§ 29 — Property for highways, bridges and other highway uses and purposes to be acquired by acquisition

New York § 29

• Jurisdiction: New York
• Law HAY: Highway
• Art. 3: State Highways

Text

§ 29. Property for highways, bridges and other highway uses and\npurposes to be acquired by acquisition. 1. Notwithstanding any\ninconsistent provisions of this chapter, or any other laws, general or\nspecial, the commissioner of transportation shall, whenever the federal\ngovernment shall agree to grant or contribute to the state not less than\ntwenty-five per centum of the cost thereof, acquire pursuant to the\nprovisions of the eminent domain procedure law any and all property\nnecessary for the construction and reconstruction of highway projects\nlocated on the "strategic network of highways," as defined in the\nfederal defense highway act of nineteen hundred forty-one and as revised\nto May fifteenth, nineteen hundred forty-one and approved by the\nsecretary of war, or on such network as hereafter revised and approved,\nand also any and all property necessary for any other highway project,\nexclusive of parkways, when certified by the army or navy as important\nfor the purposes of national defense, and a like grant or contribution\nis to be made by the federal government. A highway indicated under this\nsection for construction or improvement, or any portion of such highway,\nmay be constructed or improved, or reconstructed, as a controlled access\nhighway, upon the adoption of a resolution by a majority vote of the\nboard of supervisors of the county in which the highway is to be\nconstructed. The resolution of the board of supervisors herein referred\nto shall not be required in relation to highways to be projected as\nthrough trunk routes and principally on new location. The costs of all\nsuch property as may be acquired under this section shall be paid in the\nfirst instance from any funds available for the construction,\nreconstruction and improvement of state highways and bridges.\n 2. The commissioner of transportation shall cause to be prepared an\naccurate acquisition map of any property which he may deem necessary for\npurposes connected with such highway projects or of any property in and\nto which he may deem the acquisition or exercise of an easement,\ninterest or right to be necessary for such purposes indicating and\ndescribing in each case the particular easement, interest or right. On\nthe approval of such acquisition map by the commissioner of\ntransportation, he shall acquire such property, easements, interests or\nrights pursuant to the eminent domain procedure law.\n 3. If the commissioner shall determine, prior to the filing of a copy\nof a map of acquisition, as provided in section four hundred two of the\neminent domain procedure law, in the office of the county clerk as\naforesaid, that changes, alterations or modifications of such map as\nfiled in the main office of the department should be made, he or she\nshall, subject to the provisions of article two of the eminent domain\nprocedure law, if applicable, direct the preparation of an amended map,\neither by preparing a new map or by making changes on the original\ntracing of such map, with a notation indicating such changes. On the\napproval of such amended map by the commissioner, it shall be filed in\nthe main office of the department in the same manner as the original map\nwas filed and the amended map shall thereupon in all respects and for\nall purposes supersede the map previously filed.\n 4. If the commissioner shall determine, prior to the filing of such\ncopy of the acquisition map in the office of the county clerk as\nprovided in section four hundred two of the eminent domain procedure\nlaw, that such map should be withdrawn, he or she shall file a\ncertificate of withdrawal in the offices of the department and\ndepartment of law. Upon the filing of such certificate of withdrawal,\nthe map to which it refers shall be cancelled and all rights thereunder\nshall cease and determine.\n 5. If, at or after the vesting of title to such property in the people\nof the state of New York in the manner provided for in the eminent\ndomain procedure law, the commissioner of transportation shall deem it\nnecessary to cause the removal of an owner or other occupant from such\nproperty, he may cause such owner or other occupant to be removed\ntherefrom by proceeding in accordance with section four hundred five of\nsuch law. The proceeding shall be brought in the name of the\ncommissioner of transportation as agent of the state. If any person\nproceeded against shall contest the petition by an answer, the attorney\ngeneral shall be notified, and he thereafter shall represent the\npetitioner in the proceedings. No execution shall issue for costs, if\nany, awarded against the state or the commissioner of transportation,\nbut they shall be part of the costs of the acquisition and be paid in\nlike manner. Proceedings may be brought separately against one or more\nof the owners or other occupants of a property, or one proceeding may be\nbrought against all or several of the owners or other occupants of any\nor all property within the territorial jurisdiction of the same justice\nor judge; judgment shall effect or be made 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 6. The commissioner of transportation upon making any agreement\nprovided for in section three hundred four of the eminent domain\nprocedure law shall deliver to the comptroller such agreement and a\ncertificate stating the amount due such owner or owners thereunder on\naccount of such appropriation of his or their property and the amount so\nfixed shall be paid out of the state treasury, after audit by the\ncomptroller, from moneys appropriated for purposes connected with such\nhighway projects, but not until there shall have been filed with the\ncomptroller a certificate of the attorney general showing the person or\npersons claiming the amount so agreed upon to be legally entitled\nthereto.\n 7. Application for reimbursement of incidental expenses as provided in\nsection seven hundred two of the eminent domain procedure law 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 thereof, and the amount so fixed shall be paid\nout of the state treasury after audit by the comptroller from monies\nappropriated for the acquisition of property under this section.\n 8. The commissioner of transportation, with the approval of the\ndirector of the budget, shall establish and may from time to time amend\nrules and regulations authorizing the payment of actual reasonable and\nnecessary moving expenses of occupants of property acquired pursuant to\nthis section; of actual direct losses of tangible personal property as a\nresult of moving or discontinuing a business or farm operation, but not\nexceeding an amount equal to the reasonable expenses that would have\nbeen required to relocate such property, as determined by the\ncommissioner; and actual reasonable expenses in searching for a\nreplacement business or farm; or in hardship cases for the advance\npayment of such expenses and losses. For the purposes of making payment\nof such expenses and losses only, the term "business" means any lawful\nactivity conducted primarily for assisting in the purchase, sale,\nresale, manufacture, processing or marketing of products, commodities,\npersonal property or services by the erection and maintenance of an\noutdoor advertising display or displays, whether or not such display or\ndisplays are located on the premises on which any of the above\nactivities are conducted.\n Such rules and regulations may further define the terms used in this\nsubdivision. In lieu of such actual reasonable and necessary moving\nexpenses, any such displaced owner or tenant of residential property may\nelect to accept a moving expense allowance, plus a dislocation\nallowance, determined in accordance with a schedule prepared by the\ncommissioner and made a part of such rules and regulations. In lieu of\nsuch actual reasonable and necessary moving expenses, any such displaced\nowner or tenant of commercial property who relocates or discontinues his\nbusiness or farm operation may elect to accept a fixed relocation\npayment in an amount equal to the average annual net earnings of the\nbusiness or farm operation, except that such payment shall be not less\nthan two thousand five hundred dollars nor more than ten thousand\ndollars. In the case of a business, no such fixed relocation payment\nshall be made unless the commissioner finds and determines that the\nbusiness cannot be relocated without a substantial loss of its existing\npatronage, and that the business is not part of a commercial enterprise\nhaving at least one other establishment, which is not being acquired by\nthe state or the United States, which is engaged in the same or similar\nbusiness. In the case of a business which is to be discontinued but for\nwhich the findings and determinations set forth above cannot be made,\nthe commissioner may prepare an estimate of what the actual reasonable\nand necessary moving expenses, exclusive of any storage charges, would\nbe if the business were to be relocated, and enter into an agreed\nsettlement with the owner of such business for an amount not to exceed\nsuch estimate 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 used\nin this subdivision the term "commercial property" shall include\nproperty owned by an individual, family, partnership, corporation,\nassociation or a nonprofit 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\nnonprofit organization.\n 9. The commissioner of transportation pursuant to section three\nhundred five of the eminent domain procedure law may make agreements on\nsuch terms, conditions and consideration as he deems beneficial to the\nstate with respect to any property heretofore or hereafter acquired,\nwhereby such property may be used and occupied by the former owner,\ntenant or by any other party from a date specified in said agreement,\nuntil such time as the state requires and obtains actual physical\npossession. The agreements for the use and occupancy of such property\nmay be managed, supervised and enforced (1) by the staff, forces and\nequipment of the department of transportation; or (2) by the\ncommissioner of transportation contracting for the management,\nsupervision and enforcement thereof with any person, firm or\ncorporation; or (3) by a 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 of transportation to\nhave been incurred in connection with the use and occupancy of such\nproperty may be paid out of the state treasury after audit by the\ncomptroller from moneys appropriated for the duly authorized project for\nwhich the property was acquired. However, such expenses incurred under a\ncontract for management and supervision of such property may be paid out\nof the gross revenue therefrom. All moneys received by the commissioner\nof transportation for such use or occupancy shall be paid into the\ntreasury of the state to the credit of the capital construction fund.\n 10. Authorization is hereby given to the commissioner of\ntransportation to make supplemental relocation payments, separately\ncomputed and stated, to displaced owners and tenants of residential\nproperty acquired pursuant to this section who are entitled thereto, as\ndetermined by him. The commissioner, with the approval of the director\nof the budget, may establish and from time to time amend rules and\nregulations providing for such supplemental relocation payments. Such\nrules and regulations may further define the terms used in this\nsubdivision. In the case of property acquired pursuant to this section\nwhich is improved by a dwelling actually owned and occupied by the\ndisplaced owner for not less than one hundred eighty days immediately\nprior to initiation of negotiations for the acquisition of such\nproperty, such payment to such owner shall not exceed fifteen thousand\ndollars. Such payment shall be the amount, if any, which, when added to\nthe acquisition payment equals the average price, established by the\ncommissioner on a class, group or individual basis, required to obtain a\ncomparable replacement dwelling that is decent, safe and sanitary to\naccommodate the displaced owner, reasonably accessible to public\nservices and places of employment and available on the private market,\nbut in no event shall such payment exceed the difference between\nacquisition payment and the actual purchase price of the replacement\ndwelling. Such payment shall include an amount which will compensate\nsuch displaced owner for any increased interest costs which such person\nis required to pay for financing the acquisition of any such comparable\nreplacement dwelling. Such amount shall be paid only if the dwelling\nacquired pursuant to this section was encumbered by a bona fide mortgage\nwhich was a valid lien on such dwelling for not less than one hundred\neighty days prior to the initiation of negotiations for the acquisition\nof such dwelling. Such amount shall be equal to the excess in the\naggregate interest and other debt service costs of that amount of the\nprincipal of the mortgage on the replacement dwelling which is equal to\nthe unpaid balance of the mortgage on the acquired dwelling, over the\nremainder term of the mortgage on the acquired dwelling, reduced to\ndiscounted present value. The discount rate shall be the prevailing\ninterest rate paid on savings deposits by commercial banks in the\ngeneral area in which the replacement dwelling is located. Any such\nmortgage interest differential payment shall, notwithstanding the\nprovisions of section twenty-six-b of the general construction law, be\nin lieu of and in full satisfaction of the requirements of such section.\nSuch payment shall include reasonable expenses incurred by such\ndisplaced owner for evidence of title, recording fees and other closing\ncosts incident to the purchase of the replacement dwelling, but not\nincluding prepaid expenses. Such payment shall be made only to a\ndisplaced owner who purchases and occupies a replacement dwelling which\nis decent, safe and sanitary within one year subsequent to the date on\nwhich he is required to move from the dwelling acquired pursuant to this\nsection or the date on which he receives from the state final payment of\nall costs of the acquired dwelling, whichever occurs later, except\nadvance payment of such amount may be made in hardship cases. In the\ncase of property acquired pursuant to this section from which an\nindividual or family, not otherwise eligible to receive a payment\npursuant to the above provisions of this subdivision, is displaced from\nany dwelling thereon which has been actually and lawfully occupied by\nsuch individual or family for not less than ninety days immediately\nprior to the initiation of negotiations for the acquisition of such\nproperty, such payment to such individual or family shall not exceed\nfour thousand dollars. Such payment shall be the amount which is\nnecessary to enable such individual or family to lease or rent for a\nperiod not to exceed four years, a decent, safe, and sanitary dwelling\nof standards adequate to accommodate such individual or family in areas\nnot generally less desirable in regard to public utilities and public\nand commercial facilities and reasonably accessible to his place of\nemployment, but shall not exceed four thousand dollars, or to make the\ndown payment, including reasonable expenses incurred by such individual\nor family for evidence of title, recording fees, and other closing costs\nincident to the purchase of the replacement dwelling, but not including\nprepaid expenses, on the purchase of a decent, safe and sanitary\ndwelling of standards adequate to accommodate such individual or family\nin areas not generally less desirable in regard to public utilities and\npublic and commercial facilities, but shall not exceed four thousand\ndollars, except if such amount exceeds two thousand dollars, such person\nmust equally match any such amount in excess of two thousand dollars, in\nmaking the down payment. Such payments may be made in installments as\ndetermined by the commissioner. Application for payment under this\nsubdivision shall be made to the commissioner upon forms prescribed by\nhim and shall be accompanied by such information and evidence as the\ncommissioner may require. Upon approval of such application, the\ncommissioner shall deliver a copy thereof to the comptroller, together\nwith a certificate stating the amount due thereunder, and the amount so\nfixed shall be paid out of the state treasury after audit by the\ncomptroller from moneys appropriated for the acquisition of property\nunder this section.\n 11. 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 property acquired and for legal damages, as provided by law for\nthe filing of claims with the court of claims. Awards and judgments of\nthe court of claims shall be paid in the same manner as awards and\njudgments of that court for the acquisition of lands generally and shall\nbe paid out of the state treasury from moneys appropriated for purposes\nconnected with such highway projects.\n 12. If the work of construction or reconstruction of any highway\nproject shall cause actual damage to property not acquired as above\nprovided, the state shall be liable therefor, but this provision shall\nnot be deemed to create any liability on the part of the state not\nalready existing in law. Claims for such damage may be adjusted by the\ncommissioner of transportation, if the amounts thereof can be agreed\nupon with the persons making such claims, and any amount so agreed upon\nshall be paid as a part of the cost of the construction or\nreconstruction of such highway project as prescribed by this section. If\nthe amount of any such claim is not agreed upon, such claim may pursuant\nto the eminent domain procedure law, be presented to the court of claims\nwhich is hereby authorized to hear such claim and determine if the\namount of such claim or any part thereof is a legal claim against the\nstate and if it so determines, to make an award and enter judgment\nthereon against the state, provided, however, that such claim is filed\nwith the court of claims within three years after the final acceptance\nof the work by the commissioner of transportation.\n 13. Notwithstanding any other provision of this section, the\ncommissioner of transportation shall have the power to acquire by grant\nor purchase, in the name of the people of the state of New York, any\nproperty which he deems necessary for any of the purposes provided for\nin this section, and payment therefor, if any, shall be made in the\nmanner prescribed in this section for the payment of adjusted\nacquisition claims, provided, however, that no real property shall be so\nacquired unless the title thereto shall be approved by the attorney\ngeneral.\n 14. The expense of such acquisitions including administrative duties\nin connection therewith, the cost of making surveys, and preparing\ndescriptions and maps of property to be acquired, serving notice of\nappropriation, publication, 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 part of the cost of such highway projects.\n 15. Notwithstanding the provisions of any general, special or local\nlaw, the commissioner of transportation, his officers, agents or\ncontractor and the officers or agents of the United States when engaged\non such highway projects, may, pursuant to section four hundred four of\nthe eminent domain procedure law, enter upon property for the purpose of\nmaking surveys, test pits, test borings, or other investigations and\nalso for temporary occupancy during construction. Claims for any damage\ncaused by such entry, work or occupation not exceeding two thousand five\nhundred dollars may be adjusted by agreement by the commissioner of\ntransportation with the owner of the property affected as determined by\nhim by reasonable investigation without appropriating such property.\nUpon making any such adjustment and agreement, the commissioner of\ntransportation shall deliver to the comptroller such agreement and a\ncertificate stating the amount due such owner and the amount so fixed\nshall be paid out of the state treasury from monies appropriated for the\nacquisition of property for the project requiring such entry, work or\noccupation.\n 17. The provisions of this section shall not affect any proceeding for\nthe acquisition by a county of property for state highway purposes where\nsuch county has, before the effective date of this section, certified to\nthe commissioner of transportation that certain property has been\npurchased or options therefor executed or acquisition proceeding\ninstituted, but all such undertakings instituted by a county shall be\ncontinued and the acquisition of the property consummated in the manner\nprovided by law applicable thereto as in force prior to the taking\neffect of this section.\n 18. Notwithstanding any other provision of this section, the\ncommissioner of transportation shall have the power to acquire by grant\nor purchase, in the name of the people of the state of New York, any\nproperty which he deems necessary for any of the purposes provided for\nin this section and may also acquire for such purposes from the\nPalisades interstate park commission, in the name of the people of the\nstate of New York, such lands and such easements, licenses, permits and\nother rights over lands as the said commission is authorized to grant,\nsell, exchange or convey. When the acquisition by appropriation, grant\nor purchase of property deemed necessary for highway purposes would\nresult in substantial consequential damages to the owner's remaining\nproperty, due to loss of access, severance or control of access, the\ncommissioner of transportation, for and in behalf of the people of the\nstate of New York, may acquire by purchase or grant all or any portion\nof such remaining property. Payment therefor, if any, shall be made in\nthe manner prescribed in this section for the payment of adjusted\nappropriation claims, provided, however, that no real property shall be\nso acquired unless the title thereto shall be approved by the attorney\ngeneral.\n