§ 3.19 — Acquisition of property by eminent domain

New York § 3.19

• Jurisdiction: New York
• Law PAR: Parks, Recreation and Historic Preservation
• Title B: Organization and General Powers, Functions and Duties of Office of Parks, Recreation and Historic Preservation
• Art. 3: Office of Parks, Recreation and Historic Preservation; Commissioner

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§ 3.19 Acquisition of property by eminent domain. 1. Whenever the\ncommissioner deems it necessary to acquire property pursuant to the\neminent domain procedure law, he shall cause to be made an accurate\nacquisition map as provided in said law. The acquisition map shall be\nmade from an accurate survey of the property to be so acquired or in or\nto which any easement or estate less than full title is to be acquired\nspecifying the particular nature and extent thereof, except that\nwhenever a duly certified map or description of the property, easement\nor estate less than full interest to be acquired is available as a\nmatter of public record, then in that event such map or description may\nbe used by the commissioner to prepare the acquisition map. Upon the\napproval of the acquisition map by the commissioner, which shall be\nendorsed thereon, he shall acquire such property, easements, interests\nor rights in accordance with the provisions of the eminent domain\nprocedure law.\n 2. If the commissioner shall determine, prior to the filing of the\nacquisition map in the office of the clerk or register of the county, as\nprovided in the eminent domain procedure law, that changes, alterations\nor modifications of such map as filed in the office should be made, he\nor she shall direct the preparation of a new map or direct that changes\nbe made on the original tracing of such map, with a notation indicating\nsuch changes. Upon approval of such amended map by the commissioner, it\nshall be filed in the main office of parks, recreation and historic\npreservation as the original map was filed and the amended map shall\nthereupon in all respects and for all purposes supersede the map\npreviously filed.\n 3. If the commissioner shall determine, prior to the filing of a copy\nof the acquisition map in the office of the county clerk or register as\nprovided in the eminent domain procedure law, that such map should be\nwithdrawn, he or she shall file a certificate of withdrawal in the\noffice and department of law. Upon the filing of such certificate of\nwithdrawal, the map to which it refers shall be cancelled and all rights\nthereunder shall 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 in the eminent domain\nprocedure law, the commissioner shall deem it necessary to cause the\nremoval of an owner or other occupant from such property, he may cause\nsuch owner or other occupant to be removed therefrom by proceeding in\naccordance with section four hundred five of said law. The proceeding\nshall be brought in the name of the commissioner as agent of the state.\nIf any person proceeded against shall contest the petition by an answer,\nthe attorney general shall be notified, and he thereafter shall\nrepresent the petitioner in the proceedings. No execution shall issue\nfor costs, if any, awarded against the state or the commissioner, but\nthey shall be part of the costs of the acquisition and be paid in like\nmanner. Proceedings may be brought separately against one or more of the\nowners 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. No agreement made by the commissioner in accordance with the\nprovisions of section three hundred four of the eminent domain procedure\nlaw shall be binding upon the state of New York unless the attorney\ngeneral shall certify that the person or persons claiming the amount so\nagreed upon be entitled thereto. Payment shall be made upon audit and\nwarrant of the comptroller of the amount so agreed upon from monies\nappropriated for such purposes.\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. (a) The commissioner, with the approval of the director of the\nbudget, shall establish and may from time to time amend rules and\nregulations authorizing the payment of the following expenses and losses\nincurred by the displaced owners or occupants of a property acquired\npursuant to this section as a result of such acquisition:\n (i) actual reasonable and necessary moving expenses; and\n (ii) actual direct losses of tangible personal property as a result of\nmoving or discontinuing a business or farm operation on such property,\nbut not exceeding an amount equal to the reasonable expenses that would\nhave been required to relocate such property, as determined by the\ncommissioner; and\n (iii) actual reasonable expenses in searching for a replacement\nbusiness or farm; and\n (iv) actual and reasonable expenses necessary to reestablish a\ndisplaced farm operation, not-for-profit organization, or small business\nat its new site but not to exceed the maximum amount provided for in the\nregulations.\n (b) Such regulations may provide in hardship cases for the advance\npayment of such expenses and losses. For the purposes of making payment\nof such expenses and losses only, such regulations shall provide that\nthe term "business" includes 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. Such\nregulations may also provide for payments to utilities for the\nrelocation of their facilities under such circumstances and in such\namounts as the commissioner may determine.\n (c) Any person eligible for the payments authorized by paragraph (a)\nof this subdivision who is displaced from a residential property may, in\nlieu of such payments, elect to accept an expense and dislocation\nallowance, determined in accordance with a schedule prepared by the\ncommissioner and made a part of such rules and regulations.\n (d) Any person eligible for the payments authorized by paragraph (a)\nof this subdivision, who is displaced from a business or farm operation\nand who is eligible under criteria established by the department may, in\nlieu of such payments, elect to accept a fixed relocation payment,\nexcept that such payment shall be not less than the minimum nor more\nthan the maximum amount provided for in the regulations. However, a\nperson whose sole business at the property so acquired is the rental of\nsuch property to others shall not qualify for payment under this\nparagraph.\n (e) Application for payment under this subdivision shall be made to\nthe commissioner upon forms prescribed by the commissioner 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. No\npayment shall be made under this subdivision for any cost, expense,\ndifference or other amount for which payment was previously made.\n (f) The regulations necessary to implement this subdivision shall be\nconsistent with the applicable provisions of section thirty of the\nhighway law, as the same may from time to time be amended, and\nregulations issued thereunder.\n 9. (a) 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 by eminent\ndomain who are entitled thereto, as determined by the commissioner. 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.\n (b) In the case of residential property acquired pursuant to this\nsection which is improved by a dwelling actually owned and occupied by\nthe displaced owner for not less than one hundred eighty days\nimmediately prior to initiation of negotiations for the acquisition of\nsuch property, such supplemental relocation payment to such owner shall\nnot exceed the maximum amount provided for in the regulations. Such\npayment shall include the following elements:\n (i) the amount, if any, which when added to the acquisition payment\nequals the average price, established by the commissioner, required to\nobtain a comparable replacement dwelling for such displaced owner, but\nin no event shall such payment exceed the difference between acquisition\npayment and the actual purchase price of the replacement dwelling; and\n (ii) the amount which will compensate such displaced owner for any\nincreased interest costs which such person is required to pay for\nfinancing the acquisition of the comparable replacement dwelling. Such\namount 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 property. Any\nsuch compensating interest payment shall, notwithstanding the provisions\nof section twenty-six-b of the general construction law, be in lieu of\nand in full satisfaction of the requirements of such section; and\n (iii) an amount which will compensate such displaced owner for\nreasonable expenses incurred for evidence of title, recording fees and\nother closing costs incident to the purchase of the comparable\nreplacement dwelling, but not including prepaid expenses.\n (c) Any supplemental relocation payment made pursuant to paragraph (b)\nof this subdivision shall be made only to a displaced owner who\npurchases and occupies a comparable replacement dwelling within one year\nsubsequent to the date on which such owner is required to move from the\ndwelling acquired pursuant to this section or the date on which such\nowner receives from the state final payment for such acquired dwelling,\nwhichever occurs later. The commissioner may extend such period for good\ncause; provided however, that any payment shall be based on the costs of\nrelocating the displaced person to a comparable replacement dwelling\nwithin one year of such extended date. The regulations may provide that\nadvance payment of such payments may be made in hardship cases.\n (d) In the case of residential property acquired pursuant to this\nsection from which an owner or tenant, not otherwise eligible to receive\na supplemental relocation payment pursuant to the provisions of\nparagraph (b) of this subdivision, is displaced from dwelling thereon\nwhich has been actually and lawfully occupied by such owner or tenant\nfor not less than ninety days immediately prior to (i) the initiation of\nnegotiations for the acquisition of such property or (ii) such other\nevent as regulations may prescribe when the displacement is not a direct\nresult of such acquisition, such supplemental relocation payment to such\nowner or tenant shall not exceed the maximum amount provided for in the\nregulations. Such payment shall be the amount which is necessary to\nenable such owner or tenant to lease or rent for a period not to exceed\nthe maximum time specified in the regulations, a comparable replacement\ndwelling but such amount shall not exceed the maximum amount specified\nin the regulations. Such payments may be made in periodic installments\nas determined by the commissioner. Any person eligible for a\nsupplemental relocation payment under this paragraph may elect to use\nsuch payment for the down payment, including reasonable expenses\nincurred by such owner or tenant for evidence of title, recording fees,\nand other closing costs incident to the purchase of the replacement\ndwelling, but not including prepaid expenses, on the purchase of a\ncomparable replacement dwelling, except such payment shall not exceed\nthe maximum amount provided for in the regulations.\n (e) Application for payment under this subdivision shall be made to\nthe commissioner upon forms prescribed by the commissioner 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. No\npayment shall be made under this subdivision for any cost, expense,\ndifference or other amount for which payment was previously made.\n (f) The regulations necessary to implement this subdivision shall be\nconsistent with the applicable requirements of section thirty of the\nhighway law, as the same may from time to time be amended, and\nregulations issued thereunder.\n 10. Expenses incurred in the acquisition of the property, including\nthe cost of making surveys, preparing descriptions and maps, appraisals,\ntitle searches, service and publication of notices, and expenses\nincurred in proceedings for the removal of owners or occupants, shall be\ndeemed to be part of the cost of the acquisition of such real property\nand shall be paid accordingly out of any moneys appropriated for the\nacquisition of such property.\n 11. The state of New York shall be liable for any damages to any real\nproperty caused by the making of surveys, test pits, test borings or\nother investigations pursuant to section four hundred four of the\neminent domain procedure law. Such damages may be recovered and\nadjusted and paid in the same manner as provided in this section with\nrespect to compensation for real property acquired by eminent domain.\n 12. The owner of any real property acquired by eminent domain may\npresent to the court of claims, pursuant to section five hundred three\nof the eminent domain procedure law a claim for the value of such\nproperty appropriated and for legal damages caused by such\nappropriation, as provided by law for the filing of claims with the\ncourt of claims. Awards and judgments of the court of claims shall be\npaid in the same manner as awards and judgments of that court for the\nacquisition of lands generally and shall be paid out of the state\ntreasury after audit by the comptroller from moneys appropriated for the\nacquisition of such real property.\n 13. If the commissioner shall determine subsequent to the\nappropriation of a temporary easement in any real property that the\npurposes for which such easement right was acquired have been\naccomplished and that the exercise of such easement is no longer\nnecessary, he shall make his certificate that the exercise of such\neasement is no longer necessary and that such easement right is\ntherefore terminated, released and extinguished. The commissioner shall\ncause such certificate to be filed in the office of parks, recreation\nand historic preservation and a copy thereof certified by the\ncommissioner to be filed in the office of the clerk or register of each\ncounty in which the property affected, or any part thereof, is situated.\nOn the filing of such certified copy of such certificate with such clerk\nor register, it shall be his duty to record the same in his office in\nthe books used for recording deeds and to index the same against the\nname of the people of the state of New York, as grantors. On the filing\nand recording of such certificate in the office of such clerk or\nregister, all rights acquired by the state under such temporary easement\nshall cease. The commissioner shall cause a further certified copy of\nsuch certificate, with notice of the filing thereon in the office of\nparks, recreation and historic preservation and of the filing and\nrecording of a certified copy thereof in the office of the clerk or\nregister, to be mailed to each owner of the property affected, as\ncertified by the attorney general, if the place of residence of such\nowner is known.\n 14. The commissioner, may make arrangements with respect to any lands\nheretofore or hereafter acquired by him, whereby such lands may continue\nto be occupied and used by the former owners, their tenants or assigns\nor by any other party from a date specified in said agreement until the\nstate requires and obtains actual physical possession of such lands,\nprovided that during the period of such occupancy, such lands shall\nremain on the assessment rolls of the municipality, school districts and\nother districts in which they are located and shall be subject to real\nestate taxes and assessments in the same manner as privately owned\nlands. The right of a former owner, tenant, assignee or other party to\noccupy and use such lands shall be conditioned on the prompt payment of\nthe full amount of such taxes and assessments, with interest and\npenalties, if any, and compliance with the provisions of section three\nhundred five of the eminent domain procedure law, if applicable. The\nstate shall not be liable for real estate taxes or assessments on such\nlands during such a period. A copy of any such agreement shall be filed\nwith the county clerk of the county in which such lands are located.\nNothing herein contained shall be construed to limit the authority of\nthe commissioner to accept conditional grants, bequests or devises of\nproperty under other provisions of this chapter.\n