N.Y. Highway Law § 29: Property for highways, bridges and other highway uses and purposes to be acquired by acquisition

§ 29. Property for highways, bridges and other highway uses and

purposes to be acquired by acquisition. 1. Notwithstanding any

inconsistent provisions of this chapter, or any other laws, general or

special, the commissioner of transportation shall, whenever the federal

government shall agree to grant or contribute to the state not less than

twenty-five per centum of the cost thereof, acquire pursuant to the

provisions of the eminent domain procedure law any and all property

necessary for the construction and reconstruction of highway projects

located on the "strategic network of highways," as defined in the

federal defense highway act of nineteen hundred forty-one and as revised

to May fifteenth, nineteen hundred forty-one and approved by the

secretary of war, or on such network as hereafter revised and approved,

and also any and all property necessary for any other highway project,

exclusive of parkways, when certified by the army or navy as important

for the purposes of national defense, and a like grant or contribution

is to be made by the federal government. A highway indicated under this

section for construction or improvement, or any portion of such highway,

may be constructed or improved, or reconstructed, as a controlled access

highway, upon the adoption of a resolution by a majority vote of the

board of supervisors of the county in which the highway is to be

constructed. The resolution of the board of supervisors herein referred

to shall not be required in relation to highways to be projected as

through trunk routes and principally on new location. The costs of all

such property as may be acquired under this section shall be paid in the

first instance from any funds available for the construction,

reconstruction and improvement of state highways and bridges.

2. The commissioner of transportation shall cause to be prepared an

accurate acquisition map of any property which he may deem necessary for

purposes connected with such highway 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 acquisition map by the commissioner of

transportation, he shall acquire such property, easements, interests or

rights pursuant to the eminent domain procedure law.

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

of a map of acquisition, as provided in section four hundred two of the

eminent domain procedure law, in the office of the county clerk as

aforesaid, 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,

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 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

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 for in the eminent

domain procedure law, the commissioner of transportation 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

such law. The proceeding shall be brought in the name of the

commissioner of transportation 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 of transportation,

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. The commissioner of transportation upon making any agreement

provided for in section three hundred four of the eminent domain

procedure law 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 purposes connected with such

highway 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.

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. The commissioner of transportation, 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 nonprofit 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

nonprofit organization.

9. The commissioner of transportation 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 transportation; or (2) by the

commissioner of transportation 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 of transportation 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

of transportation for such use or occupancy shall be paid into the

treasury of the state to the credit of the capital construction fund.

10. Authorization is hereby given to the commissioner of

transportation 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 negotiations 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.

11. 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 property acquired 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 such highway projects.

12. If the work of construction or reconstruction of any highway

project shall cause actual damage to property not acquired as above

provided, the state shall be liable therefor, but this provision shall

not be deemed to create any liability on the part of the state not

already existing in law. Claims for such damage may be adjusted by the

commissioner of transportation, if the amounts thereof can be agreed

upon with the persons making such claims, and any amount so agreed upon

shall be paid as a part of the cost of the construction or

reconstruction of such highway project as prescribed by this section. If

the amount of any such claim is not agreed upon, such claim may pursuant

to the eminent domain procedure law, be presented to the court of claims

which is hereby authorized to hear such claim and determine if the

amount of such claim or any part thereof is a legal claim against the

state and if it so determines, to make an award and enter judgment

thereon against the state, provided, however, that such claim is filed

with the court of claims within three years after the final acceptance

of the work by the commissioner of transportation.

13. Notwithstanding any other provision of this section, the

commissioner of transportation shall have the power to acquire by grant

or purchase, in the name of the people of the state of New York, any

property which he deems necessary for any of the purposes provided for

in this section, and payment therefor, if any, shall be made in the

manner prescribed in this section for the payment of adjusted

acquisition claims, provided, however, that no real property shall be so

acquired unless the title thereto shall be approved by the attorney

general.

14. The expense of such acquisitions including administrative duties

in connection therewith, the cost of making surveys, and preparing

descriptions and maps of property to be acquired, serving notice of

appropriation, publication, 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 highway projects.

15. Notwithstanding the provisions of any general, special or local

law, the commissioner of transportation, his officers, agents or

contractor and the officers or agents of the United States when engaged

on such highway projects, may, pursuant to section four hundred four of

the eminent domain procedure law, enter upon property for the purpose of

making surveys, test pits, test borings, or other investigations and

also for temporary occupancy during construction. Claims for any damage

caused by such entry, work or occupation not exceeding two thousand five

hundred dollars may be adjusted by agreement by the commissioner of

transportation with the owner of the property affected as determined by

him by reasonable investigation without appropriating such property.

Upon making any such adjustment and agreement, the commissioner of

transportation shall deliver to the comptroller such agreement and a

certificate stating the amount due such owner and the amount so fixed

shall be paid out of the state treasury from monies appropriated for the

acquisition of property for the project requiring such entry, work or

occupation.

17. The provisions of this section shall not affect any proceeding for

the acquisition by a county of property for state highway purposes where

such county has, before the effective date of this section, certified to

the commissioner of transportation that certain property has been

purchased or options therefor executed or acquisition proceeding

instituted, but all such undertakings instituted by a county shall be

continued and the acquisition of the property consummated in the manner

provided by law applicable thereto as in force prior to the taking

effect of this section.

18. Notwithstanding any other provision of this section, the

commissioner of transportation shall have the power to acquire by grant

or purchase, in the name of the people of the state of New York, any

property which he deems necessary for any of the purposes provided for

in this section and may also acquire for such purposes from the

Palisades interstate park commission, in the name of the people of the

state of New York, such lands and such easements, licenses, permits and

other rights over lands as the said commission is authorized to grant,

sell, exchange or convey. When the acquisition by appropriation, grant

or purchase of property deemed necessary for highway purposes would

result in substantial consequential damages to the owner's remaining

property, due to loss of access, severance or control of access, the

commissioner of transportation, for and in behalf of the people of the

state of New York, may acquire by purchase or grant all or any portion

of such remaining property. Payment therefor, if any, shall be made in

the manner prescribed in this section for the payment of adjusted

appropriation claims, provided, however, that no real property shall be

so acquired unless the title thereto shall be approved by the attorney

general.