N.Y. Highway Law § 30: Acquisition by the state of property required for the construction and reconstruction of state highways and structures thereon

§ 30. Acquisition by the state of property required for the

construction and reconstruction of state highways and structures

thereon. 1. (a) Upon the construction, reconstruction or improvement,

pursuant to this chapter of a state highway the property required

therefor may be acquired by the state as provided in the eminent domain

procedure law. A state highway indicated under this chapter for

construction or improvement, or any portion of such highway, may be

constructed, reconstructed or improved, as a controlled access highway,

upon the adoption of a resolution by a majority vote of the members 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 locations.

(b) Whenever plans for the construction, reconstruction or improvement

of a state highway which is now or which shall hereafter be designated

in section three hundred forty-one of this chapter, shall provide for

the relocation of such state highway or portion thereof on a location

which deviates from the location of the existing highway for a

continuous length in excess of one mile as measured along the center

line of the existing highway, the commissioner of transportation shall,

before filing the descriptions and the original tracings of any maps or

proceeding with the acquisition of property or the work of construction,

reconstruction or improvement, transmit such plans to the board of

supervisors of each county in which such relocation or any portion

thereof is situated. In case the relocation or any portion thereof as

proposed, is situated in a county other than the county in which the

existing highway or portion thereof is located, such plans shall be

transmitted to both of such counties and shall be subject to the

approval, disapproval or modification by each of such counties in the

manner as hereinafter provided. The board of supervisors, after the

receipt of such plans, may conduct a public hearing or hearings upon

such notice as such board of supervisors shall deem reasonable, but not

less than ten days, to the commissioner of transportation and to such

other party or parties deemed by said board of supervisors to be

interested in the project. In any event, and within ninety days after

receipt of the plans, the board of supervisors shall, by resolution,

duly adopted by a majority vote of its members, approve, disapprove or

recommend modifications in such plans as the public interest shall

require. Within ten days after the adoption of the resolution, the clerk

of the board of supervisors shall mail a certified copy thereof to the

commissioner of transportation. In case such relocation is situated in

two or more counties, such resolution must be separately adopted by the

board of supervisors of each county as to the relocation situated

therein. The form of the resolution shall be prescribed by the

commissioner of transportation. In case the board of supervisors shall

disapprove the plans, without proposing modifications, the commissioner

of transportation may, in his discretion, prepare and submit to the

board of supervisors for approval other plans for the construction,

reconstruction or improvement of the state highway to be acted upon by

the board of supervisors in the manner herein prescribed within sixty

days after receipt of such plans. In case the board of supervisors shall

disapprove the plans, and shall recommend modifications, the

commissioner of transportation may approve the plans as so modified, or

recommend other modifications for approval, and such state highway shall

be constructed, reconstructed, or improved in accordance with such plans

as finally approved. When the plans, for construction, reconstruction or

improvement of a state highway have finally been approved as herein

provided, no resolution thereafter adopted by the board of supervisors

of a county shall rescind, annul or modify such prior resolution either

directly or indirectly, excepting upon the advice and with the consent

of the commissioner of transportation. Upon the failure or omission of

any board of supervisors to act within the time and manner herein

required, the said plans shall be deemed to be approved so far as such

board of supervisors is concerned.

2. The commissioner of transportation, for and in behalf of the people

of the state of New York may acquire, pursuant to the eminent domain

procedure law any and all property necessary for the construction,

reconstruction and improvement of state highways and bridges or culverts

on the state highway system, including the appropriation of property for

drains, ditches, spoil banks, gravel pits and stone quarries; also for

the removal of obstructions, improvement of sight distances; also for

acquisition of property for the reconstruction of existing

highway-railroad separation structures and for the separation of

highway-railroad grades on newly laid-out highways; and for other

purposes to improve safety conditions on the state highway system. When

the commissioner is exercising the property acquisition power granted

him pursuant to subdivision six of section eighty-nine of this chapter,

relating to control of junkyards and scrap metal processing facilities,

such term "property" shall include junk located upon land to be

appropriated and described on the acquisition map in a manner sufficient

to permit reasonable identification thereof.

3. 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.

Unless access to and from abutting property is expressly acquired by the

terms of the description and map, any permanent drainage easement

heretofor or hereafter acquired pursuant to this chapter shall be deemed

as reserving to the owner of the property, his successors and assigns,

the right of access over, through or across the easement for utility

lines, cables or conduits and by foot or by vehicle and with the right

to construct and maintain on such property a road or roads as necessary

for the exercise of such right, provided that the exercise of such right

does not interfere with the drainage for which the easement was

acquired. 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.

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

copy of the acquisition map in the office of county clerk as aforesaid,

that changes, alterations or modifications of such map as filed in the

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.

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 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 of transportation 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 of

transportation 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.

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 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

said 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.

8. 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.

9. 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.

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; of actual

reasonable expenses in searching for a replacement business or farm; and

of actual reasonable expenses necessary to reestablish a displaced farm,

not-for-profit organization or small business at its new site, but not

to exceed ten thousand dollars, or in hardship cases for the advance

payment of such expenses and losses. 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 and actual reasonable reestablishment expenses, any such

displaced owner or tenant of commercial property who meets eligibility

criteria and 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 one thousand dollars nor more

than twenty thousand dollars. A displaced not-for-profit organization

may choose a fixed payment of one thousand to twenty thousand dollars in

lieu of the payment for actual moving and related expenses and actual

reasonable reestablishment expenses if eligibility criteria are met.

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

not-for-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 not-for-profit

organization. The term "small business" means a business having not more

than five hundred employees working at the site being acquired or

permanently displaced. As used in this subdivision, the term "farm

operation" means any activity conducted solely or primarily for the

production of one or more agricultural products or commodities including

timber, for sale or home use, and customarily producing such products or

commodities in sufficient quantities to be capable of contributing

materially to the operator's support.

11. 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.

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 or replacement housing. 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 twenty-two

thousand five hundred 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

a replacement dwelling which is decent, safe and sanitary. 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. 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 the department identifies, for the displaced owner,

replacement housing actually available within the limits of the offer

extended for replacement housing, 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 five thousand two

hundred fifty 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 forty-two months, 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. Such payment may be used as a 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. Such payments may be made in installments as

determined by the commissioner. However, notwithstanding the provisions

of this subdivision, if it is determined by the commissioner that

replacement housing cannot be obtained for the supplemental relocation

payments specified herein, he may, subject to the approval of the

director of the budget, take such action as is necessary or appropriate

to provide last resort housing with the use of funds authorized for the

project. 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. The owner of any property, easements, interests or rights

acquired, 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 the

construction, reconstruction or improvement of state highways and

bridges.

14. 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.

15. 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.

16. The expense of the acquisition of property including the cost of

making surveys and preparing descriptions and maps of property to be

acquired, and of administrative duties in connection therewith, serving

notice of acquisition, publication, making title searches, appraisals

and agreements, and examinations and readings and approval of titles

made by the attorney general, and expenses incurred by the commissioner

of transportation or the attorney general in proceedings for removal of

owners or occupants, shall be deemed part of the cost of such

improvement. The comptroller is hereby authorized to charge against any

moneys available for the construction and reconstruction or improvement

of state highways and bridges and to reserve therefrom such sums as may

be sufficient to defray the necessary expenses to be incurred by the

attorney general for examination, readings, and approval of titles, upon

the filing with him by the attorney general from time to time of a

certificate or certificates approved by the commissioner of

transportation setting forth such estimated expenses. Such expenses

shall be paid from the funds so reserved after audit by the state

comptroller.

17. 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 twenty-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.

18. The commissioner of transportation may determine whether any

property heretofore or hereafter acquired pursuant to this section for

any of the purposes connected with the highway system of the state of

New York may be, in whole or in part, sold or exchanged on terms

beneficial to the state, and in all cases of such determination he may,

subject to compliance with section four hundred six of the eminent

domain procedure law and notwithstanding the provisions of any general,

special or local law, so dispose of such property, provided however,

that on highways where access is not controlled such disposal of

property shall not thereby deprive an owner of any existing frontage

thereon immediately in front of his premises. In order to carry any such

sale or exchange into effect the commissioner of transportation is

hereby authorized to execute and deliver, in the name of the people of

the state, a quitclaim of, or a grant in and to, such property. Each

such instrument of conveyance shall be prepared by the attorney general

and before delivery thereof, shall be approved by him as to form and

manner of execution.

20. If, subsequent to the acquisition of a temporary easement right in

property pursuant to this section, the commissioner shall determine; (a)

that the purposes for which such easement right was acquired have been

accomplished and that the use and occupancy of said property for such

purposes is no longer necessary, or (b) that the period fixed by the

terms of such easement for expiration of the same should be further

limited, or (c) if the acquisition of such easement was for an

indefinite period, that such period should be fixed and determined, the

commissioner shall make a certificate to such effect. Upon the

expiration of the then fixed and determined term of the easement, the

easement will expire by the terms of the certificate and the affected

property will be surrendered back to the owner, free of such easement,

and the easement will be accordingly thereupon terminated, released and

extinguished. The commissioner shall cause a copy of such certificate to

be filed in the main office of the department. In the event that the

term of a temporary easement has been fixed at a specific period of time

by the description and map no further certificate shall be required.

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.

21. 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.