Chapter 6. Railroad Crossings of California Public Utilities Code >> Division 1. >> Part 1. >> Chapter 6.

No public road, highway, or street shall be constructed across the track of any railroad corporation at grade, nor shall the track of any railroad corporation be constructed across a public road, highway, or street at grade, or shall the track of any railroad corporation be constructed across the track of any other railroad or street railroad corporation at grade, nor shall the track of a street railroad corporation be constructed across the track of a railroad corporation at grade, without having first secured the permission of the commission. This section shall not apply to the replacement of lawfully existing tracks. The commission may refuse its permission or grant it upon such terms and conditions as it prescribes.

The commission, in consultation with the Department of Transportation, shall adopt rules and regulations prescribing uniform standards regarding the time after the warning signal begins at a railroad crossing at which traffic enforcement shall begin, after public hearings and consultation with transit districts or transportation commissions and multicounty rail transit entities established under Division 12 (commencing with Section 130000), that provide rail transportation.

The commission has the exclusive power:
  (a) To determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public or publicly used road or highway by a railroad or street railroad, and of a street by a railroad or of a railroad by a street.
  (b) To alter, relocate, or abolish by physical closing any crossing set forth in subdivision (a).
  (c) To require, where in its judgment it would be practicable, a separation of grades at any crossing established and to prescribe the terms upon which the separation shall be made and the proportions in which the expense of the construction, alteration, relocation, or abolition of crossings or the separation of grades shall be divided between the railroad or street railroad corporations affected or between these corporations and the state, county, city, or other political subdivision affected.
  (d) (1) To authorize on an application-by-application basis and supervise the operation of pilot projects to evaluate proposed crossing warning devices, new technology, or other additional safety measures at designated crossings, with the consent of the local jurisdiction, the affected railroad, and other interested parties, including, but not limited to, represented railroad employees.
  (2) The Legislature finds and declares that for the communities of the state that are traversed by railroads, there is a growing need to mitigate train horn noise without compromising the safety of the public. Therefore, it is the intent of the Legislature that the commission may authorize the following pilot projects, after an application is filed and approved by the commission:
  (A) To test the utility and safety of stationary, automated audible warning devices as an alternative to trains having to sound their horns as they approach highway-rail crossings in the communities of Roseville, Fremont, Newark, and Lathrop, and in any other location determined to be suitable by the commission.
  (B) To authorize supplementary safety measures, as defined in Section 20153 (a)(3) of Title 49 of the United States Code, for use on rail crossings. No new pilot project may be authorized after January 1, 2003. The commission shall report to the Legislature by March 31, 2004, on the outcome of this pilot project.
  (3) In light of the pending proposed ruling by the Federal Railroad Administration on the use of locomotive horns at all highway-rail crossings across the nation, it would be in the best interest of the state for the commission to expedite the pilot projects authorized under paragraph (2) in order to contribute data to the federal rulemaking process regarding the possible inclusion of stationary, automated warning devices as a safety measure option to the proposed federal rule.

In any proceeding under Section 1202, where the application to the commission states that the parties are not in agreement as to apportionment of costs, but the applicant is willing to advance the amount of money reasonably necessary to enable the respondent to complete the work to be done by it, the commission shall set the application for hearing as soon as its calendar permits on all of the following questions:
  (a) The necessity for the project.
  (b) The approval of the location and the engineering plans, including provisions for handling traffic during construction and the work to be performed by each party.
  (c) The sum to be advanced by the applicant for the work to be done by the respondent. The commission shall render as promptly as possible an interim decision effective within 20 days on the questions, reserving for a later hearing and decision the question of apportionment of costs. The decision shall also order the respondent to proceed upon receipt of the sum to be advanced by the applicant without delay to perform the work to be done by the respondent, integrating the work with that of the applicant or its contractor in such manner that neither will unreasonably obstruct or delay the work of the other, to the end that the people of the state may have the use of the project at the earliest possible date. In the event of the failure or refusal of the respondent to grant a right of entry to permit the applicant to proceed with the work to be performed by it or its contractor, the applicant may, pursuant to Section 19 of Article I of the Constitution, obtain an order of immediate possession in a court of competent jurisdiction if a condemnation action has previously been filed in that court, or file the action and obtain an order of immediate possession in the event the action has not previously been filed. Upon obtaining the order, the applicant may proceed in the same manner as if a right of entry had been granted, and the respondent shall proceed with its own work and integrate it with that of the applicant or its contractor. In the final decision apportioning costs, the commission shall credit the sum advanced by the applicant against the applicant's share of the costs. In the final decision, the commission shall also credit against the applicant's share of the costs any increases in those costs found by the commission to be directly attributable to the respondent's willful failure or refusal, after the effective date of the interim decision, to proceed with its own work or to integrate its work with that of the applicant or its contractor.

In apportioning the cost of maintenance of automatic grade-crossing protection constructed or altered after October 1, 1965 under Section 1202, as between the railroad or street railroad corporations and the public agencies affected, the commission shall divide such maintenance cost in the same proportion as the cost of constructing such automatic grade-crossing protection is divided. The liability of cities, counties and cities and counties to pay the share of maintenance costs assigned to such local agencies by the commission shall be limited to funds set aside for allocation to the commission pursuant to Section 1231.1. The railroad or street railroad corporations and the public agencies affected may agree on a different division of maintenance costs. If the public agency affected agrees to assume a greater proportion of the cost of maintenance than the apportionment of the cost of construction, the difference shall be paid by the public agency from funds other than the State Highway Fund or any other state fund.

Notwithstanding any other provision of this chapter, in any proceeding under Section 1202, in the case of a crossing involving a publicly used road or highway not on a publicly maintained road system, the commission may apportion expense for improvements to the county in the case of unincorporated territory, city or other political subdivision if the commission finds (a) that the owner or owners of private property served by such publicly used crossing agree to expressly dedicate and improve, and the affected public agency agrees to accept, a right-of-way or roadway over such property for a reasonable distance from such crossing as determined by the commission, or (b) that a judicial determination of implied dedication of such road or highway over the railroad right-of-way to public use, based on public user in the manner and for the time required by law, has taken place. If neither of these conditions is found to exist, the commission shall order the crossing abolished by physical closing. In no event shall a railroad be required to bear costs for the improvement of a publicly used crossing in excess of what it would be required to bear in connection with the improvement of a public street or highway crossing.

In prescribing the proportions in which the expense of construction, reconstruction, alteration, or relocation of grade separations shall be divided between railroad or street railroad corporations and public agencies, in proceedings under Section 1202, the commission, unless otherwise provided in this section, shall be governed by the following standards:
  (a) Where a grade separation project, whether initiated by a public agency or a railroad, will not result in the elimination of an existing grade crossing, located at or within a reasonable distance from the point of crossing of the grade separation, the commission shall require the public agency or railroad applying for authorization to construct such grade separation to pay the entire cost.
  (b) Where a grade separation project initiated by a public agency will directly result in the elimination of one or more existing grade crossings, located at or within a reasonable distance from the point of crossing of the grade separation, the commission shall apportion against the railroad 10 percent of the cost of the project. The remainder of such costs shall be apportioned against the public agency or agencies affected by such grade separation.
  (c) Where a grade separation project initiated by a railroad will directly result in the elimination of an existing grade crossing, located at or within a reasonable distance from the point of crossing of the grade separation, the commission shall apportion 10 percent of the cost, attributable to the presence of the highway facilities, against the public agency or agencies affected by the project, and the remainder thereof to the railroad or railroads applying for authorization to construct such grade separation.
  (d) Where the project consists of an alteration or reconstruction of an existing grade separation for the purpose of increasing the capacity of the structure for highway purposes, the commission shall apportion 10 percent of the cost against the railroad and the balance against the public agency or agencies affected by the grade separation. There shall be no apportionment of cost to the railroad if it did not bear any of the cost of the original project, in which case the public agency or agencies shall pay 100 percent of the cost of the alteration or reconstruction of the grade separation. An allocation of funds set aside pursuant to Section 190 of the Streets and Highways Code may be made for such a project notwithstanding subdivision (d) of Section 2454 of the Streets and Highways Code. Where the project consists of an alteration or reconstruction of an existing grade separation for the purpose of increasing the capacity of the structure for railway purposes, the commission shall apportion 10 percent of the cost against the public agency or agencies affected and the balance against the railroad applying for authorization to alter or reconstruct the grade separation. There shall be no apportionment of cost to the public agency or agencies if the agency or agencies did not bear any of the cost of the original project, in which case the railroad shall pay 100 percent of the cost of the alteration or reconstruction of the grade separation.
  (e) In the event the commission finds that a particular project does not clearly fall within the provisions of any one of the above categories, the commission shall make a specific finding of fact on the relation of the project to each of the categories, and in apportioning the costs, it shall assess against the railroad a reasonable percentage, if any, of the cost not exceeding the percentage specified in subdivision (b), dependent on the findings of the commission with respect to the relation of the project to each category. The remainder of such cost shall be apportioned against the public agency or agencies affected by the project.
  (f) In the event the commission finds that the respective shares of any apportionment should be divided between two or more railroads or two or more public agencies, the commission, to the extent that it has jurisdiction to do so in a particular proceeding before it, shall divide the shares between the railroads or the public agencies, or both, on any reasonable basis, to be decided by the commission, but in so doing shall follow the standards hereinabove prescribed for apportionment between railroads and public agencies, respectively.
  (g) The standards herein prescribed for apportionment of costs of grade separations shall not be applicable where federal funds are used. On such projects, the apportionments shall be in accordance with federal law and the rules, regulations, and orders of the federal agency administering such law, where applicable.
  (h) No provision of this section or of the Public Utilities Code shall be construed as in any way limiting the right of public agencies or railroads to negotiate agreements apportioning costs of grade separations, and the validity of any and all such agreements is hereby recognized for all purposes regardless whether the method of apportionment prescribed therein conforms to the standards hereinabove prescribed. As used in this section "public agency" includes a separation of grade district, as well as the state, a county, city, or other political subdivision.

Any municipal corporation, transit district, rapid transit district, or other public entity which provides rail passenger transportation services through a contract with a railroad corporation, may pay all or part of the share of a grade separation project allocated to such railroad corporation, or all or part of such share of a project's cost negotiated and agreed upon as the railroad's share by the railroad and a public agency or agencies pursuant to subdivision (h) of Section 1202.5. In any case where the municipal corporation, transit district, rapid transit district, or other public entity agrees to pay all or part of the railroad's share, it may enter into the negotiations allocating costs and may be a party to the agreement assessing such costs.

Whenever existing automatic grade-crossing safety signal equipment that was installed within the previous 10 years is planned for removal due to upgrade or closure projects undertaken pursuant to Section 130 of Title 23 of the United States Code, and the commission determines that it will meet the same performance criteria and inspection standards as new equipment and therefore be safe to use, the signal equipment shall be made available to the following:
  (a) With the consent of the participating railroad, to a state agency designated by the commission, for storage and potential use at a railroad crossing currently nominated by the commission for funding to eliminate hazards of railway-highway crossings pursuant to Section 130 of Title 23 of the United States Code.
  (b) To other railroads for use at other railway-highway crossings within the state.

Each corporation and political subdivision to which any of the expense is apportioned shall pay from the funds available therefor in its treasury the amount apportioned to it at the time and to the parties specified by the order of the commission. If that amount is not so paid the corporation or political subdivision entitled thereto under the order may sue therefor in any court of competent jurisdiction. If no such funds are available the appropriate boards, officers, and employees intrusted with the levy and collection of the taxes or assessments of such political subdivision shall do all acts necessary to include in the next succeeding tax or assessment levy the amount due and shall collect that amount, whereupon the amount due shall be paid in accordance with the commission's order. The commission may by order designate the State, certain of the corporations, and political subdivisions affected, to do all or specified portions of the acts required by any order of the commission made under the provisions of Sections 1202 to 1205, inclusive, and may prescribe the manner and the time within which the parties so designated shall be paid or reimbursed by the other corporations, the State, and political subdivisions among which the expense of the work has been apportioned by the commission.

If the legislative body of the political subdivision determines that special benefits will accrue from the separation of grades to one or more districts within the political subdivision, and has made a finding to that effect and that the cost thereof, other than the portion to be paid by the railroad, interurban railroad, or street railroad involved, should be paid by such district or partly by the district and partly by the political subdivision, the commission may provide that such proportion of the total cost of the separation of grades, including the acquisition of property and the damage to property or an interest therein, as is not payable by the owners of the railroad, interurban railroad, or street railroad involved, may be assessed upon the district or that a part thereof may be paid by the district and a part by the political subdivision in accordance with the finding of the legislative body of the latter. The commission may provide that the physical work of making the grade separation as well as the proceedings for letting contracts therefor, collecting and enforcing the assessments, and making payment for damages and for the acquisition of property shall be done through the agency of the political subdivision in accordance with law. The order of the commission shall authorize the officers of the political subdivision to enter upon so much of the right of way of the railroad, interurban railroad, or street railroad as is necessary to effect the physical grade separation.

If any order of the commission provides for the payment of a portion of the cost of any such grade separation by a political subdivision without authorizing the assessment of all or any part thereof upon a benefited district, the legislative body of the political subdivision may at any time thereafter apply to the commission to have the order modified in accordance with any finding made by the legislative body, and the commission may thereupon make a new or modified order in the same manner as if such application had been made to it before the making of the order.

The commission may fix the just compensation to be paid for property or any interest in or to property to be taken or damaged in the separation of grades at any crossing specified in Section 1202, or for property or any interest in or to property to be taken or damaged in the construction, alteration, or relocation, under the order or with the approval of the commission, of elevated tracks or subways for any railroad or street railroad over or under any public road, street, highway, or private right-of-way, or of any public road, street, or highway over or under the tracks of any railroad corporation or street railroad corporation, and upon the payment of the compensation so fixed may make a final order of condemnation.

Proceedings under Section 1206 may be commenced by order on the commission's own motion or by a petition filed by the State, county, city and county, city, political subdivision, railroad corporation, or street railroad corporation affected. Any such proceeding may be made a part of any proceeding commenced under Sections 1202 to 1205, inclusive. The petition shall set forth the name and interest of the petitioner. The order on the commission's own motion and the petition shall set forth (a) a statement of the purpose of the proceedings and the use for which property or interest in or to property is sought to be taken, (b) a decription of each piece of land or other property or interest in or to property sought to be taken, and whether it includes the whole or only a part of an entire parcel or tract or piece of property or interest in or to property, and (c) the names and addresses of all owners and claimants thereof, if known, or a statement that they are unknown, and a statement of each railroad corporation, the State and political subdivision which in the opinion of the commission or the petitioner has an interest in the proceeding. The petition shall pray (a) that the commission fix the just compensation to be paid for the acquisition of or damage to the property and interest in or to property specified in the petition, (b) that the commission designate the party or parties to the proceeding who shall pay such compensation and the owners and claimants of the property and interest in or to property condemned to whom such compensation shall be paid, and (c) that the commission make its final order of condemnation. When the proceeding is commenced by order on the commission's own motion such matters shall be included in the statement of the purpose of the proceeding. The petition shall be verified. At the time it is filed with the commission the petitioner shall also file additional copies thereof equal in number to three more than the number of owners and claimants named in the petition.

Upon the filing of the petition or the making of the order on the commission's own motion, the commission shall make its order to show cause. The order shall (a) specify the nature of the proceeding, (b) contain a general description of the property and interest to be condemned, and (c) direct the owners and claimants and the railroad corporations, street railroad corporations, and governmental authorities in interest named in the petition or order on the commission's own motion, who shall also be named in the order to show cause, to appear before the commission at a time and place specified in the order, to show cause, if any they have, why the commission should not proceed after hearing to fix the just compensation to be paid for the acquisition of or damages to the specified property and interest, to designate the party or parties to the proceeding who shall pay such compensation and the owners and claimants to whom such compensation shall be paid, and to make its final order of condemnation. The order to show cause shall direct the secretary of the commission to serve or cause to be served upon each owner and claimant, railroad corporation, street railroad corporation, and governmental authority in interest a copy of the order certified under the seal of the commission to which shall be attached a copy of the petition or order on the commission's own motion. When the proceeding is commenced by order on the commission's own motion the order to show cause may be incorporated in the order on the commission's own motion.

Personal service shall be made in accordance with the provisions of the Code of Civil Procedure or by depositing a copy of the order to show cause certified under seal of the commission with a copy of the petition or order on the commission's own motion attached thereto or made a part thereof in the United States mail, enclosed in a sealed envelope, registered, with postage prepaid, addressed to the party to be served.

If any owner or claimant named in the petition or order on the commission's own motion resides out of the State or has departed from the State or cannot after due diligence be found within the State, or conceals himself to avoid service, or is a corporation having no managing or business agent, cashier or secretary or other officer upon whom summons may be served, who, after due diligence, can be found within the State, and the fact appears by affidavit to the satisfaction of the commission, and it also appears by such affidavit or by the petition or order on the commission's own motion that a cause of action exists against such owner or claimant on whom service is to be made and that he is a necessary or proper party to the proceeding, the commission may make an order that the service be made on such owner or claimant by publication of the commission's order to show cause. The order shall direct that the publication be made in a newspaper designated by the commission as likely to give notice to the owner or claimant to be served, and for such time as the commission finds to be reasonable, at least once a week, but publication against an owner or claimant residing out of the State or absent therefrom shall not be less than two months. If the address of any owner or claimant as stated in the petition or order on the commission's own motion is out of the State, the secretary of the commission shall, within 15 days after the making and filing of the order to show cause, deposit or cause to be deposited a copy of that order, certified under the seal of the commission, with a copy of the petition or order on the commission's own motion attached thereto or made part thereof, in the United States mail, enclosed in a sealed envelope, registered, with postage prepaid, addressed to such owner or claimant at the address specified in the petition or order on the commission's own motion. Personal service of a copy of the order to show cause and of the petition or order on the commission's own motion out of the State is equivalent to publication and deposit in the United States mail.

Within 10 days prior to the time set for the first hearing on the petition or order on the commission's own motion, which time shall be not less than 30 days after the filing of the petition or the making of that order, the secretary shall serve or cause to be served upon the petitioner a written notice, specifying the time and place of the hearing. In all respects not in this chapter otherwise provided, service and the proof of service shall be made as provided by the Code of Civil Procedure. Upon the completion of service upon the petitioner or upon any party in interest named in the petition or order, the commission shall have full and complete jurisdiction insofar as such petitioner or party in interest is concerned, to make each finding referred to in this chapter, to fix the just compensation to be paid for the acquisition of or damage to any property or interest therein specified in the petition or order, to designate the party or parties to the proceeding who shall pay such compensation and the owner or claimant to whom such compensation shall be paid, and to make its final order of condemnation. The failure to make service upon any person alleging that he is an owner or claimant or party in interest but not named in the petition or order or to acquire jurisdiction over such person shall in no way affect the jurisdiction of the commission over owners and claimants and parties in interest on whom service has been made.

The commission at any time subsequent to the filing of the petition, and prior to making and filing its finding of just compensation, may authorize the amendment of the petition, or in case the proceeding is by order on the commission's own motion may amend the order, by altering or modifying the description of the property or interest therein, or by adding to or deducting from the property or interest therein, or by bringing in any additional party or parties, or in any other respect including jurisdictional allegations.

At the time and place specified in the order to show cause, or at such other time and place as, for good cause, is otherwise ordered by the commission, the commission shall proceed to a hearing upon the petition or order on the commission's own motion. When the proceeding has been submitted the commission shall make and file its finding upon the question whether the use to which the property or interest therein is to be applied is a use authorized by law and whether the taking is necessary to such use, and shall make and file its written finding fixing the just compensation to be paid for the property or interest. If the commission finds that severance damages should be paid, the just compensation for such damages shall be found and stated separately. The just compensation shall be fixed by the commission as of the day on which the petition was filed or the order on the commission's own motion was made.

The commission shall also make its order designating the party or parties to the proceeding who shall pay the just compensation so fixed, or any portion thereof, the amounts in which it shall be paid, the times at which it shall be paid, the property or interest therein for which it shall be paid, and the owners and claimants of such property or interest to whom it shall be paid. The commission may prescribe any other terms or conditions with reference to the payment of such compensation as the commission deems proper, including a provision that the money due be paid to the commission to be distributed to the parties entitled thereto. The party or parties whom the commission designates to pay such compensation or any part thereof are thereupon liable therefor, and may be sued in any court of competent jurisdiction by the party or parties entitled to such compensation as provided in the commission's order. In cases in which the order of the commission authorizing any work to be done under the provisions of this chapter is permissive in character and not mandatory, the commission may prescribe the time within which the party receiving such permission shall elect to proceed and notify the commission thereof, and only in the event such party elects to proceed and so notifies the commission shall any liability arise to pay the compensation or any part thereof under the provisions of this section. When any political subdivision of the State is designated by the commission to pay such compensation or any portion thereof it shall be collectible in the manner provided in Section 1203 for the collection of expenses apportioned by the commission to political subdivisions of the State.

When the just compensation has been paid in accordance with the commission's order, the commission shall make its final order of condemnation which shall describe the property or interest therein condemned and the purpose of such condemnation. A copy of the order certified under the seal of the commission shall thereupon be filed in the office of the recorder of the county in which the property described is situated, and thereupon the property or interest in or to property described therein shall vest in the parties and for the purposes specified in the order.

(a) The finding of the commission on the question of the necessity for the taking and the finding fixing the just compensation to be paid for any property or interest in or to property under Sections 1206 to 1216, inclusive, are final and shall not be subject to modification, alteration, reversal, or review by any court of this state.
  (b) The provisions of this part with reference to rehearing and review shall be applicable to the findings of the commission made and filed under this chapter. Petitions for rehearing shall be filed within 20 days from the date of making and filing the finding as to which a rehearing is desired.
  (c) If a finding of the commission made and filed under this chapter is set aside by the Supreme Court or the court of appeal of the State of California, the matter shall be referred back to the commission for further action in a proceeding before the commission, and the commission may, on taking further action, consider the entire testimony theretofore taken in the proceeding before the commission as well as further testimony, if any, presented in connection with further action.

The procedure provided in this chapter shall be alternative and cumulative and not exclusive to the right to pursue any other procedure providing for the acquisition under eminent domain proceedings of property or interest in or to property.

Nothing in this chapter shall entitle any owner or claimant of property and interest in or to property to receive damages when the right to receive such damages does not exist under the laws of this State apart from the provisions of this chapter.

The Legislature declares that Sections 1201 to 1205, inclusive, are enacted as germane and cognate parts of and as aids to the jurisdiction vested in the commission for the supervision, regulation, and control of railroad and street railroad corporations in this State, and the Legislature further declares that the authority and jurisdiction thus vested in the commission involve matters of state-wide importance and concern and have been enacted in aid of the health, safety, and welfare of the people of this State.

The Legislature declares that Sections 1206 to 1218, inclusive, are enacted as a germane and cognate part of and as an aid to the jurisdiction of the commission in the supervision and regulation of railroad and street railroad corporations.