|
|
Court OpinionsState LawsAlabama US Code1 USC - General Provisions US Constitution |
New York Parks, Recreation and Historic Preservation - Article 3 - § 3.19 Acquisition of Property by Eminent DomainLegal Research Home > New York Laws > New York Parks, Recreation and Historic Preservation (PAR) > New York Parks, Recreation and Historic Preservation - Article 3 - § 3.19 Acquisition of Property by Eminent Domain
§ 3.19 Acquisition of property by eminent domain. 1. Whenever the
commissioner deems it necessary to acquire property pursuant to the
eminent domain procedure law, he shall cause to be made an accurate
acquisition map as provided in said law. The acquisition map shall be
made from an accurate survey of the property to be so acquired or in or
to which any easement or estate less than full title is to be acquired
specifying the particular nature and extent thereof, except that
whenever a duly certified map or description of the property, easement
or estate less than full interest to be acquired is available as a
matter of public record, then in that event such map or description may
be used by the commissioner to prepare the acquisition map. Upon the
approval of the acquisition map by the commissioner, which shall be
endorsed thereon, he shall acquire such property, easements, interests
or rights in accordance with the provisions of the eminent domain
procedure law.
2. If the commissioner shall determine, prior to the filing of the
acquisition map in the office of the clerk or register of the county, as
provided in the eminent domain procedure law, that changes, alterations
or modifications of such map as filed in the office should be made, he
or she shall direct the preparation of a new map or direct that changes
be made on the original tracing of such map, with a notation indicating
such changes. Upon approval of such amended map by the commissioner, it
shall be filed in the main office of parks, recreation and historic
preservation as the original map was filed and the amended map shall
thereupon in all respects and for all purposes supersede the map
previously filed.
3. If the commissioner shall determine, prior to the filing of a copy
of the acquisition map in the office of the county clerk or register as
provided in the eminent domain procedure law, that such map should be
withdrawn, he or she shall file a certificate of withdrawal in the
office 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. If, at or after the vesting of title to such property in the people
of the state of New York in the manner provided 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 other occupant to be removed therefrom by proceeding in
accordance with section four hundred five of said law. The proceeding
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; judgment shall effect or be made 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.
6. No agreement made by the commissioner in accordance with the
provisions of section three hundred four of the eminent domain procedure
law shall be binding upon the state of New York unless the attorney
general shall certify that the person or persons claiming the amount so
agreed upon be entitled thereto. Payment shall be made upon audit and
warrant of the comptroller of the amount so agreed upon from monies
appropriated for such purposes.
7. Application for reimbursement of incidental expenses 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.
8. (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:
(i) actual reasonable and necessary moving expenses; and
(ii) 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
(iii) actual reasonable expenses in searching for a replacement
business or farm; and
(iv) actual and reasonable expenses necessary to reestablish a
displaced farm operation, not-for-profit organization, or small business
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 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 a 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 a 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.
9. (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 by eminent
domain 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:
(i) 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
(ii) the amount which will compensate such displaced owner for any
increased interest costs which such person is required to pay for
financing the acquisition of the 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 property. Any
such compensating interest 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; and
(iii) 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 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 dwelling thereon
which has been actually and lawfully occupied by such owner or tenant
for not less than ninety days immediately prior to (i) the initiation of
negotiations for the acquisition of such property or (ii) 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 expenses
incurred by such owner or tenant 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
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.
10. Expenses incurred in the acquisition of the property, including
the cost of making surveys, preparing descriptions and maps, appraisals,
title searches, service and publication of notices, and expenses
incurred in proceedings for the removal of owners or occupants, shall be
deemed to be part of the cost of the acquisition of such real property
and shall be paid accordingly out of any moneys appropriated for the
acquisition of such property.
11. The state of New York shall be liable for any damages to any real
property caused by the making of surveys, test pits, test borings or
other investigations pursuant to section four hundred four of the
eminent domain procedure law. Such damages may be recovered and
adjusted and paid in the same manner as provided in this section with
respect to compensation for real property acquired by eminent domain.
12. The owner of any real property acquired by eminent domain 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 caused by such
appropriation, 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.
13. If the commissioner shall determine subsequent to the
appropriation 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, he shall make his 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 office of parks, recreation
and historic preservation and a copy thereof certified by the
commissioner to be filed in the office of the clerk or register 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 clerk
or register, 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 grantors. On the filing
and recording of such certificate in the office of such clerk or
register, all rights acquired by the state under such temporary easement
shall cease. The commissioner shall cause a further certified copy of
such certificate, with notice of the filing thereon in the office of
parks, recreation and historic preservation and of the filing and
recording of a certified copy thereof in the office of the clerk or
register, to be mailed to each owner of the property affected, as
certified by the attorney general, if the place of residence of such
owner is known.
14. The commissioner, may make arrangements with respect to any lands
heretofore or hereafter acquired by him, whereby such lands may continue
to be occupied and used by the former owners, their tenants or assigns
or by any other party from a date specified in said agreement until the
state requires and obtains actual physical possession of such lands,
provided that during the period of such occupancy, such lands shall
remain on the assessment rolls of the municipality, school districts and
other districts in which they are located and shall be subject to real
estate taxes and assessments in the same manner as privately owned
lands. The right of a former owner, tenant, assignee or other party to
occupy and use such lands shall be conditioned on the prompt payment of
the full amount of such taxes and assessments, with interest and
penalties, if any, and compliance with the provisions of section three
hundred five of the eminent domain procedure law, if applicable. The
state shall not be liable for real estate taxes or assessments on such
lands during such a period. A copy of any such agreement shall be filed
with the county clerk of the county in which such lands are located.
Nothing herein contained shall be construed to limit the authority of
the commissioner to accept conditional grants, bequests or devises of
property under other provisions of this chapter.
Section: Previous Article 3 3.01 3.02 3.03 3.05 3.07 3.09 3.11 3.13 3.15 3.17 3.19 3.21 3.23 3.25 Next
Last modified: February 16, 2012 |
|