§ 3-0305 — Acquirement of real property by purchase or appropriation

New York § 3-0305

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Title 3: General Functions, Powers, Duties and Jurisdiction
• Art. 3: Department of Environmental Conservation; General Functions, Powers, Duties and Jurisdiction

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§ 3-0305. Acquirement of real property by purchase or appropriation.\n 1. The commissioner when moneys therefor have been appropriated by\nthe legislature or are otherwise available, may acquire any real\nproperty which he deems necessary for any of the purposes or functions\nof the department, by purchase or as provided in the eminent domain\nprocedure law. Title to such real property shall be taken in the name\nof and be vested in the people of the state of New York. No real\nproperty shall be so acquired by purchase unless the title thereto is\napproved by the attorney general. The terms "property" or "real\nproperty" as used in this section shall mean "real property" as defined\nby section one hundred three of the eminent domain procedure law.\n 2. Whenever real property is to be so acquired pursuant to the\nprovisions of the eminent domain procedure law, by appropriation, the\ncommissioner shall cause to be made an accurate acquisition map as so\nprovided in said law.\n 3. On the approval of such map by the commissioner, the original\ntracing of map shall, pursuant to the eminent domain procedure law, be\nfiled in the main office of the department.\n 4. If the commissioner shall determine, prior to the filing of a copy\nof such acquisition map in the office of the county clerk, that changes,\nalterations or modifications of such map as filed in the main office of\nthe department should be made, he or she shall, subject to the\nprovisions of article two of the eminent domain procedure law, if\napplicable, direct the preparation of an amended map. On the approval of\nsuch amended map by the commissioner, it shall be filed in the main\noffice of the department in the same manner as the original map was\nfiled and the amended map shall thereupon in all respects and for all\npurposes supersede the map previously filed.\n 5. If the commissioner shall determine prior to filing a copy of an\nacquisition map in the office of the county clerk, as provided in\nsection four hundred two of the eminent domain procedure law, that such\nmap should be withdrawn, he or she shall file a certificate of\nwithdrawal in the offices of the department and of the department of\nlaw. Upon the filing of such certificate of withdrawal, the map to which\nit refers shall be cancelled and all rights thereunder shall cease and\ndetermine.\n 6. 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 real property described in the said acquisition map,\nincluding the owners of any right, title or interest therein, pursuant\nto the requirements of section four hundred three of the eminent domain\nprocedure law.\n 7. 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 the\neminent domain procedure law, the commissioner shall deem it necessary\nto cause the removal of an owner or other occupant from such property,\nhe may cause such owner or occupant to be removed therefrom by\nproceeding in accordance with section four hundred five of such law.\nThe proceeding shall be brought in the name of the commissioner as agent\nof the state and the attorney general shall represent the petitioner in\nthe proceedings. 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 of the real property and be paid in like\nmanner. Proceedings may be brought separately against one or more of\nthe owners or occupants of any such property, or one proceeding may be\nbrought against all or several of the owners or occupants of any or all\nsuch property within the territorial jurisdiction of the same court,\njustice or judge; judgment shall be given for immediate removal of\npersons defaulting in appearance or in answering, or withdrawing their\nanswers, if any, without awaiting the trial or decision of issues raised\nby contestants, if any.\n 8. Upon making any agreement provided for in section three hundred\nfour of the eminent domain procedure law, the commissioner shall deliver\nto the comptroller such agreement and a certificate stating the amount\ndue such owner or owners thereunder on account of such appropriation of\nhis or their property and the amount so fixed shall be paid out of the\nstate treasury after audit by the comptroller from moneys appropriated\nfor the acquisition of such real property, but not until there shall\nhave been filed with the comptroller a certificate of the attorney\ngeneral showing the person or persons claiming the amount so agreed upon\nto be legally entitled thereto.\n 9. 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 moneys appropriated\nfor the acquisition of property under this section.\n 10. The commissioner with the approval of the director of the budget,\nshall establish and may from time to time amend rules and regulations\nauthorizing the payment of actual reasonable and necessary moving\nexpenses of occupants of property acquired pursuant to this section; of\nactual direct losses of tangible personal property as a result of moving\nor discontinuing a business or farm operation, but not exceeding an\namount equal to the reasonable expenses that would have been required to\nrelocate such property, as determined by the commissioner; and actual\nreasonable expenses in searching for a replacement business or farm, or\nin hardship cases for the advance payment of such expenses and losses.\nFor the purposes of making payment of such expenses and losses only the\nterm "business" means any lawful activity conducted primarily for\nassisting in the purchase, sale, resale, manufacture, processing or\nmarketing of products, commodities, personal property or services by the\nerection and maintenance of an outdoor advertising display or displays,\nwhether or not such display or displays are located on the premises on\nwhich any of the above activities are conducted. Such rules and\nregulations may further define the terms used in this subdivision. In\nlieu of such actual reasonable and necessary moving expenses, any such\ndisplaced owner or tenant of residential property may elect to accept a\nmoving expense allowance, plus a dislocation allowance, determined in\naccordance with a schedule prepared by the commissioner and made a part\nof such rules and regulations. In lieu of such actual reasonable and\nnecessary moving expenses, any such displaced owner or tenant of\ncommercial property who relocates or discontinues his business or farm\noperation may elect to accept a fixed relocation payment in an amount\nequal to the average annual net earnings of the business or farm\noperation, except that such payment shall be not less than two thousand\nfive hundred dollars nor more than ten thousand dollars. In the case of\na business, no such fixed relocation payment shall be made unless the\ncommissioner finds and determines that the business cannot be relocated\nwithout a substantial loss of its existing patronage, and that the\nbusiness is not part of a commercial enterprise having at least one\nother establishment, which is not being acquired by the state or the\nUnited States, which is engaged in the same or similar business. In the\ncase of a business which is to be discontinued but for which the\nfindings and determinations set forth above cannot be made, the\ncommissioner may prepare an estimate of what the actual reasonable and\nnecessary moving expenses, exclusive of any storage charges, would be if\nthe business were to be relocated and enter into an agreed settlement\nwith the owner of such business for an amount not to exceed such\nestimate in lieu of such actual reasonable and necessary moving\nexpenses. Application for payment under this subdivision shall be made\nto the commissioner upon forms prescribed by him 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. As\nused in this subdivision the term "commercial property" shall include\nproperty owned by an individual, family, partnership, corporation,\nassociation or a non-profit organization and includes a farm operation.\nAs used in this subdivision the term "business" means any lawful\nactivity, except a farm operation, conducted primarily for the purchase,\nsale, lease and rental of personal and real property, and for the\nmanufacture, processing, or marketing of products, commodities, or any\nother personal property; for the sale of services to the public; or by a\nnon-profit organization.\n 11. The commissioner pursuant to section three hundred five of the\neminent domain procedure law, may make agreements on such terms,\ncondition 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 12. 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 him. The\ncommissioner with the approval of the director of the budget, may\nestablish and from time to time amend rules and regulations providing\nfor such supplemental relocation payments. Such rules and regulations\nmay further define the terms used in this subdivision. In the case of\nproperty acquired pursuant to this section, which is improved by a\ndwelling actually owned and occupied by the displaced owner for not less\nthan one hundred eighty days immediately prior to initiation of\nnegotiations for the acquisition of such property, such payment to such\nowner shall not exceed fifteen thousand dollars. Such payment shall be\nthe amount, if any, which, when added to the acquisition payment equals\nthe average price, established by the commissioner on a class, group or\nindividual basis, required to obtain a comparable replacement dwelling\nthat is decent, safe and sanitary to accommodate the displaced owner,\nreasonably accessible to public services and places of employment and\navailable on the private market, but in no event shall such payment\nexceed the difference between acquisition payment and the actual\npurchase price of the replacement dwelling. Such payment shall include\nan amount which will compensate such displaced owner for any increased\ninterest costs which such person is required to pay for financing the\nacquisition of any such comparable replacement dwelling. Such amount\nshall be paid only if the dwelling 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 dwelling. Such\namount shall be equal to the excess in the aggregate interest and other\ndebt service costs of that amount of the principal of the mortgage on\nthe replacement dwelling which is equal to the unpaid balance of the\nmortgage on the acquired dwelling, over the remainder term of the\nmortgage on the acquired dwelling, reduced to discounted present value.\nThe discount rate shall be the prevailing interest rate paid on savings\ndeposits by commercial banks in the general area in which the\nreplacement dwelling is located. Any such mortgage interest\ndifferential payment shall, notwithstanding the provisions of section\ntwenty-six-b of the general construction law, be in lieu of and in full\nsatisfaction of the requirements of such section. Such payment shall\ninclude reasonable expenses incurred by such displaced owner for\nevidence of title, recording fees and other closing costs incident to\nthe purchase of the replacement dwelling, but not including prepaid\nexpenses. Such payment shall be made only to a displaced owner who\npurchases and occupies a replacement dwelling which is decent, safe and\nsanitary within one year subsequent to the date on which he is required\nto move from the dwelling acquired pursuant to this section or the date\non which he receives from the state final payment of all costs of the\nacquired dwelling, whichever occurs later, except advance payment of\nsuch amount may be made in hardship cases. In the case of property\nacquired pursuant to this section from which an individual or family,\nnot otherwise eligible to receive a payment pursuant to the above\nprovisions of this subdivision, is displaced from any dwelling thereon\nwhich has been actually and lawfully occupied by such individual or\nfamily for not less than ninety days immediately prior to the initiation\nof negotiation, for the acquisition of such property, such payment to\nsuch individual or family shall not exceed four thousand dollars. Such\npayment shall be the amount which is necessary to enable such individual\nor family to lease or rent for a period not to exceed four years, a\ndecent, safe, and sanitary dwelling of standards adequate to accommodate\nsuch individual or family in areas not generally less desirable in\nregard to public utilities and public and commercial facilities and\nreasonably accessible to his place of employment, but shall not exceed\nfour thousand dollars, or to make the down payment, including reasonable\nexpenses incurred by such individual or family for evidence of title,\nrecording fees, and other closing costs incident to the purchase of the\nreplacement dwelling, but not including prepaid expenses, on the\npurchase of a decent, safe and sanitary dwelling of standards adequate\nto accommodate such individual or family in areas not generally less\ndesirable in regard to public utilities and public and commercial\nfacilities, but shall not exceed four thousand dollars, except if such\namount exceeds two thousand dollars, such person must equally match any\nsuch amount in excess of two thousand dollars, in making the down\npayment. Such payments may be made in installments as determined by the\ncommissioner. Application for payment under this subdivision shall be\nmade to the commissioner upon forms prescribed by him 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.\n 13. 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 after audit by the\ncomptroller from moneys appropriated for the acquisition of such real\nproperty.\n 14. Expenses incurred in the acquisition of the real property,\nincluding the cost of making surveys, and preparing maps of property to\nbe acquired, serving notices, making appraisals and agreements and of\nsearches ordered and examinations and readings of title made by the\nattorney general, and expenses incurred by the commissioner or attorney\ngeneral in proceedings for removal of owners and occupants, shall be\ndeemed to be part of the cost of the acquisition of such real property.\n 15. If the commissioner shall determine subsequent to the acquisition\nof a temporary easement in any real property that the purposes for which\nsuch easement right was acquired have been accomplished and that the\nexercise of such easement is no longer necessary, the commissioner shall\nmake a certificate that the exercise of such easement is no longer\nnecessary and that such easement right is therefore terminated, released\nand extinguished. The commissioner shall cause such certificate to be\nfiled in the main office of the department and upon such filing all\nrights acquired by the state in such real property shall cease and\ndetermine. The commissioner shall cause a certified copy of such\ncertificate as so filed in the main office of the department to be\nmailed to the owner of the property affected, as certified by the\nattorney general, if the place of residence of such owner is known or\ncan be ascertained by a reasonable effort and such commissioner shall\ncause a further certified copy of such certificate to be filed in the\noffice of the recording officer of each county in which the property\naffected or any part thereof is situated. On the filing of such\ncertified copy of such certificate with such recording officer, it shall\nbe his duty to record the same in his office in the books used for\nrecording deeds and to index the same against the name of the people of\nthe state of New York as grantor.\n 16. The commissioner may, by official order filed in the department\nand subject to such limitations as he may prescribe, authorize the\nexercise of any of his powers or the performance of any of his duties\nunder this section by such deputy commissioners as he may designate; and\nany act performed pursuant to such authorization shall be as valid and\neffectual as if performed by the commissioner pursuant to this section.\n