2006 New York Code - Eminent Domain.

 
  § 15-1729. Eminent domain.
    Real  property  may  be  acquired pursuant to title 17 of this article
  under an exercise of the right of eminent domain in the following cases:
    1. Real property which  is  necessary  to  the  full  development  and
  utilization  of any water power site of which the state is the owner, in
  whole or in part.
    2. Real property which is necessary to the full development  of  water
  power  sites  where  such  water  power sites on a stream, or in a given
  locality cannot be developed separately as efficiently and  economically
  for  the  generation  of  power  as  under  a plan for their development
  together and the owner or owners of the right to the use of the  greater
  part  of  the  head  and  volume  of usable flow for power at such sites
  transfer the same to a corporation organized for  the  production,  sale
  and  distribution  of  heat,  light  and  power  to the public as herein
  provided, or  such  right  is  owned  by  such  a  corporation  and  the
  department  determines  by  resolution that such power sites can be more
  efficiently and economically developed for the production of power under
  such a plan than singly, and the heat, light or power is  necessary  for
  public use.
    3.  Real  property,  on the application of a corporation organized for
  the production of heat, light or power, after  a  determination  by  the
  Public  Service  Commission  that such property is necessary to the full
  development and utilization of a single undeveloped water power site,  a
  major  part of the head and volume of the usable flow for power at which
  site is owned by such corporation, for the production of heat, light  or
  power  for  sale or distribution to the public and that such heat, light
  or power is necessary for public use. In any county containing a part of
  the forest preserve as now constituted, for the purpose of  establishing
  the right to exercise the power of eminent domain under this subdivision
  the  ownership  of wild or unoccupied land shall be presumed to be in an
  applicant showing a record  title  under  which  the  applicant  or  his
  grantors  has  claimed for a period of ten years and it appears that the
  state and county taxes thereon have been paid by or on  behalf  of  such
  applicant  or  his  grantors  for  a  period  of  five  years before the
  proceeding in which the application is  made  was  begun;  ownership  in
  other  lands  wherever located shall be presumed on showing record title
  in the applicant for a period of ten years and possession thereunder for
  a like period.
    4.  Such  right  of  eminent  domain  shall  be  exercised  under  the
  provisions  of the eminent domain procedure law subject to the following
  restrictions and limitations:
    a. The acquisition of real property for the  state  shall  be  on  the
  application of the department, and payment therefor shall be made in the
  manner  provided  for  the payment of lands appropriated by the state in
  the Adirondack and Catskill parks under section 3-0305 of this chapter.
    b. If a water power site be taken under subdivision 2 of this section,
  the owner of any such power site shall have the option  to  receive  and
  own such a proportion of the power resulting from the common development
  as the head and volume of the usable flow of the water at the site bears
  to  the  product  of the total head and volume of the usable flow of the
  waters of the common development, provided he pays a like proportion  of
  the  cost  of  development, maintenance and operation, and consents that
  his pro rata share of  such  power  shall  be  pledged  to  secure  such
  payment,  and  assents  to  such reasonable and equitable provisions and
  regulations in relation to the development and operation thereof for the
  common  benefit  and  to  payment  therefor  as  the  department   shall
  prescribe.  In  case  of  the  exercise of such option by the owner of a
  developed water power site, such owner shall also be allowed  the  loss,
  if  any, resulting to him from the excess in value, if any, of the water
  power owned by him before such common development over the  water  power
  right  owned  by  him  after  such development, after deducting from the
  value   of  such  power  right  his  proportion  of  the  cost  of  such
  development. Such difference in value shall be  deemed  a  part  of  the
  damages in the condemnation proceeding, and the payment thereof shall be
  secured as directed by the court.
    c.  Before  any  real  property  is  taken  under  the  provisions  of
  subdivision 2 of this section, the owner or owners of the right  to  the
  use  of the greater part of the head and volume of usable flow for power
  at the sites to be developed in common shall, unless such a  corporation
  be  already  organized  and  be  the  owner  of  such rights, organize a
  corporation for the production, distribution and sale of heat, light and
  power to the public, and shall transfer to such corporation such  sites.
  Such  corporation  shall  file  with  the  Public  Service  Commission a
  certified copy of its certificate of incorporation and shall  also  file
  with  such  department  a  map  of  the  water power sites, and property
  connected therewith, of which it is the owner, with  satisfactory  proof
  that  it  is  the  owner thereof, and a map of the water power sites and
  property which it seeks to acquire for the purpose of  making  a  common
  development.  It  shall  also  file  with  such department a plan of its
  proposed development of water power on the property which  it  owns  and
  which  it  seeks  to acquire. Such corporation shall file copies of such
  maps  and  plan  certified  by  the  president  and  engineer   of   the
  corporation,  or a majority of the directors, in the office of the clerk
  of the county in which such development is to be made, or if  it  be  in
  more  than  one  county,  in the office of the clerk of each county; and
  shall give written notice to all actual occupants of lands of  which  it
  is  not  the  owner on which such development is to be made, of the time
  and place such maps and plan were filed, and that such development is to
  be made on the lands of such occupants. The  Public  Service  Commission
  shall give an opportunity to persons interested to be heard, investigate
  and determine whether it is in the public interest that such development
  be made and whether the power to be produced is necessary for the supply
  of  the  public  with heat, light or power. If it shall so determine, it
  may issue to such corporation a certificate that public convenience  and
  necessity  require  that  such  development be made, but in granting the
  certificate the department may expressly except from its certificate any
  part of the property proposed to be  developed  as  unnecessary  to  the
  plan.  Such  certificate  when issued shall be conclusive evidence as to
  the matters lawfully certified  therein  in  any  proceeding  under  the
  Condemnation Law to acquire the property, or any part thereof, set forth
  in such certificate.
    5. Real property, on the application of a corporation authorized to do
  business  in  this  state  and  engaged  in  the  production,  sale  and
  distribution of heat, light or power to the public, which  is  necessary
  to  perfect  or  improve  water  power  already developed, provided that
  property taken does not impair or injure any developed  water  power  or
  developed  water  power  site.  The  corporation  may apply for and in a
  proper case receive from the Public Service Commission a certificate  of
  convenience  and  necessity for taking the property so to be acquired in
  the  manner  and  with  like  effect  as  provided  in  paragraph  c  of
  subdivision  4  of  this section. Any such corporation may also exercise
  the right of eminent domain to acquire real property in accordance  with
  the provisions of subdivisions 2, 3 and 4 of this section.
    6.  If  it  appears that there is a defect of title or any outstanding
  interest in any of the real property occupied or to be occupied  by  the
  project  when  completed, the corporation making, or having the right to
  make, the development of the water  power  may  exercise  the  right  of
  eminent  domain  for  the  purpose  of  acquiring  any  such outstanding
  interest or any real property with respect to which the title appears to
  be or is defective.
    7.  In  any  county  containing  a  part of the forest preserve as now
  constituted,  real  property,  on  the  application  of  a   corporation
  organized  for the production of heat, light or power, necessary for the
  development of a water power site or sites, developed  or  about  to  be
  developed, and occupied by a railroad and real property necessary to and
  for the relocation of such railroad, upon application to and on order of
  the Public Service Commission authorizing the same and upon thirty days'
  notice  to the railroad corporation. The Public Service Commission shall
  grant the order if in its judgment the public interest will be  promoted
  thereby.  The  relocation of the railroad shall be at the expense of the
  applicant and in accordance with plans and specifications to be approved
  by  such  Public  Service  Commission.  The  applicant  shall  not  take
  possession  of  any  real  property  of  the  railroad necessary for its
  operation  until  such  relocation  of  the  railroad  shall  have  been
  completed. The Public Service Commission upon the assent of the railroad
  may  order  the abandonment of such part of the railroad as is necessary
  to be taken instead of ordering a relocation thereof.
    8. Real property, on the application of a  corporation  organized  for
  the  production of heat, light or power, which is necessary for the full
  development of a water power site or sites, developed  or  about  to  be
  developed, and is used or occupied as burial place or cemetery, and real
  property  necessary  to  locate  and  reinter  any human remains removed
  therefrom. Proceedings shall be had for the taking of such real property
  and removal of such remains in the manner provided by  section  15-2117,
  in  so  far  as  the provisions thereof are applicable thereto, but such
  exercise of the right of eminent domain shall be subject  to  the  sound
  discretion of the court.