2006 New York Code - Acquisition Of Abandoned Railroad Transportation Property.

 
    § 18. Acquisition  of  abandoned  railroad transportation property. 1.
  Notwithstanding the provisions of any general, special or local  law  to
  the  contrary,  the  commissioner  shall  have  a  preferential right to
  acquire, for and in behalf of the people of the state of New  York,  for
  use  in the future for transportation purposes, as such purposes are set
  forth in this chapter, the highway law or the canal law, any property as
  defined in subdivision six of this section and which has been  abandoned
  for  railroad  transportation  purposes as defined in subdivision two of
  this section. No property owner  shall  dispose  of  any  such  property
  without  having  first  obtained notification from the commissioner that
  the preferential right of acquisition granted under  this  section  does
  not   apply,   or   a  release  of  such  preferential  right  from  the
  commissioner. Conveyances of property in violation of this section shall
  be null and void. Acquisition of property pursuant to this section shall
  be in the manner provided by section  thirty  of  the  highway  law.  No
  acquisition  shall  be  made until the director of the budget shall have
  issued a certificate of  availability  of  funds  therefor.  Before  any
  property  is  acquired  pursuant to this section, the commissioner shall
  determine that it is in the best interests of the state to acquire  such
  property for use in the future for transportation purposes.
    1-a.  The  department  of  transportation  is  hereby  designated  the
  official state agency to receive  all  notifications  from  the  federal
  interstate  commerce  commission or any other federal or state agency in
  regard to discontinuance of service  or  railroad  property  abandonment
  proceedings,   including  notification  of  applications  from  railroad
  companies for any such purposes.
    1-b. The department of transportation shall promptly inform in writing
  all interested state agencies,  transportation  authorities,  and  every
  county, city, town and village in which such property is located and the
  appropriate  entity  designated  by the governor pursuant to title IV of
  the  federal  intergovernmental  cooperation  act  of  nineteen  hundred
  sixty-eight  and  the  federal  office of management and budget circular
  A-98 of (a) the issuance of any certificate from the federal  interstate
  commerce  commission  or  other  federal  or  state  agency  authorizing
  discontinuance  of  railroad  service   or   abandonment   of   railroad
  transportation  property, (b) approval of discontinuance of service or a
  determination  of  abandonment  of  railroad   transportation   property
  pursuant  to  this  section,  and  (c)  the receipt of an application to
  release a preferential  acquisition  right  to  railroad  transportation
  property pursuant to this section.
    1-c.  Whenever  a  property  owner  intends  to  dispose  of abandoned
  railroad transportation property, it  shall  notify  the  department  of
  transportation  in  writing  of  its  intention.  Upon  receipt  of such
  notification, the department of transportation shall have ninety days to
  make  a  determination  and  notify  the  property  owner  as   to   the
  applicability  of  the  preferential  right of acquisition granted under
  this section, except that this period may be suspended by the department
  upon its finding that the property owner has not  submitted  information
  sufficient  to  enable  the  department  to  make  its determination. If
  suspended, this  period  will  resume  upon  receipt  of  this  required
  information.  In  the  event the department fails to notify the property
  owner of its determination, the preferential right of acquisition  shall
  be  deemed  not  to  apply.  The department shall inform the appropriate
  state agencies, every metropolitan or regional transportation  authority
  and every county, city, town and village in which such railroad property
  or  portion  thereof  is located, of the intention of the property owner
  and the department's finding of applicability of the preferential  right
  of  acquisition.    If  notified by the department that the preferential
  right of acquisition does not extend to the  subject  property,  or  the
  department  has  not  notified  the  property owner of its determination
  prior  to  the  expiration  of  the   foregoing   ninety   day   period,
  notwithstanding  any suspension, the property owner shall not enter into
  a binding contract to sell the property  within  forty-five  days  after
  this  notification by the department.  Such state agencies, metropolitan
  or regional transportation authorities, and counties, cities, towns  and
  villages  shall have preferential acquisition rights to be determined as
  herein   provided.   No   state   agency,   metropolitan   or   regional
  transportation  authority, county, city, town, or village shall have any
  preferential right of  acquisition  unless  specifically  authorized  in
  writing  by  the  department.  Within  a reasonable time thereafter, any
  agency  of  government  which  intends  to   exercise   a   preferential
  acquisition  right  for  such  property  shall  notify the department of
  transportation in writing. Within a reasonable time,  not  greater  than
  one  hundred  twenty  days  after  receipt  of  such notification by the
  property owner,  the  department  of  transportation  shall  notify  the
  property  owner  in  writing  whether  the  department of transportation
  intends to  exercise  its  preferential  acquisition  right  under  this
  section  or,  if not, whether it has determined that any other agency of
  government  has  been  authorized  by  it  to  exercise  a  preferential
  acquisition  right to such property. If the department of transportation
  notifies the property owner that it does  not  intend  to  exercise  its
  right  and that it has not authorized any other state or local agency of
  government to so exercise its right, the commissioner  shall  issue  the
  property  owner a written release of the preferential acquisition rights
  granted under this section. In the event the department fails to provide
  notice of the intent to release the preferential right  of  acquisition,
  such  right  shall  be  deemed  to  have expired.   If the department of
  transportation, or any other state or local agency of  government  shall
  be  qualified  to  exercise  such  preferential  acquisition  right, the
  department of transportation shall notify the  property  owner  of  such
  intention  and  the  property  owner shall not dispose of such abandoned
  railroad transportation property without first having obtained a release
  of the preferential right from the department of  transportation.  There
  shall  be  good  faith  bargaining  between  the  property owner and the
  department or any party of interest either authorized by the  department
  to  exercise  the  preferential  right of acquisition or notified by the
  department as to  the  inapplicability  of  the  preferential  right  of
  acquisition.  The  department  of  transportation  shall issue a written
  release of the preferential acquisition right within one hundred  eighty
  days after demand by the property owner, or such right will be deemed to
  have  been  expired.  The  department  shall make a good faith effort to
  issue such release.
    1-d. Whenever a conflict  occurs  between  one  or  more  agencies  of
  government as to the exercise of a preferential right, the department of
  transportation shall in the exercise of its sole discretion resolve such
  conflict  and  make  a prompt determination of the reasonable and proper
  order  of  priority  with  respect  to  the   same.   In   making   such
  determination,   the   department  shall  take  into  consideration  the
  provisions of the comprehensive state-wide  master  transportation  plan
  and  its  actions shall be consistent to the extent practicable with the
  effectuation of all state plans, policies and objectives.
    1-e. The commissioner of transportation  shall  promulgate  rules  and
  regulations   consistent   with   and  for  the  purpose  of  adequately
  implementing the foregoing subdivisions.
    2. For the purposes of this section, property shall be  deemed  to  be
  abandoned  for railroad transportation purposes (a) when, where required
  by law, a certificate  of  abandonment  of  the  railroad  line  situate
  thereon has been issued by the interstate commerce commission and/or any
  other  federal  or state agency having jurisdiction thereof; or (b) when
  such a certificate of abandonment is not so required and the use of such
  property for railroad transportation purposes has been discontinued with
  the  intent  not  to  resume.  Intent not to resume may be inferred from
  circumstances. Non-use  of  the  property  for  railroad  transportation
  purposes  for  two  consecutive  years  shall  create  a  presumption of
  abandonment.   When use of such  property  for  railroad  transportation
  purposes has been discontinued and upon request of the property owner or
  his  own  motion,  the  commissioner  shall  undertake  an investigation
  thereof, which may include consultation  with  the  interstate  commerce
  commission,  and  shall  render a determination as to whether or not (a)
  the property owner has definite plans for the use of such  property  for
  purposes  ordinarily  associated with the safe and normal operation of a
  railroad  or  associated  transportation  purposes;  (b)  such  property
  continues  to be suitable for such railroad transportation purposes; and
  (c) such property is necessary, either presently or in the  future,  for
  such railroad transportation purposes.  Such property shall be deemed to
  be  abandoned  for  railroad transportation purposes if the commissioner
  shall determine that (a) the property owner has no  definite  plans  for
  the  use  of  such  property for purposes ordinarily associated with the
  safe and normal operation of a  railroad  or  associated  transportation
  purposes;  or  (b) such property is no longer suitable for such railroad
  transportation purposes; and (c) such property is not necessary,  either
  presently  or  in the future, for such railroad transportation purposes.
  The commissioner shall render  such  determination  within  ninety  days
  after  the  commencement  of  such  investigation and such determination
  shall be conclusive except that if the property is determined not to  be
  so  abandoned such determination shall not preclude the undertaking of a
  subsequent  investigation  concerning  the  same  property.   Sales   of
  abandoned railroad transportation property for continued or resumed rail
  transportation use may be exempted at the commissioner's discretion from
  the  preferential  right of acquisition. This section shall not apply to
  the subsequent resale of  property  lawfully  acquired  subject  to  the
  provisions   of  this  section  as  then  applicable,  except  when  the
  subsequent sale involves property previously exempted from this  section
  by the commissioner.
    3.  The  expense  of the acquisition of property including the cost of
  making surveys and preparing descriptions and maps  of  property  to  be
  acquired,  and of administrative duties in connection therewith, serving
  notice of appropriation, publication, making title searches,  appraisals
  and  agreements,  and  examinations  and readings and approval of titles
  made by the attorney-general, expenses incurred by the  commissioner  or
  the  attorney-general in proceedings for removal of owners or occupants,
  and expenses  incurred  by  the  commissioner  in  connection  with  the
  management  and supervision of the property, shall together be deemed to
  constitute the cost of property acquired pursuant to this  section.  The
  comptroller   is   hereby   authorized  to  charge  against  the  moneys
  appropriated for highway or other transportation purposes and to reserve
  therefrom such sums  as  may  be  sufficient  to  defray  the  necessary
  expenses  to  be  incurred  by  the  attorney  general  for examination,
  readings and approval of  titles,  upon  the  filing  with  him  by  the
  attorney  general  from  time  to  time of a certificate or certificates
  approved by the commissioner setting forth such estimated expenses. Such
  expenses shall be paid from the funds so reserved  after  audit  by  the
  state comptroller.
    4.  Any  moneys  received  by  the  commissioner from rentals or other
  sources of  revenue  in  connection  with  the  management,  operations,
  occupancy,  use  or  the  sale  of  or  exchange of property, under this
  section, that has been acquired by the  commissioner  pursuant  to  this
  section shall be deposited in the treasury of the state to the credit of
  the capital construction fund.
    5.  The  commissioner  may  determine  whether  any  property acquired
  pursuant to this section may be, in whole or in part, sold or  exchanged
  on   terms   beneficial   to  the  state,  and  in  all  cases  of  such
  determination, he may, notwithstanding the provisions  of  any  general,
  special  or  local  law, so dispose of such property.  In order to carry
  any  such  sale  or  exchange   into   effect,   the   commissioner   of
  transportation  is hereby authorized to execute and deliver, in the name
  of the people of the state, a quitclaim of, or a grant in and  to,  such
  property.    Each such instrument of conveyance shall be prepared by the
  attorney general and before delivery thereof, shall be approved  by  him
  as to form and manner of execution.
    6.  The  term  "property"  as used in this section means all abandoned
  railroad property, except:
    (a) property noncontiguous to line rights of  way  and  yards,  except
  when such property has been made noncontiguous as a result of a previous
  sale or release of the preferential right, and
    (b) side and spur track properties not greater than one-fourth mile in
  length,  except  when sales of such property would make adjoining rights
  of way noncontiguous.
    7. The commissioner, when he deems it necessary,  may  in  the  manner
  provided  by  subdivision  twelve  of section thirty of the highway law,
  obtain possession of any property acquired pursuant to this section.
    8. The commissioner, in the manner provided by subdivision  thirteen-c
  of  section thirty of the highway law, shall manage and receive fair and
  reasonable value for the holding, use or occupancy of property  acquired
  pursuant to this section.
    9.  The  provisions  of  this  section  shall  not apply to a railroad
  company owned and operated by a municipal corporation.