2012 New York Consolidated Laws
TRA - Transportation
Article 2 - (10 - 22) POWERS, DUTIES AND JURISDICTION OF THE DEPARTMENT OF TRANSPORTATION
18 - 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  United
  States department of transportation 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 United States
  department  of  transportation  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  United  States  department  of
  transportation  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 United States department  of  transportation,  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.