Chapter 5561: COUNTY ROAD GRADE CROSSINGS

5561.01 Road grade above or below railroad tracks.

Any county may raise or lower the grade of any state or intercounty highway above or below the tracks of railroads and parallel and adjacent interurban railways within the county, and require any railroad company operating a railroad in such county, and any interurban railway company operating an interurban railway parallel and adjacent to the railroad, to raise or lower the grade of its tracks, above or below any state or intercounty highway, and may construct ways or crossing for such highway above the tracks of any railroad and parallel and adjacent interurban railway, or require the railroad company and any interurban railway company operating an interurban railway, parallel and adjacent to such railroad, to construct ways or crossings therefor that are to be passed under its tracks. Such companies may be required to erect permanent piers, abutments, or any other appropriate supports for any of such works on state and intercounty highways within the county, whenever, in the opinion of the board of county commissioners, the raising or lowering of the grade of any such tracks, or the raising, lowering, or construction of such highways or supports is necessary; upon the terms of sections 4957.06 and 5561.01 to 5561.15 , inclusive, of the Revised Code.

Effective Date: 10-01-1953

5561.02 Change of location of state highways.

When the board of county commissioners deems it necessary, in the abolishment of grade crossings, to change the location of any state or intercounty highway in the county, such board may, with the approval of the director of transportation, relocate such highway or any part thereof, vacate the whole or any portion of such highway abandoned by relocation, and cause the improvements contemplated to be placed in such relocated highway.

Effective Date: 09-28-1973

5561.03 Hearing by director of transportation.

As a condition precedent to the exercise of jurisdiction under sections 4957.06 and 5561.01 to 5561.15 of the Revised Code, by a board of county commissioners, such board shall transmit to the director of transportation a full written description of the grade crossing which it is proposed to abolish, showing its location, the reasons which tend to make necessary its elimination, the names of the railroads or interurban railways owning the tracks crossing such state or intercounty highway, and the manner in which the improvement proposed should be accomplished.

On receipt of such description the director shall conduct a hearing as to the necessity and the expediency of the proposed improvement, after thirty days' notice in writing of the time and place of holding such hearing has been given to the board and to the railroad or interurban railway companies concerned in such proposed elimination. Notice shall be served by the sheriff upon the railroad or interurban railway companies, in the manner provided for the service of summons in civil actions. If after such hearing, the director is of the opinion that such improvement is reasonably necessary and expedient, he shall so certify in writing to the board, sending a copy of such certificate to all railroad or interurban railway companies involved. But if the director is not of such opinion he shall so state in his certificate, and thereupon no further proceedings shall be taken upon such application to the director.

Effective Date: 09-28-1973

5561.04 Public hearing as to expediency of constructing improvement.

The board of county commissioners, desiring to proceed under sections 4957.06 and 5561.01 to 5561.15 of the Revised Code, shall, after receipt of the certificate of necessity and expediency from the director of transportation, as provided in section 5561.03 of the Revised Code, hold a public hearing as to the expediency of constructing such improvement, notice of which shall be given by publication in a newspaper of general circulation in the county, for two weeks prior to the date set for such hearing or as provided in section 7.16 of the Revised Code, and shall be served upon the railroad or interurban railway companies in the manner for the service of summons in civil actions, not less than twenty days prior to the date of such hearing.

The board, after such hearing and for the purpose of making or causing such an improvement to be made, may, by resolution adopted by unanimous vote, require the railroad company, in co-operation with the county engineer or any engineer designated by the board, to prepare and submit to the board within six months, unless longer time is mutually agreed upon in writing, plans and specifications for such improvements, specifying the number, character, and location of all piers and supports which are to be permanently placed in any road or highway, specifying the grades to be established for the roads and the height, character, and estimated cost of any viaduct or way above or below any railroad track, and the change of grade required to be made of such tracks including side tracks and switches. But in changing the grade of any railroad, no grade shall be required in excess of that adopted by the railroad company for its construction work on that division or part of the railroad on which the improvement is to be made, without the consent of the railroad company, nor shall the railroad company's tracks be required to be placed below high-water mark.

Such resolution shall be published in the same manner as resolutions of the legislative authority of a municipal corporation declaring the necessity of a contemplated public improvement, and shall be served by the sheriff upon the railroad or interurban railway companies in the manner provided for the service of summons in civil actions. If the proposed public improvement is to be made within a municipal corporation, notice of the passage of the same shall be served upon the municipal corporation by delivering to the clerk of the village or legislative authority of a city a true copy thereof.

If, at the expiration of six months from the passage of such resolution, the railroad company has refused or failed to co-operate in the preparation of such plans and specifications, or if the county engineer or engineer designated by the board and the railroad company fail to agree upon the plans and specification of such improvement, then either the railroad company or the county may submit the matter of determining the method by which the improvement shall be made to the court of common pleas of such county. Either the county or company, after the expiration of six months from the passage of the resolution, may apply to such court by petition, accompanied by the necessary plans prepared by the county or railroad company, covering the grade crossing proposed to be abolished. Such plans must show the grades to be established for such roads or highways, the changes to be made in the location of roads or highways, the height, character, and estimated cost of any viaduct or way above or below the railroad tracks, the number, character, and location of piers, abutments, or supports to be permanently located in the roads or highways, and the change of grade to be made in any railroad tracks, including sidetracks and switches.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 09-28-1973

5561.05 Hearing - finding - appeal.

Upon the filing the petition as provided by section 5561.04 of the Revised Code, accompanied by plans, the railroad company or county opposed to the prayer thereof, or directly interested therein, may, within sixty days file an answer to such petition and present other plans for the abolition of such crossing. After the expiration of such period the court of common pleas shall proceed to a hearing upon the petition and any 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.

If the court finds any of the plans presented are reasonable and practicable, it shall order the changes made in accordance with the most reasonable and practicable plan presented to the court, or as amended by its order entered by consent of the parties. The county shall make such changes in the roads or highways as may be necessary, and the railroad company shall make the changes necessary in the tracks and roadbed, in order to comply with the rulings of the court.

If more than one company owns tracks on the crossing in question, the court shall apportion among them the fifteen per cent provided by section 5561.06 of the Revised Code to be paid by such companies, and when making such apportionment the courts shall take into consideration the difference in costs of construction and benefits derived by such companies. If the court finds that none of the plans are reasonable or practicable, the improvement shall not be made upon such plans.

Either party may appeal or prosecute error as in other cases, the hearing of which shall be advanced upon the docket upon motion of either party.

If the county 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 orders or findings by mandamus, mandatory injunction, or contempt of court, upon the application of either party to such proceedings.

Effective Date: 10-01-1953

5561.06 Apportionment of cost between county and railroad - right of action.

The cost of constructing a grade crossing improvement, including the making of ways, crossings, or viaducts, above or below the railroad tracks, and the raising or lowering of the grades of the railroad tracks and sidetracks for such distance as required by the county and made necessary by such improvement, including the cost of moving or changing existing structures and other incidental expenses, together with the cost of land or property purchased or appropriated, and damages to owners of abutting or other property, and damages to owners of abutting agreed upon, eighty-five per cent by the county and fifteen per cent by such railroad company, including any interurban railroad company, the crossing of whose tracks with such highway is involved.

The county shall have a right of action against such company for the recovery of the fifteen per cent of the costs payable by it, with interest from the time it becomes due[.] [S]uch county and company may agree as to what part of the work is to be done by the company, and also fix the amount to be allowed or credited to the company for doing the work. Such company may deduct from its fifteen per cent of the cost of the improvement, the expense incurred by it in the change of its grade required by the county or made necessary by it under such specifications, but only in case the amount of the expense has been agreed upon in writing between the county and the company. If the amount of work done by the company, or made necessary by reason of such change of grade on lowering or raising its tracks, exceeds fifteen per cent of the cost of the improvement, then it may recover the amount with interest in excess of fifteen per cent of the expenses, in an action at law against the county.

In connection with any such improvement, the board of county commissioners or the director of transportation, and the railroad company or any interurban railway company whose tracks are to be raised or lowered, or over or under whose tracks the proposed improvement is to pass, may agree as to the proportions of such construction, the cost of which is to be shared, and upon the percentages of the cost to be borne by the county or state, and by the railroad company or interurban railway company, but if no such agreement is made this section shall apply.

Effective Date: 09-28-1973

5561.07 Notice of change of grade to abutting owners.

Before any work is done which may be required in the making of a proposed grade crossing improvement, the board of county commissioners shall, by resolution, require notice of its intention to make such improvement, in accordance with the plans and specifications agreed upon or ordered, to be given to the owner of each piece of property abutting on any road, the grade of which will be changed by the proposed improvement.

Effective Date: 10-01-1953

5561.08 Service of summons and publication.

Notice of the passage of a resolution for a grade crossing improvement shall be served by the sheriff of the county, upon the owner of each piece of property which will be affected by any change of grade, in the manner provided for the service of summons in civil actions. If any of such owners are nonresidents of the county, or if it appears from the return that they cannot be found, the notice shall be published for at least two weeks in a newspaper of general circulation in the county or as provided in section 7.16 of the Revised Code. Notice shall be completed at least twenty days before any work is done on such improvement, and the sheriff's return shall be prima-facie evidence of the facts recited therein.

Section 727.18 of the Revised Code shall apply to the notice provided for in this section, and to all claims for damages by reason of such improvement. Such claims shall be filed with the county auditor within the time, and rights thereunder shall pass to vendees, as provided in such section. After the expiration of the time provided for the filing of claims, the board of county commissioners, when claims have been filed within the time limited, shall determine, by resolution, whether such claims are to be judicially inquired into before commencing or after the completion of the proposed improvement. Thereupon, the county prosecutor shall make application for a jury, to the court of common pleas, or probate court of the county, before commencing or after the completion of the improvement, as the board determines, and all proceedings upon such application shall be governed by the laws relating to similar applications provided for in cases of city improvements.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 10-01-1953

5561.09 Payment.

The board of county commissioners may, by resolution, prescribe the manner and time of payment by a railroad company of the proportion of the cost of the proposed grade crossing improvement which such company shall pay.

Effective Date: 10-01-1953

5561.10 Height of crossing above grade.

Any way, crossing, or viaduct constructed over the tracks of any railroad company under sections 5561.01 to 5561.09 , inclusive, of the Revised Code, shall be of such height as not to be of less than twenty-one feet in the clear, from the top surface of the rails in the railroad track to the lowest point of 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 of common please order a less height than sixteen feet three inches.

Effective Date: 10-01-1953

5561.11 Appropriation of property.

The land or property required to make alterations in the road or other way, or any right, title, or interest in a road or other way, required for the erection of piers or supports necessitated by a proposed grade crossing improvement, and the land or property required to make any alteration in the railroad, necessitated by the proposed improvements, shall be purchased or appropriated by the county or railroad company in the manner provided for in sections 163.01 to 163.22 , inclusive, of the Revised Code. The county shall not appropriate land held or owned by a railroad company and necessary for the use of the company in maintaining and operating its road.

Effective Date: 01-01-1966

5561.12 Cost of repairs.

After the completion of construction work, grade crossings and approaches shall be kept in repair as follows:

(A) When the public way crosses a railroad or interurban railway, by an overhead bridge, the cost of maintenance must be borne by the county or state, as may be provided by law.

(B) When the public way passes under a railroad or interurban railway, the bridge and its abutments shall be kept and maintained by the railroad or interurban railway company in such proportions as are fixed by agreement between the parties, or, in the absence of such agreement, in such proportions as are fixed by the court of common pleas of the county in which the improvement is located, and the public way and its approaches shall be maintained and kept in repair by the county in which they are situated or by the state.

Effective Date: 10-01-1953

5561.13 Townships and municipal corporations - bond issues - tax levies.

The board of township trustees and the legislative authority of any municipal corporation in which a proposed grade crossing improvement is to be made may assume and agree to pay to the county, on behalf of the municipal corporation such portion of the costs of the improvement assumed by the county as the board of township trustees or legislative authority deem reasonable.

For the purpose of raising the money to pay the proportion of the cost of such improvement payable by the county, township, or municipal corporation, the bonds of such county, township, or municipal corporation may be issued to the necessary amount. They shall be of such denomination and payable at such place and times as the board of county commissioners, board of township trustees, or legislative authority respectively determine, and shall bear interest not exceeding the rate provided in section 9.95 of the Revised Code, but shall not be sold for less than their par value.

After completion of the improvement, a tax may be levied by the county to pay the costs of maintaining and keeping in repair that part of the work required to be maintained and kept in repair by the county.

The bond issues and tax levies authorized by this section shall be subject to the limitation prescribed for bond issues and tax levies for the purpose of paying the county's, township's, and municipal corporation's share of the cost of a road improvement carried forward by the state.

Effective Date: 05-13-1981

5561.14 Grade crossings of state and intercounty highways.

In case the tracks of any street or interurban railway company cross, on a state or intercounty highway, the right of way of any railroad company at a point where, under the plans and specifications as provided for in section 5561.04 of the Revised Code, it has been determined to construct improvements, the board of county commissioners, by resolution, may require such street or interurban railway company to bear a reasonable portion of the cost assumed by the county in making the improvement, not exceeding twenty-five per cent of the portion payable by the county. The board shall have a right of action against such company for that part of the cost which the resolution requires it to bear. Such cost shall be a lien upon all the property, real and personal, of such company, situated in such county, from and after the date of the passage of the resolution.

The board may, by resolution, provide the mode and time of payment for the proportion of the cost of such improvement to be borne by the company.

Such company shall keep in repair, at its own expense, all its tracks affected by the improvement, and shall bear a reasonable proportion of the cost of maintaining, renewing, and repairing all construction work necessary to support the tracks.

Effective Date: 10-01-1953

5561.15 Appeal from order of director.

From the finding and order of the director of transportation that a grade crossing improvement is reasonably necessary and expedient, the board of county commissioners or any railroad or 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 such an appeal shall file with the director written notice of its intention within thirty days after service upon it of the finding and order. 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 the proceeding. Such appeal shall be docketed by the commission, and after reasonable notice to all interested parties it shall hear the appeal upon the evidence adduced before it, and shall determine whether the making of such improvement is necessary and expedient. An appeal from the order of the director or the board, fixing the contribution of a company under section 5561.14 of the Revised Code to the commission, may be taken, and shall be heard and decided in the same manner. Any party to such proceedings on appeal, aggrieved by the decision of the commission, may prosecute error to the supreme court.

Effective Date: 09-28-1973

5561.16 Cost to be borne by company - notification - cost.

Any person, firm, or corporation operating a railroad for the transportation of passengers, freight, or express, crossing at grade any street or road, shall construct, reconstruct, improve, maintain, and repair that portion of the highway at such crossing and lying between the outside ends of the ties, and also that portion lying between the tracks, in the case of two or more tracks, and the cost and expense of this construction, reconstruction, improvement, maintenance, or repair shall be borne by said individual, firm, or corporation. Such construction, reconstruction, improvement, maintenance, or repair shall be done in accordance with plans, profiles, and specifications first approved by the director of transportation, in case of state highways or extensions thereof, or by the county engineer, in case of county and township roads or extension thereof.

Such individual, firm, or corporation, upon being notified by the director, in case of state highways or extensions thereof, or the engineer, in case of county or township roads or extensions thereof, that he has determined that it is necessary that such individual, firm, or corporation make such improvement, and being informed of the character thereof in a general way, shall, within thirty days from receiving such notice, which shall be served by the sheriff in the same manner as summons in civil action, prepare and submit to the director or engineer for his approval, detailed plans and specifications covering such improvement. The director or engineer may approve such plans and specifications as submitted, or he may change such plans and specifications and approve them as changed. Within thirty days after the approval of such plans by the director or engineer, such individual, firm, or corporation shall proceed to make such improvement, in accordance with the plans and specifications approved, and complete it in a reasonable time.

If such individual, firm, or corporation does not, within the time limited, prepare and submit for approval such plans and specifications, or proceed to make such improvement, or, having proceeded to make such improvement within the time limited, fail to complete the same within a reasonable time, or proceed to make such improvement not in accordance with the plans and specifications so approved, the director or engineer may enter upon and make such improvement in accordance with the plans and specifications so approved, or if plans and specifications have not been submitted and approved, then in accordance with plans and specifications prepared by the director or engineer.

The costs of making such improvement, including engineering and inspection, by the director or engineer, shall, in the first instance, be paid by the director or county out of any appropriation of the department of transportation or county available for the construction, reconstruction, improvement, maintenance, or repair of highways.

Upon the completion of such improvement, the director or engineer shall certify the amount of the costs, including engineering and inspection of such improvement, to the attorney general or prosecuting attorney, for collection by civil action. The director or engineer, in such certificate to the attorney general or prosecuting attorney, may set out the amount of the payments and the time of making the various payments as set out, as deemed reasonable by the director or engineer.

The prosecuting attorney or attorney general shall proceed to collect such costs and expenses, in accordance with the certificate of the director or engineer. Whenever a road or street is improved where a street, interurban, or other railroad or railway lies within the improved portion of the roadway, such railroad or railway grade shall, in all respects, be changed to meet the approval of the engineer, unless otherwise provided for in the grant or franchise by virtue of which such railway operates on or occupies said highway. Costs of such change shall be paid by the company, under the law or by the terms of its franchise or grant, shall be a lien upon the property of such company, and the proper authorities may provide for the payment of the amount chargeable against said company, under the law or by the terms of its franchise or grant, in installments as in the case of other property owners. Such installments shall bear interest as in other cases, and the board of county commissioners or other authorities may issue bonds in anticipation of the collection of such installments.

Effective Date: 09-28-1973