You asked about the use of eminent domain for railroad projects.

SUMMARY

A number of statutes address specific aspects of railroad construction and alteration. Some of these require hearings, Department of Transportation (DOT) approval, and allow taking property. Separate statutes authorize eminent domain for commuter parking and transportation services. In addition, it is possible that special acts could apply to certain takings.

The sections below describe the statutes we found for takings for railroad projects and specific requirements for the takings or approving the construction project. Some of these statutes refer to the process used to take land for state highways. CGS § 13a-73 governs those takings and is described in the attached OLR Report (2002-R-0504).

RAILROAD CONSTRUCTION AND LOCATION (CGS § 13B-244, ET SEQ. )

The chapter of the statutes on railroad construction contains a number of provisions on specific projects. Listed below are those statutes that authorize use of eminent domain and procedural requirements for those projects.

• No land can be taken without consent except within 2 years of approval of the location of the route by DOT (CGS § 13b-245).

• Before DOT approves the layout of a railroad or the taking of any land for it or for any change or alteration, it must give reasonable notice to all people with an interest in the land “to attend and be heard. ” The appraisers must also send a notice (CGS § 13b-246).

• A company can alter the location of its line to change the radius of its curves, width of its layout, extent of depot grounds, slopes, or embankments; straighten and improve lines; and extend sight lines when approved by DOT. It can take land for additional tracks, turnouts, and stations, and to supply water for engines and stations. DOT must sign the takings certificate (CGS § 13b-248).

• A company can add to the number of its main tracks and, with DOT approval, take land for this purpose (CGS § 13b-250).

• When a company takes land for railroad purposes and the taking cuts off other land from practical access to the highway, the company can take additional land with DOT approval to provide a convenient way to the highway for the use of the owner of the land cut off (it remains a private way for the owner's use). Land can be acquired as provided by law for railroads taking land (CGS § 13b-253).

• Within 90 days of a railroad of a company being laid out and approved by DOT, the company must file the plan with the towns where it is located indicating its direction, length, and width of land taken (CGS § 13b-260).

• When a highway is constructed across a railroad, the company must construct the crossing as approved by DOT and can take land for the purpose. Beginning October 1, 1989, public railroad crossings at grade require a special act of the General Assembly. The Transportation Committee must request DOT to conduct an investigation including public hearings, proposed legislation, and a detailed report (CGS § 13b-268).

• Municipal officials can petition DOT to alter the way a highway and railroad cross for public safety. DOT must schedule a hearing and provide notice to the petitioners, company, relevant municipalities, and adjacent landowners as reasonable. Railroad companies can take land for this purpose (CGS § 13b-270).

• When DOT determines public safety requires altering a highway crossed at grade by a railroad, it can order alterations after a hearing with reasonable notice to the railroad companies, town officials, and adjoining landowners. Railroad companies can take land that DOT finds necessary for this purpose but a special finding of public necessity and convenience is not required (CGS § 13b-274).

• A public service company with tracks crossing over, under, or on certain highways can petition DOT for authority to eliminate a dangerous condition at the crossing. DOT must schedule a hearing. It can also set a hearing on its own motion. DOT must notify public service companies with tracks, wires, poles, or other fixtures in or adjacent to the highway at or near the crossing and municipalities and adjoining landowners whose property would be affected. A petitioner must file plans and specifications, cost estimates including for taking land or interests in land, and names and addresses for all whose land might be affected (CGS § 13b-275). DOT can order changes and apportion costs. A public service company or municipality can appeal the order (CGS §§ 13b-276, -277).

• If a party making changes to a highway cannot agree with the owner of land or other property to be taken or removed under a decision by DOT, damages are assessed in the same way as for land taken by railroad companies (CGS § 13b-280). (Case note states that this section gives towns the power to take land for changes in a highway. )

• If the view of tracks near where they cross a highway at grade is obstructed by trees, shrubs, or earth, DOT can make appropriate orders after a hearing and reasonable notice to the relevant companies, town officials, and adjoining landowners. Any order must specifically set limits within which land can be taken and the nature, purpose, and specific limits of easements authorized to be taken. The expense of any order is paid by the owner of the land on which the obstruction is located (CGS § 13b-281).

• When a highway passes over or under a railroad and public convenience or necessity requires a change in the highway, the town can petition DOT for changes. DOT must schedule a hearing and provide notice to the petitioners, company, relevant municipalities, and adjacent landowners as reasonable. DOT can issue orders for public convenience and necessity or safe and suitable operation of the railroad. DOT has the same powers as for removing grade crossings and can take land (CGS § 13b-282).

• As necessary, DOT can acquire land or rights of entrance and exit from land abutting certain projects regarding structures around tracks in the same way as for state highway purposes (CGS § 13b-283).

• A town chief executive can petition DOT when a railroad has been laid out, located, or constructed so near a highway that he believes it endangers the public. DOT, after reasonable notice to the railroad company to appear and be heard, can order a change in the highway if public safety requires it and the change is practicable. If the company or town ordered to do the work cannot obtain necessary land by agreement, it can take land necessary to carry out the order (CGS §§ 13b-285, -287).

• The owner of a private crossing at grade of railroad tracks or any interest in land used by a company for railroad purposes or any railroad company with land encumbered by private rights, can petition DOT for condemnation of the rights alleging public safety requires eliminating the encumbrance. DOT sets a hearing after reasonable notice to owners of rights, the company, and landowners adjoining the highway to be laid out as a substitute for the private crossing. If public safety requires it, DOT can authorize the company to condemn private rights. DOT can also determine that public convenience and necessity require a highway because the private rights are eliminated and lay out a highway for public convenience (CGS § 13b-289).

• DOT can authorize private crossings that cross railroad tracks at grade if necessary for a community's economic welfare (CGS § 13b-292). The provisions of CGS § 13b-281 apply (these are described above and include takings).

COMMUTER PARKING (CGS § 13B-29)

DOT can construct and maintain commuter parking facilities along automobile routes to reduce peak traffic demands on highways and to encourage carpools, vanpools, and use of mass transportation. DOT can acquire property necessary to construct and maintain the facilities in the same manner and with the same powers as for acquiring property for state highway purposes.

TRANSPORTATION SERVICES (CGS § 13B-36)

DOT can take title or a lesser interest or right in land, buildings, equipment, or facilities necessary for operating or improving transportation services. The determination of necessity is conclusive. Takings must be done in the manner for taking for state highways (under CGS § 13a-73).

RAILROAD TRANSPORTATION COMPACT (CGS § 16-343 AS AMENDED BY PA 05-210, § 47)

The Connecticut-New York Railroad Passenger Transportation Compact authorizes New York's Metropolitan Transportation Authority and Connecticut's DOT, where permitted under their enabling laws, to acquire property through eminent domain of the New York, New Haven, and Hartford Railroad and its successors that is reasonably expected to be necessary, convenient, or desirable to continue or improve service.

CR: ro/dw