2006 New York Code - Grants Of Land Under Water.

 
    § 75. Grants  of  land  under  water.  This section authorizes grants,
  leases, easements, and lesser interests, including permits, for the  use
  of  state-owned  land underwater and the cession of jurisdiction thereof
  consistent with the public interest in  the  use  of  state-owned  lands
  underwater  for  purposes of navigation, commerce, fishing, bathing, and
  recreation; environmental protection; and access to the navigable waters
  of the state; with due regard for the need of affected owners of private
  property to safeguard their property.
    1. Of navigable rivers and lakes.
    2. Of the Hudson river adjacent to the state of New Jersey.
    3. Of the former bed of Onondaga  creek  in  Onondaga  county  and  of
  Tibbetts  brook  in  Bronx  county,  whether or not now under water, and
  regardless of upland ownership.
    4. Adjacent to and surrounding Great  Barn  island  in  the  city  and
  county  of New York, and between high and low water mark on such island,
  but not so as to affect the navigation of the  waters  surrounding  such
  island.
    5.  Adjacent to and surrounding Staten Island, but not so as to extend
  more than five hundred feet into the water from low water mark  on  said
  island,  except  where  the  legally established pier and bulkhead lines
  extend more than five hundred feet beyond low water mark, in which  case
  grants may be made to such lines.
    6.  Adjacent  to and surrounding Long Island, and all that part of the
  former or present county of Westchester lying on the East river or  Long
  Island   sound,  but  not  beyond  any  permanent  exterior  water  line
  established by law.
    7. (a) The commissioner of general services may grant in perpetuity or
  otherwise, to the owners of the land adjacent  to  the  land  underwater
  specified  in this section, to promote the commerce of this state or for
  the purpose of beneficial enjoyment  thereof  by  such  owners,  or  for
  agricultural  purposes,  or  for  public  park,  beach, street, highway,
  parkway, playground, recreation or conservation  purposes,  so  much  of
  said  land  underwater  as  the  commissioner  deems  necessary for that
  purpose. No such grant shall be  made  to  any  person  other  than  the
  proprietor of the adjacent land. Any such grant made to any other person
  shall  be  void,  except  that,  subject to the other provisions of this
  section, the commissioner of general services may transfer  jurisdiction
  over  state-owned  lands underwater to a state agency for the purpose of
  protecting environmentally sensitive lands underwater even if the  state
  agency  is  not  the proprietor of the adjacent upland. The commissioner
  may also lease such land underwater to such owner of the adjacent upland
  or, with the consent of such owner of the adjacent  upland,  to  others,
  for terms up to forty years. No such grant or lease shall be made of any
  lands  belonging to the city of New York, or so as to interfere with the
  rights of that city or of the Hudson River Railroad Company, or  of  its
  successor  the  New  York  Central and Hudson River Railroad Company. In
  making any grant, lease, permit or other conveyance, the commissioner of
  general services shall, upon administrative findings, and to the  extent
  practicable,  reserve  such  interests  or  attach  such  conditions  to
  preserve the public interest in use of state-owned lands underwater  and
  waterways   for  navigation,  commerce,  fishing,  bathing,  recreation,
  environmental protection and access  to  the  navigable  waters  of  the
  state,  with  due  regard  for  the  need  of affected owners of private
  property to safeguard their property. The commissioner shall by official
  rules establish criteria and guidelines for determinations with  respect
  to the leasing or selling of such lands underwater.
    Where  the boundary line between land underwater and the adjacent land
  lies within a public road or street, and the name of the owner or owners
  of such adjacent land or the place of residence cannot be ascertained to
  the satisfaction of the commissioner, grants or leases may  be  made  by
  the  commissioner in his or her discretion to the owner or owners of the
  land adjoining the road or street inshore of such land underwater in the
  manner  herein  provided,  but  a  grant  or  lease so made shall not be
  regarded as depriving any other person of the exercise  of  his  or  her
  riparian rights.
    Where  the  title  to such public road or street is in a county, city,
  town or village, grants or leases may be made by the commissioner in the
  manner herein provided to the owner of the land adjoining  the  road  or
  street  inshore of such land underwater, but no such grant shall be made
  unless the consent thereto of such county, city, town or  village  shall
  first  be  filed  with  the  commissioner,  or  unless, having been duly
  personally served with a  notice  of  application  of  such  grant,  the
  county,  city,  town  or  village  fails  to  file an objection with the
  commissioner or, having filed such objection, fails to  present  to  the
  commissioner  sufficient  proof  or  other  reasons  satisfactory to the
  commissioner why the grant should not be made.
    (b) No wharf, dock, pier,  jetty,  platform,  breakwater,  mooring  or
  other  structure  shall  be  constructed,  erected, anchored, suspended,
  placed  or  substantially  replaced,  altered,  modified,  enlarged,  or
  expanded  in,  on  or  above state-owned lands underwater, nor shall any
  fill be placed on such  lands  underwater,  unless  a  lease,  easement,
  permit,  or  other  interest  is  obtained  from the commissioner, which
  authorizes the use and occupancy of those state-owned  lands  underwater
  to  be  affected by such act or acts, provided however, that there shall
  be excepted in the uniform regulations issued pursuant to paragraph  (f)
  of  this  subdivision  any  existing  structure  for  non-commercial use
  constructed prior to June seventeenth, nineteen hundred  ninety-two,  by
  or  on  behalf  of  the owner of adjacent upland who owned prior to June
  seventeenth, nineteen hundred ninety-two, which has a surface  area,  as
  measured at the outermost perimeter, including surface waters between or
  encompassed  within the structure of less than five thousand square feet
  in area, and with respect to docking facilities, has a  capacity  of  no
  more  than  seven  boats thirty feet in length. For the purposes of this
  subdivision, the term "structure" shall not include discharge or  intake
  pipes,  pipelines,  cables,  or  conduits.  Thereafter there shall be so
  excepted any structure constructed by or  on  behalf  of  the  owner  of
  adjacent uplands that:
    (i)  has  a  surface  area,  as  measured  at the outermost perimeter,
  including surface waters directly  between  or  encompassed  within  the
  structure,  of  less  than  four  thousand  square  feet in area and not
  exceeding fifteen feet in height, as measured at  the  uppermost  point,
  above  the mean high water line and, with respect to docking facilities,
  has a capacity of five or fewer boats thirty feet in  length  and,  with
  respect  to  mooring  facilities, has a capacity of fewer than ten boats
  thirty feet in length;  provided  that  the  commissioner  may  by  rule
  promulgated  pursuant  to  paragraph  (f) of this subdivision determine,
  based on a different surface area or other criteria  of  size  and  use,
  that  other  types  of  structure  in  particular  circumstances  do not
  represent significant encroachments on state-owned lands underwater, and
    (ii) is water dependent,  which  shall  mean,  for  purposes  of  this
  section,  an  activity  which  can  only  be  conducted  on, in, over or
  adjacent to a water body because such activity requires direct access to
  that water body, and  which  involves,  as  an  integral  part  of  such
  activity, the use of the water.
    (c)  The  requirements of obtaining a lease, easement, permit or other
  interest from the commissioner  pursuant  to  the  rules  set  forth  in
  paragraph  (f)  of  this  subdivision  shall  not apply to the person or
  entity who was the upland owner on June  seventeenth,  nineteen  hundred
  ninety-two,  of lands adjacent to filled state-owned lands underwater or
  formerly  underwater,  in  respect  of  those  filled  lands,  including
  accompanying seawalls; provided  however,  that  any  right,  title  and
  interest  of  the state in and to any such state-owned lands shall in no
  respect be diminished or impaired by the provisions of this section, nor
  by any exemption in the uniform regulations authorized by paragraph  (f)
  of this subdivision.
    Upon any transfer of such lands, or at the request of the owner of the
  adjacent upland, the commissioner may convey such lesser interest as may
  be  minimally required to allow a conveyance of marketable title by that
  owner of the adjacent land.  Consideration  charged  in  such  instances
  shall reflect the interest so conveyed.
    (d)  (i)  The  commissioner  of  environmental  conservation  and  the
  secretary of state shall review any proposed lease, easement, permit  or
  other  interest, except for facilities in existence on June seventeenth,
  nineteen hundred ninety-two, and which are not the subject of an  action
  by  the  attorney  general  for unlawful occupation of state lands under
  water on the effective date  of  this  paragraph.  The  commissioner  of
  environmental  conservation  shall  recommend  conditions to protect the
  environment and natural resources. The commissioner of general  services
  shall  incorporate  those  conditions  in any lease, easement, permit or
  other interest, giving due regard as well to the recommendations of  the
  secretary  of  state  with  respect to coastal issues, or shall deny the
  proposal  if  the  commissioner  of  environmental  conservation,   upon
  administrative  findings,  determines  that  the  environment or natural
  resources cannot be adequately protected. Such lease, easement,  permit,
  or  other conveyance of an interest shall state the purpose for which it
  is made, and shall also be subject to all applicable federal, state  and
  local laws, rules, regulations and codes.
    (ii)  The  owner, occupier or any other person or entity (except those
  against whom there has been commenced on  the  effective  date  of  this
  paragraph  an action by the attorney general, for unlawful occupation of
  state lands under water) with a legal  or  beneficial  interest  in  any
  structure  not  excepted  by  paragraph  (b)  of  this  subdivision  and
  occupying state lands underwater on the  effective  date  of  the  rules
  authorized  by paragraph (f) of this subdivision, as adopted pursuant to
  subdivision five of section two hundred two of the state  administrative
  procedure  act,  shall make application for such lease, easement, permit
  or other interest within one year from that effective date.
    Except where timely application for such an  interest  has  been  made
  within  one  year  pursuant  to  this  subdivision,  the commissioner is
  authorized to require the term of such lease, easement, permit, or other
  interest to be retroactive  to  the  effective  date  of  the  rules  so
  adopted.  Any instrument conveying an interest in real property which is
  made retroactive shall include provision for  payment  of  consideration
  for the portion of the term which extends retroactively including, where
  appropriate,  interest  on  such  consideration  at  the  same rate then
  currently in effect and applied to judgments rendered in  the  court  of
  claims.
    (iii) The commissioner shall make reasonable efforts to provide notice
  to persons affected by the requirements of this section.
    (e)(i)  The  commissioner  may  impose  a  fee  in connection with the
  issuance of any such lease, easement, permit, or other  interest,  which
  fee  shall  be  established  by  rule  pursuant to paragraph (f) of this
  subdivision, and which shall take into account other  factors  affecting
  value  including  but  not limited to classes of structure, types of use
  (including whether the use is for public or private purposes),  location
  and region, size, usefulness of the parcel standing alone and such other
  criteria  as the commissioner may determine, but which shall exclude the
  value   of  improvements  thereon  constructed  and  maintained  by  the
  adjoining upland owner. The rules and regulations required by  paragraph
  (f)  of  this subdivision shall prescribe that in the event an applicant
  for a lease, easement or other interest in real property  shall  dispute
  and request a reduction of the commissioner's determination of the value
  of  the  interest  to  be  conveyed,  the  commissioner  shall, upon the
  applicant's submission of an appraisal of the  value  of  such  property
  interest  conducted  in  accord  with  standard  and  accepted appraisal
  methodology by an independent appraiser qualified as prescribed in  this
  paragraph  and  which  appraisal varies in its conclusion as to value by
  ten  percent  or  more  of  the  value  previously  established  by  the
  commissioner,  and  upon  the applicant's agreement to be bound thereby,
  contract with a second independent appraiser, qualified as prescribed in
  this paragraph, to render an appraisal of  the  value  of  the  interest
  proposed to be conveyed, the results of which appraisal shall be binding
  upon  both  the applicant and the commissioner of general services. Such
  appraiser shall be selected by the commissioner of general services from
  among a group of at least three appraisers identified by  the  applicant
  all  of  whom must be qualified as prescribed in this paragraph and each
  of whom must agree to employ standard  appraisal  methodology.  For  the
  purposes  of  this provision a qualified appraiser shall be certified by
  the secretary of state to transact business as  a  real  estate  general
  appraiser  and shall conduct a regular business of the appraisal of real
  property interests. In the event that the appraisal  contracted  for  in
  such  manner  shall  conclude that the value of the property interest in
  question is equal to the value previously determined by the commissioner
  plus or minus ten percent, the entire cost of such  appraisal  shall  be
  borne  by  the  applicant,  otherwise,  the entire cost thereof shall be
  borne by the commissioner of general services.
    (ii) For leases, easements  and  conveyances  of  such  interests  for
  commercial use of structures on state-owned underwater lands, the annual
  fee imposed shall not exceed two percent of the user's net annual income
  for structures not in existence on the effective date of this paragraph.
  Nor,  in  connection with a structure in existence and in commercial use
  on the effective date of  this  paragraph,  shall  the  fee  charged  in
  connection  with such a conveyance made after the effective date of this
  subparagraph exceed annually  the  following  schedule  for  five  years
  following  the  effective  date  of  the  interest  conveyed pursuant to
  subdivision (b) of this section provided timely application pursuant  to
  that  subdivision  has been made: .2 (two-tenths) of one percent; second
  year: .4 (four-tenths) of one percent; third-year:  .6  (six-tenths)  of
  one  percent; fourth year: .8 (eight-tenths) of one percent; fifth year,
  and thereafter: one percent; provided that all such percentages in  this
  paragraph  shall  be  that percentage of the net income derived from the
  structure or structures on  state-owned  lands,  excluding  transactions
  involving sales or repair of boats, and sale of gasoline; and the dollar
  valuation  of  the interest conveyed shall not be increased from year to
  year during that five year period. The fee charged shall  be  discounted
  ten percent for annual permits.
    (iii)  For  leases,  easements  and  conveyances of such interests for
  residential use of non-exempt structures in  existence  and  residential
  use  on  the  effective date of this paragraph, the annual fee shall not
  exceed the lesser of twenty dollars per slip or one hundred dollars.
    (iv) Nothing in this paragraph  shall  preclude  the  commissioner  of
  general services from agreeing, upon the request of and negotiation with
  the  owner  or  user  of  adjacent  upland, to such other conveyances or
  agreements consistent with this section providing for different periodic
  payments, or a more flexible payment structure, than the  fee  caps  and
  fees,  respectively, set forth for commercial and residential facilities
  herein. Moreover, notwithstanding the fee caps set in this section,  the
  commissioner  may  exceed those caps if required to cover the yearly pro
  rata share, over  the  term  of  the  conveyance  or  interest,  of  the
  administrative costs in connection with that conveyance or interest.
    (f)  The  commissioner,  in  consultation  with  the  commissioner  of
  environmental conservation, the secretary of state, the office of parks,
  recreation and historic preservation and other interested state agencies
  administering state-owned lands underwater, shall promulgate pursuant to
  article two of the state administrative procedure act  such  rules  with
  respect to grants, leases, easements and lesser interests for the use of
  state-owned land underwater, and the cession of jurisdiction thereof, as
  in  his  or  her  judgment  are  reasonable and necessary to protect the
  interests of the people in such lands underwater. Such regulations shall
  include without being limited to: the fees  to  be  charged,  consistent
  with  the  provisions of this section, including mitigation of such fees
  in the event of economic hardship on  existing  commercial  enterprises;
  fee  limitations to administrative expenses for municipal uses which are
  public, non-commercial and offer services free or for nominal fees,  and
  for  uses undertaken and operated for public and non-commercial purposes
  by not-for-profit corporations characterized as  "Type  B"  corporations
  pursuant   to   paragraph   (b)  of  section  two  hundred  one  of  the
  not-for-profit corporation law, and for uses undertaken and operated for
  public purposes by  a  corporation  formed  pursuant  to  the  religious
  corporation  law  or  by a corporation formed pursuant to special act of
  this state and which has as its principal purpose a  religious  purpose;
  such  further  exemptions for projects as the commissioner determines do
  not  represent  significant  encroachments;   limitations   on   grants,
  including conversion grants, with respect to underwater lands consistent
  with the public purposes of this subdivision and limiting such grants to
  exceptional  circumstances; and factors to be examined in considering an
  application for a lease, easement or other interest. Those factors shall
  include without limitation the following: (i) the  environmental  impact
  of  the  project;  (ii)  the  values  for  natural  resource management,
  recreational uses, and commercial uses of the pertinent underwater land;
  (iii) the size, character and effects of  the  project  in  relation  to
  neighboring  uses;  (iv) the potential for interference with navigation,
  public uses of the waterway and rights of other riparian owners; (v) the
  effect of the project on the natural resource interests of the state  in
  the  lands;  (vi)  the  water-dependent nature of the use; (vii) and any
  adverse economic impact on existing commercial  enterprises.  The  final
  promulgation  of  rules  establishing  fees  or  fee structures shall be
  subject to the approval of the director of the budget.
    (g) (i) From one year after the effective date of the rules authorized
  by paragraph (f) of this subdivision and adopted pursuant to subdivision
  five of section two hundred two of the  state  administrative  procedure
  act,  and  thereafter,  any person who violates any of the provisions of
  this subdivision; or who fails to  perform  any  duty  imposed  by  this
  subdivision;  or  who  violates  or  fails  to  comply  with  any  rule,
  regulation, determination  or  order  of  the  commissioner  promulgated
  pursuant  to  this  subdivision  may  be  enjoined  from continuing such
  violation, and in any event shall be liable for a civil penalty  of  not
  more than five hundred dollars for each such violation and an additional
  civil  penalty  of not more than one hundred dollars for each day during
  which such violation continues; provided, however, that  such  penalties
  shall  be  imposed  by the commissioner only after written notice and an
  opportunity to be heard are given to the owner, occupier or other person
  or entity  having  a  legal  or  beneficial  interest  in  a  prohibited
  structure or area of fill which notice shall be transmitted by certified
  mail,  return receipt requested and which shall set forth the provisions
  of this section, a description of the prohibited structure  or  area  of
  fill,  the  amount  of the penalty, that the person must comply with the
  provisions of this section within thirty days,  and  the  specific  date
  thirty  days  thereafter  following which the person shall be subject to
  such penalty and after which further penalties shall accrue on  a  daily
  basis.
    (ii)  If  the  commissioner of environmental conservation notifies the
  commissioner of any failure  to  comply  with  conditions  of  a  lease,
  easement  or  other  interest,  the  commissioner shall investigate such
  suspected violation. The commissioner, on his or her own  initiative  or
  at  the request of the commissioner of environmental conservation, shall
  thereafter take enforcement action as described herein  or  request  the
  attorney  general to institute an action to enjoin such violation and to
  recover any damages therefor.
    8. The commissioner may authorize the use and occupation by the United
  States of lands of the state under water, for the purpose of improvement
  of navigation, including sites for lighthouses, beacons  and  lighthouse
  keepers'  dwellings  and  navy  yards  and  naval stations, and may cede
  jurisdiction over any such land but such jurisdiction so ceded shall  be
  upon  the  express  condition  that the state of New York shall retain a
  concurrent jurisdiction with the United States in and over the  property
  and premises so conveyed, so far as that all civil and criminal process,
  which  may  issue  under the laws or authority of the state of New York,
  may be  executed  thereon  in  the  same  way  and  manner  as  if  such
  jurisdiction  had  not  been  ceded,  except  so far as such process may
  affect  the  real  or  personal  property  of  the  United  States.  The
  provisions of section seventy-seven shall not apply to any authorization
  of use and occupation under the provisions of this subdivision.
    9. Private rights or rights of property of individuals, if any, of any
  nature  or description, shall not be taken away nor impaired nor impeded
  without due process of law.
    10. No  grant  for  public  park,  beach,  street,  highway,  parkway,
  playground, recreation or conservation purposes shall be made under this
  section  to  other than a county, city, town or village. A grant so made
  may be made with or without consideration and shall be upon  such  terms
  and  conditions  as  may be imposed by the commissioner. A grant so made
  shall be upon the condition that if at any  time  the  land  so  granted
  shall not be used for the purpose set forth therein or shall be used for
  any other purpose, the title so granted shall thereupon revert to and be
  in  the  people  of  the state of New York. Where a grant has heretofore
  been made by the commissioner for one or more of the purposes enumerated
  herein, the commissioner, in his discretion  and  upon  such  terms  and
  conditions  as  he  may  impose  and with or without consideration, upon
  application by the county  board  of  supervisors,  board  of  estimate,
  common  council,  town  board  or  village board, as the case may be, is
  authorized to alter or amend such grant,  in  respect  to  the  purposes
  thereof  and  with  respect to the whole or part of the land under water
  therein granted  and  described,  so  that  the  grant  may  thenceforth
  nevertheless  be  for one or more of the purposes enumerated herein. The
  provisions of section seventy-seven of this article shall not apply upon
  an application to alter or amend a grant so heretofore made.
    11. Where a grant of land under water has previously been made by  the
  state  under  the  provisions  of  this  article,  for  the  purposes of
  commerce,  commerce  or  beneficial  enjoyment,  restricted   beneficial
  enjoyment,  or  otherwise,  where  the purpose of the grant is less than
  that of beneficial enjoyment, and by  reason  of  the  nature  of  which
  previous  grant  there  remains in the state a right, title or interest,
  the commissioner may, in his discretion,  grant  such  right,  title  or
  interest  in  or to the whole of the land under water so granted or part
  thereof, to the grantee or to one who has  succeeded  to  the  title  or
  interest  so  previously  granted,  and  a  grant  so  made  may be made
  regardless of upland ownership and without  publication  or  posting  of
  notice  of  application  as  provided  by  section seventy-seven of this
  article, but no such grant shall be made for  less  than  the  appraised
  value  of  the  right,  title or interest of the state in the land under
  water or part thereof, as the case may be, and shall be upon such  terms
  and  conditions  as  shall be imposed by the commissioner to protect the
  interests of the state.
    12.  The  commissioner,  in  his  discretion,  upon  such  terms   and
  conditions  and for such consideration as the commissioner may determine
  may grant and convey to the owner or owners of  the  adjacent  land  the
  right,  title and interest of the people of the state of New York in and
  to the lands now or formerly under the waters of the arms,  branches  or
  tributaries of any navigable waters of the state which arms, branches or
  tributaries  have  become non-navigable, and a grant so made may be made
  without publication or posting of notice of application as  provided  by
  section seventy-seven of this chapter.
    13.  The  powers  granted  to  the  commissioner  by this section may,
  notwithstanding any other law to the contrary, continue to be  exercised
  by  it  in  respect  to  lands  under  the waters of the Niagara and St.
  Lawrence rivers except as  to  those  areas  thereof  that  are  natural
  resources  of  the state of New York for the creation and development of
  hydroelectric power, but the commissioner shall not make  any  grant  of
  lands  under  the  water  of  either  of  said  rivers  unless the power
  authority of the state of New York shall, prior to the issuance  of  any
  such  grant,  advise  the  commissioner, in writing, that such grant, if
  made, will not interfere with its St. Lawrence or Niagara project.
    14. Proceeds from the sales, leases, grants of  easements  and  lesser
  interests,  including  permits for the use of lands under water pursuant
  to this section shall be deposited in the environmental protection  fund
  established pursuant to section ninety-two-s of the state finance law.