NY Pub Lands L § 75 (2021)
2021 New York Laws PBL - Public Lands Article 6 - Grants of Lands Under Water 75 - Grants of Land Under Water.

§ 75. Grants  of  land  under  water.  This section authorizes grants, leases, easements, and lesser interests, including permits, for the  use of  state-owned  land underwater and the cession of jurisdiction thereof consistent with the public interest in  the  use  of  state-owned  lands underwater  for  purposes of navigation, commerce, fishing, bathing, and recreation; environmental protection; and access to the navigable waters of the state; with due regard for the need of affected owners of private property to safeguard their property.   1. Of navigable rivers and lakes.   2. Of the Hudson river adjacent to the state of New Jersey.   3. Of the former bed of Onondaga  creek  in  Onondaga  county  and  of Tibbetts  brook  in  Bronx  county,  whether or not now under water, and regardless of upland ownership.   4. Adjacent to and surrounding Great  Barn  island  in  the  city  and county  of New York, and between high and low water mark on such island, but not so as to affect the navigation of the  waters  surrounding  such island.   5.  Adjacent to and surrounding Staten Island, but not so as to extend more than five hundred feet into the water from low water mark  on  said island,  except  where  the  legally established pier and bulkhead lines extend more than five hundred feet beyond low water mark, in which  case grants may be made to such lines.   6.  Adjacent  to and surrounding Long Island, and all that part of the former or present county of Westchester lying on the East river or  Long Island   sound,  but  not  beyond  any  permanent  exterior  water  line established by law.   7. (a) The commissioner of general services may grant in perpetuity or otherwise, to the owners of the land adjacent  to  the  land  underwater specified  in this section, to promote the commerce of this state or for the purpose of beneficial enjoyment  thereof  by  such  owners,  or  for agricultural  purposes,  or  for  public  park,  beach, street, highway, parkway, playground, recreation or conservation  purposes,  so  much  of said  land  underwater  as  the  commissioner  deems  necessary for that purpose. No such grant shall be  made  to  any  person  other  than  the proprietor of the adjacent land. Any such grant made to any other person shall  be  void,  except  that,  subject to the other provisions of this section, the commissioner of general services may transfer  jurisdiction over  state-owned  lands underwater to a state agency for the purpose of protecting environmentally sensitive lands underwater even if the  state agency  is  not  the proprietor of the adjacent upland. The commissioner may also lease such land underwater to such owner of the adjacent upland or, with the consent of such owner of the adjacent  upland,  to  others, for terms up to forty years. No such grant or lease shall be made of any lands  belonging to the city of New York, or so as to interfere with the rights of that city or of the Hudson River Railroad Company, or  of  its successor  the  New  York  Central and Hudson River Railroad Company. In making any grant, lease, permit or other conveyance, the commissioner of general services shall, upon administrative findings, and to the  extent practicable,  reserve  such  interests  or  attach  such  conditions  to preserve the public interest in use of state-owned lands underwater  and waterways   for  navigation,  commerce,  fishing,  bathing,  recreation, environmental protection and access  to  the  navigable  waters  of  the state,  with  due  regard  for  the  need  of affected owners of private property to safeguard their property. The commissioner shall by official rules establish criteria and guidelines for determinations with  respect to the leasing or selling of such lands underwater.   Where  the boundary line between land underwater and the adjacent land lies within a public road or street, and the name of the owner or owners  of such adjacent land or the place of residence cannot be ascertained to the satisfaction of the commissioner, grants or leases may  be  made  by the  commissioner in his or her discretion to the owner or owners of the land adjoining the road or street inshore of such land underwater in the manner  herein  provided,  but  a  grant  or  lease so made shall not be regarded as depriving any other person of the exercise  of  his  or  her riparian rights.   Where  the  title  to such public road or street is in a county, city, town or village, grants or leases may be made by the commissioner in the manner herein provided to the owner of the land adjoining  the  road  or street  inshore of such land underwater, but no such grant shall be made unless the consent thereto of such county, city, town or  village  shall first  be  filed  with  the  commissioner,  or  unless, having been duly personally served with a  notice  of  application  of  such  grant,  the county,  city,  town  or  village  fails  to  file an objection with the commissioner or, having filed such objection, fails to  present  to  the commissioner  sufficient  proof  or  other  reasons  satisfactory to the commissioner why the grant should not be made.  (b) No wharf, dock, pier,  jetty,  platform,  breakwater,  mooring  or other  structure  shall  be  constructed,  erected, anchored, suspended, placed  or  substantially  replaced,  altered,  modified,  enlarged,  or expanded  in,  on  or  above state-owned lands underwater, nor shall any fill be placed on such  lands  underwater,  unless  a  lease,  easement, permit,  or  other  interest  is  obtained  from the commissioner, which authorizes the use and occupancy of those state-owned  lands  underwater to  be  affected by such act or acts, provided however, that there shall be excepted in the uniform regulations issued pursuant to paragraph  (f) of  this  subdivision  any  existing  structure  for  non-commercial use constructed prior to June seventeenth, nineteen hundred  ninety-two,  by or  on  behalf  of  the owner of adjacent upland who owned prior to June seventeenth, nineteen hundred ninety-two, which has a surface  area,  as measured at the outermost perimeter, including surface waters between or encompassed  within the structure of less than five thousand square feet in area, and with respect to docking facilities, has a  capacity  of  no more  than  seven  boats thirty feet in length. For the purposes of this subdivision, the term "structure" shall not include discharge or  intake pipes,  pipelines,  cables,  or  conduits.  Thereafter there shall be so excepted any structure constructed by or  on  behalf  of  the  owner  of adjacent uplands that:  (i)  has  a  surface  area,  as  measured  at the outermost perimeter, including surface waters directly  between  or  encompassed  within  the structure,  of  less  than  four  thousand  square  feet in area and not exceeding fifteen feet in height, as measured at  the  uppermost  point, above  the mean high water line and, with respect to docking facilities, has a capacity of five or fewer boats thirty feet in  length  and,  with respect  to  mooring  facilities, has a capacity of fewer than ten boats thirty feet in length;  provided  that  the  commissioner  may  by  rule promulgated  pursuant  to  paragraph  (f) of this subdivision determine, based on a different surface area or other criteria  of  size  and  use, that  other  types  of  structure  in  particular  circumstances  do not represent significant encroachments on state-owned lands underwater, and  (ii) is water dependent,  which  shall  mean,  for  purposes  of  this section,  an  activity  which  can  only  be  conducted  on, in, over or adjacent to a water body because such activity requires direct access to that water body, and  which  involves,  as  an  integral  part  of  such activity, the use of the water.  (c)  The  requirements of obtaining a lease, easement, permit or other interest from the commissioner  pursuant  to  the  rules  set  forth  in  paragraph  (f)  of  this  subdivision  shall  not apply to the person or entity who was the upland owner on June  seventeenth,  nineteen  hundred ninety-two,  of lands adjacent to filled state-owned lands underwater or formerly  underwater,  in  respect  of  those  filled  lands,  including accompanying seawalls; provided  however,  that  any  right,  title  and interest  of  the state in and to any such state-owned lands shall in no respect be diminished or impaired by the provisions of this section, nor by any exemption in the uniform regulations authorized by paragraph  (f) of this subdivision.   Upon any transfer of such lands, or at the request of the owner of the adjacent upland, the commissioner may convey such lesser interest as may be  minimally required to allow a conveyance of marketable title by that owner of the adjacent land.  Consideration  charged  in  such  instances shall reflect the interest so conveyed.  (d)  (i)  The  commissioner  of  environmental  conservation  and  the secretary of state shall review any proposed lease, easement, permit  or other  interest, except for facilities in existence on June seventeenth, nineteen hundred ninety-two, and which are not the subject of an  action by  the  attorney  general  for unlawful occupation of state lands under water on the effective date  of  this  paragraph.  The  commissioner  of environmental  conservation  shall  recommend  conditions to protect the environment and natural resources. The commissioner of general  services shall  incorporate  those  conditions  in any lease, easement, permit or other interest, giving due regard as well to the recommendations of  the secretary  of  state  with  respect to coastal issues, or shall deny the proposal  if  the  commissioner  of  environmental  conservation,   upon administrative  findings,  determines  that  the  environment or natural resources cannot be adequately protected. Such lease, easement,  permit, or  other conveyance of an interest shall state the purpose for which it is made, and shall also be subject to all applicable federal, state  and local laws, rules, regulations and codes.  (ii)  The  owner, occupier or any other person or entity (except those against whom there has been commenced on  the  effective  date  of  this paragraph  an action by the attorney general, for unlawful occupation of state lands under water) with a legal  or  beneficial  interest  in  any structure  not  excepted  by  paragraph  (b)  of  this  subdivision  and occupying state lands underwater on the  effective  date  of  the  rules authorized  by paragraph (f) of this subdivision, as adopted pursuant to subdivision five of section two hundred two of the state  administrative procedure  act,  shall make application for such lease, easement, permit or other interest within one year from that effective date.   Except where timely application for such an  interest  has  been  made within  one  year  pursuant  to  this  subdivision,  the commissioner is authorized to require the term of such lease, easement, permit, or other interest to be retroactive  to  the  effective  date  of  the  rules  so adopted.  Any instrument conveying an interest in real property which is made retroactive shall include provision for  payment  of  consideration for the portion of the term which extends retroactively including, where appropriate,  interest  on  such  consideration  at  the  same rate then currently in effect and applied to judgments rendered in  the  court  of claims.  (iii) The commissioner shall make reasonable efforts to provide notice to persons affected by the requirements of this section.  (e)(i)  The  commissioner  may  impose  a  fee  in connection with the issuance of any such lease, easement, permit, or other  interest,  which fee  shall  be  established  by  rule  pursuant to paragraph (f) of this subdivision, and which shall take into account other  factors  affecting value  including  but  not limited to classes of structure, types of use  (including whether the use is for public or private purposes),  location and region, size, usefulness of the parcel standing alone and such other criteria  as the commissioner may determine, but which shall exclude the value   of  improvements  thereon  constructed  and  maintained  by  the adjoining upland owner. The rules and regulations required by  paragraph (f)  of  this subdivision shall prescribe that in the event an applicant for a lease, easement or other interest in real property  shall  dispute and request a reduction of the commissioner's determination of the value of  the  interest  to  be  conveyed,  the  commissioner  shall, upon the applicant's submission of an appraisal of the  value  of  such  property interest  conducted  in  accord  with  standard  and  accepted appraisal methodology by an independent appraiser qualified as prescribed in  this paragraph  and  which  appraisal varies in its conclusion as to value by ten  percent  or  more  of  the  value  previously  established  by  the commissioner,  and  upon  the applicant's agreement to be bound thereby, contract with a second independent appraiser, qualified as prescribed in this paragraph, to render an appraisal of  the  value  of  the  interest proposed to be conveyed, the results of which appraisal shall be binding upon  both  the applicant and the commissioner of general services. Such appraiser shall be selected by the commissioner of general services from among a group of at least three appraisers identified by  the  applicant all  of  whom must be qualified as prescribed in this paragraph and each of whom must agree to employ standard  appraisal  methodology.  For  the purposes  of  this provision a qualified appraiser shall be certified by the secretary of state to transact business as  a  real  estate  general appraiser  and shall conduct a regular business of the appraisal of real property interests. In the event that the appraisal  contracted  for  in such  manner  shall  conclude that the value of the property interest in question is equal to the value previously determined by the commissioner plus or minus ten percent, the entire cost of such  appraisal  shall  be borne  by  the  applicant,  otherwise,  the entire cost thereof shall be borne by the commissioner of general services.  (ii) For leases, easements  and  conveyances  of  such  interests  for commercial use of structures on state-owned underwater lands, the annual fee imposed shall not exceed two percent of the user's net annual income for structures not in existence on the effective date of this paragraph. Nor,  in  connection with a structure in existence and in commercial use on the effective date of  this  paragraph,  shall  the  fee  charged  in connection  with such a conveyance made after the effective date of this subparagraph exceed annually  the  following  schedule  for  five  years following  the  effective  date  of  the  interest  conveyed pursuant to subdivision (b) of this section provided timely application pursuant  to that  subdivision  has been made: .2 (two-tenths) of one percent; second year: .4 (four-tenths) of one percent; third-year:  .6  (six-tenths)  of one  percent; fourth year: .8 (eight-tenths) of one percent; fifth year, and thereafter: one percent; provided that all such percentages in  this paragraph  shall  be  that percentage of the net income derived from the structure or structures on  state-owned  lands,  excluding  transactions involving sales or repair of boats, and sale of gasoline; and the dollar valuation  of  the interest conveyed shall not be increased from year to year during that five year period. The fee charged shall  be  discounted ten percent for annual permits.  (iii)  For  leases,  easements  and  conveyances of such interests for residential use of non-exempt structures in  existence  and  residential use  on  the  effective date of this paragraph, the annual fee shall not exceed the lesser of twenty dollars per slip or one hundred dollars.  (iv) Nothing in this paragraph  shall  preclude  the  commissioner  of general services from agreeing, upon the request of and negotiation with  the  owner  or  user  of  adjacent  upland, to such other conveyances or agreements consistent with this section providing for different periodic payments, or a more flexible payment structure, than the  fee  caps  and fees,  respectively, set forth for commercial and residential facilities herein. Moreover, notwithstanding the fee caps set in this section,  the commissioner  may  exceed those caps if required to cover the yearly pro rata share, over  the  term  of  the  conveyance  or  interest,  of  the administrative costs in connection with that conveyance or interest.  (f)  The  commissioner,  in  consultation  with  the  commissioner  of environmental conservation, the secretary of state, the office of parks, recreation and historic preservation and other interested state agencies administering state-owned lands underwater, shall promulgate pursuant to article two of the state administrative procedure act  such  rules  with respect to grants, leases, easements and lesser interests for the use of state-owned land underwater, and the cession of jurisdiction thereof, as in  his  or  her  judgment  are  reasonable and necessary to protect the interests of the people in such lands underwater. Such regulations shall include without being limited to: the fees  to  be  charged,  consistent with  the  provisions of this section, including mitigation of such fees in the event of economic hardship on  existing  commercial  enterprises; fee  limitations to administrative expenses for municipal uses which are public, non-commercial and offer services free or for nominal fees,  and for  uses undertaken and operated for public and non-commercial purposes by not-for-profit corporations characterized as charitable  corporations as  defined in paragraph (a) of section one hundred two (Definitions) of the not-for-profit corporation law, and for uses undertaken and operated for public purposes by a corporation formed pursuant  to  the  religious corporation  law or by a corporation formed pursuant to a special act of this state and which has as its principal purpose a  religious  purpose; such  further  exemptions for projects as the commissioner determines do not  represent  significant  encroachments;   limitations   on   grants, including conversion grants, with respect to underwater lands consistent with the public purposes of this subdivision and limiting such grants to exceptional  circumstances; and factors to be examined in considering an application for a lease, easement or other interest. Those factors shall include without limitation the following: (i) the  environmental  impact of  the  project;  (ii)  the  values  for  natural  resource management, recreational uses, and commercial uses of the pertinent underwater land; (iii) the size, character and effects of  the  project  in  relation  to neighboring  uses;  (iv) the potential for interference with navigation, public uses of the waterway and rights of other riparian owners; (v) the effect of the project on the natural resource interests of the state  in the  lands;  (vi)  the  water-dependent nature of the use; (vii) and any adverse economic impact on existing commercial  enterprises.  The  final promulgation  of  rules  establishing  fees  or  fee structures shall be subject to the approval of the director of the budget.  (g) (i) From one year after the effective date of the rules authorized by paragraph (f) of this subdivision and adopted pursuant to subdivision five of section two hundred two of the  state  administrative  procedure act,  and  thereafter,  any person who violates any of the provisions of this subdivision; or who fails to  perform  any  duty  imposed  by  this subdivision;  or  who  violates  or  fails  to  comply  with  any  rule, regulation, determination  or  order  of  the  commissioner  promulgated pursuant  to  this  subdivision  may  be  enjoined  from continuing such violation, and in any event shall be liable for a civil penalty  of  not more than five hundred dollars for each such violation and an additional civil  penalty  of not more than one hundred dollars for each day during which such violation continues; provided, however, that  such  penalties  shall  be  imposed  by the commissioner only after written notice and an opportunity to be heard are given to the owner, occupier or other person or entity  having  a  legal  or  beneficial  interest  in  a  prohibited structure or area of fill which notice shall be transmitted by certified mail,  return receipt requested and which shall set forth the provisions of this section, a description of the prohibited structure  or  area  of fill,  the  amount  of the penalty, that the person must comply with the provisions of this section within thirty days,  and  the  specific  date thirty  days  thereafter  following which the person shall be subject to such penalty and after which further penalties shall accrue on  a  daily basis.  (ii)  If  the  commissioner of environmental conservation notifies the commissioner of any failure  to  comply  with  conditions  of  a  lease, easement  or  other  interest,  the  commissioner shall investigate such suspected violation. The commissioner, on his or her own  initiative  or at  the request of the commissioner of environmental conservation, shall thereafter take enforcement action as described herein  or  request  the attorney  general to institute an action to enjoin such violation and to recover any damages therefor.   8. The commissioner may authorize the use and occupation by the United States of lands of the state under water, for the purpose of improvement of navigation, including sites for lighthouses, beacons  and  lighthouse keepers'  dwellings  and  navy  yards  and  naval stations, and may cede jurisdiction over any such land but such jurisdiction so ceded shall  be upon  the  express  condition  that the state of New York shall retain a concurrent jurisdiction with the United States in and over the  property and premises so conveyed, so far as that all civil and criminal process, which  may  issue  under the laws or authority of the state of New York, may be  executed  thereon  in  the  same  way  and  manner  as  if  such jurisdiction  had  not  been  ceded,  except  so far as such process may affect  the  real  or  personal  property  of  the  United  States.  The provisions of section seventy-seven shall not apply to any authorization of use and occupation under the provisions of this subdivision.   9. Private rights or rights of property of individuals, if any, of any nature  or description, shall not be taken away nor impaired nor impeded without due process of law.   10. No  grant  for  public  park,  beach,  street,  highway,  parkway, playground, recreation or conservation purposes shall be made under this section  to  other than a county, city, town or village. A grant so made may be made with or without consideration and shall be upon  such  terms and  conditions  as  may be imposed by the commissioner. A grant so made shall be upon the condition that if at any  time  the  land  so  granted shall not be used for the purpose set forth therein or shall be used for any other purpose, the title so granted shall thereupon revert to and be in  the  people  of  the state of New York. Where a grant has heretofore been made by the commissioner for one or more of the purposes enumerated herein, the commissioner, in his discretion  and  upon  such  terms  and conditions  as  he  may  impose  and with or without consideration, upon application by the county  board  of  supervisors,  board  of  estimate, common  council,  town  board  or  village board, as the case may be, is authorized to alter or amend such grant,  in  respect  to  the  purposes thereof  and  with  respect to the whole or part of the land under water therein granted  and  described,  so  that  the  grant  may  thenceforth nevertheless  be  for one or more of the purposes enumerated herein. The provisions of section seventy-seven of this article shall not apply upon an application to alter or amend a grant so heretofore made.   11. Where a grant of land under water has previously been made by  the state  under  the  provisions  of  this  article,  for  the  purposes of  commerce,  commerce  or  beneficial  enjoyment,  restricted   beneficial enjoyment,  or  otherwise,  where  the purpose of the grant is less than that of beneficial enjoyment, and by  reason  of  the  nature  of  which previous  grant  there  remains in the state a right, title or interest, the commissioner may, in his discretion,  grant  such  right,  title  or interest  in  or to the whole of the land under water so granted or part thereof, to the grantee or to one who has  succeeded  to  the  title  or interest  so  previously  granted,  and  a  grant  so  made  may be made regardless of upland ownership and without  publication  or  posting  of notice  of  application  as  provided  by  section seventy-seven of this article, but no such grant shall be made for  less  than  the  appraised value  of  the  right,  title or interest of the state in the land under water or part thereof, as the case may be, and shall be upon such  terms and  conditions  as  shall be imposed by the commissioner to protect the interests of the state.   12.  The  commissioner,  in  his  discretion,  upon  such  terms   and conditions  and for such consideration as the commissioner may determine may grant and convey to the owner or owners of  the  adjacent  land  the right,  title and interest of the people of the state of New York in and to the lands now or formerly under the waters of the arms,  branches  or tributaries of any navigable waters of the state which arms, branches or tributaries  have  become non-navigable, and a grant so made may be made without publication or posting of notice of application as  provided  by section seventy-seven of this chapter.   13.  The  powers  granted  to  the  commissioner  by this section may, notwithstanding any other law to the contrary, continue to be  exercised by  it  in  respect  to  lands  under  the waters of the Niagara and St. Lawrence rivers except as  to  those  areas  thereof  that  are  natural resources  of  the state of New York for the creation and development of hydroelectric power, but the commissioner shall not make  any  grant  of lands  under  the  water  of  either  of  said  rivers  unless the power authority of the state of New York shall, prior to the issuance  of  any such  grant,  advise  the  commissioner, in writing, that such grant, if made, will not interfere with its St. Lawrence or Niagara project.   14. Proceeds from the sales, leases, grants of  easements  and  lesser interests,  including  permits for the use of lands under water pursuant to this section shall be deposited in the environmental protection  fund established pursuant to section ninety-two-s of the state finance law.