NY Env Conserv L § 3-0305 (2021)
2021 New York Laws ENV - Environmental Conservation Article 3 - Department of Environmental Conservation; General Functions, Powers, Duties and Jurisdiction Title 3 - General Functions, Powers, Duties and Jurisdiction 3-0305 - Acquirement of Real Property by Purchase or Appropriation.

§ 3-0305. Acquirement of real property by purchase or appropriation.1.    The  commissioner when moneys therefor have been appropriated by   the legislature  or  are  otherwise  available,  may  acquire  any  real   property  which  he deems necessary for any of the purposes or functions   of the department, by purchase or as  provided  in  the  eminent  domain   procedure  law.   Title to such real property shall be taken in the name   of and be vested in the people of the  state  of  New  York.    No  real   property  shall  be  so acquired by purchase unless the title thereto is   approved by the  attorney  general.    The  terms  "property"  or  "real   property"  as used in this section shall mean "real property" as defined   by section one hundred three of the eminent domain procedure law.2.   Whenever real property is to  be  so  acquired  pursuant  to  the   provisions  of  the  eminent domain procedure law, by appropriation, the   commissioner shall cause to be made an accurate acquisition  map  as  so   provided in said law.3.  On  the  approval  of  such  map by the commissioner, the original   tracing of map shall, pursuant to the eminent domain procedure  law,  be   filed in the main office of the department.4.  If the commissioner shall determine, prior to the filing of a copy   of such acquisition map in the office of the county clerk, 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. 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.5. If the commissioner shall determine prior to filing a  copy  of  an   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  of  the  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 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  the  names  of  the   owners  of  the  real  property  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 for in the   eminent domain procedure law, the commissioner shall deem  it  necessary   to  cause the removal of an owner or other  occupant from such property,   he may  cause  such  owner  or  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 as agent   of the state and the attorney general shall represent the petitioner  in   the  proceedings.    No execution shall issue for costs, if any, awarded   against the state or the commissioner, but they shall  be  part  of  the   costs  of  the  acquisition  of  the  real  property and be paid in like   manner.  Proceedings may be brought separately against one  or  more  of   the  owners  or occupants of any such property, or one proceeding may be   brought against all or several of the owners or occupants of any or  all   such  property  within  the  territorial jurisdiction of the same court,    justice or judge; judgment shall  be  given  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.8.    Upon  making any agreement provided for in section three hundred   four of the eminent domain procedure law, the commissioner 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 the acquisition of such real property, 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.9.  Application for reimbursement 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  moneys  appropriated   for the acquisition of property under this section.10.  The commissioner 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 non-profit 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   non-profit organization.11.    The  commissioner pursuant to section three hundred five of the   eminent domain  procedure  law,  may  make  agreements  on  such  terms,   condition  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 environmental conservation; or (2) by the commissioner  of   environmental  conservation  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  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  for   such  use  or  occupancy shall be paid into the treasury of the state to   the credit of the capital construction fund.12.   Authorization is  hereby  given  to  the  commissioner  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 negotiation, 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.13.  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  such property appropriated 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 after audit by the   comptroller  from  moneys  appropriated for the acquisition of such real   property.14.   Expenses incurred in  the  acquisition  of  the  real  property,   including  the cost of making surveys, and preparing maps of property to   be acquired, serving notices, 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 to be part of the cost of the acquisition of such real property.15.  If the commissioner shall determine subsequent to the acquisition   of a temporary easement in any real property that the purposes for which   such easement right was acquired have been  accomplished  and  that  the   exercise of such easement is no longer necessary, the commissioner shall   make  a  certificate  that  the  exercise  of such easement is no longer   necessary and that such easement right is therefore terminated, released   and extinguished.  The commissioner shall cause such certificate  to  be   filed  in  the  main  office  of the department and upon such filing all   rights acquired by the state in  such  real  property  shall  cease  and   determine.    The  commissioner  shall  cause  a  certified copy of such   certificate as so filed in the main  office  of  the  department  to  be   mailed  to  the  owner  of  the  property  affected, as certified by the   attorney general, if the place of residence of such owner  is  known  or   can  be  ascertained  by a reasonable effort and such commissioner shall   cause a further certified copy of such certificate to be  filed  in  the   office  of  the  recording  officer of each county in which the property   affected or any part thereof  is  situated.    On  the  filing  of  such   certified copy of such certificate with such recording officer, it shall   be  his  duty  to  record  the  same in his office in the books used for   recording deeds and to index the same against the name of the people  of   the state of New York as grantor.16.    The commissioner may, by official order filed in the department   and subject to such limitations  as  he  may  prescribe,  authorize  the   exercise  of  any  of his powers or the performance of any of his duties   under this section by such deputy commissioners as he may designate; and   any act performed pursuant to such authorization shall be as  valid  and   effectual as if performed by the commissioner pursuant to this section.