1201. 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.
1201.1. 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.
1202. 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.
1202.1. 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.
1202.2. 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.
1202.3. 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.
1202.5. 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.
1202.6. 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.
1202.7. 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.
1203. 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.
1204. 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.
1205. 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.
1206. 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.
1207. 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.
1208. 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.
1209. 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.
1210. 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.
1211. 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.
1212. 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.
1213. 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.
1214. 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.
1215. 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.
1216. (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.
1217. 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.
1218. 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.
1219. 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.
1220. 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.
1201. 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.
1201.1. 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.
1202. 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.
1202.1. 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.
1202.2. 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.
1202.3. 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.
1202.5. 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.
1202.6. 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.
1202.7. 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.
1203. 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.
1204. 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.
1205. 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.
1206. 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.
1207. 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.
1208. 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.
1209. 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.
1210. 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.
1211. 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.
1212. 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.
1213. 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.
1214. 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.
1215. 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.
1216. (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.
1217. 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.
1218. 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.
1219. 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.
1220. 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.
1201. 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.
1201.1. 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.
1202. 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.
1202.1. 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.
1202.2. 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.
1202.3. 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.
1202.5. 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.
1202.6. 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.
1202.7. 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.
1203. 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.
1204. 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.
1205. 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.
1206. 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.
1207. 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.
1208. 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.
1209. 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.
1210. 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.
1211. 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.
1212. 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.
1213. 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.
1214. 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.
1215. 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.
1216. (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.
1217. 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.
1218. 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.
1219. 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.
1220. 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.
