NY Hwy L § 29 (2021)
2021 New York Laws HAY - Highway Article 3 - State Highways 29 - Property for Highways, Bridges and Other Highway Uses and Purposes to Be Acquired by Acquisition.

§  29.  Property  for  highways,  bridges  and  other highway uses and   purposes  to  be  acquired  by  acquisition.  1.   Notwithstanding   any   inconsistent  provisions  of this chapter, or any other laws, general or   special, the commissioner of transportation shall, whenever the  federal   government shall agree to grant or contribute to the state not less than   twenty-five  per  centum  of  the  cost thereof, acquire pursuant to the   provisions of the eminent domain procedure  law  any  and  all  property   necessary  for  the  construction and reconstruction of highway projects   located on the "strategic  network  of  highways,"  as  defined  in  the   federal defense highway act of nineteen hundred forty-one and as revised   to  May  fifteenth,  nineteen  hundred  forty-one  and  approved  by the   secretary of war, or on such network as hereafter revised and  approved,   and  also  any and all property necessary for any other highway project,   exclusive of parkways, when certified by the army or navy  as  important   for  the  purposes of national defense, and a like grant or contribution   is to be made by the federal government. A highway indicated under  this   section for construction or improvement, or any portion of such highway,   may be constructed or improved, or reconstructed, as a controlled access   highway,  upon  the  adoption  of a resolution by a majority vote of the   board of supervisors of the  county  in  which  the  highway  is  to  be   constructed.  The resolution of the board of supervisors herein referred   to shall not be required in relation to  highways  to  be  projected  as   through  trunk  routes and principally on new location. The costs of all   such property as may be acquired under this section shall be paid in the   first  instance  from  any  funds  available   for   the   construction,   reconstruction and improvement of state highways and bridges.2.  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 highway 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.3. If the commissioner shall determine, prior to the filing of a  copy   of  a map of acquisition, as provided in section four hundred two of the   eminent domain procedure law, in the  office  of  the  county  clerk  as   aforesaid,  that  changes,  alterations  or modifications of such map as   filed in the main office of the department should be  made,  he  or  she   shall,  subject  to  the provisions of article two of the eminent domain   procedure law, if applicable, direct the preparation of an amended  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 department 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.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   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  department  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.5. If, at or after the vesting of title to such property in the people   of the state of New York in the  manner  provided  for  in  the  eminent    domain  procedure  law, the commissioner of transportation 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  proceeding  shall  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, 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.6. 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,  after  audit  by  the   comptroller,  from  moneys appropriated for purposes connected with such   highway projects, 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.7. 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.8. 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.9. 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.10.   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  payment  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 section.   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.11.  Any owner may present to the court of claims, pursuant to section   five hundred three of the eminent domain procedure law, a claim for  the   value of 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 purposes   connected with such highway projects.12. If the work of  construction  or  reconstruction  of  any  highway   project  shall  cause  actual  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 on the part of the state not   already existing in law. Claims for such damage may be adjusted  by  the   commissioner  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  the  construction  or   reconstruction of such highway project as prescribed by this section. If   the amount of any such claim is not agreed upon, such claim may pursuant   to the eminent domain procedure law, 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 by the commissioner of transportation.13.   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  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.14. The expense of such acquisitions including  administrative  duties   in  connection  therewith,  the  cost  of  making surveys, and preparing   descriptions and maps of property to  be  acquired,  serving  notice  of   appropriation,  publication,  making  appraisals  and  agreements and of   searches ordered and examinations and readings  of  title  made  by  the   attorney  general, and expenses incurred by the commissioner or attorney   general in proceedings for removal of owners  and  occupants,  shall  be   deemed part of the cost of such highway projects.15.  Notwithstanding  the  provisions of any general, special or local   law,  the  commissioner  of  transportation,  his  officers,  agents  or   contractor  and the officers or agents of the United States when engaged   on such highway projects, may, pursuant to section four hundred four  of   the eminent domain procedure law, enter upon 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 entry, work or occupation not exceeding two thousand five   hundred  dollars  may  be  adjusted  by agreement by the commissioner of   transportation with the owner of the property affected as determined  by   him  by  reasonable  investigation  without appropriating such property.   Upon making any such  adjustment  and  agreement,  the  commissioner  of   transportation  shall  deliver  to  the comptroller such agreement and a   certificate stating the amount due such owner and the  amount  so  fixed   shall be paid out of the state treasury from monies appropriated for the   acquisition  of  property  for the project requiring such entry, work or   occupation.17. The provisions of this section shall not affect any proceeding for   the acquisition by a county of property for state highway purposes where   such county has, before the effective date of this section, certified to   the commissioner  of  transportation  that  certain  property  has  been   purchased   or  options  therefor  executed  or  acquisition  proceeding   instituted, but all such undertakings instituted by a  county  shall  be   continued  and the acquisition of the property consummated in the manner   provided by law applicable thereto as  in  force  prior  to  the  taking   effect of this section.18.   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 and   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  highway  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   appropriation  claims, provided, however, that no real property shall be   so acquired unless the title thereto shall be approved by  the  attorney   general.