NY Transp L § 18 (2021)
2021 New York Laws TRA - Transportation Article 2 - Powers, Duties and Jurisdiction of the Department of Transportation 18 - Acquisition of Abandoned Railroad Transportation Property.

§ 18. Acquisition  of  abandoned  railroad transportation property. 1. Notwithstanding the provisions of any general, special or local  law  to the  contrary,  the  commissioner  shall  have  a  preferential right to acquire, for and in behalf of the people of the state of New  York,  for use  in the future for transportation purposes, as such purposes are set forth in this chapter, the highway law or the canal law, any property as defined in subdivision six of this section and which has been  abandoned for  railroad  transportation  purposes as defined in subdivision two of this section. No property owner  shall  dispose  of  any  such  property without  having  first  obtained notification from the commissioner that the preferential right of acquisition granted under  this  section  does not   apply,   or   a  release  of  such  preferential  right  from  the commissioner. Conveyances of property in violation of this section shall be null and void. Acquisition of property pursuant to this section shall be in the manner provided by section  thirty  of  the  highway  law.  No acquisition  shall  be  made until the director of the budget shall have issued a certificate of  availability  of  funds  therefor.  Before  any property  is  acquired  pursuant to this section, the commissioner shall determine that it is in the best interests of the state to acquire  such property for use in the future for transportation purposes.   1-a.  The  department  of  transportation  is  hereby  designated  the official state agency to  receive  all  notifications  from  the  United States department of transportation or any other federal or state agency in  regard to discontinuance of service or railroad property abandonment proceedings,  including  notification  of  applications  from   railroad companies for any such purposes.   1-b. The department of transportation shall promptly inform in writing all  interested  state  agencies,  transportation authorities, and every county, city, town and village in which such property is located and the appropriate entity designated by the governor pursuant to  title  IV  of the  federal  intergovernmental  cooperation  act  of  nineteen  hundred sixty-eight and the federal office of  management  and  budget  circular A-98  of  (a)  the  issuance  of  any certificate from the United States department  of  transportation  or  other  federal   or   state   agency authorizing   discontinuance  of  railroad  service  or  abandonment  of railroad transportation property,  (b)  approval  of  discontinuance  of service  or  a  determination  of abandonment of railroad transportation property pursuant to this section, and (c) the receipt of an application to release a preferential acquisition right to  railroad  transportation property pursuant to this section.   1-c.  Whenever  a  property  owner  intends  to  dispose  of abandoned railroad transportation property, it  shall  notify  the  department  of transportation  in  writing  of  its  intention.  Upon  receipt  of such notification, the department of transportation shall have ninety days to make  a  determination  and  notify  the  property  owner  as   to   the applicability  of  the  preferential  right of acquisition granted under this section, except that this period may be suspended by the department upon its finding that the property owner has not  submitted  information sufficient  to  enable  the  department  to  make  its determination. If suspended, this  period  will  resume  upon  receipt  of  this  required information.  In  the  event the department fails to notify the property owner of its determination, the preferential right of acquisition  shall be  deemed  not  to  apply.  The department shall inform the appropriate state agencies, every metropolitan or regional transportation  authority and every county, city, town and village in which such railroad property or  portion  thereof  is located, of the intention of the property owner and the department's finding of applicability of the preferential  right of  acquisition.  If  notified  by  the department that the preferential  right of acquisition does not extend to the  subject  property,  or  the department  has  not  notified  the  property owner of its determination prior  to  the  expiration  of  the   foregoing   ninety   day   period, notwithstanding  any suspension, the property owner shall not enter into a binding contract to sell the property  within  forty-five  days  after this  notification  by the department. Such state agencies, metropolitan or regional transportation authorities, and counties, cities, towns  and villages  shall have preferential acquisition rights to be determined as herein   provided.   No   state   agency,   metropolitan   or   regional transportation  authority, county, city, town, or village shall have any preferential right of  acquisition  unless  specifically  authorized  in writing  by  the  department.  Within  a reasonable time thereafter, any agency  of  government  which  intends  to   exercise   a   preferential acquisition  right  for  such  property  shall  notify the department of transportation in writing. Within a reasonable time,  not  greater  than one  hundred  twenty  days  after  receipt  of  such notification by the property owner,  the  department  of  transportation  shall  notify  the property  owner  in  writing  whether  the  department of transportation intends to  exercise  its  preferential  acquisition  right  under  this section  or,  if not, whether it has determined that any other agency of government  has  been  authorized  by  it  to  exercise  a  preferential acquisition  right to such property. If the department of transportation notifies the property owner that it does  not  intend  to  exercise  its right  and that it has not authorized any other state or local agency of government to so exercise its right, the commissioner  shall  issue  the property  owner a written release of the preferential acquisition rights granted under this section. In the event the department fails to provide notice of the intent to release the preferential right  of  acquisition, such  right  shall  be  deemed  to  have  expired.  If the department of transportation, or any other state or local agency of  government  shall be  qualified  to  exercise  such  preferential  acquisition  right, the department of transportation shall notify the  property  owner  of  such intention  and  the  property  owner shall not dispose of such abandoned railroad transportation property without first having obtained a release of the preferential right from the department of  transportation.  There shall  be  good  faith  bargaining  between  the  property owner and the department or any party of interest either authorized by the  department to  exercise  the  preferential  right of acquisition or notified by the department as to  the  inapplicability  of  the  preferential  right  of acquisition.  The  department  of  transportation  shall issue a written release of the preferential acquisition right within one hundred  eighty days after demand by the property owner, or such right will be deemed to have  been  expired.  The  department  shall make a good faith effort to issue such release.   1-d. Whenever a conflict  occurs  between  one  or  more  agencies  of government as to the exercise of a preferential right, the department of transportation shall in the exercise of its sole discretion resolve such conflict  and  make  a prompt determination of the reasonable and proper order  of  priority  with  respect  to  the   same.   In   making   such determination,   the   department  shall  take  into  consideration  the provisions of the comprehensive state-wide  master  transportation  plan and  its  actions shall be consistent to the extent practicable with the effectuation of all state plans, policies and objectives.   1-e. The commissioner of transportation  shall  promulgate  rules  and regulations   consistent   with   and  for  the  purpose  of  adequately implementing the foregoing subdivisions.   2. For the purposes of this section, property shall be  deemed  to  be abandoned  for railroad transportation purposes (a) when, where required  by law, a certificate  of  abandonment  of  the  railroad  line  situate thereon   has   been   issued   by   the  United  States  department  of transportation  and/or  any  other  federal  or  state   agency   having jurisdiction  thereof;  or (b) when such a certificate of abandonment is not so required and the use of such property for railroad transportation purposes has been discontinued with the intent not to resume. Intent not to resume may be inferred from circumstances. Non-use  of  the  property for  railroad  transportation  purposes  for two consecutive years shall create a presumption of abandonment.  When  use  of  such  property  for railroad  transportation purposes has been discontinued and upon request of the  property  owner  or  his  own  motion,  the  commissioner  shall undertake  an investigation thereof, which may include consultation with the United States department  of  transportation,  and  shall  render  a determination  as  to whether or not (a) the property owner has definite plans for the use of such property for  purposes  ordinarily  associated with  the  safe  and  normal  operation  of  a  railroad  or  associated transportation purposes; (b) such property continues to be suitable  for such   railroad  transportation  purposes;  and  (c)  such  property  is necessary,  either  presently  or  in  the  future,  for  such  railroad transportation  purposes.  Such property shall be deemed to be abandoned for railroad transportation purposes if the commissioner shall determine that (a) the property owner has no definite plans for the  use  of  such property  for  purposes  ordinarily  associated with the safe and normal operation of a railroad or associated transportation  purposes;  or  (b) such  property  is  no  longer suitable for such railroad transportation purposes; and (c) such property is not necessary, either presently or in the future, for such railroad transportation purposes. The  commissioner shall   render   such   determination   within  ninety  days  after  the commencement of such  investigation  and  such  determination  shall  be conclusive  except  that  if  the  property  is  determined not to be so abandoned such determination shall not preclude  the  undertaking  of  a subsequent   investigation   concerning  the  same  property.  Sales  of abandoned railroad transportation property for continued or resumed rail transportation use may be exempted at the commissioner's discretion from the preferential right of acquisition. This section shall not  apply  to the  subsequent  resale  of  property  lawfully  acquired subject to the provisions  of  this  section  as  then  applicable,  except  when   the subsequent  sale involves property previously exempted from this section by the commissioner.   3. 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 notice  of appropriation, publication, making title searches, appraisals and agreements, and examinations and readings  and  approval  of  titles made  by  the attorney-general, expenses incurred by the commissioner or the attorney-general in proceedings for removal of owners or  occupants, and  expenses  incurred  by  the  commissioner  in  connection  with the management and supervision of the property, shall together be deemed  to constitute  the  cost of property acquired pursuant to this section. The comptroller  is  hereby  authorized  to  charge   against   the   moneys appropriated for highway or other transportation purposes 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 setting forth such estimated expenses. Such expenses  shall  be  paid  from the funds so reserved after audit by the state comptroller.    4. Any moneys received by  the  commissioner  from  rentals  or  other sources  of  revenue  in  connection  with  the  management, operations, occupancy, use or the sale  of  or  exchange  of  property,  under  this section,  that  has  been  acquired by the commissioner pursuant to this section shall be deposited in the treasury of the state to the credit of the capital construction fund.   5.  The  commissioner  may  determine  whether  any  property acquired pursuant to this section may be, in whole or in part, sold or  exchanged on   terms   beneficial   to  the  state,  and  in  all  cases  of  such determination, he may, notwithstanding the provisions  of  any  general, special or local law, so dispose of 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, or a grant in and  to,  such  property.  Each such  instrument of conveyance shall be prepared by the attorney general and before delivery thereof, shall be approved by him  as  to  form  and manner of execution.   6.  The  term  "property"  as used in this section means all abandoned railroad property, except:  (a) property noncontiguous to line rights of  way  and  yards,  except when such property has been made noncontiguous as a result of a previous sale or release of the preferential right, and  (b) side and spur track properties not greater than one-fourth mile in length,  except  when sales of such property would make adjoining rights of way noncontiguous.   7. The commissioner, when he deems it necessary,  may  in  the  manner provided  by  subdivision  twelve  of section thirty of the highway law, obtain possession of any property acquired pursuant to this section.   8. The commissioner, in the manner provided by subdivision  thirteen-c of  section thirty of the highway law, shall manage and receive fair and reasonable value for the holding, use or occupancy of property  acquired pursuant to this section.   9.  The  provisions  of  this  section  shall  not apply to a railroad company owned and operated by a municipal corporation.