§ 18 — Acquisition of abandoned railroad transportation property

New York § 18

• Jurisdiction: New York
• Law TRA: Transportation
• Art. 2: Powers, Duties and Jurisdiction of the Department of Transportation

Text

§ 18. Acquisition of abandoned railroad transportation property. 1.\nNotwithstanding the provisions of any general, special or local law to\nthe contrary, the commissioner shall have a preferential right to\nacquire, for and in behalf of the people of the state of New York, for\nuse in the future for transportation purposes, as such purposes are set\nforth in this chapter, the highway law or the canal law, any property as\ndefined in subdivision six of this section and which has been abandoned\nfor railroad transportation purposes as defined in subdivision two of\nthis section. No property owner shall dispose of any such property\nwithout having first obtained notification from the commissioner that\nthe preferential right of acquisition granted under this section does\nnot apply, or a release of such preferential right from the\ncommissioner. Conveyances of property in violation of this section shall\nbe null and void. Acquisition of property pursuant to this section shall\nbe in the manner provided by section thirty of the highway law. No\nacquisition shall be made until the director of the budget shall have\nissued a certificate of availability of funds therefor. Before any\nproperty is acquired pursuant to this section, the commissioner shall\ndetermine that it is in the best interests of the state to acquire such\nproperty for use in the future for transportation purposes.\n 1-a. The department of transportation is hereby designated the\nofficial state agency to receive all notifications from the United\nStates department of transportation or any other federal or state agency\nin regard to discontinuance of service or railroad property abandonment\nproceedings, including notification of applications from railroad\ncompanies for any such purposes.\n 1-b. The department of transportation shall promptly inform in writing\nall interested state agencies, transportation authorities, and every\ncounty, city, town and village in which such property is located and the\nappropriate entity designated by the governor pursuant to title IV of\nthe federal intergovernmental cooperation act of nineteen hundred\nsixty-eight and the federal office of management and budget circular\nA-98 of (a) the issuance of any certificate from the United States\ndepartment of transportation or other federal or state agency\nauthorizing discontinuance of railroad service or abandonment of\nrailroad transportation property, (b) approval of discontinuance of\nservice or a determination of abandonment of railroad transportation\nproperty pursuant to this section, and (c) the receipt of an application\nto release a preferential acquisition right to railroad transportation\nproperty pursuant to this section.\n 1-c. Whenever a property owner intends to dispose of abandoned\nrailroad transportation property, it shall notify the department of\ntransportation in writing of its intention. Upon receipt of such\nnotification, the department of transportation shall have ninety days to\nmake a determination and notify the property owner as to the\napplicability of the preferential right of acquisition granted under\nthis section, except that this period may be suspended by the department\nupon its finding that the property owner has not submitted information\nsufficient to enable the department to make its determination. If\nsuspended, this period will resume upon receipt of this required\ninformation. In the event the department fails to notify the property\nowner of its determination, the preferential right of acquisition shall\nbe deemed not to apply. The department shall inform the appropriate\nstate agencies, every metropolitan or regional transportation authority\nand every county, city, town and village in which such railroad property\nor portion thereof is located, of the intention of the property owner\nand the department's finding of applicability of the preferential right\nof acquisition. If notified by the department that the preferential\nright of acquisition does not extend to the subject property, or the\ndepartment has not notified the property owner of its determination\nprior to the expiration of the foregoing ninety day period,\nnotwithstanding any suspension, the property owner shall not enter into\na binding contract to sell the property within forty-five days after\nthis notification by the department. Such state agencies, metropolitan\nor regional transportation authorities, and counties, cities, towns and\nvillages shall have preferential acquisition rights to be determined as\nherein provided. No state agency, metropolitan or regional\ntransportation authority, county, city, town, or village shall have any\npreferential right of acquisition unless specifically authorized in\nwriting by the department. Within a reasonable time thereafter, any\nagency of government which intends to exercise a preferential\nacquisition right for such property shall notify the department of\ntransportation in writing. Within a reasonable time, not greater than\none hundred twenty days after receipt of such notification by the\nproperty owner, the department of transportation shall notify the\nproperty owner in writing whether the department of transportation\nintends to exercise its preferential acquisition right under this\nsection or, if not, whether it has determined that any other agency of\ngovernment has been authorized by it to exercise a preferential\nacquisition right to such property. If the department of transportation\nnotifies the property owner that it does not intend to exercise its\nright and that it has not authorized any other state or local agency of\ngovernment to so exercise its right, the commissioner shall issue the\nproperty owner a written release of the preferential acquisition rights\ngranted under this section. In the event the department fails to provide\nnotice of the intent to release the preferential right of acquisition,\nsuch right shall be deemed to have expired. If the department of\ntransportation, or any other state or local agency of government shall\nbe qualified to exercise such preferential acquisition right, the\ndepartment of transportation shall notify the property owner of such\nintention and the property owner shall not dispose of such abandoned\nrailroad transportation property without first having obtained a release\nof the preferential right from the department of transportation. There\nshall be good faith bargaining between the property owner and the\ndepartment or any party of interest either authorized by the department\nto exercise the preferential right of acquisition or notified by the\ndepartment as to the inapplicability of the preferential right of\nacquisition. The department of transportation shall issue a written\nrelease of the preferential acquisition right within one hundred eighty\ndays after demand by the property owner, or such right will be deemed to\nhave been expired. The department shall make a good faith effort to\nissue such release.\n 1-d. Whenever a conflict occurs between one or more agencies of\ngovernment as to the exercise of a preferential right, the department of\ntransportation shall in the exercise of its sole discretion resolve such\nconflict and make a prompt determination of the reasonable and proper\norder of priority with respect to the same. In making such\ndetermination, the department shall take into consideration the\nprovisions of the comprehensive state-wide master transportation plan\nand its actions shall be consistent to the extent practicable with the\neffectuation of all state plans, policies and objectives.\n 1-e. The commissioner of transportation shall promulgate rules and\nregulations consistent with and for the purpose of adequately\nimplementing the foregoing subdivisions.\n 2. For the purposes of this section, property shall be deemed to be\nabandoned for railroad transportation purposes (a) when, where required\nby law, a certificate of abandonment of the railroad line situate\nthereon has been issued by the United States department of\ntransportation and/or any other federal or state agency having\njurisdiction thereof; or (b) when such a certificate of abandonment is\nnot so required and the use of such property for railroad transportation\npurposes has been discontinued with the intent not to resume. Intent not\nto resume may be inferred from circumstances. Non-use of the property\nfor railroad transportation purposes for two consecutive years shall\ncreate a presumption of abandonment. When use of such property for\nrailroad transportation purposes has been discontinued and upon request\nof the property owner or his own motion, the commissioner shall\nundertake an investigation thereof, which may include consultation with\nthe United States department of transportation, and shall render a\ndetermination as to whether or not (a) the property owner has definite\nplans for the use of such property for purposes ordinarily associated\nwith the safe and normal operation of a railroad or associated\ntransportation purposes; (b) such property continues to be suitable for\nsuch railroad transportation purposes; and (c) such property is\nnecessary, either presently or in the future, for such railroad\ntransportation purposes. Such property shall be deemed to be abandoned\nfor railroad transportation purposes if the commissioner shall determine\nthat (a) the property owner has no definite plans for the use of such\nproperty for purposes ordinarily associated with the safe and normal\noperation of a railroad or associated transportation purposes; or (b)\nsuch property is no longer suitable for such railroad transportation\npurposes; and (c) such property is not necessary, either presently or in\nthe future, for such railroad transportation purposes. The commissioner\nshall render such determination within ninety days after the\ncommencement of such investigation and such determination shall be\nconclusive except that if the property is determined not to be so\nabandoned such determination shall not preclude the undertaking of a\nsubsequent investigation concerning the same property. Sales of\nabandoned railroad transportation property for continued or resumed rail\ntransportation use may be exempted at the commissioner's discretion from\nthe preferential right of acquisition. This section shall not apply to\nthe subsequent resale of property lawfully acquired subject to the\nprovisions of this section as then applicable, except when the\nsubsequent sale involves property previously exempted from this section\nby the commissioner.\n 3. 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 appropriation, publication, making title searches, appraisals\nand agreements, and examinations and readings and approval of titles\nmade by the attorney-general, expenses incurred by the commissioner or\nthe attorney-general in proceedings for removal of owners or occupants,\nand expenses incurred by the commissioner in connection with the\nmanagement and supervision of the property, shall together be deemed to\nconstitute the cost of property acquired pursuant to this section. The\ncomptroller is hereby authorized to charge against the moneys\nappropriated for highway or other transportation purposes and to reserve\ntherefrom such sums as may be sufficient to defray the necessary\nexpenses to be incurred by the attorney general for examination,\nreadings and approval of titles, upon the filing with him by the\nattorney general from time to time of a certificate or certificates\napproved by the commissioner setting forth such estimated expenses. Such\nexpenses shall be paid from the funds so reserved after audit by the\nstate comptroller.\n 4. Any moneys received by the commissioner from rentals or other\nsources of revenue in connection with the management, operations,\noccupancy, use or the sale of or exchange of property, under this\nsection, that has been acquired by the commissioner pursuant to this\nsection shall be deposited in the treasury of the state to the credit of\nthe capital construction fund.\n 5. The commissioner may determine whether any property acquired\npursuant to this section may be, in whole or in part, sold or exchanged\non terms beneficial to the state, and in all cases of such\ndetermination, he may, notwithstanding the provisions of any general,\nspecial or local law, so dispose of such property. In order to carry any\nsuch sale 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 6. The term "property" as used in this section means all abandoned\nrailroad property, except:\n (a) property noncontiguous to line rights of way and yards, except\nwhen such property has been made noncontiguous as a result of a previous\nsale or release of the preferential right, and\n (b) side and spur track properties not greater than one-fourth mile in\nlength, except when sales of such property would make adjoining rights\nof way noncontiguous.\n 7. The commissioner, when he deems it necessary, may in the manner\nprovided by subdivision twelve of section thirty of the highway law,\nobtain possession of any property acquired pursuant to this section.\n 8. The commissioner, in the manner provided by subdivision thirteen-c\nof section thirty of the highway law, shall manage and receive fair and\nreasonable value for the holding, use or occupancy of property acquired\npursuant to this section.\n 9. The provisions of this section shall not apply to a railroad\ncompany owned and operated by a municipal corporation.\n