N.Y. Military Law § 177: Acquisition of real property for armories and other military facilities of the state

§ 177. Acquisition of real property for armories and other military

facilities of the state. 1. The adjutant general, provided that funds

have been appropriated or provided by the state or by the United States

or by both for such purposes, is authorized to acquire by purchase or

gifts or, pursuant to the provisions of the eminent domain procedure

law, any real property which he may deem necessary for the purposes of

armories, camps, ranges, bases, or facilities for the use of the

organized militia, the title to all such property to be taken in the

name of and be vested in the people of the state; provided, however,

that no such property shall be acquired by purchase or gift unless the

title thereto shall be approved by the attorney general.

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

provisions of the eminent domain procedure law, the adjutant general

shall cause to be made by the state department of transportation an

accurate acquisition map prepared from an accurate survey, of the

property to be so acquired or in or to which any easement is to be

acquired and, in the case of an easement, specifying the particular

nature and the duration thereof. The adjutant general and the state

commissioner of transportation and their respective duly authorized

agents and employees may enter upon such real property or, when

necessary, upon any adjacent real property for the purpose of making

such survey.

3. On the approval of such map by the adjutant general, the original

tracing of such map shall be filed in the main office of the division of

military and naval affairs, pursuant to the provisions of the eminent

domain procedure law.

4. If the adjutant general shall determine, prior to the filing of

such map in the office of the clerk or register of the county, that

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

of the division 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 by the department of transportation

of an amended map. On the approval of such amended map by the adjutant

general, it shall be filed in the main office of the division and the

amended map shall thereupon in all respects and for all purposes

supersede the map previously filed.

5. If the adjutant general shall determine prior to the filing of a

copy of such acquisition 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 may file a

certificate of withdrawal in the offices of the division 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 adjutant general 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 adjutant general the names of the

owners of the property, easements, interest 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 as provided for in the eminent domain procedure

law, the adjutant general shall deem it necessary to cause the removal

of an owner or occupant from any real property so acquired, he may cause

such owner or occupant to be removed therefrom by proceeding in

accordance with section four hundred five of the eminent domain

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

adjutant general 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 adjutant general,

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; and in any case

judgement shall 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. Upon making any agreement provided for in section three hundred

four of the eminent domain procedure law, the adjutant general shall

deliver to the comptroller such agreement and a certificate stating the

amount due such owner or owners thereunder on account of such

acquisition of his or their property and the amounts so fixed shall be

paid out of the state treasury after audit by the comptroller from

moneys appropriated for the acquisition of such 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 of incidental expenses as provided

in section seven hundred two of the eminent domain procedure law shall

be made to the adjutant general upon forms prescribed by him and shall

be accompanied by such information and evidence as the adjutant general

may require. Upon approval of such application, the adjutant general

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 adjutant general, 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 adjutant

general; 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

adjutant general 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 adjutant general 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 adjutant general 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 adjutant general upon forms prescribed by him and shall

be accompanied by such information and evidence as the adjutant general

may require. Upon approval of such application, the adjutant general

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.

11. Authorization is hereby given to the adjutant general 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

adjutant general, 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 adjutant general 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

adjutant general. Application for payment under this subdivision shall

be made to the adjutant general upon forms prescribed by him and shall

be accompanied by such information and evidence as the adjutant general

may require. Upon approval of such application, the adjutant general

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.

12. The owner of any real property so 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 acquired,

and for legal damages caused by such acquisition, 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.

13. If the adjutant general 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, he shall make his certificate that the exercise of such

easement is no longer necessary and that such easement right is

therefore terminated, released and extinguished. The adjutant general

shall cause such certificate to be filed in the office of the department

of state and upon such filing all rights acquired by the state in such

property shall cease and determine. The adjutant general shall cause a

certified copy of such certificate as so filed in the office of the

department of state 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

adjutant general 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.