Amendment ASA1-AB837

March 4, 2004 - Offered by Committee on Transportation.

AB837-ASA1,1,5 An Act to amend 84.05, 86.13 (3), 189.02 (1), 195.03 (1), 195.03 (2), 195.03 (25), 195.04 (1), 195.043 (1), 195.05 (1), 195.05 (4), 195.06, 195.28 (1), 195.285 (1) and (3), 195.29 (1), 195.29 (2), 195.29 (4), 195.29 (5) and 195.29 (6); and to create 195.065 of the statutes; relating to: review of office of the commissioner of railroads' hearing examiner decisions related to railroad highway crossings.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB837-ASA1, s. 1 Section 1. 84.05 of the statutes is amended to read:

AB837-ASA1,2,16 84.05 Railroad crossing improvements. On a highway which the department has authority to construct and which crosses a railroad, if the department determines that the construction or reconstruction of a grade separation or the rearrangement or elimination of a grade crossing or other rearrangement of the highway or tracks is necessary in the interest of public safety or for convenience of public travel, the department shall make a plan of the construction proposed and an estimate of the cost thereof, including the cost of needed right-of-way; and shall endeavor to make an arrangement with all persons concerned as to all matters involved in the plan, including the portion of the cost of the contemplated work which the persons shall defray. If the department is unable to contract with the persons concerned as to the distribution and payment of the cost of the work or the maintenance thereof, the department shall lay the matter before the office of the commissioner of railroads, and, subject to s. 195.065, the office of the commissioner of railroads shall review the proceedings and hold a hearing thereon in accordance with ss. 195.28 and 195.29, and shall fix the portion of the cost of the construction and of the maintenance which is to be paid by the persons or corporations concerned, and the portion of the cost, if any, to be paid by the public, which portion shall be paid from the transportation fund. The office of the commissioner of railroads shall determine the benefits, if any, which will inure to other highways, and apportion and charge to the units of government responsible for the construction of such other highways a fair portion of the cost.

AB837-ASA1, s. 2 Section 2. 86.13 (3) of the statutes is amended to read:

AB837-ASA1,2,25 86.13 (3) If any railroad company fails to grade, construct, pave, surface or otherwise improve or maintain in good and safe condition for public travel as required by this section any street or highway crossing after having been notified so to do by the officer in charge thereof or of the highway improvement for 30 days after such notification, the highway authorities may file a complaint with the office. The Subject to s. 195.065, the office shall investigate and determine the matter in controversy as provided in ch. 195. An order issued by the office under this subsection has the same effect as an order in a proceeding brought under ch. 195.

AB837-ASA1, s. 3 Section 3. 189.02 (1) of the statutes is amended to read:

AB837-ASA1,3,3 189.02 (1) The office may adopt rules to govern its proceedings and, subject to s. 195.065, to regulate the mode and manner of hearings.

AB837-ASA1, s. 4 Section 4. 195.03 (1) of the statutes is amended to read:

AB837-ASA1,3,8 195.03 (1) Practice rules. The office may take testimony and administer oaths and may, subject to s. 195.065, promulgate rules to govern its proceedings and to regulate the mode and manner of all hearings. All hearings shall be open to the public.

AB837-ASA1, s. 5 Section 5. 195.03 (2) of the statutes is amended to read:

AB837-ASA1,3,12 195.03 (2) Office initiative. In Subject to s. 195.065, in any matter within its jurisdiction under ch. 192 or this chapter, the office may initiate, investigate and order a hearing at its discretion upon such notice as it considers proper.

AB837-ASA1, s. 6 Section 6. 195.03 (25) of the statutes is amended to read:

AB837-ASA1,3,16 195.03 (25) Distribution of orders. The office shall upon application furnish certified copies, under its seal, of any order made by it, which shall , except as provided in s. 195.065, be prima facie evidence of the facts stated therein.

AB837-ASA1, s. 7 Section 7. 195.04 (1) of the statutes is amended to read:

AB837-ASA1,4,2 195.04 (1) Upon complaint of any person, including any state agency or railroad, that any railroad rate, fare, charge, or classification or any regulation or practice whatever affecting the transportation of persons or property, or any service in connection therewith, is in any respect unreasonable or unjustly discriminatory or that any service is inadequate, the office may direct the department to investigate the complaint and shall, subject to s. 195.065, set the complaint for hearing. The report of the department shall be presented to the office only at the hearing on the complaint, if hearing is requested and held. No order may be entered by the office without a public hearing.

AB837-ASA1, s. 8 Section 8. 195.043 (1) of the statutes is amended to read:

AB837-ASA1,4,9 195.043 (1) If, after summary investigation by the department, the office becomes satisfied that sufficient grounds exist to warrant a formal hearing being ordered as to the matters investigated, it shall, subject to s. 195.065, set a time and place for a hearing. The office shall publish notice of any such investigation in its weekly calendar and the report of the department and all matters considered by the office with respect thereto shall be available for public inspection upon request.

AB837-ASA1, s. 9 Section 9. 195.05 (1) of the statutes is amended to read:

AB837-ASA1,4,18 195.05 (1) Orders for rates and service. Whenever the office shall find that any existing rate, fare, charge, or classification, or any joint rate, or any regulation or practice affecting the transportation of persons or property, or any service in connection therewith is unreasonable or unjustly discriminatory or that any service is inadequate, it shall, subject to s. 195.065, determine and by order fix a reasonable rate, fare, charge, classification, joint rate, regulation, practice or service to be imposed, observed and followed in the future, in lieu of that found to be unreasonable or unjustly discriminatory or inadequate.

AB837-ASA1, s. 10 Section 10. 195.05 (4) of the statutes is amended to read:

AB837-ASA1,4,23 195.05 (4) Modification of orders. The Subject to s. 195.065, the office may by order at any time, upon notice to the railroad and after opportunity to be heard, rescind, alter, or amend any order fixing any rate or rates, fares, charges, or classification, or any other order made by the office.

AB837-ASA1, s. 11 Section 11. 195.06 of the statutes is amended to read:

AB837-ASA1,5,11 195.06 Office orders prima facie lawful. All orders, determinations, and decisions made by the office shall be in force and effective 20 days after the same order, determination, or decision has been served as required by s. 227.48 unless review is initiated under s. 195.065 (3) or the office shall specify specifies a different date, not less than 15 days after the date of the order, determination, or decision, upon which the same order, determination, or decision shall be effective, and, except as provided in s. 195.065, the order, determination, or decision shall be prima facie lawful, and all regulations, practices, and service prescribed by the office shall be in force and shall be prima facie lawful and reasonable, until finally found otherwise upon review under s. 195.065 or judicial review thereof instituted pursuant to ch. 227.

AB837-ASA1, s. 12 Section 12. 195.065 of the statutes is created to read:

AB837-ASA1,5,14 195.065 Proceedings related to railroad highway crossings. (1) In this section:

AB837-ASA1,5,16 (a) "Decision" means any decision, order, approval, or other determination in a proceeding under s. 84.05, 86.13 (3), 195.28, 195.285, or 195.29.

AB837-ASA1,5,17 (c) "Hearing examiner" means a hearing examiner of the office.

AB837-ASA1,5,24 (2) Subject to sub. (3), in any proceeding before the office under s. 84.05, 86.13 (3), 195.28, 195.285, or 195.29, whether conducted with or without a hearing, the matter shall be considered and, if applicable, heard by, and any decision shall be rendered by, a hearing examiner. Subject to sub. (3), the commissioner of railroads shall not participate in any proceeding before the office under s. 84.05, 86.13 (3), 195.28, 195.285, or 195.29, and a decision of the hearing examiner shall be the decision of the office on the matter.

AB837-ASA1,5,25 (3) (a) 1. There is created a review panel consisting of the following 3 members:

AB837-ASA1,6,1 a. The commissioner of railroads.

AB837-ASA1,6,3 b. The chairperson of the assembly standing committee dealing with transportation matters, or his or her designee.

AB837-ASA1,6,6 c. A hearing examiner of the division of hearings and appeals in the department of administration, appointed by the secretary of administration, which hearing examiner shall be chairperson of the review panel.

AB837-ASA1,6,10 2. The review panel shall perform the duties specified in this subsection. The office shall provide staff services to the review panel and any necessary and reasonable expenses incurred by the review panel shall be paid from the appropriation under s. 20.155 (2) (g).

AB837-ASA1,6,16 (b) Any person aggrieved by a hearing examiner decision under sub. (2) is entitled, upon written request to the office within 15 days of the date of the decision, to review by the review panel under this subsection. The request for review shall state all objections to the decision and the reasons and authorities for each objection. Review by the review panel is not a condition precedent to judicial review under ch. 227 of a hearing examiner decision.

AB837-ASA1,7,2 (c) Upon receipt of a request for review under par. (b), the office shall transmit the request and the final decision to the members of the review panel. The review panel shall, by a majority vote within 15 days of receipt of the request, either deny review or grant review of the hearing examiner's decision. If a timely request for review is made under par. (b), the effective date of the decision shall be suspended until the review panel's order granting or denying review of the decision. If the review panel grants review of the decision, the review panel shall, in its order granting review, establish the schedule and procedure for review and state whether the decision shall continue to be suspended or shall become effective during the period of review by the review panel.

AB837-ASA1,7,16 (d) If the review panel grants review of the decision, the review panel shall, by majority vote and in accordance with procedures established by the review panel by majority vote, decide the matter under review and make a determination in writing, which may affirm, modify, or reverse all or any part of the hearing examiner's decision, including any finding of fact, conclusion of law, ultimate conclusion on a material issue, or order specifying any party's duty, any apportionment of costs, or any other award of relief. The review panel may request and review the transcript of, and any other evidence introduced in, the proceeding before the hearing examiner, or may make a determination solely upon review of the decision itself, but may not conduct a new hearing. Notwithstanding ss. 195.03 (25) and 195.06, the review panel, in reviewing the hearing examiner's decision, is not required to accept the decision as prima facie evidence of any facts in the proceeding or of the lawfulness or reasonableness of any conclusion or relief provided for in the decision. Any final determination of the review panel shall be subject to judicial review under ch. 227.

AB837-ASA1, s. 13 Section 13. 195.28 (1) of the statutes is amended to read:

AB837-ASA1,8,13 195.28 (1) Petition; hearing; order. Upon petition of the department, city council, village board, town board, superintendent of highways or by 5 or more electors in any town, village or city, or of any railroad corporation or railroad historical society, to determine whether a public highway and railroad grade crossing protects and promotes public safety, the office may investigate and , subject to s. 195.065, issue an appropriate order without a public hearing. If the petitioner, railroad, railroad historical society or any interested party objects to the order and requests a hearing within 20 days after the date that the order is issued, the office shall, subject to s. 195.065, proceed under s. 195.04. Notice of an investigation or hearing shall be served upon the department, which shall be an interested party, and any recommendation it may file with the office at or prior to a hearing, if there is one, regarding crossing protection shall be considered as evidence in the proceeding. The Subject to s. 195.065, the office shall determine whether the existing warning devices at such crossing are adequate to protect and promote public safety. If the office determines, either without or after a hearing, that protection is not adequate, it may order the railroad company or railroad historical society to keep a flagman at the crossing or to install automatic signals or other suitable safety device at specific locations at such crossing. The office may order the relocation of existing signals and devices to improve protection at a crossing. Any crossing protection installed or maintained as approved by the office, whether by order or otherwise, shall be deemed adequate and appropriate protection for the crossing.

AB837-ASA1, s. 14 Section 14. 195.285 (1) and (3) of the statutes are amended to read:

AB837-ASA1,9,3 195.285 (1) Upon the petition of a railroad corporation, the department, or the governing body of any city, village, town or county asserting that the stopping of vehicles under s. 346.45 at a railroad crossing is hazardous to human life, the office shall, subject to s. 195.065, hold a hearing on the matter as provided under s. 195.04. Notice of petition shall be served upon the department, which shall be an interested party, and any recommendations it may file with the office regarding the hazardous effect of vehicles stopping at such crossings shall be considered as evidence in the proceedings. Upon the recommendation of the department and concurrence by the office, the petition may be dismissed without holding a hearing. If, upon the public hearing, the office determines that it would be in the public interest to exempt vehicles specified in s. 346.45 from stopping at such grade crossing, it may, subject to s. 195.065, order the public body having jurisdiction over the highway to erect signs, signals, markings or other devices exempting such vehicles from stopping at the crossing.

AB837-ASA1,9,8 (3) The department shall establish standards for the type of signs, signals, markings or other devices for exempting vehicles from stopping as required under s. 346.45 and their location in relation to the highway and railroad track. The office may upon petition or its own motion, with or without a hearing, and subject to s. 195.065, order the removal of a sign exempting vehicles from stopping at a crossing.

AB837-ASA1, s. 15 Section 15. 195.29 (1) of the statutes is amended to read:

AB837-ASA1,9,25 195.29 (1) Petition, hearing, order. Upon petition by the common council or board of any city, village, town or county within or bordering upon which a highway or street crosses a railroad, or a highway or street is proposed to be laid out across a railroad, or a public highway bridge across a railroad is required to connect existing streets or highways, or upon petition by any railroad whose track crosses or is about to cross, or is crossed or about to be crossed by a street or highway, or upon petition by the department, in cases where provision has been made for the improvement of the highway adjacent to such crossing under any state aid or federal aid law, that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, or the closing of the crossing, and the substitution of another therefor at grade or not at grade, or the removal of obstructions to the view at such crossing, the relocation of the highway, or requires the determination of the manner of making such new crossing, or of making the proposed improvement or promoting the public safety or public convenience through any other reasonable method, and praying that the same may be ordered, the office shall give notice to the parties in interest and proceed to investigate the same and, subject to s. 195.065, to order a hearing thereon in the manner provided by s. 195.04. The office shall, subject to s. 195.065, determine what, if anything, shall be done to promote the public safety and the means by which it shall be accomplished, whether by the relocation of the highway, the alteration in such crossing, approaches, mode of crossing, location of highway crossing, closing of highway crossing, with or without the substitution of another therefor, the construction of a public highway bridge, the removal of obstructions to sight at crossing, or by the use of other reasonable methods, and by whom the same shall be made, and in case of new crossings the advisability of allowing such crossings to be established and manner of making them.

AB837-ASA1, s. 16 Section 16. 195.29 (2) of the statutes is amended to read:

AB837-ASA1,10,19 195.29 (2) Apportionment of expense. The office shall, subject to s. 195.065, fix the proportion of the cost and expense of alterations, removals and new crossings, or any other work ordered, including the damages to any person whose land is taken, and the special damages which the owner of any land adjoining the public street or highway shall sustain by reason of a change in the grade of such street or highway, or by reason of the removal of obstructions to view at such crossings, to be paid or borne by the railroad companies and the municipalities in interest. In fixing such proportion, the office may order such cost and expense so apportioned to be paid by the parties against which the apportionment shall be made.

AB837-ASA1, s. 17 Section 17. 195.29 (4) of the statutes is amended to read:

AB837-ASA1,11,21 195.29 (4) Grade separation in Milwaukee County. The office may upon petition of any town, city or village, or upon its own motion, and subject to s. 195.065, when the interests of the public demand it and it is found practicable so to do, establish the grade of the tracks of any railroad, or of all the railroads throughout any county having a population of 500,000 or more, or any part thereof, and the grades of the streets or highways, or any of them, where they cross such railroad track or tracks, in anticipation of the future separation of grades of the railroad tracks from the grades of such streets or highways. The office, before making any such order, shall mail notice to the railroad company or companies affected, the owners or occupants of any building abutting on that part of the railroad the grade of which is to be established, all 1st class cities in the county, and if the grades to be established are outside the 1st class city, the towns, cities or villages in which such grades are to be established, of the filing of such petition or that the office contemplates establishing such grades, and fixing a time at which the 1st class cities and such other towns, cities or villages and the railroad company or companies affected thereby and any other person or corporation interested therein may be heard. The grades so established under this subsection shall be described by reference to a base or datum line to be established by the office, from which all elevations and the height of all grades shall be measured, and the grades so established shall be such that when brought to the established grade the railroad tracks will cross the streets and highways above or below the same. Such order shall not necessarily require a present change in grade but the office may at any time order the railroad track or tracks and the street and highways brought to the grade established or any street or highways closed by the order, in accordance with sub. (1), and may, at the time of making the order, apportion the cost of separating the grades as provided in sub. (2).

AB837-ASA1, s. 18 Section 18. 195.29 (5) of the statutes, as affected by 2003 Wisconsin Act 33, is amended to read:

AB837-ASA1,12,17 195.29 (5) Elimination of grade crossings, costs. Upon petition of the department, or of the common council or board of any city, village, town, or county, alleging that one or more of them have undertaken or propose to undertake to relocate or improve an existing highway or to construct a new highway in such manner as to eliminate a highway grade crossing with any railroad or so as to permanently divert a material portion of the highway traffic from a highway grade crossing with any railroad, the office shall, subject to s. 195.065, issue notice of investigation and hearing, as provided in s. 195.04. If upon such hearing the office finds that the public safety will be promoted by the highway relocation, improvement, or new construction, the office shall, subject to s. 195.065, order the old crossings closed and new crossings opened as are deemed necessary for public safety. The order shall require the railroad company or companies to pay to the interested municipality or municipalities such sum as the office finds to be an equitable portion of the cost of the highway relocation, improvement, or new construction, if the work is performed by the municipalities; or to the secretary of administration if the work is performed by the state; or to the proper county treasurer if the work is performed by the county. The sum shall be added to the joint fund available for the improvement and may be expended in like manner as the other portions of the fund.

AB837-ASA1, s. 19 Section 19. 195.29 (6) of the statutes is amended to read:

AB837-ASA1,13,18 195.29 (6) View at crossings; trees and brush near crossings; forfeiture. Every railroad shall keep its right-of-way clear of brush or trees for a distance of not less than 330 feet in each direction from the center of its intersection at grade with any public highway, and for such further distance as is necessary to provide an adequate view of approaching trains, from the highway. Every municipality shall keep the public highways within its jurisdiction clear of brush and shall adequately trim all trees within 330 feet of the center of any railroad highway grade crossing. Every person or corporation owning or occupying any land adjacent to any railroad highway grade crossing shall keep all brush cut and adequately trim all trees on the land within the triangles bounded on 2 sides by the railway and the highway, and on the 3rd side by a line connecting points on the center lines of the railway and the highway, 330 feet from the intersection of the center lines. The office, upon its own motion, or upon any complaint to the effect that any work required by this subsection has not been performed, after due notice and hearing, may, subject to s. 195.065, order the corporation, municipality or person at fault to perform the work; provided, however, that if the physical conditions at any crossing are such that the performance of the required work will not materially improve the view for highway traffic, or, if unreasonable loss would be caused thereby, the office may excuse the party in interest from performing the same. The Subject to s. 195.065, the office may also order the cutting of brush and the trimming of trees at private farm crossings as may be necessary and reasonable. If any person shall violate any provision of this section, or shall fail, neglect or refuse to obey any order made by the office under this section, or any judgment or decree made by any court upon such an order, for every such violation, failure or refusal such person shall forfeit not less than $25 nor more than $150.

AB837-ASA1, s. 20 Section 20. Nonstatutory provisions.

AB837-ASA1,14,3 (1) Notwithstanding the time period specified in section 195.065 (3) (b) of the statutes, as affected by this act, any person aggrieved by a final decision of the office of the commissioner of railroads in a proceeding under section 84.05, 86.13 (3), 195.28, 195.285, or 195.29 of the statutes, as affected by this act, rendered between January 1, 1999 and the effective date of this subsection may, no later than June 30, 2005, request review of the decision by the review panel under section 195.065 (3) of the statutes, as created by this act. Upon such a request for review, the review panel shall, without a new hearing, conduct a review of the decision in the manner specified under section 195.065 (3) of the statutes, as created by this act.

AB837-ASA1, s. 21 Section 21. Initial applicability.

AB837-ASA1,14,6 (1) This act first applies to proceedings pending before the office of the commissioner of railroads on the effective date of this subsection.

AB837-ASA1,14,7 (End)