Chapter 5523: GRADE CROSSINGS

5523.01 Relocation or grade changes - elimination of grade crossings.

For the purpose of eliminating one or more existing grade crossings on any road or highway on the state highway system or any extension thereof, the director of transportation may relocate any portion of a road or highway on the system or any portion of any extension thereof; or the director may raise or lower the grade of any road or highway on the system or of any extension thereof, above or below the existing tracks of a railroad and parallel and adjacent interurban railways and require any company owning, operating, managing, or controlling a railroad and any company owning, operating, managing, or controlling an interurban railway parallel and adjacent to such railroad to raise or lower the grade of its tracks above or below the grade of any highway on the state highway system, or on any extension of the system, and may construct ways or crossings for such highway or extension thereof above the tracks of any railroad and parallel and adjacent interurban railway, or require such company owning, operating, controlling, or managing any such railroad and any such parallel and adjacent interurban railway to construct ways or crossings for such highway or extension to be passed under its tracks, whenever, in the opinion of the director, the raising or lowering of any such railroad and parallel and adjacent interurban railway tracks, or the raising, lowering, or construction of such highway or extension is necessary, upon the terms of sections 5523.01 to 5523.20 of the Revised Code.

Effective Date: 09-28-1973

5523.02 Relocation of state highway to eliminate grade crossings.

When it is necessary, in the elimination of existing grade crossings, to change the location of any highway on the state highway system or any extension of the system, the director of transportation may relocate the highway or any part thereof, or the extension or any part thereof, and may vacate the whole or any portion of such highway or extension no longer needed by reason of such relocation, and cause the improvement contemplated to be placed in the relocated highway or extension. In the relocation of any such highway, the portion of the highway within the limits of the right-of-way of railroad companies participating in the cost of the improvement shall be vacated and closed to the public upon the opening of the relocated portion of the highway or extension to the public. The director at such time shall declare the relocated highway, or portion or extension thereof, open to travel, and the portion of such highway no longer needed, including grade crossings over any steam, electric, or other railroad proposed to be eliminated, the director shall declare vacated and closed to the public. The director shall transmit a certified copy of the declaration to the companies affected, and upon receipt thereof, such companies may erect fences or other barriers barring the public from use of the crossings. The director shall file a certified copy of the declaration with the board of county commissioners of any county in which any part of the project is located.

Effective Date: 09-17-1996

5523.03 Issuance of finding and order on crossing to be abolished - hearing.

The director of transportation, in a grade crossing elimination, shall proceed by issuing a finding and order, setting out a full written description of the existing grade crossing that is proposed to be abolished, showing its location, the reasons that tend to make its elimination necessary, the names of the companies owning, operating, controlling, or managing such railroads or interurban railways, the manner in which it is contemplated the proposed improvement should be accomplished, and the proposed relocation of the highway or extension if any relocation is to be made. In this finding and order the director shall fix a time and place for the holding of a hearing as to the necessity and expediency of the proposed improvement, and shall serve a copy of the finding and order on such companies at least thirty days prior to the time fixed for hearing. The director may adjourn the hearing as the director sees fit. Service shall be made by the sheriff of the county within which the crossing involved is located, in the same manner as is provided for the service of summons in civil actions, or by registered mail as determined by the director.

If, when the hearing is held, the director is of the opinion that the proposed improvement is or is not reasonably necessary and expedient, the director shall so find and order and issue such a finding and order.

A finding and order that the proposed improvement is not reasonably necessary and expedient shall not prevent a future hearing for the same purpose, involving the same crossing.

Effective Date: 09-17-1996

5523.04 Railroad company to co-operate.

If the director of transportation enters a finding and determination for a proposed grade crossing improvement the railroad companies involved in such proceedings shall co-operate with the director in the preparation of plans and specifications covering the construction of the proposed project. Such companies shall furnish such plans, specifications, and approximate estimates as the director directs. In changing the grade of any railroad, no grade shall be required in excess of that adopted by a company for the construction of its tracks on the division or part of the railroad on which the improvement is to be made without the consent of the company, nor shall the tracks of any company, or the grade of any road or highway on the state highway system, or any extension thereof, be required to be placed below high-water elevation, except by mutual agreement.

Effective Date: 09-28-1973

5523.05 Failure to agree upon necessity of improvement - plans - specifications.

If at the expiration of three months from the time of the entering of the finding and determination for the proposed grade crossing improvement by the director of transportation the railroad companies involved and the director have refused, failed, or neglected to agree upon the necessity of the improvement, or upon the plans, specifications, and estimates covering the proposed project, the companies involved or the director may submit the matter of determining the method by which the improvement shall be made, and plans, specifications, and estimates covering the same, to the court of common pleas of the county in which the crossing is located. The companies involved or the director, after the expiration of three months from the entering of the finding and determination for the proposed improvement by the director, may apply to such court by petition setting out a method of accomplishing the proposed improvement, accompanied with the plans, specifications, and estimates covering the same. Such plans, specifications, and estimates must show the grades to be established for and the changes to be made in the location of the highway or extension, the height, character, and estimated cost of any structure or way above or below the railroad tracks, the number, character, and location of piers, abutments, or supports to be permanently located within the bounds of the highway or extension, and the change of grade to be made in any railroad tracks including sidetracks and switches.

Effective Date: 09-28-1973

5523.06 Right to file answer to petition - presentation of other plans - hearing - finding.

Upon the filing of a petition under section 5523.05 of the Revised Code, accompanied by plans, the railroad company or director opposed to the prayer thereof, or directly interested therein, may, within forty days after service of summons, file an answer to such petition and present other plans for the abolition of such crossing. After expiration of such forty days the court shall proceed to a hearing upon the petition and answers that have been filed, which hearing must be advanced upon the docket upon motion of either party. After examination of all plans presented to it and after hearing the evidence, the court shall make a finding as to whether such plans or any of them are reasonable and practicable.

Effective Date: 10-01-1953

5523.07 Finding of court - modification or alteration of plans - apportionment - appeal.

If the court finds any of the plans presented under section 5523.05 of the Revised Code are reasonable and practicable it shall so find and order the proposed improvement to be made in accordance with such plans. The court may modify or change any plans submitted and order the proposed improvement to be made under the modified or changed plans. The state shall make such changes in the highway or extension as may be necessary and the company shall make the changes necessary in the tracks and roadbed, in order to comply with the findings and orders of the court. If more than one company owns tracks on a crossing in question, the court may apportion among them the fifteen per cent or other agreed proportion provided by section 5523.08 of the Revised Code to be paid by such companies, and when making such apportionment the court shall take into consideration the difference in cost of construction and the benefits derived as between companies. If the court finds that none of the plans are reasonable or practicable or that none of them can be modified or changed in such manner as to make them reasonable or practicable, the improvement shall not be made upon any plans submitted. Either party feeling aggrieved by the decision and order of the court may prosecute error or appeal as in other cases. If the director of transportation or railroad company refuses or neglects to comply with the orders or findings made by the court, under this section, the court may enforce its order or finding by mandamus, mandatory injunction, or contempt of court, upon the application of any party to the case.

Effective Date: 09-28-1973

5523.08 Costs chargeable to the improvement - proportion of costs.

The cost of constructing the improvement authorized, including the making of ways, crossings, or viaducts, above or below the railroad tracks, together with sufficient approaches thereto, necessary guardrails, and adequate drainage, shall be part of and chargeable to the improvement. If the improvement replaces a portion of highway which prior to the improvement was unimproved, the surface chargeable to the improvement outside the limits of the right-of-way of the railroad company, the costs of which are to be shared by such company, shall not exceed in cost the costs of a traffic bond surface of sufficient thickness to sustain highway traffic. If the improvement replaces a portion of the highway or extension which has an improved surface, the cost of a new pavement, of equivalent width and of sufficient type to sustain highway traffic, shall be chargeable to the improvement on that portion outside the limits of the right-of-way of the company. The cost of the pavement on bridges for the full width of the roadway thereon shall be chargeable to the improvement. Within the limits of the right-of-way of the company, the pavement shall be chargeable to the improvement and shall be of such extent as the director of transportation determines.

The raising or lowering of the grades of the railroad tracks, sidetracks, and switches for such distance required, and as provided in the plans and made necessary by such improvement, including the cost of moving or changing existing structures, sheriff's fees, and other incidental expenses, together with the cost of land or property purchased or appropriated and damages to owners of abutting or other property, shall be chargeable to the improvement. All costs and things made chargeable to the improvement by this section shall be borne, unless otherwise agreed upon, eighty-five per cent by the state and fifteen per cent by such company. The state has the right of action against any such company for the recovery of the fifteen per cent, or other agreed proportion of such cost payable by it, with interest from the time that it became due. The director and the company involved may agree as to what part of the work shall be done by the company and also fix the amount or agree upon a method or basis for calculating and ascertaining the amount to be allowed or accredited to the company for doing such work. Such company shall be entitled to deduct from the fifteen per cent, or other agreed proportion of the cost of the improvement to be paid by such company, the expense incurred by it in the change of its grade required by the director or made necessary by him under the plans, but only in case the amount of the expense or method for calculating it has been agreed upon in writing between the director and the company. If the amount of work done by the company or made necessary by reason of such change of grade or raising or lowering its tracks exceeds fifteen per cent, or other agreed proportion of the cost of the improvement to be paid by such company, then such excess shall be payable to the company by the director.

In connection with such improvement the director and the company involved may agree as to the portion of such construction the cost of which is to be shared and upon the percentage of the cost to be borne by the state and such company, but if such agreement is not made, this section shall apply. In the event that two or more railroad companies or interurban railway companies are required to cooperate in the improvement, and such companies are unable, for any reason, after three months from the date of the formal submission of the plans and estimates for the improvement, to agree among themselves as to what proportion of the costs to be paid by all companies is to be paid by each company, but the companies have agreed upon all other phases and details of the improvements, either of such companies or the director may petition the court of common pleas of the county in which such improvement is to be made, making the other companies defendants and asking for the apportionment of the costs which each shall bear, on which petition summons shall issue as in civil actions. After hearing the court shall determine and adjudge the proper proportions to be paid by the companies in the manner provided for in section 5523.07 of the Revised Code, pending which determination the director may fix tentatively the proportion of the cost which each railroad company or interurban railway company shall bear, and the companies and director shall execute an agreement based upon the plans, specifications, and estimates and such tentative distribution of cost, pending a final agreement among such railroad companies or interurban companies and the director or a decision of the courts in the matter, saving to such companies the right to prosecute error or appeal. The director may make requisition upon such companies in accordance with his tentative apportionment of costs. Each company shall promptly pay such requisitions according to their tenor, and the proceeding with the work shall not be delayed on account of the failure of said companies to agree upon an apportionment of costs between or among them. After the proportion of costs to be paid by each company has been finally determined, by agreement between them or by a judgment of court, the director shall make requisition in accordance with such agreement or judgment, and any of such companies shall have a right of action against any other such company to adjust the payment of costs in accordance with such agreement or judgment. Such tentative distribution shall be inadmissible as evidence in the hearing to determine final distribution and shall in no way affect such final distribution.

Effective Date: 07-01-1985

5523.09 Contract to be approved by attorney general.

Before the director of transportation may enter into any contract provided for in section 5523.08 of the Revised Code, such contract shall be submitted to and receive the approval of the attorney general as to its form.

Effective Date: 09-28-1973

5523.10 Purchase or appropriation of property for grade crossing elimination.

The property or rights therein, necessary in making a proposed grade crossing improvement and any relocation of the highway, shall be purchased or appropriated by the director of transportation, who may effect settlement for damages involved. Any appropriation of property by the director shall be in accordance with sections 163.01 to 163.22 of the Revised Code. The property, or rights therein, required to make any alterations in the railroad or tracks, shall be purchased or appropriated, and damages resulting shall be paid or determined by the railroad company involved after the manner provided for the appropriation of private property by such companies. Such company and the director may agree that the land or property may be purchased or appropriated and damages resulting may be settled or determined by the director, but he shall not appropriate land held or owned by a company and necessary for the use of the company in maintaining and operating its road. The grant of specific powers by this section does not limit the power of the director to acquire property or rights therein, for any purpose reasonably necessary, incident to the construction, reconstruction, maintenance, and repair of any grade elimination or separation improvement, as the director is authorized by law to acquire for any highway improvement.

Effective Date: 10-25-1978

5523.11 Plans of proposed improvement.

Before any work is done that may be required in the making of the proposed grade crossing elimination improvement, the director of transportation shall file plans covering the proposed improvement in the office of the district deputy director of transportation of the state highway district within which such improvement or any part thereof is located, for the examination of all persons interested. The plans shall show all changes of grade and location of any highway or portion thereof, all private property to be taken, and any highway or portion thereof to be vacated, including the crossing to be eliminated, and the general specifications under which the work is to be carried out.

Upon the filing of plans as provided in this section, the director shall issue a finding and determination of the director's intention to make the proposed improvement in accordance with such plans. The director then shall cause to be published, in a newspaper published and of general circulation in each county, or if there is no such newspaper, then in one of general circulation in such county in which any portion of such improvement is to be constructed, once each week for two consecutive weeks, notice of the entry of said findings and determination, and a statement that a copy of the plans of such improvement is on file with the district deputy director for the inspection of all interested persons.

The director, by contract, may agree with any railroad company involved that the director will not settle any claim for compensation, or damages, or both, except with the approval of such company.

Effective Date: 09-17-1996

5523.12 [Repealed].

Effective Date: 10-25-1978

5523.13 Director may prescribe manner and time of payment.

The director of transportation may prescribe the manner and time of payment by a railroad company of the proportion of the cost of the proposed grade crossing improvement that the company shall pay.

Effective Date: 09-17-1996

5523.14 Clearance under viaduct.

Any way, crossing, or viaduct constructed over the tracks of any railroad company under sections 5523.01 to 5523.13 , inclusive, of the Revised Code, shall be of such height as not to be less than twenty-one feet in the clear, from the top surface of the rails of the railroad track to the lowest point or projection of such overhead way, crossing, or viaduct, unless such company consents to or the court orders a less height. In no event shall the court order a less height than sixteen feet three inches.

Effective Date: 10-01-1953

5523.15 Co-operation by municipal corporations.

A municipal corporation may co-operate with the department of transportation in the abolishment of railway grade crossings and the construction or reconstruction of bridges and viaducts within such municipal corporation, and may pay such portion of the cost of any such work as is agreed upon between the legislative authority of such municipal corporation and the director of transportation. The legislative authority of any municipal corporation desiring to co-operate as above, may, by resolution, propose such co-operation to the director, and a copy of such resolution, which shall set forth the proportion of the cost and expense to be contributed by the municipal corporation, shall be filed with the director. The subsequent proceedings shall be conducted as provided in sections 5521.01 to 5521.11 of the Revised Code. For the purpose of providing funds to pay the proportion of the cost of such work assumed by any municipal corporation, the legislative authority thereof may levy taxes and issue bonds as in cases of similar improvements constructed under the exclusive jurisdiction and control of the municipal corporation.

Effective Date: 09-28-1973

5523.16 Appeal to public utilities commission.

From the finding and order of the director of transportation that such improvement as provided for in section 5523.02 of the Revised Code is reasonably necessary and expedient, any railroad company or any interurban railway company may, upon the question of such necessity and expediency, take an appeal to the public utilities commission. A party desiring to take an appeal shall file with the director written notice of its intention to do so within thirty days after service upon it of a copy of such finding and order, as provided in section 5523.03 of the Revised Code, and the director shall certify to such commission all original papers on file with him, together with a copy of all orders made by him in said proceeding. Such appeal shall be docketed by the commission and, after not less than ten days' written notice to all interested parties setting forth the time and place when and where said appeal will be heard, it shall hear the same upon the evidence adduced before it and shall determine whether such improvement is necessary and expedient. An appeal from the order of the director, fixing the contribution of a street or interurban railway company to the commission may be taken and shall be heard and decided in the same manner. Any party to such proceedings on appeal, deeming himself aggrieved by the decision of the commission, may prosecute error or appeal to the supreme court as in other cases.

Effective Date: 09-28-1973

5523.17 Improvement to be kept in repair - responsibility for bridge inspection.

After the completion of the work of constructing, reconstructing, widening, or realigning a separated crossing by the director of transportation, in accordance with sections 5523.01 to 5523.20 of the Revised Code, the separated crossing and approaches thereto shall be kept in repair as follows:

(A) When the public way crosses the tracks of any railroad company by a structure carrying the highway over such tracks the responsibility for inspection and the cost of maintenance shall be borne by the state;

(B) When the public way passes under the tracks of any such company:

(1) The responsibility for inspection and cost of maintaining the bridge and its abutments shall be borne by such company;

(2) When there is more than one company involved the bridge and abutments shall be maintained by the companies in such proportion as is fixed by agreement between them and responsibility for inspection shall rest upon the company actually performing the greatest share of maintenance work;

(3) In the absence of any such agreement the cost shall be borne in such proportion as is found by the court of common pleas of the county within which the crossing is located to be just and equitable and responsibility for inspection shall rest upon the company actually performing the greatest share of maintenance work;

(C) All such public ways and their approaches shall be inspected, maintained, and kept in repair by the state.

Effective Date: 09-28-1973

5523.18 Costs of improvement.

The proportion of the cost of grade crossing improvement to be paid by the state shall be paid by the director of transportation, upon estimates, out of any fund appropriated to the department of transportation available for the establishment, construction, reconstruction, improvement, maintenance, or repair of highways, funds contributed by the local subdivisions, and funds contributed by the federal government. The portion of the costs to be paid by the railroad company shall be paid in the manner and at the time agreed upon, or, in the absence of agreement, as the director directs.

Effective Date: 09-28-1973

5523.19 Separated crossing not constructed under certain sections.

When a separated crossing, which was not constructed in accordance with sections 4957.01 to 4957.26 or sections 5561.01 to 5561.15 of the Revised Code, is situated on a road or highway on the state highway system or an extension thereof, and is so located that in order to provide for the safety and convenience of the traveling public having occasion to use such road or highway or extension, the director of transportation deems it necessary to relocate and reconstruct the same in whole or in part outside the right-of-way of such road or highway or extension thereof, or when, in the opinion of the director, a separated crossing which was not constructed in accordance with such sections, and which separated crossing is located on a road or highway on the state system or an extension thereof, which road or highway was laid out and opened after the construction of the railroad, is in need of widening, reconstruction, or realignment in order to provide for the safety and convenience of the traveling public having occasion to use such road or highway or extension thereof, the director may relocate and reconstruct, widen, reconstruct, or realign the same.

The director may take such action and initiate and prosecute such proceedings as provided in sections 5523.01 to 5523.18 of the Revised Code, to secure the elimination of existing grade crossings. The cost and expense of such relocation and reconstruction, widening, reconstruction, or realignment shall be borne by the state, or by the state and any other political subdivision in which the crossing is located, and by the railroad company in the proportions set out in sections 5523.01 to 5523.20 of the Revised Code, in relation to the elimination of existing grade crossings, unless otherwise agreed upon.

Every person or company owning, controlling, managing, or operating a railroad in this state shall maintain and keep in good repair good, safe, adequate, and sufficient crossings and approaches thereto, whether at grade or otherwise, across its tracks, at all points other than crossings separated in accordance with sections 4957.01 to 4957.26 and 5561.01 to 5561.15 of the Revised Code, or in accordance with sections 5523.01 to 5523.20 of the Revised Code, and other than separated crossings relocated and reconstructed, widened, reconstructed, or realigned in accordance with this section, where such tracks intersect a road or highway on the state highway system or an extension thereof.

Effective Date: 09-28-1973

5523.20 Grade separation when highway is adjacent to or near a railroad.

When a state highway or an extension or relocation thereof is parallel, adjacent, or near to a railroad, and the director of transportation deems it necessary to separate the grades of any intersecting highway, road, or street with such highway, extension, or relocation thereof, but which separation of grades should not, in the opinion of the director, be accomplished without eliminating an adjacent grade crossing over the tracks or reconstructing an existing separated crossing over or under the tracks of the railroad on such intersecting highway, road, or street, then the director was proceed with such proposed improvement, providing federal aid highway funds are used to pay costs involved, in whole or in part, including the elimination of the grade crossing over the tracks of such railroad, or the reconstruction of such existing separated crossing over or under such tracks, paying construction costs and acquiring and paying for property and rights therein as provided for in section 5531.02 of the Revised Code. Unless otherwise agreed upon, costs of the improvements to be borne by the railroad shall not be in excess of the amount or percentage set forth in an act of congress authorizing or appropriating federal aid highway funds, or other federal funds for highway purposes, which are used to finance the cost of the improvement in whole or in part.

Effective Date: 09-28-1973

5523.31 Amended and Renumbered RC 4907.471.

Effective Date: 10-29-1989

5523.311 Amended and Renumbered RC 4907.472.

Effective Date: 07-01-1989

5523.312 Renumbered RC 4907.473.

Effective Date: 10-29-1989

5523.32, 5523.33 Amended and Renumbered RC 4907.474, 4907.475.

Effective Date: 10-29-1989

5523.99 [Repealed].

Effective Date: 10-29-1989