§ 16-0107 — Acquirement of property for flood control

New York § 16-0107

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Art. 16: Flood Control

Text

§ 16-0107. Acquirement of property for flood control.\n 1. The commissioner of environmental conservation, for the people of\nthe state of New York, shall acquire any property or interest therein,\nnecessary for purposes connected with the flood control projects. Such\nproperty or interest therein shall be for rights-of-way, channel\nimprovements, reservoirs, dams, quarries, gravel pits, borrow pits,\nspoil banks, camp sites, relocation of buildings and facilities,\nrelocation of the facilities of public service utilities, relocation of\nstreets, sidewalks, public grounds, parks, cemeteries, water supply\nsystems, sewer systems and lighting systems of municipal corporations;\nrelocation of county roads and town highways; and for other purposes\nconnected with the flood control projects. The term "property" as used\nin this section shall be deemed to mean and include "real property" as\nsuch term is defined in section one hundred three of the eminent domain\nprocedure law. The manner of acquisition, including method of obtaining\npossession, shall be governed by the provisions of the eminent domain\nprocedure law.\n 2. The commissioner of environmental conservation shall cause to be\nprepared an accurate acquisition map of any property which he may deem\nnecessary for purposes connected with the flood control projects or of\nany property in and to which he may deem the acquisition or exercise of\nan easement, interest or right to be necessary for such purposes,\nindicating and describing in each case the particular easement, interest\nor right. On the approval of such map by the commissioner he shall\nacquire such property, easements, interests or rights pursuant to the\nprovisions of the eminent domain procedure law.\n 3. If the commissioner shall determine, prior to the filing of such\ncopy of the acquisition map in the office of the county clerk, that\nchanges, alterations or modifications of such map should be made, he or\nshe shall, subject to the provisions of article two of the eminent\ndomain procedure law, if applicable, direct the preparation of an\namended map, either by preparing a new map or by making changes on the\noriginal tracing of such map, with a notation indicating such changes.\nOn the approval of such amended map by the commissioner, it shall be\nfiled in the main office of the department in the same manner as the\noriginal map was filed and the amended map shall thereupon in all\nrespects and for all purposes supersede the map previously filed.\n 4. If the commissioner shall determine, prior to the filing of such\ncopy of the map in the office of the county clerk as provided in section\nfour hundred two of the eminent domain procedure law, that such map\nshould be withdrawn, he or she shall file a certificate of withdrawal in\nthe offices of the department and department of law. Upon the filing of\nsuch certificate of withdrawal, the map to which it refers shall be\ncancelled and all rights thereunder shall cease and determine.\n 5. The commissioner shall deliver to the attorney general a copy of\nsuch acquisition map, whereupon it shall be the duty of the attorney\ngeneral to advise and certify to the commissioner the names of the\nowners of the property, easements, interests or rights described in the\nsaid acquisition map, including the owners of any right, title or\ninterest therein, pursuant to the requirements of section four hundred\nthree of the eminent domain procedure law.\n 6. If, at or after the vesting of title to such property in the\npeople of the state of New York in the manner provided for in this\nsection, the commissioner shall deem it necessary to cause the removal\nof an owner or other occupant from such property, he may cause such\nowner or other occupant to be removed therefrom by proceeding in\naccordance with section four hundred five of the eminent domain\nprocedure law. The proceedings shall be brought in the name of the\ncommissioner as agent of the state. If any person proceeded against\nshall contest the petition by an answer, the attorney general shall be\nnotified, and he thereafter shall represent the petitioner in the\nproceedings. No execution shall issue for costs, if any, awarded\nagainst the state or the commissioner but they shall be part of the\ncosts of the acquisition and be paid in like manner. Proceedings may be\nbrought separately against one or more of the owners or other occupants\nof a property, or one proceeding may be brought against all or several\nof the owners or other occupants of any or all property within the\nterritorial jurisdiction of the same justice or judge; and judgment\nshall be granted for immediate removal of persons defaulting in\nappearance or in answering, or withdrawing their answers, if any,\nwithout awaiting the trial or decision of issues raised by contestants,\nif any.\n 7. Upon making any agreement provided for in section three hundred\nfour of the eminent domain procedure law, the commissioner of\nenvironmental conservation shall deliver to the comptroller such\nagreement and a certificate stating the amount due such owner or owners\nthereunder on account of such appropriation of his or their property and\nthe amount so fixed shall be paid out of the state treasury from moneys\nappropriated for purposes connected with the flood control projects, but\nnot until there shall have been filed with the comptroller a certificate\nof the attorney general showing the person or persons claiming the\namount so agreed upon to be legally entitled thereto.\n 8. Application for reimbursement as provided in section seven hundred\ntwo of the eminent domain procedure law, shall be made to the\ncommissioner upon forms prescribed by him and shall be accompanied by\nsuch information and evidence as the commissioner may require. Upon\napproval of such application, the commissioner shall deliver a copy\nthereof to the comptroller together with a certificate stating the\namount due thereof, and the amount so fixed shall be paid out of the\nstate treasury after audit by the comptroller from monies appropriated\nfor the acquisition of property under this section.\n 9. a. The commissioner with the approval of the director of the\nbudget, shall establish and may from time to time amend rules and\nregulations authorizing the payment of the following expenses and losses\nincurred by the displaced owners or occupants of a property acquired\npursuant to this section as a result of such acquisition:\n (1) actual reasonable and necessary moving expenses; and\n (2) actual direct losses of tangible personal property as a result of\nmoving or discontinuing a business or farm operation on such property,\nbut not exceeding an amount equal to the reasonable expenses that would\nhave been required to relocate such property, as determined by the\ncommissioner; and\n (3) actual reasonable and necessary expenses in searching for a\nreplacement to the business or farm operation on such property; and\n (4) actual and reasonable expenses necessary to reestablish a\ndisplaced farm operation, non-profit organization, or small business\nfrom such property at its new site but not to exceed the maximum amount\nprovided for in the regulations.\n b. Such regulations may provide in hardship cases for the advance\npayment of any such expenses and losses. For the purposes of making\npayment of such expenses and losses only, such regulations shall provide\nthat the term "business" includes any lawful activity conducted\nprimarily for assisting in the purchase, sale, resale, manufacture,\nprocessing or marketing of products, commodities, personal property or\nservices by the erection and maintenance of an outdoor advertising\ndisplay or displays, whether or not such display or displays are located\non the premises on which any of the above activities are conducted. Such\nrules and regulations may further define the terms used in this\nsubdivision. Such regulations may also provide for payments to\nutilities for the relocation of their facilities under such\ncircumstances and in such amounts as the commissioner may determine.\n c. Any person eligible for the payments authorized by paragraph a of\nthis subdivision, who is displaced from their residential property may,\nin lieu of such payments, elect to accept an expense and dislocation\nallowance, determined in accordance with a schedule prepared by the\ncommissioner and made a part of such rules and regulations.\n d. Any person eligible for the payments authorized by paragraph a of\nthis subdivision, who is displaced from their business or farm operation\nand who is eligible under criteria established by the department may, in\nlieu of such payments, elect to accept a fixed relocation payment,\nexcept that such payment shall be not less than the minimum nor more\nthan the maximum amount provided for in the regulations. However, a\nperson whose sole business at the property so acquired is the rental of\nsuch property to others shall not qualify for payment under this\nparagraph.\n e. Application for payment under this subdivision shall be made to the\ncommissioner upon forms prescribed by the commissioner and shall be\naccompanied by such information and evidence as the commissioner may\nrequire. Upon approval of such application, the commissioner shall\ndeliver a copy thereof to the comptroller together with a certificate\nstating the amount due thereunder, and the amount so fixed shall be paid\nout of the state treasury after audit by the comptroller from moneys\nappropriated for the acquisition of property under this section. No\npayment shall be made under this subdivision for any cost, expense,\ndifference or other amount for which payment was previously made.\n f. The regulations necessary to implement this subdivision shall be\nconsistent with the applicable provisions of section thirty of the\nhighway law, as the same may from time to time be amended, and\nregulations issued thereunder.\n 10. The commissioner pursuant to section three hundred five of the\neminent domain procedure law, may make agreements on such terms,\nconditions and consideration as he deems beneficial to the state with\nrespect to any property heretofore or hereafter acquired, whereby such\nproperty may be used and occupied by the former owner, tenant or by any\nother party from a date specified in said agreement, until such time as\nthe state requires and obtains actual physical possession. The\nagreements for the use and occupancy of such property may be managed,\nsupervised and enforced (1) by the staff, forces and equipment of the\ndepartment of environmental conservation; or (2) by the commissioner of\nenvironmental conservation contracting for the management, supervision\nand enforcement thereof with any person, firm or corporation; or (3) by\na combination of such methods.\n The use and occupancy of such property under the provisions of this\nsection and the right of the state or its duly authorized agent to\nrecover possession thereof shall not be subject to the emergency housing\nrent control law.\n Expenses which are determined by the commissioner to have been\nincurred in connection with the use and occupancy of such property may\nbe paid out of the state treasury after audit by the comptroller from\nmoneys appropriated for the duly authorized project for which the\nproperty was acquired. However, such expenses incurred under a contract\nfor management and supervision of such property may be paid out of the\ngross revenue therefrom. All moneys received by the commissioner for\nsuch use or occupancy shall be paid into the treasury of the state to\nthe credit of the capital construction fund.\n 11. a. Authorization is hereby given to the commissioner to make\nsupplemental relocation payments, separately computed and stated, to\ndisplaced owners and tenants of residential property acquired pursuant\nto this section who are entitled thereto, as determined by the\ncommissioner. The commissioner with the approval of the director of the\nbudget, may establish and from time to time amend rules and regulations\nproviding for such supplemental relocation payments. Such rules and\nregulations may further define the terms used in this subdivision.\n b. In the case of residential property acquired pursuant to this\nsection, which is improved by a dwelling actually owned and occupied by\nthe displaced owner for not less than one hundred eighty days\nimmediately prior to initiation of negotiations for the acquisition of\nsuch property, such supplemental relocation payment to such owner shall\nnot exceed the maximum amount provided for in the regulations. Such\npayment shall include the following elements:\n (1) the amount, if any, which, when added to the acquisition payment\nequals the average price, established by the commissioner, required to\nobtain a comparable replacement dwelling for such displaced owner, but\nin no event shall such payment exceed the difference between acquisition\npayment and the actual purchase price of the replacement dwelling; and\n (2) the amount which will compensate such displaced owner for any\nincreased interest costs required to pay for financing the acquisition\nof the comparable replacement dwelling. Such amount shall be paid only\nif the dwelling on the property acquired pursuant to this section was\nencumbered by a bona fide mortgage which was a valid lien on such\ndwelling for not less than one hundred eighty days prior to the\ninitiation of negotiations for the acquisition of such property. Any\nsuch compensating interest payment made pursuant to this provision\nshall, notwithstanding the provisions of section twenty-six-b of the\ngeneral construction law, be in lieu of and in full satisfaction of the\nrequirements of such section; and\n (3) an amount which will compensate such displaced owner for\nreasonable expenses incurred for evidence of title, recording fees and\nother closing costs incident to the purchase of the comparable\nreplacement dwelling, but not including prepaid expenses.\n c. Any supplemental relocation payment made pursuant to paragraph b of\nthis subdivision shall be made only to a displaced owner who purchases\nand occupies a comparable replacement dwelling within one year\nsubsequent to the date on which such owner is required to move from the\ndwelling on the property acquired pursuant to this section or the date\non which such owner receives from the state final payment for such\nacquired dwelling, whichever occurs later. The commissioner may extend\nsuch period for good cause; provided however, that any payment shall be\nbased on the costs of relocating the displaced person to a comparable\nreplacement dwelling within one year of such extended date. The\nregulations may provide that advance payment of such payments may be\nmade in hardship cases.\n d. In the case of residential property acquired pursuant to this\nsection from which an owner or tenant, not otherwise eligible to receive\na supplemental relocation payment pursuant to the provisions of\nparagraph b of this subdivision, is displaced from any dwelling thereon\nwhich has been actually and lawfully occupied by such owner or tenant\nfor not less than ninety days immediately prior to (1) the initiation of\nnegotiations for the acquisition of such property or (2) such other\nevent as regulations may prescribe when the displacement is not a direct\nresult of such acquisition, such supplemental relocation payment to such\nowner or tenant shall not exceed the maximum amount provided for in the\nregulations. Such payment shall be the amount which is necessary to\nenable such owner or tenant to lease or rent for a period not to exceed\nthe maximum time specified in the regulations, a comparable replacement\ndwelling but such amount shall not exceed the maximum amount specified\nin the regulations. Such payments may be made in periodic installments\nas determined by the commissioner. Any person eligible for a\nsupplemental relocation payment under this paragraph may elect to use\nsuch payment for the down payment, including reasonable incidental\nexpenses incurred by such person on the purchase of, a comparable\nreplacement dwelling, except such payment shall not exceed the maximum\namount provided for in the regulations.\n e. Application for payment under this subdivision shall be made to the\ncommissioner upon forms prescribed by the commissioner and shall be\naccompanied by such information and evidence as the commissioner may\nrequire. Upon approval of such application, the commissioner shall\ndeliver a copy thereof to the comptroller, together with a certificate\nstating the amount due thereunder, and the amount so fixed shall be paid\nout of the state treasury after audit by the comptroller from moneys\nappropriated for the acquisition of property under this section. No\npayment shall be made under this subdivision for any cost, expense,\ndifference or other amount for which payment was previously made.\n f. The regulations necessary to implement this subdivision shall be\nconsistent with the applicable requirements of section thirty of the\nhighway law, as the same may from time to time be amended, and\nregulations issued thereunder.\n 12. Any owner may present to the court of claims, pursuant to section\nfive hundred three of the eminent domain procedure law, a claim for the\nvalue of such property appropriated and for legal damages, as provided\nby law for the filing of claims with the court of claims. Awards and\njudgments of the court of claims shall be paid in the same manner as\nawards and judgments of that court for the acquisition of lands\ngenerally and shall be paid out of the state treasury from moneys\nappropriated for purposes connected with the flood control projects.\n 13. Permits for use of flood control lands. No person shall construct\nany improvement, excavate, deposit material or operate a motorcycle,\nmotor-driven cycle, snowmobile or motor vehicle except lawn maintenance\nequipment upon lands acquired or burdened by a flood control easement\npursuant hereto without a permit. Permits will be issued by the\ncommissioner where the proposed activity will not interfere with or\nendanger the flood control works, or impede the maintenance or operation\nof such works. The commissioner may adopt such rules and regulations as\nhe may deem necessary to protect flood control works from damage which\nmay interfere with their proper and safe operation, or impede their\nmaintenance. Failure to comply with the provisions of this section or\nwith rules and regulations promulgated pursuant hereto shall be a\nviolation.\n 14. The commissioner notwithstanding any other provisions of this act\nor any other law, may acquire by grant or purchase any property which he\ndeems necessary, in order to carry out the projects herein authorized.\n Payment therefor, if any, shall be made in the manner prescribed in\nthis section for the payment of adjusted claims, provided, however, that\nno interest in real property shall be so acquired unless the title\nthereto shall be approved by the attorney general.\n 15. The expense of such acquisitions including the cost of making\nsurveys, and preparing maps of property to be acquired, serving notices,\nmaking appraisals and agreements and of searches ordered and\nexaminations and readings of title made by the attorney general, and\nexpenses incurred by the commissioner or attorney general in proceedings\nfor removal of owners and occupants, shall be deemed part of the cost of\nsuch flood control projects.\n 16. Notwithstanding the provisions of any general, special or local\nlaw, the commissioner, his officers or agents, and the officers, agents\nor contractor of the United States when engaged on flood control\nprojects, may enter upon property for the purposes of making surveys,\ntest pits, test borings, or other investigations and also for the\npurposes of temporary occupancy during construction. Any claim for\ndamage caused by such work or on account of such temporary occupancy,\nnot exceeding five thousand dollars, may be adjusted by agreement by the\ncommissioner without acquiring such property. Upon making any such\nadjustment and agreement the commissioner shall deliver to the\ncomptroller such agreement and a certificate stating the amount due such\nowner for damage caused by such work, or on account of such temporary\noccupancy, and the amount so fixed shall be paid out of the state\ntreasury from moneys appropriated for purposes connected with the flood\ncontrol projects.\n 17. The commissioner (a) May determine whether any property taken for\nany of the purposes connected with flood control projects pursuant to\nthis section may be leased, sold or exchanged on terms beneficial to the\nstate, and in all cases of such determination subject to compliance with\nsection four hundred six of the eminent domain procedure law, he may,\nlease, sell or exchange such property; in order to carry any such lease,\nsale or exchange into effect, the commissioner is hereby authorized to\nexecute and deliver, in the name of the people of the state, a quit\nclaim or lease of such property.\n (b) May also convey to the United States for flood control purposes\nall right, title and interest of the state in and to any property\nheretofore or hereafter so taken for any of such purposes for which\nreimbursement by the United States is made in accordance with section\ntwo of the federal flood control act of nineteen hundred thirty-eight\nbeing public law, numbered seven hundred and sixty-one, seventy-fifth\ncongress, and including improvements made thereon for such purposes.\nSuch conveyance shall be by deed or instrument of quit claim, executed\nby the commissioner in the name of the people of the state, delivered to\nthe federal authority having jurisdiction. This paragraph shall not\nprevent reservations, if any, in such a conveyance, agreed to by such\ncommissioner and federal authority, to protect leases or easement, if\nany, theretofore lawfully made or created by such commissioner.\nWhenever the United States, acting by and through said federal authority\nhaving jurisdiction, shall cause to be filed in the office of the\nsecretary of state of this state, a duplicate original of the deed or\ninstrument of conveyance to the United States of any such property for\nthe purposes herein specified, such jurisdiction as may be required for\nflood control purposes is thereupon ceded to the United States over the\nproperty described in said deed or instrument of conveyance, during the\ntime that the United States shall be or remain the owner thereof and\nshall use such property for flood control purposes.\n (c) Is hereby authorized to agree with the United States as to the\nvalue of the property appropriated and for legal damages caused by any\nsuch appropriation thereof, as and for reimbursement by the United\nStates, and the commissioner is authorized to convey such property to\nthe United States, in the manner herein provided, specifying in such\nconveyance that the consideration stated therein is the agreed value of\nsuch property and legal damages, and is in full reimbursement thereof by\nthe United States.\n 18. The attorney general is hereby authorized and empowered to\ncertify to the United States of America or a department, agency or\nauthority thereof having jurisdiction therein, the right, title or\ninterest vested in the people of the state of New York in and to\nproperty acquired for the purpose of this act for which reimbursement is\nto be made by the United States of America to the people of the state of\nNew York.\n 19. If the commissioner shall determine subsequent to the acquisition\nof a temporary easement right in property and subsequent to the filing\nof a description and map of such property in the office of the county\nclerk, as aforesaid, that the purposes for which such easement right was\nacquired have been accomplished and that the use and occupancy of said\nproperty for flood control purposes are no longer necessary, and that,\ntherefore, the term of such easement should be further limited, or if\nthe appropriation of such easement was for an indefinite period, that\nsuch period should be fixed and determined, or that the period of such\neasement has by its terms expired, the commissioner shall make a\ncertificate that the use and occupancy of such property for flood\ncontrol purposes are no longer necessary, that the property in which\nsuch easement right was acquired is surrendered back to the affected\nowner of said property and that such easement right is thereupon\nterminated, released and extinguished. The commissioner shall cause a\ncopy of such certificate to be filed in the main office of the\ndepartment. Upon the filing of such certificate in the office of the\ndepartment all rights acquired by the state in such property shall cease\nand determine. The commissioner shall cause a copy of such certificate\ntogether with notice of the filing thereof in the main office of the\ndepartment to be mailed to the owner of the property affected, as\ncertified by the attorney general, if the place of residence of such\nowner is known or can be ascertained by a reasonable effort. A further\ncopy of such certificate and notice of filing shall be filed in the\noffice of the recording officer of each county wherein the property\naffected is situated. On the filing of such certificate and notice with\nsuch officer it shall be the duty of such officer to record same in the\nbooks used for recording deeds in the office of such officer.\n