Senate Bill No. 531
(By Senators Wiedebusch and Dittmar)
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[Introduced March 22, 1993; referred to the Committee
on Transportation; and then to the Committee
on Finance.]
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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; location and design of crossings; notice;
hearing; judicial review; railroad grade crossing expense
allocation; closing of grade crossings; private grade
crossing; and transitional provision.
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, by adding thereto
a new article, designated article four-a, to read as follows:
ARTICLE 4A. RAILROAD CROSSING CONTROL ACT PLANNING,
CONSTRUCTION, MAINTENANCE AND CLOSURE OF RAILROAD CROSSINGS.
§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. Any other
rule or statute in conflict with this article shall no longer be
of any force and effect.
§17-4A-2. Location and design of crossings.
A public road, street or highway may not be laid out,
constructed, reconstructed, widened or extended across any land
or right-of-way of any railroad and a property right, title or
interest shall be acquired by condemnation, purchase or
otherwise, for that purpose, nor may any railroad track be laid
out, construction or extended across any public road, street, or
highway, nor may any necessary protective or crossing warning
signals be installed, modified or altered, unless the public
service commission, after notice and hearing, so authorizes
pursuant to the provisions of this article. The division of
highways, department of transportation has jurisdiction to open
or close any public road crossing on, under or over railroad
tracks, whether the road is maintained by a municipality, county
or state.
§17-4A-3. Notice.
(a) Whenever the state or any political subdivision of the
state (hereinafter "proponent") 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, oralong, 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 ("proponent") proposes to
lay out, construct or extend its track across a public road,
street or highway, the proponent shall serve notice of its
proposal or plan on the state or political subdivision with
jurisdiction over the affected road, street or highway or the
affected railroad as the case may be ("affected party") and 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; and
(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 shall be 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 pursuant to Rule 4 of 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 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,
at which the proponent shall show cause why the proposal should
be authorized.
§17-4A-4. Hearing.
(a) At the hearing, which shall be recorded, 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 keep a record of the
hearing.
(d) After the parties have presented their evidence and
argument, the public service commission shall make separate
findings of fact and law, and shall either disapprove the
proposal, approve the proposal, or approve the proposal subject
to conditions or limitations as authorized below. 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, the public service commission's denial of such
a request, or the filing of a reconsidered decision by the public
service commission, the public service commission's decision
shall be final.
§17-4A-5. Judicial review.
Any person 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 person
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
person seeking review. Failure to file a petition within the
time stated operates as a waiver of the right of that person to
review under this article.
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 person seeking the review shallserve copies of the petition by registered 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
aggrieved 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 discretion upon such terms as it
deems proper. The review under this article shall be conducted
by the court without a jury and the court shall hear the matter
de novo pursuant to the rules of evidence as applied in the
general court of justice. The court, after hearing the matter
may affirm, reverse or modify the decision if the decision is:
(1) In violation of constitutional provisions;
(2) Not made in accordance with this article; and
(3) Affected by other error or law.
The party aggrieved 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 courtof Kanawha County for a stay for 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 under whose
jurisdiction 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 or 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 warningsignals. 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 highway
crossing 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
where practicable.
(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) In each of the instances there must be other means of
access across, under or over the railroad tracks one mile from
the proposed crossing closure.
(e) Subsection (d) does not apply to grade crossings wherethe railroad operates two or less trains per day, has slow train
speeds of twenty-five miles per hour, or less, or an 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 historic
use.
(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 provision.
(a) All existing public grade crossings and its traffic
control devices, shall continue to be maintained in accordance
with prior law.
(b) Upon reconstruction, modification, enlargement or any
change of an existing public grade crossing or its traffic
control devices, this article shall apply in all respects to the
existing public crossing, regardless of which party seeks thereconstruction, modification, enlargement or change to the public
grade crossing.
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.