§ 347 — Property for state thruways, bridges thereon, and other thruway uses and purposes to be acquired by appropriation

New York § 347

• Jurisdiction: New York
• Law HAY: Highway
• Art. 12-A: State Thruways

Text

§ 347. Property for state thruways, bridges thereon, and other thruway\nuses and purposes to be acquired by appropriation. 1. Notwithstanding\nany inconsistent provisions of this chapter or any other law, general or\nspecial, any and all property necessary for the construction,\nreconstruction and maintenance of state thruways and bridges thereon,\nshall be acquired pursuant to the eminent domain procedure law.\n 2. The commissioner of transportation, for the people of the state of\nNew York, shall acquire pursuant to the eminent domain procedure law any\nproperty or interest therein, necessary for any and all purposes\nconnected with the construction, reconstruction and maintenance of the\nthruway system of the state of New York, including the acquisition of\nproperty for drains, ditches, spoil banks, gravel pits, stone quarries;\nalso for the removal of obstructions, improvement of sight distances;\nalso for acquisition of property for the reconstruction of existing\nhighway-railroad separation structures upon incorporation into a state\nthruway of an existing highway or portion thereof of which they form a\npart, and for the separation of thruway-railroad grades on newly\nlaid-out thruways; and for other purposes to improve safety conditions\non the thruway routes.\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 thruway 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 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\naforesaid, that changes, alterations or modifications of such\ndescription and map as filed in the main office of the New York state\nthruway authority should be made, he or she shall, subject to the\nprovisions in article two of the eminent domain procedure law if\napplicable, direct the preparation of an amended acquisition map, either\nby preparing a new map or by making changes on the original tracing of\nsuch map, with a notation indicating such changes. On the approval of\nsuch amended map by the commissioner, it shall be filed in the main\noffice of the New York state thruway authority 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 5. If the commissioner shall determine prior to filing a copy of the\nmap in the office of the county clerk or register 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 New York state thruway authority and 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 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 in the eminent domain\nprocedure law, the commissioner of transportation, or such duly\nauthorized representative or agency which has succeeded him in the\njurisdiction of the property so acquired, shall deem it necessary to\ncause the removal of an owner or other occupant from such property, he\nmay cause such owner or other occupant to be removed therefrom by\nproceeding in accordance with section four hundred five of such law. The\nproceedings shall in all instances 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 raising any\nmaterial issue, the attorney general shall be notified, and he\nthereafter shall represent the petitioner in the proceedings. No\nexecution shall issue for costs, if any, awarded against the state or\nthe commissioner of transportation, but they shall be part of the costs\nof 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; judgment shall\neffect or be made 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 9. 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 from moneys appropriated\nfor the construction, reconstruction and maintenance of state thruways\nand bridges thereon, 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 10. Application for reimbursement of incidental expenses as provided\nin section seven hundred two of the eminent domain procedure law shall\nbe made 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 11. 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. Such rules and regulations may further define\nthe terms used in this subdivision. 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, any such displaced owner or tenant of commercial property who\nrelocates or discontinues his business or farm operation may elect to\naccept a fixed relocation payment in an amount equal to the average\nannual net earnings of the business or farm operation, except that such\npayment shall be not less than two thousand five hundred dollars nor\nmore than ten thousand dollars. In the case of a business, no such fixed\nrelocation payment shall be made unless the commissioner finds and\ndetermines that the business cannot be relocated without a substantial\nloss of its existing patronage, and that the business is not part of a\ncommercial enterprise having at least one other establishment, which is\nnot being acquired by the state or the United States, which is engaged\nin the same or similar business. In the case of a business which is to\nbe discontinued but for which the findings and determinations set forth\nabove cannot be made, the commissioner may prepare an estimate of what\nthe actual reasonable and necessary moving expenses, exclusive of any\nstorage charges, would be if the business were to be relocated and enter\ninto an agreed settlement with the owner of such business for an amount\nnot to exceed such estimate in lieu of such actual reasonable and\nnecessary moving expenses. 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. As used in this subdivision the term "commercial\nproperty" shall include property owned by an individual, family,\npartnership, corporation, association or a nonprofit organization and\nincludes a farm operation. As used in this subdivision the term\n"business" means any lawful activity, except a farm operation, conducted\nprimarily for the purchase, sale, lease and rental of personal and real\nproperty, and for the manufacture, processing, or marketing of products,\ncommodities, or any other personal property; for the sale of services to\nthe public; or by a nonprofit organization.\n 12. 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 13. 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 payments 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 action.\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 14. Any owner may pursuant to section five hundred three of the\neminent domain procedure law present to the court of claims a claim for\nthe value of such property acquired 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 the construction, reconstruction and maintenance of\nstate thruways and bridges thereon.\n 15. If the work of constructing, reconstructing and maintaining such\nstate thruways and bridges thereon causes damage to property not\nacquired as above provided, the state shall be liable therefor, but this\nprovision shall not be deemed to create any liability not already\nexisting by statute. Claims for such damage may be adjusted by the\ndepartment of transportation, if the amounts thereof can be agreed upon\nwith the persons making such claims, and any amount so agreed upon shall\nbe paid as a part of the cost of such improvement as prescribed by this\nsection. If the amount of any such claim is not agreed upon, such claim\nmay be presented to the court of claims which is hereby authorized to\nhear such claim and determine if the amount of such claim or any part\nthereof is a legal claim against the state and if it so determines, to\nmake an award and enter judgment thereon against the state, provided,\nhowever, that such claim is filed with the court of claims within three\nyears after the final acceptance of the work of the improvement by the\ncommissioner of transportation.\n 16. 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 or\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 thruway 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\nacquisition claims, provided, however, that no real property shall be so\nacquired unless the title thereto shall be approved by the attorney\ngeneral.\n 17. 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\nnotices of appropriation, making title searches, appraisals and\nagreements, and examinations and readings of title made by the attorney\ngeneral, and expenses incurred by the commissioner of transportation or\nthe attorney general in proceedings for removal of owners or occupants,\nshall be deemed part of the cost of such improvement. The comptroller is\nhereby authorized to charge against any moneys available for the\nconstruction, reconstruction and maintenance of state thruways and\nbridges thereon and to reserve therefrom such sums as may be sufficient\nto defray the necessary expenses to be incurred by the attorney general\nfor examination, readings, and approval of titles, upon the filing with\nhim by the attorney general from time to time of a certificate or\ncertificates approved by the commissioner of transportation setting\nforth such estimated expenses. Such expenses shall be paid from the\nfunds so reserved.\n 18. Notwithstanding the provisions of any general, special or local\nlaw, the commissioner of transportation, his officers or agents when\nengaged on work connected with the thruway system of the state of New\nYork, as described in this chapter may pursuant to the eminent domain\nprocedure law enter upon any property for the purpose of making surveys,\ntest pits, test borings, or other investigations and also for temporary\noccupancy during construction. Claims for any damage caused by such work\nand not exceeding two thousand five hundred dollars may, without\nappropriating such property, be adjusted by agreement by the\ncommissioner of transportation with the owner of the property affected\nas determined by him by reasonable investigation, and the amount so\nagreed upon shall be paid out of the state treasury, after audit by the\ncomptroller, from monies appropriated for the construction,\nreconstruction and maintenance of state thruways and bridges thereon,\nbut not until there shall have been filed with the comptroller a\ncertificate of the attorney general approving, as to form and manner of\nexecution, such agreement and any release given in consideration of such\npayment.\n 19. The commissioner of transportation may determine whether any\nproperty acquired for any of the purposes connected with the thruway\nsystem of the state of New York pursuant to this section may, while\nunder his jurisdiction, and subject to compliance with section four\nhundred six of the eminent domain procedure law, be sold or exchanged,\nin whole or in part, on terms beneficial to the state, and in all cases\nof such determination he may sell or exchange such property; in order to\ncarry any such sale or exchange into effect, the commissioner of\ntransportation is hereby authorized to execute and deliver, in the name\nof the people of the state, a quitclaim of such property.\n 20. If the commissioner of transportation, or such duly authorized\nrepresentative or agency which has succeeded him in the jurisdiction of\nthe property affected, shall determine subsequent to the acquisition of\na temporary easement right in property and subsequent to the filing of a\nmap of such property in the office of the county clerk or register, as\naforesaid, that the purposes for which such easement right was acquired\nhave been accomplished and that the use and occupancy of said property\nfor state thruway purposes are no longer necessary, and that, therefore,\nthe term of such easement should then be terminated, or if the\nappropriation of such easement was for an indefinite period, that the\nend of such period should be fixed and determined, or that the period of\nsuch easement has by its terms expired, he shall make his certificate to\nthat effect and, in case he certifies that the use and occupancy of such\nproperty for such thruway purposes are no longer necessary, he shall\nfurther certify that the property in which such easement right was\nacquired is surrendered back to the affected owner of said property and\nthat such easement right is thereupon terminated, released and\nextinguished. The commissioner of transportation, or his said successor,\nshall cause a copy of such certificate to be filed in the office of the\ndepartment of state. Upon the filing of such certificate in the office\nof the department of state, the term of such easement, or all the\neasement rights acquired by the state in such property, shall, by virtue\nof such filing and in accordance with the determination expressed in\nsuch certificate, be fixed and determined, or terminated, released and\nextinguished. The commissioner of transportation, or his said successor,\nshall cause a copy of such certificate together with notice of the\nfiling thereof in the office of the department of state to be mailed to\nthe current owner of the property affected, so far as such owner and his\nplace of residence can be ascertained by him by reasonable\ninvestigation. A further copy of such certificate and notice of filing\nshall be filed in the office of the recording officer of each county\nwherein the property affected is situated. Upon the filing with said\nofficer of such certificate, in the form aforementioned, and of such\nnotice, it shall be his duty, without further requirement, to record the\nsame in the books used for recording deeds in his office.\n