N.Y. Highway Law § 347: Property for state thruways, bridges thereon, and other thruway uses and purposes to be acquired by appropriation

§ 347. Property for state thruways, bridges thereon, and other thruway

uses and purposes to be acquired by appropriation. 1. Notwithstanding

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

special, any and all property necessary for the construction,

reconstruction and maintenance of state thruways and bridges thereon,

shall be acquired pursuant to the eminent domain procedure law.

2. The commissioner of transportation, for the people of the state of

New York, shall acquire pursuant to the eminent domain procedure law any

property or interest therein, necessary for any and all purposes

connected with the construction, reconstruction and maintenance of the

thruway system of the state of New York, including the acquisition of

property for drains, ditches, spoil banks, gravel pits, 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 upon incorporation into a state

thruway of an existing highway or portion thereof of which they form a

part, and for the separation of thruway-railroad grades on newly

laid-out thruways; and for other purposes to improve safety conditions

on the thruway routes.

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 thruway 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.

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

aforesaid, that changes, alterations or modifications of such

description and map as filed in the main office of the New York state

thruway authority should be made, he or she shall, subject to the

provisions in article two of the eminent domain procedure law if

applicable, direct the preparation of an amended acquisition 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 New York state thruway authority 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 the

map in the office of the county clerk or register 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 New York state thruway authority 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 in the eminent domain

procedure law, the commissioner of transportation, or such duly

authorized representative or agency which has succeeded him in the

jurisdiction of the property so acquired, 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

proceedings shall in all instances 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 raising any

material issue, 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.

9. 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 from moneys appropriated

for the construction, reconstruction and maintenance of state thruways

and bridges thereon, 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.

10. 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.

11. 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.

12. 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.

13. 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 payments 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 action.

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.

14. Any owner may pursuant to section five hundred three of the

eminent domain procedure law present to the court of claims a claim for

the value of such 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 the construction, reconstruction and maintenance of

state thruways and bridges thereon.

15. If the work of constructing, reconstructing and maintaining such

state thruways and bridges thereon causes 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 not already

existing by statute. Claims for such damage may be adjusted by the

department 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 such improvement as prescribed by this

section. If the amount of any such claim is not agreed upon, such claim

may 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 of the improvement by the

commissioner of transportation.

16. 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 or

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 thruway 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

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

acquired unless the title thereto shall be approved by the attorney

general.

17. 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

notices of appropriation, making title searches, appraisals and

agreements, and examinations and readings of title 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, reconstruction and maintenance of state thruways and

bridges thereon 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.

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

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

engaged on work connected with the thruway system of the state of New

York, as described in this chapter may pursuant to the eminent domain

procedure law enter upon any 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 work

and not exceeding two thousand five hundred dollars may, without

appropriating such property, be adjusted by agreement by the

commissioner of transportation with the owner of the property affected

as determined by him by reasonable investigation, and the amount so

agreed upon shall be paid out of the state treasury, after audit by the

comptroller, from monies appropriated for the construction,

reconstruction and maintenance of state thruways and bridges thereon,

but not until there shall have been filed with the comptroller a

certificate of the attorney general approving, as to form and manner of

execution, such agreement and any release given in consideration of such

payment.

19. The commissioner of transportation may determine whether any

property acquired for any of the purposes connected with the thruway

system of the state of New York pursuant to this section may, while

under his jurisdiction, and subject to compliance with section four

hundred six of the eminent domain procedure law, be sold or exchanged,

in whole or in part, on terms beneficial to the state, and in all cases

of such determination he may sell or exchange such property; 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 such property.

20. If the commissioner of transportation, or such duly authorized

representative or agency which has succeeded him in the jurisdiction of

the property affected, shall determine subsequent to the acquisition of

a temporary easement right in property and subsequent to the filing of a

map of such property in the office of the county clerk or register, 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 state thruway purposes are no longer necessary, and that, therefore,

the term of such easement should then be terminated, or if the

appropriation of such easement was for an indefinite period, that the

end of such period should be fixed and determined, or that the period of

such easement has by its terms expired, he shall make his certificate to

that effect and, in case he certifies that the use and occupancy of such

property for such thruway purposes are no longer necessary, he shall

further certify 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 of transportation, or his said successor,

shall cause a copy of such certificate to be filed in the office of the

department of state. Upon the filing of such certificate in the office

of the department of state, the term of such easement, or all the

easement rights acquired by the state in such property, shall, by virtue

of such filing and in accordance with the determination expressed in

such certificate, be fixed and determined, or terminated, released and

extinguished. The commissioner of transportation, or his said successor,

shall cause a copy of such certificate together with notice of the

filing thereof in the office of the department of state to be mailed to

the current owner of the property affected, so far as such owner and his

place of residence can be ascertained by him by reasonable

investigation. 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. Upon the filing with said

officer of such certificate, in the form aforementioned, and of such

notice, it shall be his duty, without further requirement, to record the

same in the books used for recording deeds in his office.