2006 New York Code - Property For Highways, Bridges And Other Highway Uses And Purposes To Be Acquired By Acquisition.

 
    §  29.  Property  for  highways,  bridges  and  other highway uses and
  purposes  to  be  acquired  by  acquisition.  1.   Notwithstanding   any
  inconsistent  provisions  of this chapter, or any other laws, general or
  special, the commissioner of transportation shall, whenever the  federal
  government shall agree to grant or contribute to the state not less than
  twenty-five  per  centum  of  the  cost thereof, acquire pursuant to the
  provisions of the eminent domain procedure  law  any  and  all  property
  necessary  for  the  construction and reconstruction of highway projects
  located on the "strategic  network  of  highways,"  as  defined  in  the
  federal defense highway act of nineteen hundred forty-one and as revised
  to  May  fifteenth,  nineteen  hundred  forty-one  and  approved  by the
  secretary of war, or on such network as hereafter revised and  approved,
  and  also  any and all property necessary for any other highway project,
  exclusive of parkways, when certified by the army or navy  as  important
  for  the  purposes of national defense, and a like grant or contribution
  is to be made by the federal government. A highway indicated under  this
  section for construction or improvement, or any portion of such highway,
  may be constructed or improved, or reconstructed, as a controlled access
  highway,  upon  the  adoption  of a resolution by a majority vote of the
  board of supervisors of the  county  in  which  the  highway  is  to  be
  constructed.  The resolution of the board of supervisors herein referred
  to shall not be required in relation to  highways  to  be  projected  as
  through  trunk routes and principally on new location.  The costs of all
  such property as may be acquired under this section shall be paid in the
  first  instance  from  any  funds  available   for   the   construction,
  reconstruction and improvement of state highways and bridges.
    2.  The  commissioner  of transportation shall cause to be prepared an
  accurate acquisition map of any property which he may deem necessary for
  purposes connected with such highway projects or of any property in  and
  to  which  he  may  deem  the  acquisition  or  exercise of an easement,
  interest or right to be  necessary  for  such  purposes  indicating  and
  describing  in  each case the particular easement, interest or right. On
  the  approval  of  such  acquisition  map   by   the   commissioner   of
  transportation,  he shall acquire such property, easements, interests or
  rights pursuant to the eminent domain procedure law.
    3. If the commissioner shall determine, prior to the filing of a  copy
  of  a map of acquisition, as provided in section four hundred two of the
  eminent domain procedure law, in the  office  of  the  county  clerk  as
  aforesaid,  that  changes,  alterations  or modifications of such map as
  filed in the main office of the department should be  made,  he  or  she
  shall,  subject  to  the provisions of article two of the eminent domain
  procedure law, if applicable, direct the preparation of an amended  map,
  either  by  preparing  a  new  map  or by making changes on the original
  tracing of such map, with a notation indicating  such  changes.  On  the
  approval  of  such amended map by the commissioner, it shall be filed in
  the main office of the department in the same manner as the original map
  was filed and the amended map shall thereupon in all  respects  and  for
  all purposes supersede the map previously filed.
    4.  If  the  commissioner shall determine, prior to the filing of such
  copy of the acquisition map  in  the  office  of  the  county  clerk  as
  provided  in  section  four  hundred two of the eminent domain procedure
  law, that such  map  should  be  withdrawn,  he  or  she  shall  file  a
  certificate   of  withdrawal  in  the  offices  of  the  department  and
  department of law. Upon the filing of such  certificate  of  withdrawal,
  the  map to which it refers shall be cancelled and all rights thereunder
  shall cease and determine.
    5. If, at or after the vesting of title to such property in the people
  of the state of New York in the  manner  provided  for  in  the  eminent
  domain  procedure  law, the commissioner of transportation shall deem it
  necessary to cause the removal of an owner or other occupant  from  such
  property,  he  may  cause  such  owner  or  other occupant to be removed
  therefrom  by proceeding in accordance with section four hundred five of
  such  law.  The  proceeding  shall  be  brought  in  the  name  of   the
  commissioner  of  transportation  as  agent  of the state. If any person
  proceeded against shall contest the petition by an answer, the  attorney
  general  shall  be  notified,  and  he  thereafter  shall  represent the
  petitioner in the proceedings. No execution shall issue  for  costs,  if
  any,  awarded  against  the state or the commissioner of transportation,
  but they shall be part of the costs of the acquisition and  be  paid  in
  like  manner.  Proceedings may be brought separately against one or more
  of the owners or other occupants of a property, or one proceeding may be
  brought against all or several of the owners or other occupants  of  any
  or  all property within the territorial jurisdiction of the same justice
  or judge; judgment shall effect or be  made  for  immediate  removal  of
  persons  defaulting  in appearance or in answering, or withdrawing their
  answers, if any, without awaiting the trial or decision of issues raised
  by contestants, if any.
    6. The  commissioner  of  transportation  upon  making  any  agreement
  provided  for  in  section  three  hundred  four  of  the eminent domain
  procedure law shall deliver to the  comptroller  such  agreement  and  a
  certificate  stating  the  amount due such owner or owners thereunder on
  account of such appropriation of his or their property and the amount so
  fixed shall be paid out of  the  state  treasury,  after  audit  by  the
  comptroller,  from  moneys appropriated for purposes connected with such
  highway projects, but not until there shall have  been  filed  with  the
  comptroller  a certificate of the attorney general showing the person or
  persons claiming the amount  so  agreed  upon  to  be  legally  entitled
  thereto.
    7. Application for reimbursement of incidental expenses as provided in
  section  seven  hundred two of the eminent domain procedure law shall be
  made to the commissioner upon forms  prescribed  by  him  and  shall  be
  accompanied  by  such  information  and evidence as the commissioner may
  require. Upon approval  of  such  application,  the  commissioner  shall
  deliver  a  copy  thereof to the comptroller together with a certificate
  stating the amount due thereof, and the amount so fixed  shall  be  paid
  out  of  the  state  treasury after audit by the comptroller from monies
  appropriated for the acquisition of property under this section.
    8. The commissioner  of  transportation,  with  the  approval  of  the
  director  of the budget, shall establish and may from time to time amend
  rules and regulations authorizing the payment of actual  reasonable  and
  necessary  moving expenses of occupants of property acquired pursuant to
  this section; of actual direct losses of tangible personal property as a
  result of moving or discontinuing a business or farm operation, but  not
  exceeding  an  amount  equal  to the reasonable expenses that would have
  been  required  to  relocate  such  property,  as  determined   by   the
  commissioner;   and  actual  reasonable  expenses  in  searching  for  a
  replacement business or farm; or  in  hardship  cases  for  the  advance
  payment  of such expenses and losses. For the purposes of making payment
  of such expenses and losses only, the term "business" means  any  lawful
  activity  conducted  primarily  for  assisting  in  the  purchase, sale,
  resale, manufacture, processing or marketing of  products,  commodities,
  personal  property  or  services  by  the erection and maintenance of an
  outdoor advertising display or displays, whether or not such display  or
  displays  are  located  on  the  premises  on  which  any  of  the above
  activities are conducted.
    Such rules and regulations may further define the terms used  in  this
  subdivision.    In  lieu  of such actual reasonable and necessary moving
  expenses, any such displaced owner or tenant of residential property may
  elect  to  accept  a  moving  expense  allowance,  plus  a   dislocation
  allowance,  determined  in  accordance  with  a schedule prepared by the
  commissioner and made a part of such rules and regulations.  In lieu  of
  such actual reasonable and necessary moving expenses, any such displaced
  owner or tenant of commercial property who relocates or discontinues his
  business  or  farm  operation  may  elect  to  accept a fixed relocation
  payment in an amount equal to the average annual  net  earnings  of  the
  business  or  farm operation, except that such payment shall be not less
  than two thousand five  hundred  dollars  nor  more  than  ten  thousand
  dollars.  In  the  case  of a business, no such fixed relocation payment
  shall be made unless the commissioner  finds  and  determines  that  the
  business  cannot be relocated without a substantial loss of its existing
  patronage, and that the business is not part of a commercial  enterprise
  having  at least one other establishment, which is not being acquired by
  the state or the United States, which is engaged in the same or  similar
  business.  In the case of a business which is to be discontinued but for
  which  the  findings  and determinations set forth above cannot be made,
  the commissioner may prepare an estimate of what the  actual  reasonable
  and  necessary  moving expenses, exclusive of any storage charges, would
  be if the business were to  be  relocated,  and  enter  into  an  agreed
  settlement  with  the owner of such business for an amount not to exceed
  such estimate in lieu of such actual  reasonable  and  necessary  moving
  expenses.  Application  for payment under this subdivision shall be made
  to  the  commissioner  upon  forms  prescribed  by  him  and  shall   be
  accompanied  by  such  information  and evidence as the commissioner may
  require. Upon approval  of  such  application,  the  commissioner  shall
  deliver  a  copy  thereof to the comptroller together with a certificate
  stating the amount due thereunder, and the amount so fixed shall be paid
  out of the state treasury after audit by  the  comptroller  from  moneys
  appropriated for the acquisition of property under this section. As used
  in  this  subdivision  the  term  "commercial  property"  shall  include
  property owned  by  an  individual,  family,  partnership,  corporation,
  association  or  a nonprofit organization and includes a farm operation.
  As used in  this  subdivision  the  term  "business"  means  any  lawful
  activity, except a farm operation, conducted primarily for the purchase,
  sale,  lease  and  rental  of  personal  and  real property, and for the
  manufacture, processing, or marketing of products, commodities,  or  any
  other personal property; for the sale of services to the public; or by a
  nonprofit organization.
    9.  The  commissioner  of  transportation  pursuant  to  section three
  hundred five of the eminent domain procedure law may make agreements  on
  such  terms,  conditions and consideration as he deems beneficial to the
  state with respect to any property  heretofore  or  hereafter  acquired,
  whereby  such  property  may  be  used and occupied by the former owner,
  tenant or by any other party from a date specified  in  said  agreement,
  until  such  time  as  the  state  requires  and obtains actual physical
  possession. The agreements for the use and occupancy  of  such  property
  may  be  managed,  supervised  and enforced (1) by the staff, forces and
  equipment  of  the  department  of  transportation;  or   (2)   by   the
  commissioner   of   transportation   contracting   for  the  management,
  supervision  and  enforcement  thereof  with   any   person,   firm   or
  corporation;  or  (3)  by  a  combination of such methods.   The use and
  occupancy of such property under the provisions of this section and  the
  right  of  the  state or its duly authorized agent to recover possession
  thereof shall not be subject to the emergency housing rent control law.
    Expenses which are determined by the commissioner of transportation to
  have been incurred in connection with the  use  and  occupancy  of  such
  property  may  be  paid  out  of  the  state treasury after audit by the
  comptroller from moneys appropriated for the duly authorized project for
  which  the property was acquired.  However, such expenses incurred under
  a contract for management and supervision of such property may  be  paid
  out  of  the  gross  revenue  therefrom.  All  moneys  received  by  the
  commissioner of transportation for such use or occupancy shall  be  paid
  into the treasury of the state to the credit of the capital construction
  fund.
    10.   Authorization   is   hereby   given   to   the  commissioner  of
  transportation to  make  supplemental  relocation  payments,  separately
  computed  and  stated,  to  displaced  owners and tenants of residential
  property acquired pursuant to this section who are entitled thereto,  as
  determined  by  him. The commissioner, with the approval of the director
  of the budget, may establish and from  time  to  time  amend  rules  and
  regulations  providing  for such supplemental relocation payments.  Such
  rules and  regulations  may  further  define  the  terms  used  in  this
  subdivision.   In the case of property acquired pursuant to this section
  which is improved by a dwelling  actually  owned  and  occupied  by  the
  displaced  owner  for  not less than one hundred eighty days immediately
  prior  to  initiation  of  negotiations  for  the  acquisition  of  such
  property,  such  payment to such owner shall not exceed fifteen thousand
  dollars. Such payment shall be the amount, if any, which, when added  to
  the  acquisition  payment  equals  the average price, established by the
  commissioner on a class, group or individual basis, required to obtain a
  comparable replacement dwelling that is decent,  safe  and  sanitary  to
  accommodate   the  displaced  owner,  reasonably  accessible  to  public
  services and places of employment and available on the  private  market,
  but  in  no  event  shall  such  payment  exceed  the difference between
  acquisition payment and the actual purchase  price  of  the  replacement
  dwelling.  Such  payment  shall  include an amount which will compensate
  such displaced owner for any increased interest costs which such  person
  is  required to pay for financing the acquisition of any such comparable
  replacement dwelling. Such amount shall be paid  only  if  the  dwelling
  acquired pursuant to this section was encumbered by a bona fide mortgage
  which  was  a  valid lien on such dwelling for not less than one hundred
  eighty days prior to the initiation of negotiations for the  acquisition
  of  such  dwelling.  Such  amount  shall  be  equal to the excess in the
  aggregate interest and other debt service costs of that  amount  of  the
  principal  of the mortgage on the replacement dwelling which is equal to
  the unpaid balance of the mortgage on the acquired  dwelling,  over  the
  remainder  term  of  the  mortgage  on the acquired dwelling, reduced to
  discounted present value. The discount  rate  shall  be  the  prevailing
  interest  rate  paid  on  savings  deposits  by  commercial banks in the
  general area in which the replacement  dwelling  is  located.  Any  such
  mortgage   interest  differential  payment  shall,  notwithstanding  the
  provisions of section twenty-six-b of the general construction  law,  be
  in lieu of and in full satisfaction of the requirements of such section.
  Such   payment  shall  include  reasonable  expenses  incurred  by  such
  displaced owner for evidence of title, recording fees and other  closing
  costs  incident  to  the  purchase  of the replacement dwelling, but not
  including prepaid expenses.  Such  payment  shall  be  made  only  to  a
  displaced  owner who purchases and occupies a replacement dwelling which
  is decent, safe and sanitary within one year subsequent to the  date  on
  which he is required to move from the dwelling acquired pursuant to this
  section or the date on which he receives from the state final payment of
  all  costs  of  the  acquired  dwelling,  whichever occurs later, except
  advance payment of such amount may be made in  hardship  cases.  In  the
  case  of  property  acquired  pursuant  to  this  section  from which an
  individual or family,  not  otherwise  eligible  to  receive  a  payment
  pursuant  to the above provisions of this subdivision, is displaced from
  any dwelling thereon which has been actually and  lawfully  occupied  by
  such  individual  or  family  for  not less than ninety days immediately
  prior to the initiation of negotiations  for  the  acquisition  of  such
  property,  such  payment  to  such individual or family shall not exceed
  four thousand dollars.  Such  payment  shall  be  the  amount  which  is
  necessary  to  enable  such  individual or family to lease or rent for a
  period not to exceed four years, a decent, safe, and  sanitary  dwelling
  of  standards adequate to accommodate such individual or family in areas
  not generally less desirable in regard to public  utilities  and  public
  and  commercial  facilities  and  reasonably  accessible to his place of
  employment, but shall not exceed four thousand dollars, or to  make  the
  down  payment, including reasonable expenses incurred by such individual
  or family for evidence of title, recording fees, and other closing costs
  incident to the purchase of the replacement dwelling, but not  including
  prepaid  expenses,  on  the  purchase  of  a  decent,  safe and sanitary
  dwelling of standards adequate to accommodate such individual or  family
  in  areas not generally less desirable in regard to public utilities and
  public and commercial facilities, but shall  not  exceed  four  thousand
  dollars, except if such amount exceeds two thousand dollars, such person
  must equally match any such amount in excess of two thousand dollars, in
  making  the  down  payment. Such payments may be made in installments as
  determined by the commissioner.   Application  for  payment  under  this
  subdivision  shall  be made to the commissioner upon forms prescribed by
  him and shall be accompanied by such information  and  evidence  as  the
  commissioner  may  require.  Upon  approval  of  such  application,  the
  commissioner shall deliver a copy thereof to the  comptroller,  together
  with  a certificate stating the amount due thereunder, and the amount so
  fixed shall be paid out  of  the  state  treasury  after  audit  by  the
  comptroller  from  moneys  appropriated  for the acquisition of property
  under this section.
    11. Any owner may present to the court of claims, pursuant to  section
  five  hundred three of the eminent domain procedure law, a claim for the
  value of property acquired and for legal damages, as provided by law for
  the filing of claims with the court of claims. Awards and  judgments  of
  the  court  of  claims  shall  be  paid in the same manner as awards and
  judgments of that court for the acquisition of lands generally and shall
  be paid out of the state treasury from moneys appropriated for  purposes
  connected with such highway projects.
    12.  If  the  work  of  construction  or reconstruction of any highway
  project shall cause actual damage to  property  not  acquired  as  above
  provided,  the  state shall be liable therefor, but this provision shall
  not be deemed to create any liability on  the  part  of  the  state  not
  already  existing  in law. Claims for such damage may be adjusted by the
  commissioner of transportation, if the amounts  thereof  can  be  agreed
  upon  with the persons making such claims, and any amount so agreed upon
  shall  be  paid  as  a  part  of  the  cost  of  the   construction   or
  reconstruction of such highway project as prescribed by this section. If
  the amount of any such claim is not agreed upon, such claim may pursuant
  to the eminent domain procedure law, be presented to the court of claims
  which  is  hereby  authorized  to  hear  such claim and determine if the
  amount of such claim or any part thereof is a legal  claim  against  the
  state  and  if  it  so  determines,  to make an award and enter judgment
  thereon against the state, provided, however, that such claim  is  filed
  with  the  court of claims within three years after the final acceptance
  of the work by the commissioner of transportation.
    13.   Notwithstanding   any  other  provision  of  this  section,  the
  commissioner of transportation shall have the power to acquire by  grant
  or  purchase,  in  the  name of the people of the state of New York, any
  property which he deems necessary for any of the purposes  provided  for
  in  this  section,  and  payment  therefor, if any, shall be made in the
  manner  prescribed  in  this  section  for  the  payment   of   adjusted
  acquisition claims, provided, however, that no real property shall be so
  acquired  unless  the  title  thereto  shall be approved by the attorney
  general.
    14. The expense of such acquisitions including  administrative  duties
  in  connection  therewith,  the  cost  of  making surveys, and preparing
  descriptions and maps of property to  be  acquired,  serving  notice  of
  appropriation,  publication,  making  appraisals  and  agreements and of
  searches ordered and examinations and readings  of  title  made  by  the
  attorney  general, and expenses incurred by the commissioner or attorney
  general in proceedings for removal of owners  and  occupants,  shall  be
  deemed part of the cost of such highway projects.
    15.  Notwithstanding  the  provisions of any general, special or local
  law,  the  commissioner  of  transportation,  his  officers,  agents  or
  contractor  and the officers or agents of the United States when engaged
  on such highway projects, may, pursuant to section four hundred four  of
  the eminent domain procedure law, enter upon property for the purpose of
  making  surveys,  test  pits,  test borings, or other investigations and
  also for temporary occupancy during construction.
    Claims for any damage caused by such entry,  work  or  occupation  not
  exceeding two thousand five hundred dollars may be adjusted by agreement
  by  the  commissioner  of  transportation with the owner of the property
  affected as  determined  by  him  by  reasonable  investigation  without
  appropriating  such  property.  Upon  making  any  such  adjustment  and
  agreement, the commissioner  of  transportation  shall  deliver  to  the
  comptroller such agreement and a certificate stating the amount due such
  owner  and  the  amount so fixed shall be paid out of the state treasury
  from monies appropriated for the acquisition of property for the project
  requiring such entry, work or occupation.
    17. The provisions of this section shall not affect any proceeding for
  the acquisition by a county of property for state highway purposes where
  such county has, before the effective date of this section, certified to
  the commissioner  of  transportation  that  certain  property  has  been
  purchased   or  options  therefor  executed  or  acquisition  proceeding
  instituted, but all such undertakings instituted by a  county  shall  be
  continued  and the acquisition of the property consummated in the manner
  provided by law applicable thereto as  in  force  prior  to  the  taking
  effect of this section.
    18.   Notwithstanding   any  other  provision  of  this  section,  the
  commissioner of transportation shall have the power to acquire by  grant
  or  purchase,  in  the  name of the people of the state of New York, any
  property which he deems necessary for any of the purposes  provided  for
  in  this  section  and  may  also  acquire  for  such  purposes from the
  Palisades interstate park commission, in the name of the people  of  the
  state  of New York, such lands and such easements, licenses, permits and
  other rights over lands as the said commission is authorized  to  grant,
  sell,  exchange  or convey. When the acquisition by appropriation, grant
  or purchase of property deemed  necessary  for  highway  purposes  would
  result  in  substantial  consequential  damages to the owner's remaining
  property, due to loss of access, severance or  control  of  access,  the
  commissioner  of  transportation, for and in behalf of the people of the
  state of New York, may acquire by purchase or grant all or  any  portion
  of  such  remaining property. Payment therefor, if any, shall be made in
  the manner prescribed in  this  section  for  the  payment  of  adjusted
  appropriation  claims, provided, however, that no real property shall be
  so acquired unless the title thereto shall be approved by  the  attorney
  general.