§ 90. New streets across railroads. When a new street, avenue, highway
or road or new portion or additional lane of a street, avenue, highway
or road shall hereafter be constructed across a steam surface railroad,
other than pursuant to section ninety-one, such street, avenue, highway,
or road or new portion or additional lane of a street, avenue, highway
or road, shall pass over or under such railroad whenever such
construction is practicable. Notice of intention to lay out such
street, avenue, highway or road, or such new portion or additional lane
of a street, avenue, highway or road, across a steam surface railroad
shall be given to such railroad corporation by the municipal corporation
at least fifteen days prior to the making of the order laying out such
street, avenue, highway or road or such new portion or additional lane
of a street, avenue, highway or road by service personally on the
president or vice-president of the railroad corporation or any general
officer thereof. Such notice shall designate the time when and place
where a hearing will be given to such railroad corporation, and such
railroad corporation shall have the right to be heard before the
authorities of such municipal corporation upon the question of the
necessity of such street, avenue, highways or road or such new portion
or additional lane of a street, avenue, highway or road on the question
of the location of such highway. If the municipal corporation determines
such street, avenue, highway or road or such new portion or additional
lane of a street, avenue, highway or road to be necessary, such
municipal corporation shall then apply to the commissioner of
transportation before any further proceedings are taken, to determine
whether such street, avenue, highway or road or such new portion or
additional lane of a street, avenue, highway or road shall pass over or
under such railroad or at grade. The commissioner of transportation
shall thereupon appoint a time and place for hearing such application,
and shall give such notice thereof as he shall judge reasonable to the
railroad corporation whose railroad is to be crossed by such new street,
avenue, highway or road, or such new portion or additional lane of a
street, avenue, highway or road, to the municipal corporation, the
owners of land adjoining the railroad and that part of the street,
avenue, highway or road to be opened, extended or constructed and such
other parties deemed by him to be interested in the proceeding. The
commissioner of transportation shall determine whether such street,
avenue, highway or road or such new portion or additional lane of a
street, avenue, highway or road shall be constructed over or under such
railroad or at grade. If the commissioner of transportation shall
determine that such street, avenue, highway or road or such new portion
or additional lane of a street, avenue, highway or road shall be carried
across such railroad above the grade thereof, he shall determine the
height, the length and the material of the bridge or structure by means
of which such street, avenue, highway or road or such new portion or
additional lane of a street, avenue, highway or road shall be carried
across such railroad, and the length, character and grades of the
approaches thereto. If the commissioner of transportation shall
determine that such street, avenue, highway or road or such new portion
or additional lane of a street, avenue, highway or road shall be
constructed or extended below the grade of such railroad, he shall
determine the manner and method in which the same shall be so carried
under, and the length, character and grades of the approaches. If the
commissioner of transportation shall determine that it is impracticable
to construct or extend such street, avenue, highway or road or such new
portion or additional lane of a street, avenue, highway or road across
such railroad above or below the grade thereof, he shall determine the
manner and method in which the same shall be carried across such
railroad at grade and what safeguards shall be maintained. The decision
of the commissioner of transportation as to the manner and method of
carrying such new street, avenue, highway or road, or such new portion
or additional lane of a street, avenue, highway or road across such
railroad shall be final, subject however to the right of appeal
hereinafter given, the decision of the commissioner of transportation
rendered in any proceeding under this section shall be communicated,
after final hearing, to the railroad corporation, the municipal
corporation and all other parties who appeared at such hearing by
counsel or in person. This section shall not apply to any state highway
or any other street, avenue, highway or road or new portion or
additional lane of a street, avenue, highway or road which the
commissioner of transportation proposes to construct across a railroad
pursuant to the highway law. Highway as used in this article shall
include any highway, road, street, alley, avenue, thoroughfare or public
driveway which is open to the public and publicly maintained.