2023 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.