§ 75 — Grants of land under water

New York § 75

• Jurisdiction: New York
• Law PBL: Public Lands
• Art. 6: Grants of Lands Under Water

Text

§ 75. Grants of land under water. This section authorizes grants,\nleases, easements, and lesser interests, including permits, for the use\nof state-owned land underwater and the cession of jurisdiction thereof\nconsistent with the public interest in the use of state-owned lands\nunderwater for purposes of navigation, commerce, fishing, bathing, and\nrecreation; environmental protection; and access to the navigable waters\nof the state; with due regard for the need of affected owners of private\nproperty to safeguard their property.\n 1. Of navigable rivers and lakes.\n 2. Of the Hudson river adjacent to the state of New Jersey.\n 3. Of the former bed of Onondaga creek in Onondaga county and of\nTibbetts brook in Bronx county, whether or not now under water, and\nregardless of upland ownership.\n 4. Adjacent to and surrounding Great Barn island in the city and\ncounty of New York, and between high and low water mark on such island,\nbut not so as to affect the navigation of the waters surrounding such\nisland.\n 5. Adjacent to and surrounding Staten Island, but not so as to extend\nmore than five hundred feet into the water from low water mark on said\nisland, except where the legally established pier and bulkhead lines\nextend more than five hundred feet beyond low water mark, in which case\ngrants may be made to such lines.\n 6. Adjacent to and surrounding Long Island, and all that part of the\nformer or present county of Westchester lying on the East river or Long\nIsland sound, but not beyond any permanent exterior water line\nestablished by law.\n 7. (a) The commissioner of general services may grant in perpetuity or\notherwise, to the owners of the land adjacent to the land underwater\nspecified in this section, to promote the commerce of this state or for\nthe purpose of beneficial enjoyment thereof by such owners, or for\nagricultural purposes, or for public park, beach, street, highway,\nparkway, playground, recreation or conservation purposes, so much of\nsaid land underwater as the commissioner deems necessary for that\npurpose. No such grant shall be made to any person other than the\nproprietor of the adjacent land. Any such grant made to any other person\nshall be void, except that, subject to the other provisions of this\nsection, the commissioner of general services may transfer jurisdiction\nover state-owned lands underwater to a state agency for the purpose of\nprotecting environmentally sensitive lands underwater even if the state\nagency is not the proprietor of the adjacent upland. The commissioner\nmay also lease such land underwater to such owner of the adjacent upland\nor, with the consent of such owner of the adjacent upland, to others,\nfor terms up to forty years. No such grant or lease shall be made of any\nlands belonging to the city of New York, or so as to interfere with the\nrights of that city or of the Hudson River Railroad Company, or of its\nsuccessor the New York Central and Hudson River Railroad Company. In\nmaking any grant, lease, permit or other conveyance, the commissioner of\ngeneral services shall, upon administrative findings, and to the extent\npracticable, reserve such interests or attach such conditions to\npreserve the public interest in use of state-owned lands underwater and\nwaterways for navigation, commerce, fishing, bathing, recreation,\nenvironmental protection and access to the navigable waters of the\nstate, with due regard for the need of affected owners of private\nproperty to safeguard their property. The commissioner shall by official\nrules establish criteria and guidelines for determinations with respect\nto the leasing or selling of such lands underwater.\n Where the boundary line between land underwater and the adjacent land\nlies within a public road or street, and the name of the owner or owners\nof such adjacent land or the place of residence cannot be ascertained to\nthe satisfaction of the commissioner, grants or leases may be made by\nthe commissioner in his or her discretion to the owner or owners of the\nland adjoining the road or street inshore of such land underwater in the\nmanner herein provided, but a grant or lease so made shall not be\nregarded as depriving any other person of the exercise of his or her\nriparian rights.\n Where the title to such public road or street is in a county, city,\ntown or village, grants or leases may be made by the commissioner in the\nmanner herein provided to the owner of the land adjoining the road or\nstreet inshore of such land underwater, but no such grant shall be made\nunless the consent thereto of such county, city, town or village shall\nfirst be filed with the commissioner, or unless, having been duly\npersonally served with a notice of application of such grant, the\ncounty, city, town or village fails to file an objection with the\ncommissioner or, having filed such objection, fails to present to the\ncommissioner sufficient proof or other reasons satisfactory to the\ncommissioner why the grant should not be made.\n (b) No wharf, dock, pier, jetty, platform, breakwater, mooring or\nother structure shall be constructed, erected, anchored, suspended,\nplaced or substantially replaced, altered, modified, enlarged, or\nexpanded in, on or above state-owned lands underwater, nor shall any\nfill be placed on such lands underwater, unless a lease, easement,\npermit, or other interest is obtained from the commissioner, which\nauthorizes the use and occupancy of those state-owned lands underwater\nto be affected by such act or acts, provided however, that there shall\nbe excepted in the uniform regulations issued pursuant to paragraph (f)\nof this subdivision any existing structure for non-commercial use\nconstructed prior to June seventeenth, nineteen hundred ninety-two, by\nor on behalf of the owner of adjacent upland who owned prior to June\nseventeenth, nineteen hundred ninety-two, which has a surface area, as\nmeasured at the outermost perimeter, including surface waters between or\nencompassed within the structure of less than five thousand square feet\nin area, and with respect to docking facilities, has a capacity of no\nmore than seven boats thirty feet in length. For the purposes of this\nsubdivision, the term "structure" shall not include discharge or intake\npipes, pipelines, cables, or conduits. Thereafter there shall be so\nexcepted any structure constructed by or on behalf of the owner of\nadjacent uplands that:\n (i) has a surface area, as measured at the outermost perimeter,\nincluding surface waters directly between or encompassed within the\nstructure, of less than four thousand square feet in area and not\nexceeding fifteen feet in height, as measured at the uppermost point,\nabove the mean high water line and, with respect to docking facilities,\nhas a capacity of five or fewer boats thirty feet in length and, with\nrespect to mooring facilities, has a capacity of fewer than ten boats\nthirty feet in length; provided that the commissioner may by rule\npromulgated pursuant to paragraph (f) of this subdivision determine,\nbased on a different surface area or other criteria of size and use,\nthat other types of structure in particular circumstances do not\nrepresent significant encroachments on state-owned lands underwater, and\n (ii) is water dependent, which shall mean, for purposes of this\nsection, an activity which can only be conducted on, in, over or\nadjacent to a water body because such activity requires direct access to\nthat water body, and which involves, as an integral part of such\nactivity, the use of the water.\n (c) The requirements of obtaining a lease, easement, permit or other\ninterest from the commissioner pursuant to the rules set forth in\nparagraph (f) of this subdivision shall not apply to the person or\nentity who was the upland owner on June seventeenth, nineteen hundred\nninety-two, of lands adjacent to filled state-owned lands underwater or\nformerly underwater, in respect of those filled lands, including\naccompanying seawalls; provided however, that any right, title and\ninterest of the state in and to any such state-owned lands shall in no\nrespect be diminished or impaired by the provisions of this section, nor\nby any exemption in the uniform regulations authorized by paragraph (f)\nof this subdivision.\n Upon any transfer of such lands, or at the request of the owner of the\nadjacent upland, the commissioner may convey such lesser interest as may\nbe minimally required to allow a conveyance of marketable title by that\nowner of the adjacent land. Consideration charged in such instances\nshall reflect the interest so conveyed.\n (d) (i) The commissioner of environmental conservation and the\nsecretary of state shall review any proposed lease, easement, permit or\nother interest, except for facilities in existence on June seventeenth,\nnineteen hundred ninety-two, and which are not the subject of an action\nby the attorney general for unlawful occupation of state lands under\nwater on the effective date of this paragraph. The commissioner of\nenvironmental conservation shall recommend conditions to protect the\nenvironment and natural resources. The commissioner of general services\nshall incorporate those conditions in any lease, easement, permit or\nother interest, giving due regard as well to the recommendations of the\nsecretary of state with respect to coastal issues, or shall deny the\nproposal if the commissioner of environmental conservation, upon\nadministrative findings, determines that the environment or natural\nresources cannot be adequately protected. Such lease, easement, permit,\nor other conveyance of an interest shall state the purpose for which it\nis made, and shall also be subject to all applicable federal, state and\nlocal laws, rules, regulations and codes.\n (ii) The owner, occupier or any other person or entity (except those\nagainst whom there has been commenced on the effective date of this\nparagraph an action by the attorney general, for unlawful occupation of\nstate lands under water) with a legal or beneficial interest in any\nstructure not excepted by paragraph (b) of this subdivision and\noccupying state lands underwater on the effective date of the rules\nauthorized by paragraph (f) of this subdivision, as adopted pursuant to\nsubdivision five of section two hundred two of the state administrative\nprocedure act, shall make application for such lease, easement, permit\nor other interest within one year from that effective date.\n Except where timely application for such an interest has been made\nwithin one year pursuant to this subdivision, the commissioner is\nauthorized to require the term of such lease, easement, permit, or other\ninterest to be retroactive to the effective date of the rules so\nadopted. Any instrument conveying an interest in real property which is\nmade retroactive shall include provision for payment of consideration\nfor the portion of the term which extends retroactively including, where\nappropriate, interest on such consideration at the same rate then\ncurrently in effect and applied to judgments rendered in the court of\nclaims.\n (iii) The commissioner shall make reasonable efforts to provide notice\nto persons affected by the requirements of this section.\n (e)(i) The commissioner may impose a fee in connection with the\nissuance of any such lease, easement, permit, or other interest, which\nfee shall be established by rule pursuant to paragraph (f) of this\nsubdivision, and which shall take into account other factors affecting\nvalue including but not limited to classes of structure, types of use\n(including whether the use is for public or private purposes), location\nand region, size, usefulness of the parcel standing alone and such other\ncriteria as the commissioner may determine, but which shall exclude the\nvalue of improvements thereon constructed and maintained by the\nadjoining upland owner. The rules and regulations required by paragraph\n(f) of this subdivision shall prescribe that in the event an applicant\nfor a lease, easement or other interest in real property shall dispute\nand request a reduction of the commissioner's determination of the value\nof the interest to be conveyed, the commissioner shall, upon the\napplicant's submission of an appraisal of the value of such property\ninterest conducted in accord with standard and accepted appraisal\nmethodology by an independent appraiser qualified as prescribed in this\nparagraph and which appraisal varies in its conclusion as to value by\nten percent or more of the value previously established by the\ncommissioner, and upon the applicant's agreement to be bound thereby,\ncontract with a second independent appraiser, qualified as prescribed in\nthis paragraph, to render an appraisal of the value of the interest\nproposed to be conveyed, the results of which appraisal shall be binding\nupon both the applicant and the commissioner of general services. Such\nappraiser shall be selected by the commissioner of general services from\namong a group of at least three appraisers identified by the applicant\nall of whom must be qualified as prescribed in this paragraph and each\nof whom must agree to employ standard appraisal methodology. For the\npurposes of this provision a qualified appraiser shall be certified by\nthe secretary of state to transact business as a real estate general\nappraiser and shall conduct a regular business of the appraisal of real\nproperty interests. In the event that the appraisal contracted for in\nsuch manner shall conclude that the value of the property interest in\nquestion is equal to the value previously determined by the commissioner\nplus or minus ten percent, the entire cost of such appraisal shall be\nborne by the applicant, otherwise, the entire cost thereof shall be\nborne by the commissioner of general services.\n (ii) For leases, easements and conveyances of such interests for\ncommercial use of structures on state-owned underwater lands, the annual\nfee imposed shall not exceed two percent of the user's net annual income\nfor structures not in existence on the effective date of this paragraph.\nNor, in connection with a structure in existence and in commercial use\non the effective date of this paragraph, shall the fee charged in\nconnection with such a conveyance made after the effective date of this\nsubparagraph exceed annually the following schedule for five years\nfollowing the effective date of the interest conveyed pursuant to\nsubdivision (b) of this section provided timely application pursuant to\nthat subdivision has been made: .2 (two-tenths) of one percent; second\nyear: .4 (four-tenths) of one percent; third-year: .6 (six-tenths) of\none percent; fourth year: .8 (eight-tenths) of one percent; fifth year,\nand thereafter: one percent; provided that all such percentages in this\nparagraph shall be that percentage of the net income derived from the\nstructure or structures on state-owned lands, excluding transactions\ninvolving sales or repair of boats, and sale of gasoline; and the dollar\nvaluation of the interest conveyed shall not be increased from year to\nyear during that five year period. The fee charged shall be discounted\nten percent for annual permits.\n (iii) For leases, easements and conveyances of such interests for\nresidential use of non-exempt structures in existence and residential\nuse on the effective date of this paragraph, the annual fee shall not\nexceed the lesser of twenty dollars per slip or one hundred dollars.\n (iv) Nothing in this paragraph shall preclude the commissioner of\ngeneral services from agreeing, upon the request of and negotiation with\nthe owner or user of adjacent upland, to such other conveyances or\nagreements consistent with this section providing for different periodic\npayments, or a more flexible payment structure, than the fee caps and\nfees, respectively, set forth for commercial and residential facilities\nherein. Moreover, notwithstanding the fee caps set in this section, the\ncommissioner may exceed those caps if required to cover the yearly pro\nrata share, over the term of the conveyance or interest, of the\nadministrative costs in connection with that conveyance or interest.\n (f) The commissioner, in consultation with the commissioner of\nenvironmental conservation, the secretary of state, the office of parks,\nrecreation and historic preservation and other interested state agencies\nadministering state-owned lands underwater, shall promulgate pursuant to\narticle two of the state administrative procedure act such rules with\nrespect to grants, leases, easements and lesser interests for the use of\nstate-owned land underwater, and the cession of jurisdiction thereof, as\nin his or her judgment are reasonable and necessary to protect the\ninterests of the people in such lands underwater. Such regulations shall\ninclude without being limited to: the fees to be charged, consistent\nwith the provisions of this section, including mitigation of such fees\nin the event of economic hardship on existing commercial enterprises;\nfee limitations to administrative expenses for municipal uses which are\npublic, non-commercial and offer services free or for nominal fees, and\nfor uses undertaken and operated for public and non-commercial purposes\nby not-for-profit corporations characterized as charitable corporations\nas defined in paragraph (a) of section one hundred two (Definitions) of\nthe not-for-profit corporation law, and for uses undertaken and operated\nfor public purposes by a corporation formed pursuant to the religious\ncorporation law or by a corporation formed pursuant to a special act of\nthis state and which has as its principal purpose a religious purpose;\nsuch further exemptions for projects as the commissioner determines do\nnot represent significant encroachments; limitations on grants,\nincluding conversion grants, with respect to underwater lands consistent\nwith the public purposes of this subdivision and limiting such grants to\nexceptional circumstances; and factors to be examined in considering an\napplication for a lease, easement or other interest. Those factors shall\ninclude without limitation the following: (i) the environmental impact\nof the project; (ii) the values for natural resource management,\nrecreational uses, and commercial uses of the pertinent underwater land;\n(iii) the size, character and effects of the project in relation to\nneighboring uses; (iv) the potential for interference with navigation,\npublic uses of the waterway and rights of other riparian owners; (v) the\neffect of the project on the natural resource interests of the state in\nthe lands; (vi) the water-dependent nature of the use; (vii) and any\nadverse economic impact on existing commercial enterprises. The final\npromulgation of rules establishing fees or fee structures shall be\nsubject to the approval of the director of the budget.\n (g) (i) From one year after the effective date of the rules authorized\nby paragraph (f) of this subdivision and adopted pursuant to subdivision\nfive of section two hundred two of the state administrative procedure\nact, and thereafter, any person who violates any of the provisions of\nthis subdivision; or who fails to perform any duty imposed by this\nsubdivision; or who violates or fails to comply with any rule,\nregulation, determination or order of the commissioner promulgated\npursuant to this subdivision may be enjoined from continuing such\nviolation, and in any event shall be liable for a civil penalty of not\nmore than five hundred dollars for each such violation and an additional\ncivil penalty of not more than one hundred dollars for each day during\nwhich such violation continues; provided, however, that such penalties\nshall be imposed by the commissioner only after written notice and an\nopportunity to be heard are given to the owner, occupier or other person\nor entity having a legal or beneficial interest in a prohibited\nstructure or area of fill which notice shall be transmitted by certified\nmail, return receipt requested and which shall set forth the provisions\nof this section, a description of the prohibited structure or area of\nfill, the amount of the penalty, that the person must comply with the\nprovisions of this section within thirty days, and the specific date\nthirty days thereafter following which the person shall be subject to\nsuch penalty and after which further penalties shall accrue on a daily\nbasis.\n (ii) If the commissioner of environmental conservation notifies the\ncommissioner of any failure to comply with conditions of a lease,\neasement or other interest, the commissioner shall investigate such\nsuspected violation. The commissioner, on his or her own initiative or\nat the request of the commissioner of environmental conservation, shall\nthereafter take enforcement action as described herein or request the\nattorney general to institute an action to enjoin such violation and to\nrecover any damages therefor.\n 8. The commissioner may authorize the use and occupation by the United\nStates of lands of the state under water, for the purpose of improvement\nof navigation, including sites for lighthouses, beacons and lighthouse\nkeepers' dwellings and navy yards and naval stations, and may cede\njurisdiction over any such land but such jurisdiction so ceded shall be\nupon the express condition that the state of New York shall retain a\nconcurrent jurisdiction with the United States in and over the property\nand premises so conveyed, so far as that all civil and criminal process,\nwhich may issue under the laws or authority of the state of New York,\nmay be executed thereon in the same way and manner as if such\njurisdiction had not been ceded, except so far as such process may\naffect the real or personal property of the United States. The\nprovisions of section seventy-seven shall not apply to any authorization\nof use and occupation under the provisions of this subdivision.\n 9. Private rights or rights of property of individuals, if any, of any\nnature or description, shall not be taken away nor impaired nor impeded\nwithout due process of law.\n 10. No grant for public park, beach, street, highway, parkway,\nplayground, recreation or conservation purposes shall be made under this\nsection to other than a county, city, town or village. A grant so made\nmay be made with or without consideration and shall be upon such terms\nand conditions as may be imposed by the commissioner. A grant so made\nshall be upon the condition that if at any time the land so granted\nshall not be used for the purpose set forth therein or shall be used for\nany other purpose, the title so granted shall thereupon revert to and be\nin the people of the state of New York. Where a grant has heretofore\nbeen made by the commissioner for one or more of the purposes enumerated\nherein, the commissioner, in his discretion and upon such terms and\nconditions as he may impose and with or without consideration, upon\napplication by the county board of supervisors, board of estimate,\ncommon council, town board or village board, as the case may be, is\nauthorized to alter or amend such grant, in respect to the purposes\nthereof and with respect to the whole or part of the land under water\ntherein granted and described, so that the grant may thenceforth\nnevertheless be for one or more of the purposes enumerated herein. The\nprovisions of section seventy-seven of this article shall not apply upon\nan application to alter or amend a grant so heretofore made.\n 11. Where a grant of land under water has previously been made by the\nstate under the provisions of this article, for the purposes of\ncommerce, commerce or beneficial enjoyment, restricted beneficial\nenjoyment, or otherwise, where the purpose of the grant is less than\nthat of beneficial enjoyment, and by reason of the nature of which\nprevious grant there remains in the state a right, title or interest,\nthe commissioner may, in his discretion, grant such right, title or\ninterest in or to the whole of the land under water so granted or part\nthereof, to the grantee or to one who has succeeded to the title or\ninterest so previously granted, and a grant so made may be made\nregardless of upland ownership and without publication or posting of\nnotice of application as provided by section seventy-seven of this\narticle, but no such grant shall be made for less than the appraised\nvalue of the right, title or interest of the state in the land under\nwater or part thereof, as the case may be, and shall be upon such terms\nand conditions as shall be imposed by the commissioner to protect the\ninterests of the state.\n 12. The commissioner, in his discretion, upon such terms and\nconditions and for such consideration as the commissioner may determine\nmay grant and convey to the owner or owners of the adjacent land the\nright, title and interest of the people of the state of New York in and\nto the lands now or formerly under the waters of the arms, branches or\ntributaries of any navigable waters of the state which arms, branches or\ntributaries have become non-navigable, and a grant so made may be made\nwithout publication or posting of notice of application as provided by\nsection seventy-seven of this chapter.\n 13. The powers granted to the commissioner by this section may,\nnotwithstanding any other law to the contrary, continue to be exercised\nby it in respect to lands under the waters of the Niagara and St.\nLawrence rivers except as to those areas thereof that are natural\nresources of the state of New York for the creation and development of\nhydroelectric power, but the commissioner shall not make any grant of\nlands under the water of either of said rivers unless the power\nauthority of the state of New York shall, prior to the issuance of any\nsuch grant, advise the commissioner, in writing, that such grant, if\nmade, will not interfere with its St. Lawrence or Niagara project.\n 14. Proceeds from the sales, leases, grants of easements and lesser\ninterests, including permits for the use of lands under water pursuant\nto this section shall be deposited in the environmental protection fund\nestablished pursuant to section ninety-two-s of the state finance law.\n