NY Hwy L § 347 (2021)
2021 New York Laws HAY - Highway Article 12-A - State Thruways 347 - Property for State Thruways, Bridges Thereon, and Other Thruway Uses and Purposes to Be Acquired by Appropriation.

§ 347. Property for state thruways, bridges thereon, and other thruway   uses  and  purposes  to be acquired by appropriation. 1. Notwithstanding   any inconsistent provisions of this chapter or any other law, general or   special,  any  and  all  property  necessary   for   the   construction,   reconstruction  and  maintenance  of state thruways and bridges thereon,   shall be acquired pursuant to the eminent domain procedure law.2. The commissioner of transportation, for the people of the state  of   New York, shall acquire pursuant to the eminent domain procedure law any   property  or  interest  therein,  necessary  for  any  and  all purposes   connected with the construction, reconstruction and maintenance  of  the   thruway  system  of  the state of New York, including the acquisition of   property for drains, ditches, spoil banks, gravel pits, stone  quarries;   also  for  the  removal of obstructions, improvement of sight distances;   also for acquisition of property  for  the  reconstruction  of  existing   highway-railroad  separation  structures upon incorporation into a state   thruway of an existing highway or portion thereof of which they  form  a   part,  and  for  the  separation  of  thruway-railroad  grades  on newly   laid-out thruways; and for other purposes to improve  safety  conditions   on the thruway routes.3.  The  commissioner  of transportation shall cause to be prepared an   accurate acquisition map of any property which he may deem necessary for   purposes connected with such thruway projects or of any property in  and   to  which  he  may  deem  the  acquisition  or  exercise of an easement,   interest or right to be necessary  for  such  purposes,  indicating  and   describing  in  each case the particular easement, interest or right. On   the  approval  of  such  acquisition  map   by   the   commissioner   of   transportation,  he shall acquire such property, easements, interests or   rights pursuant to the eminent domain procedure law.4. If the commissioner shall determine, prior to the  filing  of  such   copy  of  the  acquisition  map  in  the  office  of the county clerk as   aforesaid,  that  changes,  alterations   or   modifications   of   such   description  and  map  as filed in the main office of the New York state   thruway authority should be made,  he  or  she  shall,  subject  to  the   provisions  in  article  two  of  the  eminent  domain  procedure law if   applicable, direct the preparation of an amended acquisition map, either   by preparing a new map or by making changes on the original  tracing  of   such  map,  with  a notation indicating such changes. On the approval of   such amended map by the commissioner, it shall  be  filed  in  the  main   office of the New York state thruway authority in the same manner as the   original  map  was  filed  and  the  amended  map shall thereupon in all   respects and for all purposes supersede the map previously filed.5. If the commissioner shall determine prior to filing a copy  of  the   map in the office of the county clerk or register as provided in section   four  hundred  two  of  the  eminent domain procedure law, that such map   should be withdrawn, he or she shall file a certificate of withdrawal in   the offices of the New York state thruway authority  and  department  of   law. Upon the filing of such certificate of withdrawal, the map to which   it  refers  shall be cancelled and all rights thereunder shall cease and   determine.6. The commissioner of transportation shall deliver  to  the  attorney   general a copy of such acquisition map whereupon it shall be the duty of   the  attorney  general  to  advise  and  certify  to the commissioner of   transportation the names of  the  owners  of  the  property,  easements,   interests or rights described in the said acquisition map, including the   owners  of  any  right,  title  or  interest  therein  pursuant  to  the   requirements of  section  four  hundred  three  of  the  eminent  domain   procedure law. 7. If, at or after the vesting of title to such property in the people   of  the  state  of New York in the manner provided in the eminent domain   procedure  law,  the  commissioner  of  transportation,  or  such   duly   authorized  representative  or  agency  which  has  succeeded him in the   jurisdiction  of  the  property  so acquired, shall deem it necessary to   cause the removal of an owner or other occupant from such  property,  he   may  cause  such  owner  or  other  occupant  to be removed therefrom by   proceeding in accordance with section four hundred five of such law. The   proceedings shall in all  instances  be  brought  in  the  name  of  the   commissioner  of  transportation  as  agent  of the state. If any person   proceeded against shall contest the petition by an  answer  raising  any   material   issue,  the  attorney  general  shall  be  notified,  and  he   thereafter  shall  represent  the  petitioner  in  the  proceedings.  No   execution  shall  issue  for costs, if any, awarded against the state or   the commissioner of transportation, but they shall be part of the  costs   of  the  acquisition  and  be  paid  in  like manner. Proceedings may be   brought separately against one or more of the owners or other  occupants   of  a  property, or one proceeding may be brought against all or several   of the owners or other occupants of  any  or  all  property  within  the   territorial  jurisdiction  of  the same justice or judge; judgment shall   effect or be  made  for  immediate  removal  of  persons  defaulting  in   appearance  or  in  answering,  or  withdrawing  their  answers, if any,   without awaiting the trial or decision of issues raised by  contestants,   if any.9.  The  commissioner  of  transportation  upon  making  any agreement   provided for in  section  three  hundred  four  of  the  eminent  domain   procedure  law  shall  deliver  to  the comptroller such agreement and a   certificate stating the amount due such owner or  owners  thereunder  on   account of such appropriation of his or their property and the amount so   fixed  shall  be paid out of the state treasury from moneys appropriated   for the construction, reconstruction and maintenance of  state  thruways   and  bridges thereon, but not until there shall have been filed with the   comptroller a certificate of the attorney general showing the person  or   persons  claiming  the  amount  so  agreed  upon  to be legally entitled   thereto.10. Application for reimbursement of incidental expenses  as  provided   in  section  seven hundred two of the eminent domain procedure law shall   be made to the commissioner upon forms prescribed by him  and  shall  be   accompanied  by  such  information  and evidence as the commissioner may   require. Upon approval  of  such  application,  the  commissioner  shall   deliver  a  copy  thereof to the comptroller together with a certificate   stating the amount due thereof, and the amount so fixed  shall  be  paid   out  of  the  state  treasury after audit by the comptroller from monies   appropriated for the acquisition of property under this section.11. The commissioner of  transportation,  with  the  approval  of  the   director  of the budget, shall establish and may from time to time amend   rules and regulations authorizing the payment of actual  reasonable  and   necessary  moving expenses of occupants of property acquired pursuant to   this section; of actual direct losses of tangible personal property as a   result of moving or discontinuing a business or farm operation, but  not   exceeding  an  amount  equal  to the reasonable expenses that would have   been  required  to  relocate  such  property,  as  determined   by   the   commissioner;   and  actual  reasonable  expenses  in  searching  for  a   replacement business or farm; or  in  hardship  cases  for  the  advance   payment  of such expenses and losses. For the purposes of making payment   of such expenses and losses only the term "business"  means  any  lawful   activity  conducted  primarily  for  assisting  in  the  purchase, sale,   resale, manufacture, processing or marketing of  products,  commodities,    personal  property  or  services  by  the erection and maintenance of an   outdoor advertising display or displays, whether or not such display  or   displays  are  located  on  the  premises  on  which  any  of  the above   activities  are conducted. Such rules and regulations may further define   the terms used in this subdivision. In lieu of  such  actual  reasonable   and  necessary  moving  expenses,  any such displaced owner or tenant of   residential property may elect to accept  a  moving  expense  allowance,   plus  a  dislocation allowance, determined in accordance with a schedule   prepared by  the  commissioner  and  made  a  part  of  such  rules  and   regulations.  In  lieu  of  such  actual reasonable and necessary moving   expenses, any such displaced owner or tenant of commercial property  who   relocates  or  discontinues  his business or farm operation may elect to   accept a fixed relocation payment in an  amount  equal  to  the  average   annual  net earnings of the business or farm operation, except that such   payment shall be not less than two thousand  five  hundred  dollars  nor   more than ten thousand dollars. In the case of a business, no such fixed   relocation  payment  shall  be  made  unless  the commissioner finds and   determines that the business cannot be relocated without  a  substantial   loss  of  its existing patronage, and that the business is not part of a   commercial enterprise having at least one other establishment, which  is   not  being  acquired by the state or the United States, which is engaged   in the same or similar business. In the case of a business which  is  to   be  discontinued but for which the findings and determinations set forth   above cannot be made, the commissioner may prepare an estimate  of  what   the  actual  reasonable  and necessary moving expenses, exclusive of any   storage charges, would be if the business were to be relocated and enter   into an agreed settlement with the owner of such business for an  amount   not  to  exceed  such  estimate  in  lieu  of such actual reasonable and   necessary  moving  expenses.  Application   for   payment   under   this   subdivision  shall  be made to the commissioner upon forms prescribed by   him and shall be accompanied by such information  and  evidence  as  the   commissioner  may  require.  Upon  approval  of  such  application,  the   commissioner shall deliver a copy thereof to  the  comptroller  together   with  a certificate stating the amount due thereunder, and the amount so   fixed shall be paid out  of  the  state  treasury  after  audit  by  the   comptroller  from  moneys  appropriated  for the acquisition of property   under this section. As used in this  subdivision  the  term  "commercial   property"  shall  include  property  owned  by  an  individual,  family,   partnership, corporation, association or a  nonprofit  organization  and   includes  a  farm  operation.  As  used  in  this  subdivision  the term   "business" means any lawful activity, except a farm operation, conducted   primarily for the purchase, sale, lease and rental of personal and  real   property, and for the manufacture, processing, or marketing of products,   commodities, or any other personal property; for the sale of services to   the public; or by a nonprofit organization.12.  The  commissioner  of  transportation  pursuant  to section three   hundred five of the eminent domain procedure law may make agreements  on   such  terms,  conditions and consideration as he deems beneficial to the   state with respect to any  property  heretofore  or  hereafter  acquired   whereby  such  property  may  be  used and occupied by the former owner,   tenant or by any other party from a date specified  in  said  agreement,   until  such  time  as  the  state  requires  and obtains actual physical   possession. The agreements for the use and occupancy  of  such  property   may  be  managed,  supervised  and enforced (1) by the staff, forces and   equipment  of  the  department  of  transportation;  or   (2)   by   the   commissioner   of   transportation   contracting   for  the  management,   supervision  and  enforcement  thereof  with   any   person,   firm   or   corporation; or (3) by a combination of such methods. The  use  and  occupancy of such property under the provisions of this   section and the right of the state  or  its  duly  authorized  agent  to   recover possession thereof shall not be subject to the emergency housing   rent control law.Expenses which are determined by the commissioner of transportation to   have  been  incurred  in  connection  with the use and occupancy of such   property may be paid out of  the  state  treasury  after  audit  by  the   comptroller from moneys appropriated for the duly authorized project for   which the property was acquired. However, such expenses incurred under a   contract for management and supervision of such property may be paid out   of  the gross revenue therefrom. All moneys received by the commissioner   of transportation for such use or  occupancy  shall  be  paid  into  the   treasury of the state to the credit of the capital construction fund.13.   Authorization   is   hereby   given   to   the  commissioner  of   transportation to  make  supplemental  relocation  payments,  separately   computed  and  stated,  to  displaced  owners and tenants of residential   property acquired pursuant to this section who are entitled thereto,  as   determined  by him.   The commissioner with the approval of the director   of the budget, may establish and from  time  to  time  amend  rules  and   regulations  providing  for  such supplemental relocation payments. Such   rules and  regulations  may  further  define  the  terms  used  in  this   subdivision.  In  the case of property acquired pursuant to this section   which is improved by a dwelling  actually  owned  and  occupied  by  the   displaced  owner  for  not less than one hundred eighty days immediately   prior  to  initiation  of  negotiations  for  the  acquisition  of  such   property,  such  payment to such owner shall not exceed fifteen thousand   dollars. Such payment shall be the amount, if any, which when  added  to   the  acquisition  payments  equals the average price, established by the   commissioner on a class, group or individual basis, required to obtain a   comparable replacement dwelling that is decent,  safe  and  sanitary  to   accommodate   the  displaced  owner,  reasonably  accessible  to  public   services and places of employment and available on the  private  market,   but  in  no  event  shall  such  payment  exceed  the difference between   acquisition payment and the actual purchase  price  of  the  replacement   dwelling.  Such  payment  shall  include an amount which will compensate   such displaced owner for any increased interest costs which such  person   is  required to pay for financing the acquisition of any such comparable   replacement dwelling. Such amount shall be paid  only  if  the  dwelling   acquired pursuant to this section was encumbered by a bona fide mortgage   which  was  a  valid lien on such dwelling for not less than one hundred   eighty days prior to the initiation of negotiations for the  acquisition   of  such  dwelling.  Such  amount  shall  be  equal to the excess in the   aggregate interest and other debt service costs of that  amount  of  the   principal  of the mortgage on the replacement dwelling which is equal to   the unpaid balance of the mortgage on the acquired  dwelling,  over  the   remainder  term  of  the  mortgage  on the acquired dwelling, reduced to   discounted present value.   The discount rate shall  be  the  prevailing   interest  rate  paid  on  savings  deposits  by  commercial banks in the   general area in which the replacement  dwelling  is  located.  Any  such   mortgage   interest  differential  payment  shall,  notwithstanding  the   provisions of section twenty-six-b of the general construction  law,  be   in  lieu of and in full satisfaction of the requirements of such action.   Such  payment  shall  include  reasonable  expenses  incurred  by   such   displaced  owner for evidence of title, recording fees and other closing   costs incident to the purchase of  the  replacement  dwelling,  but  not   including  prepaid  expenses.  Such  payment  shall  be  made  only to a   displaced owner who purchases and occupies a replacement dwelling  which   is  decent,  safe and sanitary within one year subsequent to the date on    which he is required to move from the dwelling acquired pursuant to this   section or the date on which he receives from the state final payment of   all costs of the  acquired  dwelling,  whichever  occurs  later,  except   advance  payment  of  such  amount may be made in hardship cases. In the   case of property  acquired  pursuant  to  this  section  from  which  an   individual  or  family,  not  otherwise  eligible  to  receive a payment   pursuant to the above provisions of this subdivision, is displaced  from   any  dwelling  thereon  which has been actually and lawfully occupied by   such individual or family for not  less  than  ninety  days  immediately   prior  to  the  initiation  of  negotiations for the acquisition of such   property, such payment to such individual or  family  shall  not  exceed   four  thousand  dollars.  Such  payment  shall  be  the  amount which is   necessary to enable such individual or family to lease  or  rent  for  a   period  not  to exceed four years, a decent, safe, and sanitary dwelling   of standards adequate to accommodate such individual or family in  areas   not  generally  less  desirable in regard to public utilities and public   and commercial facilities and reasonably  accessible  to  his  place  of   employment,  but  shall not exceed four thousand dollars, or to make the   down payment, including reasonable expenses incurred by such  individual   or family for evidence of title, recording fees, and other closing costs   incident  to the purchase of the replacement dwelling, but not including   prepaid expenses, on  the  purchase  of  a  decent,  safe  and  sanitary   dwelling  of standards adequate to accommodate such individual or family   in areas not generally less desirable in regard to public utilities  and   public  and  commercial  facilities,  but shall not exceed four thousand   dollars, except if such amount exceeds two thousand dollars, such person   must equally match any such amount in excess of two thousand dollars, in   making the down payment. Such payments may be made  in  installments  as   determined  by  the  commissioner.  Application  for  payment under this   subdivision shall be made to the commissioner upon forms  prescribed  by   him  and  shall  be  accompanied by such information and evidence as the   commissioner  may  require.  Upon  approval  of  such  application,  the   commissioner  shall  deliver  a copy thereof to the comptroller together   with a certificate stating the amount due thereunder, and the amount  so   fixed  shall  be  paid  out  of  the  state  treasury after audit by the   comptroller from moneys appropriated for  the  acquisition  of  property   under this section.14.  Any  owner  may  pursuant  to  section  five hundred three of the   eminent domain procedure law present to the court of claims a claim  for   the  value  of such property acquired and for legal damages, as provided   by law for the filing of claims with the court  of  claims.  Awards  and   judgments  of  the  court  of claims shall be paid in the same manner as   awards and  judgments  of  that  court  for  the  acquisition  of  lands   generally  and  shall  be  paid  out  of  the state treasury from moneys   appropriated for the construction,  reconstruction  and  maintenance  of   state thruways and bridges thereon.15.  If  the work of constructing, reconstructing and maintaining such   state thruways  and  bridges  thereon  causes  damage  to  property  not   acquired as above provided, the state shall be liable therefor, but this   provision  shall  not  be  deemed  to  create  any liability not already   existing by statute. Claims for such  damage  may  be  adjusted  by  the   department  of transportation, if the amounts thereof can be agreed upon   with the persons making such claims, and any amount so agreed upon shall   be paid as a part of the cost of such improvement as prescribed by  this   section.  If the amount of any such claim is not agreed upon, such claim   may be presented to the court of claims which is  hereby  authorized  to   hear  such  claim  and determine if the amount of such claim or any part   thereof is a legal claim against the state and if it so  determines,  to    make  an  award  and enter judgment thereon against the state, provided,   however, that such claim is filed with the court of claims within  three   years  after  the final acceptance of the work of the improvement by the   commissioner of transportation.16.   Notwithstanding   any  other  provision  of  this  section,  the   commissioner of transportation shall have the power to acquire by  grant   or  purchase,  in  the  name of the people of the state of New York, any   property which he deems necessary for any of the purposes  provided  for   in  this  section  and  may  also  acquire  for  such  purposes from the   Palisades interstate park commission, in the name of the people  of  the   state  of  New York, such lands and such easements, licenses, permits or   other rights over lands as the said commission is authorized  to  grant,   sell,  exchange  or convey. When the acquisition by appropriation, grant   or purchase of property deemed  necessary  for  thruway  purposes  would   result  in  substantial  consequential  damages to the owner's remaining   property, due to loss of access, severance or  control  of  access,  the   commissioner  of  transportation, for and in behalf of the people of the   state of New York, may acquire by purchase or grant all or  any  portion   of  such  remaining property. Payment therefor, if any, shall be made in   the manner prescribed in  this  section  for  the  payment  of  adjusted   acquisition claims, provided, however, that no real property shall be so   acquired  unless  the  title  thereto  shall be approved by the attorney   general.17. The expense of the acquisition of property including the  cost  of   making  surveys  and  preparing  descriptions and maps of property to be   acquired, and of administrative duties in connection therewith,  serving   notices   of   appropriation,  making  title  searches,  appraisals  and   agreements, and examinations and readings of title made by the  attorney   general,  and expenses incurred by the commissioner of transportation or   the attorney general in proceedings for removal of owners or  occupants,   shall be deemed part of the cost of such improvement. The comptroller is   hereby  authorized  to  charge  against  any  moneys  available  for the   construction, reconstruction  and  maintenance  of  state  thruways  and   bridges  thereon and to reserve therefrom such sums as may be sufficient   to defray the necessary expenses to be incurred by the attorney  general   for  examination, readings, and approval of titles, upon the filing with   him by the attorney general from  time  to  time  of  a  certificate  or   certificates  approved  by  the  commissioner  of transportation setting   forth such estimated expenses. Such expenses  shall  be  paid  from  the   funds so reserved.18.  Notwithstanding  the  provisions of any general, special or local   law, the commissioner of transportation, his  officers  or  agents  when   engaged  on  work  connected with the thruway system of the state of New   York, as described in this chapter may pursuant to  the  eminent  domain   procedure law enter upon any property for the purpose of making surveys,   test  pits, test borings, or other investigations and also for temporary   occupancy during construction. Claims for any damage caused by such work   and not  exceeding  two  thousand  five  hundred  dollars  may,  without   appropriating   such   property,   be   adjusted  by  agreement  by  the   commissioner of transportation with the owner of the  property  affected   as  determined  by  him  by  reasonable investigation, and the amount so   agreed upon shall be paid out of the state treasury, after audit by  the   comptroller,    from   monies   appropriated   for   the   construction,   reconstruction and maintenance of state thruways  and  bridges  thereon,   but  not  until  there  shall  have  been  filed  with the comptroller a   certificate of the attorney general approving, as to form and manner  of   execution, such agreement and any release given in consideration of such   payment. 19.  The  commissioner  of  transportation  may  determine whether any   property acquired for any of the purposes  connected  with  the  thruway   system  of  the  state  of  New York pursuant to this section may, while   under his jurisdiction, and subject  to  compliance  with  section  four   hundred  six  of the eminent domain procedure law, be sold or exchanged,   in whole or in part, on terms beneficial to the state, and in all  cases   of such determination he may sell or exchange such property; in order to   carry  any  such  sale  or  exchange  into  effect,  the commissioner of   transportation is hereby authorized to execute and deliver, in the  name   of the people of the state, a quitclaim of such property.20.  If  the  commissioner  of transportation, or such duly authorized   representative or agency which has succeeded him in the jurisdiction  of   the  property affected, shall determine subsequent to the acquisition of   a temporary easement right in property and subsequent to the filing of a   map of such property in the office of the county clerk or  register,  as   aforesaid,  that the purposes for which such easement right was acquired   have been accomplished and that the use and occupancy of  said  property   for state thruway purposes are no longer necessary, and that, therefore,   the  term  of  such  easement  should  then  be  terminated,  or  if the   appropriation of such easement was for an indefinite  period,  that  the   end of such period should be fixed and determined, or that the period of   such easement has by its terms expired, he shall make his certificate to   that effect and, in case he certifies that the use and occupancy of such   property  for  such  thruway  purposes are no longer necessary, he shall   further certify that the property  in  which  such  easement  right  was   acquired  is surrendered back to the affected owner of said property and   that  such  easement  right  is  thereupon  terminated,   released   and   extinguished. The commissioner of transportation, or his said successor,   shall  cause a copy of such certificate to be filed in the office of the   department of state. Upon the filing of such certificate in  the  office   of  the  department  of  state,  the  term  of such easement, or all the   easement rights acquired by the state in such property, shall, by virtue   of such filing and in accordance with  the  determination  expressed  in   such  certificate,  be fixed and determined, or terminated, released and   extinguished. The commissioner of transportation, or his said successor,   shall cause a copy of such  certificate  together  with  notice  of  the   filing  thereof in the office of the department of state to be mailed to   the current owner of the property affected, so far as such owner and his   place  of  residence  can  be   ascertained   by   him   by   reasonable   investigation.  A  further copy of such certificate and notice of filing   shall be filed in the office of the recording  officer  of  each  county   wherein  the  property  affected  is situated. Upon the filing with said   officer of such certificate, in the form  aforementioned,  and  of  such   notice, it shall be his duty, without further requirement, to record the   same in the books used for recording deeds in his office.