N.Y. Parks, Recreation and Historic Preservation Law § 3.19: Acquisition of property by eminent domain

§ 3.19 Acquisition of property by eminent domain. 1. Whenever the

commissioner deems it necessary to acquire property pursuant to the

eminent domain procedure law, he shall cause to be made an accurate

acquisition map as provided in said law. The acquisition map shall be

made from an accurate survey of the property to be so acquired or in or

to which any easement or estate less than full title is to be acquired

specifying the particular nature and extent thereof, except that

whenever a duly certified map or description of the property, easement

or estate less than full interest to be acquired is available as a

matter of public record, then in that event such map or description may

be used by the commissioner to prepare the acquisition map. Upon the

approval of the acquisition map by the commissioner, which shall be

endorsed thereon, he shall acquire such property, easements, interests

or rights in accordance with the provisions of the eminent domain

procedure law.

2. If the commissioner shall determine, prior to the filing of the

acquisition map in the office of the clerk or register of the county, as

provided in the eminent domain procedure law, that changes, alterations

or modifications of such map as filed in the office should be made, he

or she shall direct the preparation of a new map or direct that changes

be made on the original tracing of such map, with a notation indicating

such changes. Upon approval of such amended map by the commissioner, it

shall be filed in the main office of parks, recreation and historic

preservation as the original map was filed and the amended map shall

thereupon in all respects and for all purposes supersede the map

previously filed.

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

of the acquisition map in the office of the county clerk or register as

provided in the eminent domain procedure law, that such map should be

withdrawn, he or she shall file a certificate of withdrawal in the

office 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 in the eminent domain

procedure law, the commissioner shall deem it necessary to cause the

removal of an owner or other occupant from such property, he may cause

such owner or 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 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, 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. No agreement made by the commissioner in accordance with the

provisions of section three hundred four of the eminent domain procedure

law shall be binding upon the state of New York unless the attorney

general shall certify that the person or persons claiming the amount so

agreed upon be entitled thereto. Payment shall be made upon audit and

warrant of the comptroller of the amount so agreed upon from monies

appropriated for such purposes.

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. (a) 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 the following expenses and losses

incurred by the displaced owners or occupants of a property acquired

pursuant to this section as a result of such acquisition:

(i) actual reasonable and necessary moving expenses; and

(ii) actual direct losses of tangible personal property as a result of

moving or discontinuing a business or farm operation on such property,

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

(iii) actual reasonable expenses in searching for a replacement

business or farm; and

(iv) actual and reasonable expenses necessary to reestablish a

displaced farm operation, not-for-profit organization, or small business

at its new site but not to exceed the maximum amount provided for in the

regulations.

(b) Such regulations may provide in hardship cases for the advance

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

of such expenses and losses only, such regulations shall provide that

the term "business" includes 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. Such

regulations may also provide for payments to utilities for the

relocation of their facilities under such circumstances and in such

amounts as the commissioner may determine.

(c) Any person eligible for the payments authorized by paragraph (a)

of this subdivision who is displaced from a residential property may, in

lieu of such payments, elect to accept an expense and dislocation

allowance, determined in accordance with a schedule prepared by the

commissioner and made a part of such rules and regulations.

(d) Any person eligible for the payments authorized by paragraph (a)

of this subdivision, who is displaced from a business or farm operation

and who is eligible under criteria established by the department may, in

lieu of such payments, elect to accept a fixed relocation payment,

except that such payment shall be not less than the minimum nor more

than the maximum amount provided for in the regulations. However, a

person whose sole business at the property so acquired is the rental of

such property to others shall not qualify for payment under this

paragraph.

(e) Application for payment under this subdivision shall be made to

the commissioner upon forms prescribed by the commissioner 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. No

payment shall be made under this subdivision for any cost, expense,

difference or other amount for which payment was previously made.

(f) The regulations necessary to implement this subdivision shall be

consistent with the applicable provisions of section thirty of the

highway law, as the same may from time to time be amended, and

regulations issued thereunder.

9. (a) 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 by eminent

domain who are entitled thereto, as determined by the commissioner. 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.

(b) In the case of residential 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 supplemental relocation payment to such owner shall

not exceed the maximum amount provided for in the regulations. Such

payment shall include the following elements:

(i) the amount, if any, which when added to the acquisition payment

equals the average price, established by the commissioner, required to

obtain a comparable replacement dwelling for such displaced owner, but

in no event shall such payment exceed the difference between acquisition

payment and the actual purchase price of the replacement dwelling; and

(ii) the amount which will compensate such displaced owner for any

increased interest costs which such person is required to pay for

financing the acquisition of the 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 property. Any

such compensating interest 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; and

(iii) an amount which will compensate such displaced owner for

reasonable expenses incurred for evidence of title, recording fees and

other closing costs incident to the purchase of the comparable

replacement dwelling, but not including prepaid expenses.

(c) Any supplemental relocation payment made pursuant to paragraph (b)

of this subdivision shall be made only to a displaced owner who

purchases and occupies a comparable replacement dwelling within one year

subsequent to the date on which such owner is required to move from the

dwelling acquired pursuant to this section or the date on which such

owner receives from the state final payment for such acquired dwelling,

whichever occurs later. The commissioner may extend such period for good

cause; provided however, that any payment shall be based on the costs of

relocating the displaced person to a comparable replacement dwelling

within one year of such extended date. The regulations may provide that

advance payment of such payments may be made in hardship cases.

(d) In the case of residential property acquired pursuant to this

section from which an owner or tenant, not otherwise eligible to receive

a supplemental relocation payment pursuant to the provisions of

paragraph (b) of this subdivision, is displaced from dwelling thereon

which has been actually and lawfully occupied by such owner or tenant

for not less than ninety days immediately prior to (i) the initiation of

negotiations for the acquisition of such property or (ii) such other

event as regulations may prescribe when the displacement is not a direct

result of such acquisition, such supplemental relocation payment to such

owner or tenant shall not exceed the maximum amount provided for in the

regulations. Such payment shall be the amount which is necessary to

enable such owner or tenant to lease or rent for a period not to exceed

the maximum time specified in the regulations, a comparable replacement

dwelling but such amount shall not exceed the maximum amount specified

in the regulations. Such payments may be made in periodic installments

as determined by the commissioner. Any person eligible for a

supplemental relocation payment under this paragraph may elect to use

such payment for the down payment, including reasonable expenses

incurred by such owner or tenant 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

comparable replacement dwelling, except such payment shall not exceed

the maximum amount provided for in the regulations.

(e) Application for payment under this subdivision shall be made to

the commissioner upon forms prescribed by the commissioner 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. No

payment shall be made under this subdivision for any cost, expense,

difference or other amount for which payment was previously made.

(f) The regulations necessary to implement this subdivision shall be

consistent with the applicable requirements of section thirty of the

highway law, as the same may from time to time be amended, and

regulations issued thereunder.

10. Expenses incurred in the acquisition of the property, including

the cost of making surveys, preparing descriptions and maps, appraisals,

title searches, service and publication of notices, and expenses

incurred in proceedings for the removal of owners or occupants, shall be

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

and shall be paid accordingly out of any moneys appropriated for the

acquisition of such property.

11. The state of New York shall be liable for any damages to any real

property caused by the making of surveys, test pits, test borings or

other investigations pursuant to section four hundred four of the

eminent domain procedure law. Such damages may be recovered and

adjusted and paid in the same manner as provided in this section with

respect to compensation for real property acquired by eminent domain.

12. The owner of any real property acquired by eminent domain 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 caused by such

appropriation, 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 commissioner shall determine subsequent to the

appropriation 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 commissioner shall

cause such certificate to be filed in the office of parks, recreation

and historic preservation and a copy thereof certified by the

commissioner to be filed in the office of the clerk or register 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 clerk

or register, 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 grantors. On the filing

and recording of such certificate in the office of such clerk or

register, all rights acquired by the state under such temporary easement

shall cease. The commissioner shall cause a further certified copy of

such certificate, with notice of the filing thereon in the office of

parks, recreation and historic preservation and of the filing and

recording of a certified copy thereof in the office of the clerk or

register, to be mailed to each owner of the property affected, as

certified by the attorney general, if the place of residence of such

owner is known.

14. The commissioner, may make arrangements with respect to any lands

heretofore or hereafter acquired by him, whereby such lands may continue

to be occupied and used by the former owners, their tenants or assigns

or by any other party from a date specified in said agreement until the

state requires and obtains actual physical possession of such lands,

provided that during the period of such occupancy, such lands shall

remain on the assessment rolls of the municipality, school districts and

other districts in which they are located and shall be subject to real

estate taxes and assessments in the same manner as privately owned

lands. The right of a former owner, tenant, assignee or other party to

occupy and use such lands shall be conditioned on the prompt payment of

the full amount of such taxes and assessments, with interest and

penalties, if any, and compliance with the provisions of section three

hundred five of the eminent domain procedure law, if applicable. The

state shall not be liable for real estate taxes or assessments on such

lands during such a period. A copy of any such agreement shall be filed

with the county clerk of the county in which such lands are located.

Nothing herein contained shall be construed to limit the authority of

the commissioner to accept conditional grants, bequests or devises of

property under other provisions of this chapter.