215 (Sept. 1986) and subsequent editions as may be published
from time to time; and
(6) Reference to specific traffic control devices at the
grade crossing in accordance with the current edition of Manual
of Uniform Traffic Control Devices (MUTCD).
(c) All notices required to be served pursuant to this
article shall be served in accordance with the West Virginia
Rules of Civil Procedure.
(d) Within ninety days after receipt of the notice, the
affected party shall serve a response on the proponent and file
same with the public service commission. The response may be in
the form of a consent to the proposal or a request for a hearing
before the public service commission, either to oppose the
proposal or to require the imposition of certain conditions or
limitations on the proposal.
(e) In the event the affected party consents to the
proposal, the parties shall submit a proposed order together with
copies of all plans and specifications for the public service
commission's review and approval. The public service
commission's approval of the order, plans and specifications
shall be the final decision of the public service commission.
(f) In the event the affected party does not consent to the
proposal, the public service commission shall issue notice to all
parties, requiring them to appear before the public service
commission upon a day named, not less than sixty nor more than
ninety days after the affected party's response is due or is
served, for a public hearing to be held in the county in which
the affected road, street highway or railroad track is located,which notice shall require the proponent to show cause why the
proposal should be authorized.
§17-4A-4. Hearing.
(a) At the hearing, the parties may present evidence and
make arguments they believe relevant to the proposal.
(b) The proponent has the burden of proof by a preponderance
of the evidence to show cause why the public service commission
should authorize the proposal.
(c) The public service commission shall make and retain a
record of the hearing.
(d) After the parties have presented their evidence and
argument, the public service commission shall make findings of
fact and conclusions of law, and shall either disapprove the
proposal, approve the proposal, or approve the proposal subject
to conditions or limitations. The public service commission
shall approve the proposal only if it finds:
(1) The proposal is necessary to serve the needs of the
public or the railroad;
(2) The proposal does not pose an unreasonable safety risk
to the public or the railroad;
(3) The proposal does not unduly burden or interfere with
interstate commerce;
(4) There are no reasonable alternatives to the proposal in
terms of location, design or other significant factors; and
(5) The proponent has acted in good faith.
(e) The public service commission may impose any reasonable
conditions and limitations on the proposal as it finds necessary
to assure the factors set forth in subsection (d) above will besatisfied.
(f) The public service commission shall serve a written
decision of its finding on all parties. Within ten days of
service of the decision any party may request reconsideration.
Upon passage of the ten days without a request for
reconsideration, without the public service commission's denial
of such a request or without the filing of a reconsidered
decision by the public service commission, the public service
commission's decision shall become final.
§17-4A-5. Judicial review.
Any party who is aggrieved by the decision of the public
service commission after exhausting all administrative remedies
made available to him or her by rules promulgated pursuant to
this article is entitled to judicial review of the decision under
this article. In order to obtain judicial review of the public
service commission's decision under this article, the party
seeking review must file a petition in the circuit court of
Kanawha County within thirty days after written copy of the
decision of the public service commission is served upon the
party seeking review. Failure to file a petition within the time
stated operates as a waiver of the right by that party to review
of the decision.
The petition shall state explicitly what exceptions are
taken to the decision of the public service commission and what
relief the petitioner seeks. Within ten days after the petition
is filed with the court, the party seeking the review shall serve
copies of the petition by certified mail, return receipt
requested, upon the public service commission and all parties. Within thirty days after receipt of the copy of the petition for
review, or within such additional time as the court may allow,
the public service commission shall transmit to the reviewing
court a certified copy of the written decision and a transcript
of the hearing.
At any time before or during the review proceeding, the
petitioning party may apply to the reviewing court for an order
staying the operation of the decision of the public service
commission pending the outcome of the review. The court may
grant or deny the stay in its sole discretion. The review under
this article shall be conducted by the court without a jury and
the court shall hear the matter pursuant to the rules of evidence
as applied in the circuit court. The court, after hearing the
matter shall affirm the decision or may reverse or modify the
decision if the decision is:
(1) In violation of constitutional provisions;
(2) In violation of the provisions this article; or
(3) Affected by other error of law.
The party petitioning the court has the burden of showing
that the decision was violative of one of the above.
A party to the review proceedings may appeal to the supreme
court of appeals from the final judgment of the circuit court of
Kanawha County under the rules of procedure applicable in other
civil cases. The appealing party may apply to the circuit court
of Kanawha County for a stay of its final determination or a stay
of the administrative decision, whichever shall be appropriate,
pending the outcome of the appeal to the supreme court of
appeals.
§17-4A-6. Railroad grade crossing expense allocation.
(a) The state or political subdivision to which the road,
street or highway belongs shall pay all the costs of
construction, reconstruction, widening or extension of the
crossing, the approaches to the crossing and the necessary
protective or crossing warning signals.
(b) If a railroad is constructing or reconstructing railroad
tracks so that the tracks cross, intersect or go over a road,
street or highway, the railroad shall pay the cost of
construction or reconstruction.
(c) The state or political subdivision with jurisdiction
over the road, street or highway shall pay all costs of
maintenance of the crossing and the necessary protective or
crossing warning signals after construction, reconstruction,
widening or extension, whether such maintenance is performed by
the state, political subdivision or railroad, except in the
instance where the railroad goes over a road, street or highway
in which case the railroad shall maintain at its expense the
structure of its bridge and track.
(d) The railroad shall maintain, at the expense of the party
responsible, the grade crossing surface from two feet outside
each rail and the necessary protective or crossing warning
signals. Reimbursement for these costs is to be made annually,
or otherwise by agreement, by the responsible party to the
railroad.
§17-4A-7. Closing of grade crossings.
(a) Any interested party may petition the public service
commission for closure of a public street, road or highwaycrossing a railroad track at grade under the procedure in
sections two through six of this article, inclusive.
(b) The following standards are applicable to any petition
for closure:
(1) Necessity, convenience and safety effects upon the
general public and railroad operations; and
(2) The availability and utilization of alternate routes.
(c) The burden of persuasion is upon the party bringing the
petition for closure.
(d) There shall be a presumption in favor of closure where:
(1) Six hundred or less vehicles per day use the grade
crossing in a state primary system;
(2) One thousand two hundred or less vehicles per day use
the grade crossing within the state urban system or municipal
public streets, roads or highways; and
(3) There exists other means of access across, under or over
the railroad tracks within one mile from the proposed crossing
closure.
(e) Subsection (d) does not apply to grade crossings where
the railroad operates two or less trains per day, has train
speeds of twenty-five miles per hour, or less, or has industrial
or spur tracks.
§17-4A-8. Private grade crossing.
(a) This article does not apply to grade crossings that are
private, which shall remain subject to agreement between the
railroad and owner of the crossing or vested rights by deed or
charter except that the railroad may seek relief where the use of
the private grade crossing has been enlarged over its historicuse.
(b) Notwithstanding any other provision of law, the railroad
shall install crossbucks at each approach to the private grade
crossing.
(c) The railroads may not blow the whistle or ring the bell
at a private crossing unless the owner thereof requests the
railroad in writing to sound the whistle or bell, in which case
the owner shall pay the costs of installing whistle or bell
posts.
§17-4A-9. Transitional provisions.
(a) All existing public grade crossings and traffic control
devices, shall continue to be maintained in accordance with prior
law and existing agreements.
(b) Upon reconstruction, modification, enlargement or any
change of existing public grade crossings or its traffic control
devices, this article shall apply in all respects, regardless of
which party seeks the reconstruction, modification, enlargement
or change to the public grade crossing.
§17-4A-10. Promulgation of rules.
The public service commission shall promulgate rules to
effect the provisions of this article.
NOTE: The purpose of this bill is to provide a procedure to
govern the planning, construction, maintenance and closure of
railroad crossings in this state.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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