N.Y. Environmental Conservation Law § 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.