N.Y. Environmental Conservation Law § 3-0305: Acquirement of real property by purchase or appropriation

§ 3-0305. Acquirement of real property by purchase or appropriation.

1. The commissioner when moneys therefor have been appropriated by

the legislature or are otherwise available, may acquire any real

property which he deems necessary for any of the purposes or functions

of the department, by purchase or as provided in the eminent domain

procedure law. Title to such real property shall be taken in the name

of and be vested in the people of the state of New York. No real

property shall be so acquired by purchase unless the title thereto is

approved by the attorney general. The terms "property" or "real

property" as used in this section shall mean "real property" as defined

by section one hundred three of the eminent domain procedure law.

2. Whenever real property is to be so acquired pursuant to the

provisions of the eminent domain procedure law, by appropriation, the

commissioner shall cause to be made an accurate acquisition map as so

provided in said law.

3. On the approval of such map by the commissioner, the original

tracing of map shall, pursuant to the eminent domain procedure law, be

filed in the main office of the department.

4. If the commissioner shall determine, prior to the filing of a copy

of such acquisition map in the office of the county clerk, that changes,

alterations or modifications of such map as filed in the main office of

the department 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. 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.

5. If the commissioner shall determine prior to filing a copy of an

acquisition 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map should be withdrawn, he or she shall file a certificate of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 of the 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.

6. 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 real property 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.

7. 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 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 occupant to be removed therefrom by

proceeding in accordance with section four hundred five of such law.

The proceeding shall be brought in the name of the commissioner as agent

of the state and the attorney general 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 of the real property and be paid in like

manner. Proceedings may be brought separately against one or more of

the owners or occupants of any such property, or one proceeding may be

brought against all or several of the owners or occupants of any or all

such property within the territorial jurisdiction of the same court,

justice or judge; judgment shall be given 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.

8. Upon making any agreement provided for in section three hundred

four of the eminent domain procedure law, the commissioner 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 after audit by the comptroller from moneys appropriated

for the acquisition of such real property, 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.

9. 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 moneys appropriated

for the acquisition of property under this section.

10. 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 actual reasonable and necessary moving

expenses of occupants of property acquired pursuant to this section; of

actual direct losses of tangible personal property as a result of moving

or discontinuing a business or farm operation, 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 actual

reasonable expenses in searching for a replacement business or farm, or

in hardship cases for the advance payment of such expenses and losses.

For the purposes of making payment of such expenses and losses only the

term "business" means 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. In

lieu of such actual reasonable and necessary moving expenses, any such

displaced owner or tenant of residential property may elect to accept a

moving expense allowance, plus a dislocation allowance, determined in

accordance with a schedule prepared by the commissioner and made a part

of such rules and regulations. In lieu of such actual reasonable and

necessary moving expenses, any such displaced owner or tenant of

commercial property who relocates or discontinues his business or farm

operation may elect to accept a fixed relocation payment in an amount

equal to the average annual net earnings of the business or farm

operation, except that such payment shall be not less than two thousand

five hundred dollars nor more than ten thousand dollars. In the case of

a business, no such fixed relocation payment shall be made unless the

commissioner finds and determines that the business cannot be relocated

without a substantial loss of its existing patronage, and that the

business is not part of a commercial enterprise having at least one

other establishment, which is not being acquired by the state or the

United States, which is engaged in the same or similar business. In the

case of a business which is to be discontinued but for which the

findings and determinations set forth above cannot be made, the

commissioner may prepare an estimate of what the actual reasonable and

necessary moving expenses, exclusive of any storage charges, would be if

the business were to be relocated and enter into an agreed settlement

with the owner of such business for an amount not to exceed such

estimate in lieu of such actual reasonable and necessary moving

expenses. Application for payment under this subdivision 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 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. As

used in this subdivision the term "commercial property" shall include

property owned by an individual, family, partnership, corporation,

association or a non-profit organization and includes a farm operation.

As used in this subdivision the term "business" means any lawful

activity, except a farm operation, conducted primarily for the purchase,

sale, lease and rental of personal and real property, and for the

manufacture, processing, or marketing of products, commodities, or any

other personal property; for the sale of services to the public; or by a

non-profit organization.

11. The commissioner pursuant to section three hundred five of the

eminent domain procedure law, may make agreements on such terms,

condition 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.

12. 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 him. 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. In the case of

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 payment to such

owner shall not exceed fifteen thousand dollars. Such payment shall be

the amount, if any, which, when added to the acquisition payment equals

the average price, established by the commissioner on a class, group or

individual basis, required to obtain a comparable replacement dwelling

that is decent, safe and sanitary to accommodate the displaced owner,

reasonably accessible to public services and places of employment and

available on the private market, but in no event shall such payment

exceed the difference between acquisition payment and the actual

purchase price of the replacement dwelling. Such payment shall include

an amount which will compensate such displaced owner for any increased

interest costs which such person is required to pay for financing the

acquisition of any such 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 dwelling. Such

amount shall be equal to the excess in the aggregate interest and other

debt service costs of that amount of the principal of the mortgage on

the replacement dwelling which is equal to the unpaid balance of the

mortgage on the acquired dwelling, over the remainder term of the

mortgage on the acquired dwelling, reduced to discounted present value.

The discount rate shall be the prevailing interest rate paid on savings

deposits by commercial banks in the general area in which the

replacement dwelling is located. Any such mortgage interest

differential 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. Such payment shall

include reasonable expenses incurred by such displaced owner for

evidence of title, recording fees and other closing costs incident to

the purchase of the replacement dwelling, but not including prepaid

expenses. Such payment shall be made only to a displaced owner who

purchases and occupies a replacement dwelling which is decent, safe and

sanitary within one year subsequent to the date on which he is required

to move from the dwelling acquired pursuant to this section or the date

on which he receives from the state final payment of all costs of the

acquired dwelling, whichever occurs later, except advance payment of

such amount may be made in hardship cases. In the case of property

acquired pursuant to this section from which an individual or family,

not otherwise eligible to receive a payment pursuant to the above

provisions of this subdivision, is displaced from any dwelling thereon

which has been actually and lawfully occupied by such individual or

family for not less than ninety days immediately prior to the initiation

of negotiation, for the acquisition of such property, such payment to

such individual or family shall not exceed four thousand dollars. Such

payment shall be the amount which is necessary to enable such individual

or family to lease or rent for a period not to exceed four years, a

decent, safe, and sanitary dwelling of standards adequate to accommodate

such individual or family in areas not generally less desirable in

regard to public utilities and public and commercial facilities and

reasonably accessible to his place of employment, but shall not exceed

four thousand dollars, or to make the down payment, including reasonable

expenses incurred by such individual or family 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 decent, safe and sanitary dwelling of standards adequate

to accommodate such individual or family in areas not generally less

desirable in regard to public utilities and public and commercial

facilities, but shall not exceed four thousand dollars, except if such

amount exceeds two thousand dollars, such person must equally match any

such amount in excess of two thousand dollars, in making the down

payment. Such payments may be made in installments as determined by the

commissioner. Application for payment under this subdivision 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 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.

13. 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 after audit by the

comptroller from moneys appropriated for the acquisition of such real

property.

14. Expenses incurred in the acquisition of the real property,

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 to be part of the cost of the acquisition of such real property.

15. If the commissioner shall determine subsequent to the acquisition

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, the commissioner shall

make a 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 main office of the department and upon such filing all

rights acquired by the state in such real property shall cease and

determine. The commissioner shall cause a certified copy of such

certificate as so filed 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 and such commissioner shall

cause a further certified copy of such certificate to be filed in the

office of the recording officer 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 recording officer, 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 grantor.

16. The commissioner may, by official order filed in the department

and subject to such limitations as he may prescribe, authorize the

exercise of any of his powers or the performance of any of his duties

under this section by such deputy commissioners as he may designate; and

any act performed pursuant to such authorization shall be as valid and

effectual as if performed by the commissioner pursuant to this section.