NY Env Conserv L § 16-0107 (2021)
2021 New York Laws ENV - Environmental Conservation Article 16 - Flood Control 16-0107 - Acquirement of Property for Flood Control.

§ 16-0107. Acquirement of property for flood control.   1.  The  commissioner of environmental conservation, for the people of the state of New York, shall acquire any property or  interest  therein, necessary  for purposes connected with the flood control projects.  Such property  or  interest  therein  shall  be  for  rights-of-way,  channel improvements,  reservoirs,  dams,  quarries,  gravel  pits, borrow pits, spoil  banks,  camp  sites,  relocation  of  buildings  and  facilities, relocation  of the facilities of public service utilities, relocation of streets, sidewalks, public  grounds,  parks,  cemeteries,  water  supply systems,  sewer  systems and lighting systems of municipal corporations; relocation of county roads and town highways;  and  for  other  purposes connected  with the flood control projects.  The term "property" as used in this section shall be deemed to mean and include "real  property"  as such  term is defined in section one hundred three of the eminent domain procedure law.  The manner of acquisition, including method of obtaining possession, shall be governed by the provisions of  the  eminent  domain procedure law.   2.    The commissioner of environmental conservation shall cause to be prepared an accurate acquisition map of any property which he  may  deem necessary  for  purposes connected with the flood control 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 map  by  the  commissioner  he  shall acquire  such  property,  easements, interests or rights pursuant to the provisions of the eminent domain procedure law.   3. If the commissioner shall determine, prior to the  filing  of  such copy  of  the  acquisition  map  in the office of the county clerk, that changes, alterations or modifications of such map 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 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.  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 property, easements, interests or rights 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.   6.  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 this section, 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 other  occupant  to  be  removed  therefrom  by  proceeding  in accordance  with  section  four  hundred  five  of  the  eminent  domain procedure law.  The proceedings shall be brought  in  the  name  of  the  commissioner  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 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;  and  judgment shall  be  granted  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.   7.  Upon making any agreement provided for in  section  three  hundred four   of   the  eminent  domain  procedure  law,  the  commissioner  of environmental  conservation  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 from  moneys appropriated for purposes connected with the flood control 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.   8.  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  monies  appropriated for the acquisition of property under this section.   9.  a.  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 the following expenses and losses incurred  by  the  displaced  owners or occupants of a property acquired pursuant to this section as a result of such acquisition:  (1) actual reasonable and necessary moving expenses; and  (2) actual direct losses of tangible personal property as a result  of moving  or  discontinuing a business or farm operation on such property, 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  (3) actual reasonable  and  necessary  expenses  in  searching  for  a replacement to the business or farm operation on such property; and  (4)   actual  and  reasonable  expenses  necessary  to  reestablish  a displaced farm operation, non-profit  organization,  or  small  business from  such property at its new site but not to exceed the maximum amount provided for in the regulations.   b. Such regulations may provide in  hardship  cases  for  the  advance payment  of  any  such  expenses  and losses. For the purposes of making payment of such expenses and losses only, such regulations shall provide that  the  term  "business"  includes  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.    Such  regulations  may  also  provide  for  payments  to utilities   for   the   relocation   of   their  facilities  under  such circumstances and in such amounts as the commissioner may determine.   c. Any person eligible for the payments authorized by paragraph  a  of this  subdivision, who is displaced from their residential property may, in lieu of such payments, elect to accept  an  expense  and  dislocation allowance,  determined  in  accordance  with  a schedule prepared by the commissioner and made a part of such rules and regulations.   d. Any person eligible for the payments authorized by paragraph  a  of this subdivision, who is displaced from their business or farm operation and who is eligible under criteria established by the department may, in lieu  of  such  payments,  elect  to  accept a fixed relocation payment, except that such payment shall be not less than  the  minimum  nor  more than  the  maximum  amount  provided  for in the regulations. However, a person whose sole business at the property so acquired is the rental  of such  property  to  others  shall  not  qualify  for  payment under this paragraph.   e. Application for payment under this subdivision shall be made to the commissioner upon forms prescribed by  the  commissioner  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.  No payment shall be made under this  subdivision  for  any  cost,  expense, difference or other amount for which payment was previously made.   f.  The  regulations  necessary to implement this subdivision shall be consistent with the applicable  provisions  of  section  thirty  of  the highway  law,  as  the  same  may  from  time  to  time  be amended, and regulations issued thereunder.   10.  The commissioner 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 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.   11.  a.  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  the commissioner.  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.   b. In the case of  residential  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 supplemental relocation payment to such owner  shall not  exceed  the  maximum  amount provided for in the regulations.  Such payment shall include the following elements:  (1) the amount, if any, which, when added to the  acquisition  payment equals  the  average price, established by the commissioner, required to obtain a comparable replacement dwelling for such displaced  owner,  but in no event shall such payment exceed the difference between acquisition payment and the actual purchase price of the replacement dwelling; and  (2)  the  amount  which  will  compensate such displaced owner for any increased interest costs required to pay for financing  the  acquisition of  the  comparable replacement dwelling. Such amount shall be paid only if the dwelling on the property 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 property. Any such compensating interest  payment  made  pursuant  to  this  provision 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; and  (3)   an  amount  which  will  compensate  such  displaced  owner  for reasonable expenses incurred for evidence of title, recording  fees  and other   closing  costs  incident  to  the  purchase  of  the  comparable replacement dwelling, but not including prepaid expenses.   c. Any supplemental relocation payment made pursuant to paragraph b of this subdivision shall be made only to a displaced owner  who  purchases and   occupies   a  comparable  replacement  dwelling  within  one  year subsequent to the date on which such owner is required to move from  the dwelling  on  the property acquired pursuant to this section or the date on which such owner receives from  the  state  final  payment  for  such acquired  dwelling,  whichever occurs later. The commissioner may extend such period for good cause; provided however, that any payment shall  be based  on  the  costs of relocating the displaced person to a comparable replacement dwelling within  one  year  of  such  extended  date.    The regulations  may  provide  that  advance payment of such payments may be made in hardship cases.   d. In the case of  residential  property  acquired  pursuant  to  this section from which an owner or tenant, not otherwise eligible to receive a   supplemental  relocation  payment  pursuant  to  the  provisions  of paragraph b of this subdivision, is displaced from any dwelling  thereon which  has  been  actually and lawfully occupied by such owner or tenant for not less than ninety days immediately prior to (1) the initiation of negotiations for the acquisition of such  property  or  (2)  such  other event as regulations may prescribe when the displacement is not a direct result of such acquisition, such supplemental relocation payment to such  owner  or tenant shall not exceed the maximum amount provided for in the regulations. Such payment shall be the  amount  which  is  necessary  to enable  such owner or tenant to lease or rent for a period not to exceed the  maximum time specified in the regulations, a comparable replacement dwelling but such amount shall not exceed the maximum  amount  specified in  the regulations.  Such payments may be made in periodic installments as  determined  by  the  commissioner.  Any  person   eligible   for   a supplemental  relocation  payment  under this paragraph may elect to use such payment for  the  down  payment,  including  reasonable  incidental expenses  incurred  by  such  person  on  the  purchase of, a comparable replacement dwelling, except such payment shall not exceed  the  maximum amount provided for in the regulations.   e. Application for payment under this subdivision shall be made to the commissioner  upon  forms  prescribed  by  the commissioner 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.  No payment  shall  be  made  under  this subdivision for any cost, expense, difference or other amount for which payment was previously made.   f. The regulations necessary to implement this  subdivision  shall  be consistent  with  the  applicable  requirements of section thirty of the highway law, as  the  same  may  from  time  to  time  be  amended,  and regulations issued thereunder.   12.  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  from  moneys appropriated for purposes connected with the flood control projects.   13.  Permits for use of flood control lands. No person shall construct any improvement, excavate, deposit material  or  operate  a  motorcycle, motor-driven  cycle, snowmobile or motor vehicle except lawn maintenance equipment upon lands acquired or burdened by a  flood  control  easement pursuant  hereto  without  a  permit.    Permits  will  be issued by the commissioner where the proposed activity  will  not  interfere  with  or endanger the flood control works, or impede the maintenance or operation of  such works. The commissioner may adopt such rules and regulations as he may deem necessary to protect flood control works from  damage  which may  interfere  with  their  proper  and safe operation, or impede their maintenance.  Failure to comply with the provisions of this  section  or with  rules  and  regulations  promulgated  pursuant  hereto  shall be a violation.   14.  The commissioner notwithstanding any other provisions of this act or any other law, may acquire by grant or purchase any property which he deems necessary, in order to carry out the projects herein authorized.   Payment therefor, if any, shall be made in the  manner  prescribed  in this section for the payment of adjusted claims, provided, however, that no  interest  in  real  property  shall  be so acquired unless the title thereto shall be approved by the attorney general.   15.  The expense of such acquisitions 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 part of the cost of such flood control projects.   16.  Notwithstanding  the  provisions of any general, special or local law, the commissioner, his officers or agents, and the officers,  agents or  contractor  of  the  United  States  when  engaged  on flood control projects, may enter upon property for the purposes  of  making  surveys, test  pits,  test  borings,  or  other  investigations  and also for the purposes of temporary occupancy during  construction.    Any  claim  for damage  caused  by  such work or on account of such temporary occupancy, not exceeding five thousand dollars, may be adjusted by agreement by the commissioner without acquiring  such  property.  Upon  making  any  such adjustment   and   agreement  the  commissioner  shall  deliver  to  the comptroller such agreement and a certificate stating the amount due such owner for damage caused by such work, or on account  of  such  temporary occupancy,  and  the  amount  so  fixed  shall  be paid out of the state treasury from moneys appropriated for purposes connected with the  flood control projects.   17.  The commissioner (a) May determine whether any property taken for any  of  the  purposes connected with flood control projects pursuant to this section may be leased, sold or exchanged on terms beneficial to the state, and in all cases of such determination subject to compliance with section four hundred six of the eminent domain procedure  law,  he  may, lease, sell or exchange such property; in order to carry any such lease, sale  or  exchange into effect, the commissioner is hereby authorized to execute and deliver, in the name of the people  of  the  state,  a  quit claim or lease of such property.  (b)    May also convey to the United States for flood control purposes all right, title and interest of  the  state  in  and  to  any  property heretofore  or  hereafter  so  taken  for any of such purposes for which reimbursement by the United States is made in  accordance  with  section two  of  the  federal flood control act of nineteen hundred thirty-eight being public law, numbered seven hundred  and  sixty-one,  seventy-fifth congress,  and  including  improvements  made thereon for such purposes. Such conveyance shall be by deed or instrument of quit  claim,  executed by the commissioner in the name of the people of the state, delivered to the  federal  authority  having jurisdiction.   This paragraph shall not prevent reservations, if any, in such a conveyance, agreed  to  by  such commissioner  and  federal  authority, to protect leases or easement, if any,  theretofore  lawfully  made  or  created  by  such   commissioner. Whenever the United States, acting by and through said federal authority having  jurisdiction,  shall  cause  to  be  filed  in the office of the secretary of state of this state, a duplicate original of  the  deed  or instrument  of  conveyance to the United States of any such property for the  purposes herein specified, such jurisdiction as may be required for flood control purposes is thereupon ceded to the United States over  the property  described in said deed or instrument of conveyance, during the time that the United States shall be or remain  the  owner  thereof  and shall use such property for flood control purposes.  (c)  Is  hereby  authorized  to agree with the United States as to the value of the property appropriated and for legal damages caused  by  any such  appropriation  thereof,  as  and  for  reimbursement by the United States, and the commissioner is authorized to convey  such  property  to the  United  States,  in  the manner herein provided, specifying in such conveyance that the consideration stated therein is the agreed value  of such property and legal damages, and is in full reimbursement thereof by the United States.    18.    The  attorney  general  is  hereby  authorized and empowered to certify to the United States of  America  or  a  department,  agency  or authority  thereof  having  jurisdiction  therein,  the  right, title or interest vested in the people of  the  state  of  New  York  in  and  to property acquired for the purpose of this act for which reimbursement is to be made by the United States of America to the people of the state of New York.   19.  If the commissioner shall determine subsequent to the acquisition of  a  temporary easement right in property and subsequent to the filing of a description and map of such property in the office  of  the  county clerk, as aforesaid, that the purposes for which such easement right was acquired  have  been accomplished and that the use and occupancy of said property for flood control purposes are no longer necessary,  and  that, therefore,  the  term  of such easement should be further limited, or if the appropriation of such easement was for an  indefinite  period,  that such  period  should be fixed and determined, or that the period of such easement has by  its  terms  expired,  the  commissioner  shall  make  a certificate  that  the  use  and  occupancy  of  such property for flood control purposes are no longer necessary, that  the  property  in  which such  easement  right  was  acquired is surrendered back to the affected owner of said  property  and  that  such  easement  right  is  thereupon terminated,  released  and extinguished.  The commissioner shall cause a copy of such  certificate  to  be  filed  in  the  main  office  of  the department.    Upon  the filing of such certificate in the office of the department all rights acquired by the state in such property shall cease and determine.  The commissioner shall cause a copy of such  certificate together  with  notice  of  the filing thereof 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.  A  further copy  of  such  certificate  and  notice of filing shall be filed in the office of the recording officer of  each  county  wherein  the  property affected  is situated. On the filing of such certificate and notice with such officer it shall be the duty of such officer to record same in  the books used for recording deeds in the office of such officer.