NY Env Conserv L § 15-1729 (2021)
2021 New York Laws ENV - Environmental Conservation Article 15 - Water Resources Title 17 - Water Power 15-1729 - Eminent Domain.

§ 15-1729. Eminent domain.Real  property  may  be  acquired pursuant to title 17 of this article   under an exercise of the right of eminent domain in the following cases:1. Real property which  is  necessary  to  the  full  development  and   utilization  of any water power site of which the state is the owner, in   whole or in part.2. Real property which is necessary to the full development  of  water   power  sites  where  such  water  power sites on a stream, or in a given   locality cannot be developed separately as efficiently and  economically   for  the  generation  of  power  as  under  a plan for their development   together and the owner or owners of the right to the use of the  greater   part  of  the  head  and  volume  of usable flow for power at such sites   transfer the same to a corporation organized for  the  production,  sale   and  distribution  of  heat,  light  and  power  to the public as herein   provided, or  such  right  is  owned  by  such  a  corporation  and  the   department  determines  by  resolution that such power sites can be more   efficiently and economically developed for the production of power under   such a plan than singly, and the heat, light or power is  necessary  for   public use.3.  Real  property,  on the application of a corporation organized for   the production of heat, light or power, after  a  determination  by  the   Public  Service  Commission  that such property is necessary to the full   development and utilization of a single undeveloped water power site,  a   major  part of the head and volume of the usable flow for power at which   site is owned by such corporation, for the production of heat, light  or   power  for  sale or distribution to the public and that such heat, light   or power is necessary for public use. In any county containing a part of   the forest preserve as now constituted, for the purpose of  establishing   the right to exercise the power of eminent domain under this subdivision   the  ownership  of wild or unoccupied land shall be presumed to be in an   applicant showing a record  title  under  which  the  applicant  or  his   grantors  has  claimed for a period of ten years and it appears that the   state and county taxes thereon have been paid by or on  behalf  of  such   applicant  or  his  grantors  for  a  period  of  five  years before the   proceeding in which the application is  made  was  begun;  ownership  in   other  lands  wherever located shall be presumed on showing record title   in the applicant for a period of ten years and possession thereunder for   a like period.4.  Such  right  of  eminent  domain  shall  be  exercised  under  the   provisions  of the eminent domain procedure law subject to the following   restrictions and limitations:a. The acquisition of real property for the  state  shall  be  on  the   application of the department, and payment therefor shall be made in the   manner  provided  for  the payment of lands appropriated by the state in   the Adirondack and Catskill parks under section 3-0305 of this chapter.b. If a water power site be taken under subdivision 2 of this section,   the owner of any such power site shall have the option  to  receive  and   own such a proportion of the power resulting from the common development   as the head and volume of the usable flow of the water at the site bears   to  the  product  of the total head and volume of the usable flow of the   waters of the common development, provided he pays a like proportion  of   the  cost  of  development, maintenance and operation, and consents that   his pro rata share of  such  power  shall  be  pledged  to  secure  such   payment,  and  assents  to  such reasonable and equitable provisions and   regulations in relation to the development and operation thereof for the   common  benefit  and  to  payment  therefor  as  the  department   shall   prescribe.  In  case  of  the  exercise of such option by the owner of a   developed water power site, such owner shall also be allowed  the  loss,    if  any, resulting to him from the excess in value, if any, of the water   power owned by him before such common development over the  water  power   right  owned  by  him  after  such development, after deducting from the   value   of  such  power  right  his  proportion  of  the  cost  of  such   development. Such difference in value shall be  deemed  a  part  of  the   damages in the condemnation proceeding, and the payment thereof shall be   secured as directed by the court.c.  Before  any  real  property  is  taken  under  the  provisions  of   subdivision 2 of this section, the owner or owners of the right  to  the   use  of the greater part of the head and volume of usable flow for power   at the sites to be developed in common shall, unless such a  corporation   be  already  organized  and  be  the  owner  of  such rights, organize a   corporation for the production, distribution and sale of heat, light and   power to the public, and shall transfer to such corporation such  sites.   Such  corporation  shall  file  with  the  Public  Service  Commission a   certified copy of its certificate of incorporation and shall  also  file   with  such  department  a  map  of  the  water power sites, and property   connected therewith, of which it is the owner, with  satisfactory  proof   that  it  is  the  owner thereof, and a map of the water power sites and   property which it seeks to acquire for the purpose of  making  a  common   development.  It  shall  also  file  with  such department a plan of its   proposed development of water power on the property which  it  owns  and   which  it  seeks  to acquire. Such corporation shall file copies of such   maps  and  plan  certified  by  the  president  and  engineer   of   the   corporation,  or a majority of the directors, in the office of the clerk   of the county in which such development is to be made, or if  it  be  in   more  than  one  county,  in the office of the clerk of each county; and   shall give written notice to all actual occupants of lands of  which  it   is  not  the  owner on which such development is to be made, of the time   and place such maps and plan were filed, and that such development is to   be made on the lands of such occupants. The  Public  Service  Commission   shall give an opportunity to persons interested to be heard, investigate   and determine whether it is in the public interest that such development   be made and whether the power to be produced is necessary for the supply   of  the  public  with heat, light or power. If it shall so determine, it   may issue to such corporation a certificate that public convenience  and   necessity  require  that  such  development be made, but in granting the   certificate the department may expressly except from its certificate any   part of the property proposed to be  developed  as  unnecessary  to  the   plan.  Such  certificate  when issued shall be conclusive evidence as to   the matters lawfully certified  therein  in  any  proceeding  under  the   Condemnation Law to acquire the property, or any part thereof, set forth   in such certificate.5. Real property, on the application of a corporation authorized to do   business  in  this  state  and  engaged  in  the  production,  sale  and   distribution of heat, light or power to the public, which  is  necessary   to  perfect  or  improve  water  power  already developed, provided that   property taken does not impair or injure any developed  water  power  or   developed  water  power  site.  The  corporation  may apply for and in a   proper case receive from the Public Service Commission a certificate  of   convenience  and  necessity for taking the property so to be acquired in   the  manner  and  with  like  effect  as  provided  in  paragraph  c  of   subdivision  4  of  this section. Any such corporation may also exercise   the right of eminent domain to acquire real property in accordance  with   the provisions of subdivisions 2, 3 and 4 of this section.6.  If  it  appears that there is a defect of title or any outstanding   interest in any of the real property occupied or to be occupied  by  the   project  when  completed, the corporation making, or having the right to    make, the development of the water  power  may  exercise  the  right  of   eminent  domain  for  the  purpose  of  acquiring  any  such outstanding   interest or any real property with respect to which the title appears to   be or is defective.7.  In  any  county  containing  a  part of the forest preserve as now   constituted,  real  property,  on  the  application  of  a   corporation   organized  for the production of heat, light or power, necessary for the   development of a water power site or sites, developed  or  about  to  be   developed, and occupied by a railroad and real property necessary to and   for the relocation of such railroad, upon application to and on order of   the Public Service Commission authorizing the same and upon thirty days'   notice  to the railroad corporation. The Public Service Commission shall   grant the order if in its judgment the public interest will be  promoted   thereby.  The  relocation of the railroad shall be at the expense of the   applicant and in accordance with plans and specifications to be approved   by  such  Public  Service  Commission.  The  applicant  shall  not  take   possession  of  any  real  property  of  the  railroad necessary for its   operation  until  such  relocation  of  the  railroad  shall  have  been   completed. The Public Service Commission upon the assent of the railroad   may  order  the abandonment of such part of the railroad as is necessary   to be taken instead of ordering a relocation thereof.8. Real property, on the application of a  corporation  organized  for   the  production of heat, light or power, which is necessary for the full   development of a water power site or sites, developed  or  about  to  be   developed, and is used or occupied as burial place or cemetery, and real   property  necessary  to  locate  and  reinter  any human remains removed   therefrom. Proceedings shall be had for the taking of such real property   and removal of such remains in the manner provided by  section  15-2117,   in  so  far  as  the provisions thereof are applicable thereto, but such   exercise of the right of eminent domain shall be subject  to  the  sound   discretion of the court.