§ 30 — Acquisition by the state of property required for the construction and reconstruction of state highways and structures thereon

New York § 30

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

Text

§ 30. Acquisition by the state of property required for the\nconstruction and reconstruction of state highways and structures\nthereon. 1. (a) Upon the construction, reconstruction or improvement,\npursuant to this chapter of a state highway the property required\ntherefor may be acquired by the state as provided in the eminent domain\nprocedure law. A state highway indicated under this chapter for\nconstruction or improvement, or any portion of such highway, may be\nconstructed, reconstructed or improved, as a controlled access highway,\nupon the adoption of a resolution by a majority vote of the members of\nthe board 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 locations.\n (b) Whenever plans for the construction, reconstruction or improvement\nof a state highway which is now or which shall hereafter be designated\nin section three hundred forty-one of this chapter, shall provide for\nthe relocation of such state highway or portion thereof on a location\nwhich deviates from the location of the existing highway for a\ncontinuous length in excess of one mile as measured along the center\nline of the existing highway, the commissioner of transportation shall,\nbefore filing the descriptions and the original tracings of any maps or\nproceeding with the acquisition of property or the work of construction,\nreconstruction or improvement, transmit such plans to the board of\nsupervisors of each county in which such relocation or any portion\nthereof is situated. In case the relocation or any portion thereof as\nproposed, is situated in a county other than the county in which the\nexisting highway or portion thereof is located, such plans shall be\ntransmitted to both of such counties and shall be subject to the\napproval, disapproval or modification by each of such counties in the\nmanner as hereinafter provided. The board of supervisors, after the\nreceipt of such plans, may conduct a public hearing or hearings upon\nsuch notice as such board of supervisors shall deem reasonable, but not\nless than ten days, to the commissioner of transportation and to such\nother party or parties deemed by said board of supervisors to be\ninterested in the project. In any event, and within ninety days after\nreceipt of the plans, the board of supervisors shall, by resolution,\nduly adopted by a majority vote of its members, approve, disapprove or\nrecommend modifications in such plans as the public interest shall\nrequire. Within ten days after the adoption of the resolution, the clerk\nof the board of supervisors shall mail a certified copy thereof to the\ncommissioner of transportation. In case such relocation is situated in\ntwo or more counties, such resolution must be separately adopted by the\nboard of supervisors of each county as to the relocation situated\ntherein. The form of the resolution shall be prescribed by the\ncommissioner of transportation. In case the board of supervisors shall\ndisapprove the plans, without proposing modifications, the commissioner\nof transportation may, in his discretion, prepare and submit to the\nboard of supervisors for approval other plans for the construction,\nreconstruction or improvement of the state highway to be acted upon by\nthe board of supervisors in the manner herein prescribed within sixty\ndays after receipt of such plans. In case the board of supervisors shall\ndisapprove the plans, and shall recommend modifications, the\ncommissioner of transportation may approve the plans as so modified, or\nrecommend other modifications for approval, and such state highway shall\nbe constructed, reconstructed, or improved in accordance with such plans\nas finally approved. When the plans, for construction, reconstruction or\nimprovement of a state highway have finally been approved as herein\nprovided, no resolution thereafter adopted by the board of supervisors\nof a county shall rescind, annul or modify such prior resolution either\ndirectly or indirectly, excepting upon the advice and with the consent\nof the commissioner of transportation. Upon the failure or omission of\nany board of supervisors to act within the time and manner herein\nrequired, the said plans shall be deemed to be approved so far as such\nboard of supervisors is concerned.\n 2. The commissioner of transportation, for and in behalf of the people\nof the state of New York may acquire, pursuant to the eminent domain\nprocedure law any and all property necessary for the construction,\nreconstruction and improvement of state highways and bridges or culverts\non the state highway system, including the appropriation of property for\ndrains, ditches, spoil banks, gravel pits and stone quarries; also for\nthe removal of obstructions, improvement of sight distances; also for\nacquisition of property for the reconstruction of existing\nhighway-railroad separation structures and for the separation of\nhighway-railroad grades on newly laid-out highways; and for other\npurposes to improve safety conditions on the state highway system. When\nthe commissioner is exercising the property acquisition power granted\nhim pursuant to subdivision six of section eighty-nine of this chapter,\nrelating to control of junkyards and scrap metal processing facilities,\nsuch term "property" shall include junk located upon land to be\nappropriated and described on the acquisition map in a manner sufficient\nto permit reasonable identification thereof.\n 3. 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.\nUnless access to and from abutting property is expressly acquired by the\nterms of the description and map, any permanent drainage easement\nheretofor or hereafter acquired pursuant to this chapter shall be deemed\nas reserving to the owner of the property, his successors and assigns,\nthe right of access over, through or across the easement for utility\nlines, cables or conduits and by foot or by vehicle and with the right\nto construct and maintain on such property a road or roads as necessary\nfor the exercise of such right, provided that the exercise of such right\ndoes not interfere with the drainage for which the easement was\nacquired. On the 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 4. If the commissioner shall determine, prior to the filing of such\ncopy of the acquisition map in the office of county clerk as aforesaid,\nthat changes, alterations or modifications of such map as filed in the\noffice of the 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, either by\npreparing a new map or by making changes on the original tracing of such\nmap, with a notation indicating such changes. On the approval of such\namended map by the commissioner, it shall be filed in the main office of\nthe department in the same manner as the original map was filed and the\namended map shall thereupon in all respects and for all purposes\nsupersede 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 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 6. The commissioner of transportation shall deliver to the attorney\ngeneral a copy of such acquisition map whereupon it shall be the duty of\nthe attorney general to advise and certify to the commissioner of\ntransportation the names of the owners of the property, easements,\ninterests or rights described in the said acquisition map, including the\nowners of any right, title or interest therein pursuant to the\nrequirements 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 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\nsaid 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 8. 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 9. 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 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; of actual\nreasonable expenses in searching for a replacement business or farm; and\nof actual reasonable expenses necessary to reestablish a displaced farm,\nnot-for-profit organization or small business at its new site, but not\nto exceed ten thousand dollars, or in hardship cases for the advance\npayment of such expenses and losses. In lieu of such actual reasonable\nand necessary moving expenses, any such displaced owner or tenant of\nresidential property may elect to accept a moving expense allowance,\nplus a dislocation allowance, determined in accordance with a schedule\nprepared by the commissioner and made a part of such rules and\nregulations. In lieu of such actual reasonable and necessary moving\nexpenses and actual reasonable reestablishment expenses, any such\ndisplaced owner or tenant of commercial property who meets eligibility\ncriteria and relocates or discontinues his business or farm operation\nmay elect to accept a fixed relocation payment in an amount equal to the\naverage annual net earnings of the business or farm operation, except\nthat such payment shall be not less than one thousand dollars nor more\nthan twenty thousand dollars. A displaced not-for-profit organization\nmay choose a fixed payment of one thousand to twenty thousand dollars in\nlieu of the payment for actual moving and related expenses and actual\nreasonable reestablishment expenses if eligibility criteria are met.\nApplication for payment under this subdivision 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 thereunder, 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. As used in this\nsubdivision the term "commercial property" shall include property owned\nby an individual, family, partnership, corporation, association or a\nnot-for-profit organization and includes a farm operation. As used in\nthis subdivision the term "business" means any lawful activity, except a\nfarm operation, conducted primarily for the purchase, sale, lease and\nrental of personal and real property, and for the manufacture,\nprocessing, or marketing of products, commodities, or any other personal\nproperty; for the sale of services to the public; or by a not-for-profit\norganization. The term "small business" means a business having not more\nthan five hundred employees working at the site being acquired or\npermanently displaced. As used in this subdivision, the term "farm\noperation" means any activity conducted solely or primarily for the\nproduction of one or more agricultural products or commodities including\ntimber, for sale or home use, and customarily producing such products or\ncommodities in sufficient quantities to be capable of contributing\nmaterially to the operator's support.\n 11. 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 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 or replacement housing. 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 twenty-two\nthousand five hundred dollars. Such payment shall be the amount, if any,\nwhich, when added to the acquisition payment equals the average price,\nestablished by the commissioner on a class, group or individual basis,\nrequired to obtain a comparable replacement dwelling that is decent,\nsafe and sanitary to accommodate the displaced owner, reasonably\naccessible to public services and places of employment and available on\nthe private market, but in no event shall such payment exceed the\ndifference between acquisition payment and the actual purchase price of\na replacement dwelling which is decent, safe and sanitary. Such payment\nshall include an amount which will compensate such displaced owner for\nany increased interest costs which such person is required to pay for\nfinancing the acquisition of any such comparable replacement dwelling.\nSuch amount shall be paid only if the dwelling acquired pursuant to this\nsection was encumbered by a bona fide mortgage which was a valid lien on\nsuch dwelling for not less than one hundred eighty days prior to the\ninitiation of negotiations for the acquisition of such dwelling. Any\nsuch mortgage 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 the department identifies, for the displaced owner,\nreplacement housing actually available within the limits of the offer\nextended for replacement housing, whichever occurs later, except advance\npayment of such amount may be made in hardship cases. In the case of\nproperty acquired pursuant to this section from which an individual or\nfamily, not otherwise eligible to receive a payment pursuant to the\nabove provisions of this subdivision, is displaced from any dwelling\nthereon which has been actually and lawfully occupied by such individual\nor family for not less than ninety days immediately prior to the\ninitiation of negotiations for the acquisition of such property, such\npayment to such individual or family shall not exceed five thousand two\nhundred fifty 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 forty-two months, 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 and reasonably accessible to his place\nof employment. Such payment may be used as a down payment, including\nreasonable expenses incurred by such individual or family for evidence\nof title, recording fees, and other closing costs incident to the\npurchase of the replacement dwelling, but not including prepaid\nexpenses, on the purchase of a decent, safe and sanitary dwelling of\nstandards adequate to accommodate such individual or family in areas not\ngenerally less desirable in regard to public utilities and public and\ncommercial facilities. Such payments may be made in installments as\ndetermined by the commissioner. However, notwithstanding the provisions\nof this subdivision, if it is determined by the commissioner that\nreplacement housing cannot be obtained for the supplemental relocation\npayments specified herein, he may, subject to the approval of the\ndirector of the budget, take such action as is necessary or appropriate\nto provide last resort housing with the use of funds authorized for the\nproject. Application for payment under this subdivision shall be made to\nthe commissioner upon forms prescribed by him and shall be accompanied\nby such 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 thereunder, 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 13. The owner of any property, easements, interests or rights\nacquired, may present to the court of claims, pursuant to section five\nhundred three of the eminent domain procedure law, a claim for the value\nof such property appropriated and for legal damages, as provided by law\nfor the filing of claims with the court of claims. Awards and judgments\nof the 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 the\nconstruction, reconstruction or improvement of state highways and\nbridges.\n 14. 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 15. 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 16. The expense of the acquisition of property including the cost of\nmaking surveys and preparing descriptions and maps of property to be\nacquired, and of administrative duties in connection therewith, serving\nnotice of acquisition, publication, making title searches, appraisals\nand agreements, and examinations and readings and approval of titles\nmade by the attorney general, and expenses incurred by the commissioner\nof transportation or the attorney general in proceedings for removal of\nowners or occupants, shall be deemed part of the cost of such\nimprovement. The comptroller is hereby authorized to charge against any\nmoneys available for the construction and reconstruction or improvement\nof state highways and bridges and to reserve therefrom such sums as may\nbe sufficient to defray the necessary expenses to be incurred by the\nattorney general for examination, readings, and approval of titles, upon\nthe filing with him by the attorney general from time to time of a\ncertificate or certificates approved by the commissioner of\ntransportation setting forth such estimated expenses. Such expenses\nshall be paid from the funds so reserved after audit by the state\ncomptroller.\n 17. 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 twenty-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 18. The commissioner of transportation may determine whether any\nproperty heretofore or hereafter acquired pursuant to this section for\nany of the purposes connected with the highway system of the state of\nNew York may be, in whole or in part, sold or exchanged on terms\nbeneficial to the state, and in all cases of such determination he may,\nsubject to compliance with section four hundred six of the eminent\ndomain procedure law and notwithstanding the provisions of any general,\nspecial or local law, so dispose of such property, provided however,\nthat on highways where access is not controlled such disposal of\nproperty shall not thereby deprive an owner of any existing frontage\nthereon immediately in front of his premises. In order to carry any such\nsale or exchange into effect the commissioner of transportation is\nhereby authorized to execute and deliver, in the name of the people of\nthe state, a quitclaim of, or a grant in and to, such property. Each\nsuch instrument of conveyance shall be prepared by the attorney general\nand before delivery thereof, shall be approved by him as to form and\nmanner of execution.\n 20. If, subsequent to the acquisition of a temporary easement right in\nproperty pursuant to this section, the commissioner shall determine; (a)\nthat the purposes for which such easement right was acquired have been\naccomplished and that the use and occupancy of said property for such\npurposes is no longer necessary, or (b) that the period fixed by the\nterms of such easement for expiration of the same should be further\nlimited, or (c) if the acquisition of such easement was for an\nindefinite period, that such period should be fixed and determined, the\ncommissioner shall make a certificate to such effect. Upon the\nexpiration of the then fixed and determined term of the easement, the\neasement will expire by the terms of the certificate and the affected\nproperty will be surrendered back to the owner, free of such easement,\nand the easement will be accordingly thereupon terminated, released and\nextinguished. The commissioner shall cause a copy of such certificate to\nbe filed in the main office of the department. In the event that the\nterm of a temporary easement has been fixed at a specific period of time\nby the description and map no further certificate shall be required.\n The commissioner shall cause a copy of such certificate together with\nnotice of the filing thereof 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. A further copy of such\ncertificate and notice of filing shall be filed in the office of the\nrecording officer of each county wherein the property affected is\nsituated. On the filing of such certificate and notice with such officer\nit shall be the duty of such officer to record same in the books used\nfor recording deeds in the office of such officer.\n 21. 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