§ 91. Alteration or rehabilitation of existing crossing. The mayor or
city manager and common council of any city, the president or mayor and
trustees of any village, the town board of any town, the board of
supervisors or county executive and the county legislature of any county
having jurisdiction over street, avenue, highway or road which crosses
or is crossed by a surface railroad at grade, below grade or above grade
by structures heretofore constructed, or any surface railroad
corporation whose railroad crosses or is crossed by a street, avenue,
highway or road at grade, below or above grade, may bring their petition
in writing to the commissioner of transportation, therein alleging that
public interest requires rehabilitation, an alteration in the manner of
such crossing, its approaches, the method of crossing, the location of
the crossing, a change in the existing structure by which such crossing
is made, the closing and discontinuance of a crossing and the diversion
of the travel thereon to another street, avenue, highway road or
crossing, or if not practicable to change such crossing from grade,
below grade or above grade or to close or discontinue the same, the
opening of an additional crossing for the partial diversion of travel
from the grade, below grade or above grade crossing and praying that the
same may be ordered. Upon any such petition being brought the
commissioner of transportation shall appoint a time and place for
hearing the petition, and shall give such notice thereof as he shall
judge reasonable, of not less than ten days, however, to such
petitioner, the railroad corporation, the municipality in which such
crossing is situated, and if such crossing is in whole or in part in an
incorporated village having not to exceed twelve hundred inhabitants,
also to the supervisor or supervisors of the town or towns in which such
crossing is situated, and in all cases to the owners of the lands
adjoining such crossing and adjoining that part of the street, avenue,
highway or road to be changed in grade or location or to be
discontinued, or the land to be opened for a new crossing and to such
other parties deemed by him to be interested in the proceeding. The
commissioner of transportation shall give public notice of said hearing;
and upon such notice and after a hearing or hearings the commissioner of
transportation shall determine what alterations or changes, if any,
shall be made. The decision of the commissioner of transportation
rendered in any proceeding under this section shall be communicated,
after final hearing, to the petitioner, the railroad corporation, the
municipal corporation and all other parties who appeared at said hearing
by counsel or in person. Any person aggrieved by such decision, or by a
decision made pursuant to sections eighty-nine and ninety, and who was a
party to said proceeding, may within sixty days appeal therefrom to the
appellate division of the supreme court in the department in which such
crossing is situated, and to the court of appeals, in the same manner
and with like effect as is provided in the case of appeals from an order
of the supreme court. This section shall not apply to a state highway or
any other highway upon which the commissioner of transportation proposes
to alter an existing crossing of a railroad pursuant to any section of
the highway law.