N.Y. Environmental Conservation Law § 15-1729: Eminent domain

§ 15-1729. Eminent domain.

Real property may be acquired pursuant to title 17 of this article

under an exercise of the right of eminent domain in the following cases:

1. Real property which is necessary to the full development and

utilization of any water power site of which the state is the owner, in

whole or in part.

2. Real property which is necessary to the full development of water

power sites where such water power sites on a stream, or in a given

locality cannot be developed separately as efficiently and economically

for the generation of power as under a plan for their development

together and the owner or owners of the right to the use of the greater

part of the head and volume of usable flow for power at such sites

transfer the same to a corporation organized for the production, sale

and distribution of heat, light and power to the public as herein

provided, or such right is owned by such a corporation and the

department determines by resolution that such power sites can be more

efficiently and economically developed for the production of power under

such a plan than singly, and the heat, light or power is necessary for

public use.

3. Real property, on the application of a corporation organized for

the production of heat, light or power, after a determination by the

Public Service Commission that such property is necessary to the full

development and utilization of a single undeveloped water power site, a

major part of the head and volume of the usable flow for power at which

site is owned by such corporation, for the production of heat, light or

power for sale or distribution to the public and that such heat, light

or power is necessary for public use. In any county containing a part of

the forest preserve as now constituted, for the purpose of establishing

the right to exercise the power of eminent domain under this subdivision

the ownership of wild or unoccupied land shall be presumed to be in an

applicant showing a record title under which the applicant or his

grantors has claimed for a period of ten years and it appears that the

state and county taxes thereon have been paid by or on behalf of such

applicant or his grantors for a period of five years before the

proceeding in which the application is made was begun; ownership in

other lands wherever located shall be presumed on showing record title

in the applicant for a period of ten years and possession thereunder for

a like period.

4. Such right of eminent domain shall be exercised under the

provisions of the eminent domain procedure law subject to the following

restrictions and limitations:

a. The acquisition of real property for the state shall be on the

application of the department, and payment therefor shall be made in the

manner provided for the payment of lands appropriated by the state in

the Adirondack and Catskill parks under section 3-0305 of this chapter.

b. If a water power site be taken under subdivision 2 of this section,

the owner of any such power site shall have the option to receive and

own such a proportion of the power resulting from the common development

as the head and volume of the usable flow of the water at the site bears

to the product of the total head and volume of the usable flow of the

waters of the common development, provided he pays a like proportion of

the cost of development, maintenance and operation, and consents that

his pro rata share of such power shall be pledged to secure such

payment, and assents to such reasonable and equitable provisions and

regulations in relation to the development and operation thereof for the

common benefit and to payment therefor as the department shall

prescribe. In case of the exercise of such option by the owner of a

developed water power site, such owner shall also be allowed the loss,

if any, resulting to him from the excess in value, if any, of the water

power owned by him before such common development over the water power

right owned by him after such development, after deducting from the

value of such power right his proportion of the cost of such

development. Such difference in value shall be deemed a part of the

damages in the condemnation proceeding, and the payment thereof shall be

secured as directed by the court.

c. Before any real property is taken under the provisions of

subdivision 2 of this section, the owner or owners of the right to the

use of the greater part of the head and volume of usable flow for power

at the sites to be developed in common shall, unless such a corporation

be already organized and be the owner of such rights, organize a

corporation for the production, distribution and sale of heat, light and

power to the public, and shall transfer to such corporation such sites.

Such corporation shall file with the Public Service Commission a

certified copy of its certificate of incorporation and shall also file

with such department a map of the water power sites, and property

connected therewith, of which it is the owner, with satisfactory proof

that it is the owner thereof, and a map of the water power sites and

property which it seeks to acquire for the purpose of making a common

development. It shall also file with such department a plan of its

proposed development of water power on the property which it owns and

which it seeks to acquire. Such corporation shall file copies of such

maps and plan certified by the president and engineer of the

corporation, or a majority of the directors, in the office of the clerk

of the county in which such development is to be made, or if it be in

more than one county, in the office of the clerk of each county; and

shall give written notice to all actual occupants of lands of which it

is not the owner on which such development is to be made, of the time

and place such maps and plan were filed, and that such development is to

be made on the lands of such occupants. The Public Service Commission

shall give an opportunity to persons interested to be heard, investigate

and determine whether it is in the public interest that such development

be made and whether the power to be produced is necessary for the supply

of the public with heat, light or power. If it shall so determine, it

may issue to such corporation a certificate that public convenience and

necessity require that such development be made, but in granting the

certificate the department may expressly except from its certificate any

part of the property proposed to be developed as unnecessary to the

plan. Such certificate when issued shall be conclusive evidence as to

the matters lawfully certified therein in any proceeding under the

Condemnation Law to acquire the property, or any part thereof, set forth

in such certificate.

5. Real property, on the application of a corporation authorized to do

business in this state and engaged in the production, sale and

distribution of heat, light or power to the public, which is necessary

to perfect or improve water power already developed, provided that

property taken does not impair or injure any developed water power or

developed water power site. The corporation may apply for and in a

proper case receive from the Public Service Commission a certificate of

convenience and necessity for taking the property so to be acquired in

the manner and with like effect as provided in paragraph c of

subdivision 4 of this section. Any such corporation may also exercise

the right of eminent domain to acquire real property in accordance with

the provisions of subdivisions 2, 3 and 4 of this section.

6. If it appears that there is a defect of title or any outstanding

interest in any of the real property occupied or to be occupied by the

project when completed, the corporation making, or having the right to

make, the development of the water power may exercise the right of

eminent domain for the purpose of acquiring any such outstanding

interest or any real property with respect to which the title appears to

be or is defective.

7. In any county containing a part of the forest preserve as now

constituted, real property, on the application of a corporation

organized for the production of heat, light or power, necessary for the

development of a water power site or sites, developed or about to be

developed, and occupied by a railroad and real property necessary to and

for the relocation of such railroad, upon application to and on order of

the Public Service Commission authorizing the same and upon thirty days'

notice to the railroad corporation. The Public Service Commission shall

grant the order if in its judgment the public interest will be promoted

thereby. The relocation of the railroad shall be at the expense of the

applicant and in accordance with plans and specifications to be approved

by such Public Service Commission. The applicant shall not take

possession of any real property of the railroad necessary for its

operation until such relocation of the railroad shall have been

completed. The Public Service Commission upon the assent of the railroad

may order the abandonment of such part of the railroad as is necessary

to be taken instead of ordering a relocation thereof.

8. Real property, on the application of a corporation organized for

the production of heat, light or power, which is necessary for the full

development of a water power site or sites, developed or about to be

developed, and is used or occupied as burial place or cemetery, and real

property necessary to locate and reinter any human remains removed

therefrom. Proceedings shall be had for the taking of such real property

and removal of such remains in the manner provided by section 15-2117,

in so far as the provisions thereof are applicable thereto, but such

exercise of the right of eminent domain shall be subject to the sound

discretion of the court.