§ 38-A — Removal of walls encroaching on streets

§ 38-a. Removal of walls encroaching on streets. 1. If the front or\nother exterior wall of any building erected on or before the first day\nof January, nineteen hundred sixty, in any city encroaches not more than\nsix inches upon any street or highway, no action or proceeding to compel\nthe removal of such wall shall be instituted or maintained by or on\nbehalf of the city, or by or on behalf of any person claiming an\neasement in or title to the portion of the street or highway on which\nsuch wall encroaches, unless such action or proceeding be commenced\nwithin the period of one year from the time this act takes effect, and\nunless within such period a notice of the pendency of such action or\nproceeding, describing the property on which said building stands and\nindexed against the owner thereof, be filed in the office of the clerk\nof the county in which the property lies.\n 2. If the front or other exterior wall of any building erected after\nthe first day of January, nineteen hundred sixty, in any city encroaches\nnot more than six inches upon any street or highway, no action or\nproceeding to compel the removal of such wall shall be instituted or\nmaintained by or on behalf of the city, or by or on behalf of any person\nclaiming an easement in or title to the portion of the street or highway\non which such wall encroaches, unless such action or proceeding be\ncommenced within the period of one year from the time of the serving of\na notice as hereinafter provided, and unless within such period a notice\nof the pendency of such action or proceeding, describing the property on\nwhich said building stands and indexed against the owner thereof, be\nfiled in the office of the clerk of the county in which the property\nlies. Any person having any interest in the property on which such\nbuilding stands may serve a notice on the corporation counsel of the\ncity in which said property lies, setting forth a brief description of\nthe property, his interest therein, and the existence of an encroachment\non the street or highway. Such notice, together with proof or admission\nof service thereof, shall be filed in the office of the clerk of the\ncounty in which such property lies. The clerk shall index and record\nsuch notice as if it were a notice of the pendency of an action and\nshall collect the usual fees for recording and indexing a notice of the\npendency of an action.\n 3. If no action be brought within the period hereby limited therefor\nthe owners and encumbrancers of such property shall be deemed to have an\neasement for the maintenance of the encroaching wall so long as the said\nwall shall stand, and no longer.\n 4. If the front or other exterior wall of any building erected on or\nbefore the first day of January, one thousand nine hundred seventy-nine\nin any city encroaches not more than six inches upon any city street or\ncity highway, the local legislative body of any city may authorize the\nmaintenance of such encroachment by ordinance during the period of time\nthe encroaching wall is in existence; provided, however, that such\nauthorization shall not confer any right or claim to be asserted against\nsuch city or the state.\n 5. a. The owner of real property upon which the front or exterior wall\nof any building thereon encroaches upon any city street or highway of\ncities with a population of less than one million, may submit a request,\nin writing, to the legislative body of such city for authorization to\nmaintain such front or exterior wall during the time such wall is in\nexistence.\n b. Upon presentation of such request, notice thereof shall be given to\nthe head of the city department responsible for the construction and\nmaintenance of city streets and roads in the city, who shall recommend\nto the legislative body the proposed action on such request. Within\nthirty days of the presentation of such request, the legislative body of\nsuch city shall determine if the granting of such request shall\nadversely impact upon the users of the city street or highway. In the\nevent a determination is made that such encroachment does adversely\nimpact upon the use of the city street or highway, such request shall be\ndenied. In the event a preliminary determination is made that such\nencroachment may have no adverse impact upon the use of the city street\nor highway, the legislative body of the city shall, within thirty days\nafter the issuance of such preliminary finding, hold a public hearing\nupon such request, which public hearing shall be conducted upon not less\nthan ten days notice to the public. In addition to such public notice,\nthe owners of property, as determined from the last completed assessment\nroll, within five hundred feet of the property as measured from the\nintersections of the property lines with the city street or highway\nshall be given notice by certified mail of such public hearing.\n 6. If, upon the completion of the public hearing, such legislative\nbody determines that such front or exterior wall does not interfere or\nimpede the right of the public to use such city street or highway, the\nlegislative body may grant to the owner of such property a license to\ncontinue to maintain such front or exterior wall during the period such\nwall is in existence; provided however, such city shall have the\nauthority to revoke such license at any time in the event the\nlegislative body of the city determines that such city street or highway\nwill be improved and, as a result of such improvement, the front or\nexterior wall will then impede, interfere with or obstruct traffic or\nthe use of the city street or highway; provided, further, that such\nlicense shall not confirm any right or claim against such city. In such\nevent, the owner of the property shall be given notice of the proposed\naction and shall within the time set forth in the notice, remove such\nfront or exterior wall from the city street or highway.\n 7. Upon the abandonment of the building or in the event such building,\nbecause of a lack of care enters a state of disrepair, the owner thereof\nshall remove such front or exterior wall upon notice from the city.\n 8. The authority granted to a city pursuant to subdivisions five, six\nand seven of this section may, by local law, be assigned to any\ndepartment or agency of the city.\n