Article 3 Elimination of Grade Crossings

The Council has authority to determine whether any railroad crossing of any street within the corporate limits of the City at or near street grade is dangerous, and to provide for the elimination of that grade crossing. [June 2, 1913, subdn. a of new sec. 372 1/2; 1928 pub., sec. 265; 1942 recod., sec. 9-401; am. Nov. 8, 1966; am. Nov. 3, 1992.]

Whenever the Council finds that a railroad grade crossing should be eliminated, it may by ordinance require the City Engineer to prepare plans and specifications for, and estimates of, the cost. [June 2, 1913, subdn. b, new sec. 372 1/2; 1928 pub., sec. 266; 1942 recod., sec. 9-402; am. Nov. 8, 1966; am. Nov. 3, 1992.]

In preparing plans, specifications and estimates, the City Engineer shall confer with the Civil Engineer of any railroad company having an interest in the crossing, for the purpose of determining a reasonable plan and method for eliminating it. If the City Engineer is unable to agree with the Engineer of the railroad company, the City Engineer shall proceed to determine a proper and reasonable plan and method of eliminating said grade crossing; provided, however, that if the civil engineer of an interested railroad company does not confer with the City Engineer after ten (10) days written notice, the City Engineer may proceed with the preparation of plans, specifications and estimates without a conference. [June 2, 1913, subdn. c, new sec. 372 1/2; 1928 pub., sec. 267; 1942 recod., sec. 9-403; am. Nov. 8, 1966; am. Nov. 3, 1992.]

The City Engineer shall file with the Auditor a report on elimination of the grade crossing with the necessary plans, specifications and estimates of the cost. The City official designated by ordinance shall notify in writing each interested railroad company, and any company shall have thirty (30) days from date of the notice to file with the Auditor objections thereto, or to propose modifications thereof, or to file other or different plans and specifications, together with the estimates of the cost. [June 2, 1913; subdn. d, new sec. 372 1/2; 1928 pub., sec. 268; 1942 recod., sec. 9-404; am. Nov. 8, 1966; am. Nov. 3, 1992.]

Within three (3) months after the thirty (30) day period for filing objections, the Council shall consider the report, objections, plans, specifications and estimates filed, or may refer the matter to a commissioner or committee of commissioners for this purpose, in which event the City official designated by ordinance shall mail five (5) days notice in writing to any company interested when the commissioner or committee will consider the matter, and at the time specified any company may attend and be heard thereon. Upon filing of the commissioner's or committee's findings and recommendations, the Council may adopt a plan and method for eliminating the grade crossing and adopt specifications therefor, or it may dismiss the proceedings. If it appears that change of street grade will be required in eliminating the grade crossing, the Council shall determine whether such grade shall be changed, with or without considering damages to adjacent property. If the Council determines to consider damages to adjacent property, it shall require the City Engineer to report the estimated damages that property may sustain by reason of the change of street grade, based on the depreciation, if any, in market value on account of the change of street grade. In estimating the depreciation of market value, the City Engineer shall take into account the benefits, if any, the effect which the proposed improvement will have upon market value of the property, and the probable assessment against the property for the improvement. [June 2, 1913, subdn. e, new sec. 372 1/2; 1928 pub., sec. 269; 1942 recod., sec. 9-405; am. Nov. 8, 1966; am. Nov. 3, 1992.]

Upon filing of the City Engineer's report on damages, the Auditor shall publish in four (4) successive publications in the City official newspaper a notice that such report has been filed, stating the amount of damages to each property as estimated by the City Engineer, the date when the report of the City Engineer will be heard by the Council, and that written objections thereto may be filed with the Auditor any time prior to the day of hearing. The date of hearing shall be not less than five (5) days after the last publication of notice. The Auditor shall also send a copy of the published notice to each person interested in land affected. If the address of such person is unknown, and if such person has an agent whose name and address is known, notice shall be mailed to the agent; otherwise it shall be mailed to the owner addressed at Portland, Oregon. At the time of hearing the Council shall consider the report and all objections thereto and may refer it to any committee or commissioner for further hearing and report. At any time thereafter the Council may determine the damages to be awarded for the change of street grade.

If construction is contemplated by the Council in order to effect the elimination of a railroad grade crossing, no proposed assessment to property benefitted by the change of street grade need be made in the proceedings for change of street grade, but rather a statement may be made that such damages will be assessed as a part of the total improvement cost or will be financed in a particular manner. Thereafter the cost of making the change and improvement shall include, as part of the cost, the total damages awarded on account of such change of street grade. The Council shall determine whether any portion of the total cost of the improvement shall be financed by assessment of benefits to property within an assessment district as a local improvement, and if so, the total cost shall be apportioned as follows: sixty percent shall be paid by the company or companies owning or controlling the railroad trackage at the crossing; no more than twenty percent shall be assessed against the property benefitted thereby within the district fixed by the Council; and the balance may be paid by the City, or as the Council may determine. Total cost shall include the cost of raising or lowering tracks within street boundaries, but the raising or lowering of tracks outside street boundaries shall be the sole responsibility and expense of the railroad company. Total cost shall also include all other costs and expenses of the improvement, plus damages to property within the district. Whenever the street is occupied or used by more than one railroad company, the railroad's share of the total cost of the improvement shall be apportioned among them. The cost and expense of raising or lowering the grades or tracks outside street area to be borne by the affected companies shall be apportioned by the Council unless, within thirty (30) days after the Council orders the improvement, all affected companies file with the Auditor their mutual agreement thereon. [June 2, 1913, subdn. f, new sec. 372 1/2; 1928 pub. sec, 270; 1942 recod., sec. 9-406; am. Nov. 8, 1966; am. Nov. 3, 1992.]

If damages are allowed to adjacent property owners because of the change of street grade, upon final determination of the amount to be awarded to each property owner and upon determination by the Council to proceed with the improvement as provided in Section 9-408, the Council shall loan or otherwise transfer from any available fund to the special assessment fund, an amount sufficient to pay all such awards. The warrants then shall be drawn in favor of the persons entitled thereto in the amounts awarded, payable upon demand, with interest as set by ordinance. No such warrant shall be delivered to a property owner who has been allowed damages until the owner applies therefor and files written acceptance of such allowance, or until the amount of award has been finally determined. The advancement authorized herein, with interest as set by ordinance, is part of the cost of the improvement and the amount of the advancement with interest shall be returned to the fund from which it was advanced, subject to the apportionment of the City's share, if any. [June 2, 1913, subdn. g, new sec. 372 1/2; 1928 pub., sec. 271; 1942 recod., sec. 9-407; am. Nov. 8, 1966; am. Nov. 3, 1992.]

If a portion of the cost of eliminating a railroad grade crossing is to be financed by local improvement assessments, the procedures for establishing a local improvement district and assessing property shall be followed. Remonstrances may be filed with the Auditor by property owners within the time to be fixed by resolution. Upon the expiration of that time, the Council shall determine whether or not to proceed with the matter. If the Council determines to proceed it may overrule any and all remonstrances. Assessments made hereunder shall be entered in the docket of City liens and collected in the same manner as other assessments and the amount to be paid by a railroad company also shall be entered on the docket of City liens and shall constitute a lien against all property of the company in the City. If any railroad company fails to pay or bond the assessment within the time provided for paying or bonding assessments for street improvements, the City may proceed by court process to require payment, or may proceed to collect the same by suit or action as other assessments are or may be collected, or by both procedures. [June 2, 1913, subdn. h, new sec. 372 1/2; 1928 pub., sec. 272; 1942 recod., sec. 9-408; am. Nov. 8, 1966; am. Nov. 3, 1992.]

Persons, including railroad companies whose property has been assessed for the improvement eliminating a railroad grade crossing, have the right to bond their assessments in the same manner as provided for bonding assessments for other local improvements. No further proceedings shall be required to change the grade of the street than as specified in this Article, and upon the completion of the improvement, the grade of the street shall be deemed changed to the grade established by the improvement. [June 2, 1913, subdn. i, new sec. 372 1/2; 1928 pub., sec. 273; 1942 recod., sec. 9-409; am. Nov. 8, 1966; am. Nov. 3, 1992.]

Nothing in this Article shall impair the right of the City to require the holder of a franchise or other person, required by ordinance or otherwise to pave a portion of street, to move any facility at their own expense or to improve a portion of street, to carry out their obligation without expense to the City.  For this purpose, elimination of grade crossings is a public work and improvement.  No duty, express or implied, of the holder of a franchise, contract or permit shall be impaired by amendments to this Chapter subsequent to the grant of franchise, contract or permit.  [June 2, 1913, subdn. j, new sec. 372 1/2; 1928 pub., sec. 274; 1942 recod., sec. 9‑410; rev. Nov. 8, 1966; am. Nov. 3, 1992; amended by Ordinance No. 190204, effective December 18, 2020.]

The provisions of this Article relating to change of grade affect other provisions relating to change of grade in this Chapter. The provisions of this Article shall be construed as an additional procedure which the Council may follow in eliminating railroad grade crossings. [June 2, 1913, subdn. k, new sec. 372 1/2; 1928 pub., sec. 275; 1942 recod., sec. 9-411; rev. Nov. 8, 1966; am. Nov. 3, 1992.]

The Council may provide in one proceeding under this Article for the elimination of the grade crossings of two (2) or more streets by any railroad or railroads in a district. [June 7, 1915, new sec. 275 1/2; 1928 pub., sec. 275 1/2; 1942 recod., sec. 9-412; am. Nov. 8, 1966; am. Nov. 3, 1992.]