N.Y. Public Lands Law § 75: Grants of land under water

§ 75. Grants of land under water. This section authorizes grants,

leases, easements, and lesser interests, including permits, for the use

of state-owned land underwater and the cession of jurisdiction thereof

consistent with the public interest in the use of state-owned lands

underwater for purposes of navigation, commerce, fishing, bathing, and

recreation; environmental protection; and access to the navigable waters

of the state; with due regard for the need of affected owners of private

property to safeguard their property.

1. Of navigable rivers and lakes.

2. Of the Hudson river adjacent to the state of New Jersey.

3. Of the former bed of Onondaga creek in Onondaga county and of

Tibbetts brook in Bronx county, whether or not now under water, and

regardless of upland ownership.

4. Adjacent to and surrounding Great Barn island in the city and

county of New York, and between high and low water mark on such island,

but not so as to affect the navigation of the waters surrounding such

island.

5. Adjacent to and surrounding Staten Island, but not so as to extend

more than five hundred feet into the water from low water mark on said

island, except where the legally established pier and bulkhead lines

extend more than five hundred feet beyond low water mark, in which case

grants may be made to such lines.

6. Adjacent to and surrounding Long Island, and all that part of the

former or present county of Westchester lying on the East river or Long

Island sound, but not beyond any permanent exterior water line

established by law.

7. (a) The commissioner of general services may grant in perpetuity or

otherwise, to the owners of the land adjacent to the land underwater

specified in this section, to promote the commerce of this state or for

the purpose of beneficial enjoyment thereof by such owners, or for

agricultural purposes, or for public park, beach, street, highway,

parkway, playground, recreation or conservation purposes, so much of

said land underwater as the commissioner deems necessary for that

purpose. No such grant shall be made to any person other than the

proprietor of the adjacent land. Any such grant made to any other person

shall be void, except that, subject to the other provisions of this

section, the commissioner of general services may transfer jurisdiction

over state-owned lands underwater to a state agency for the purpose of

protecting environmentally sensitive lands underwater even if the state

agency is not the proprietor of the adjacent upland. The commissioner

may also lease such land underwater to such owner of the adjacent upland

or, with the consent of such owner of the adjacent upland, to others,

for terms up to forty years. No such grant or lease shall be made of any

lands belonging to the city of New York, or so as to interfere with the

rights of that city or of the Hudson River Railroad Company, or of its

successor the New York Central and Hudson River Railroad Company. In

making any grant, lease, permit or other conveyance, the commissioner of

general services shall, upon administrative findings, and to the extent

practicable, reserve such interests or attach such conditions to

preserve the public interest in use of state-owned lands underwater and

waterways for navigation, commerce, fishing, bathing, recreation,

environmental protection and access to the navigable waters of the

state, with due regard for the need of affected owners of private

property to safeguard their property. The commissioner shall by official

rules establish criteria and guidelines for determinations with respect

to the leasing or selling of such lands underwater.

Where the boundary line between land underwater and the adjacent land

lies within a public road or street, and the name of the owner or owners

of such adjacent land or the place of residence cannot be ascertained to

the satisfaction of the commissioner, grants or leases may be made by

the commissioner in his or her discretion to the owner or owners of the

land adjoining the road or street inshore of such land underwater in the

manner herein provided, but a grant or lease so made shall not be

regarded as depriving any other person of the exercise of his or her

riparian rights.

Where the title to such public road or street is in a county, city,

town or village, grants or leases may be made by the commissioner in the

manner herein provided to the owner of the land adjoining the road or

street inshore of such land underwater, but no such grant shall be made

unless the consent thereto of such county, city, town or village shall

first be filed with the commissioner, or unless, having been duly

personally served with a notice of application of such grant, the

county, city, town or village fails to file an objection with the

commissioner or, having filed such objection, fails to present to the

commissioner sufficient proof or other reasons satisfactory to the

commissioner why the grant should not be made.

(b) No wharf, dock, pier, jetty, platform, breakwater, mooring or

other structure shall be constructed, erected, anchored, suspended,

placed or substantially replaced, altered, modified, enlarged, or

expanded in, on or above state-owned lands underwater, nor shall any

fill be placed on such lands underwater, unless a lease, easement,

permit, or other interest is obtained from the commissioner, which

authorizes the use and occupancy of those state-owned lands underwater

to be affected by such act or acts, provided however, that there shall

be excepted in the uniform regulations issued pursuant to paragraph (f)

of this subdivision any existing structure for non-commercial use

constructed prior to June seventeenth, nineteen hundred ninety-two, by

or on behalf of the owner of adjacent upland who owned prior to June

seventeenth, nineteen hundred ninety-two, which has a surface area, as

measured at the outermost perimeter, including surface waters between or

encompassed within the structure of less than five thousand square feet

in area, and with respect to docking facilities, has a capacity of no

more than seven boats thirty feet in length. For the purposes of this

subdivision, the term "structure" shall not include discharge or intake

pipes, pipelines, cables, or conduits. Thereafter there shall be so

excepted any structure constructed by or on behalf of the owner of

adjacent uplands that:

(i) has a surface area, as measured at the outermost perimeter,

including surface waters directly between or encompassed within the

structure, of less than four thousand square feet in area and not

exceeding fifteen feet in height, as measured at the uppermost point,

above the mean high water line and, with respect to docking facilities,

has a capacity of five or fewer boats thirty feet in length and, with

respect to mooring facilities, has a capacity of fewer than ten boats

thirty feet in length; provided that the commissioner may by rule

promulgated pursuant to paragraph (f) of this subdivision determine,

based on a different surface area or other criteria of size and use,

that other types of structure in particular circumstances do not

represent significant encroachments on state-owned lands underwater, and

(ii) is water dependent, which shall mean, for purposes of this

section, an activity which can only be conducted on, in, over or

adjacent to a water body because such activity requires direct access to

that water body, and which involves, as an integral part of such

activity, the use of the water.

(c) The requirements of obtaining a lease, easement, permit or other

interest from the commissioner pursuant to the rules set forth in

paragraph (f) of this subdivision shall not apply to the person or

entity who was the upland owner on June seventeenth, nineteen hundred

ninety-two, of lands adjacent to filled state-owned lands underwater or

formerly underwater, in respect of those filled lands, including

accompanying seawalls; provided however, that any right, title and

interest of the state in and to any such state-owned lands shall in no

respect be diminished or impaired by the provisions of this section, nor

by any exemption in the uniform regulations authorized by paragraph (f)

of this subdivision.

Upon any transfer of such lands, or at the request of the owner of the

adjacent upland, the commissioner may convey such lesser interest as may

be minimally required to allow a conveyance of marketable title by that

owner of the adjacent land. Consideration charged in such instances

shall reflect the interest so conveyed.

(d) (i) The commissioner of environmental conservation and the

secretary of state shall review any proposed lease, easement, permit or

other interest, except for facilities in existence on June seventeenth,

nineteen hundred ninety-two, and which are not the subject of an action

by the attorney general for unlawful occupation of state lands under

water on the effective date of this paragraph. The commissioner of

environmental conservation shall recommend conditions to protect the

environment and natural resources. The commissioner of general services

shall incorporate those conditions in any lease, easement, permit or

other interest, giving due regard as well to the recommendations of the

secretary of state with respect to coastal issues, or shall deny the

proposal if the commissioner of environmental conservation, upon

administrative findings, determines that the environment or natural

resources cannot be adequately protected. Such lease, easement, permit,

or other conveyance of an interest shall state the purpose for which it

is made, and shall also be subject to all applicable federal, state and

local laws, rules, regulations and codes.

(ii) The owner, occupier or any other person or entity (except those

against whom there has been commenced on the effective date of this

paragraph an action by the attorney general, for unlawful occupation of

state lands under water) with a legal or beneficial interest in any

structure not excepted by paragraph (b) of this subdivision and

occupying state lands underwater on the effective date of the rules

authorized by paragraph (f) of this subdivision, as adopted pursuant to

subdivision five of section two hundred two of the state administrative

procedure act, shall make application for such lease, easement, permit

or other interest within one year from that effective date.

Except where timely application for such an interest has been made

within one year pursuant to this subdivision, the commissioner is

authorized to require the term of such lease, easement, permit, or other

interest to be retroactive to the effective date of the rules so

adopted. Any instrument conveying an interest in real property which is

made retroactive shall include provision for payment of consideration

for the portion of the term which extends retroactively including, where

appropriate, interest on such consideration at the same rate then

currently in effect and applied to judgments rendered in the court of

claims.

(iii) The commissioner shall make reasonable efforts to provide notice

to persons affected by the requirements of this section.

(e)(i) The commissioner may impose a fee in connection with the

issuance of any such lease, easement, permit, or other interest, which

fee shall be established by rule pursuant to paragraph (f) of this

subdivision, and which shall take into account other factors affecting

value including but not limited to classes of structure, types of use

(including whether the use is for public or private purposes), location

and region, size, usefulness of the parcel standing alone and such other

criteria as the commissioner may determine, but which shall exclude the

value of improvements thereon constructed and maintained by the

adjoining upland owner. The rules and regulations required by paragraph

(f) of this subdivision shall prescribe that in the event an applicant

for a lease, easement or other interest in real property shall dispute

and request a reduction of the commissioner's determination of the value

of the interest to be conveyed, the commissioner shall, upon the

applicant's submission of an appraisal of the value of such property

interest conducted in accord with standard and accepted appraisal

methodology by an independent appraiser qualified as prescribed in this

paragraph and which appraisal varies in its conclusion as to value by

ten percent or more of the value previously established by the

commissioner, and upon the applicant's agreement to be bound thereby,

contract with a second independent appraiser, qualified as prescribed in

this paragraph, to render an appraisal of the value of the interest

proposed to be conveyed, the results of which appraisal shall be binding

upon both the applicant and the commissioner of general services. Such

appraiser shall be selected by the commissioner of general services from

among a group of at least three appraisers identified by the applicant

all of whom must be qualified as prescribed in this paragraph and each

of whom must agree to employ standard appraisal methodology. For the

purposes of this provision a qualified appraiser shall be certified by

the secretary of state to transact business as a real estate general

appraiser and shall conduct a regular business of the appraisal of real

property interests. In the event that the appraisal contracted for in

such manner shall conclude that the value of the property interest in

question is equal to the value previously determined by the commissioner

plus or minus ten percent, the entire cost of such appraisal shall be

borne by the applicant, otherwise, the entire cost thereof shall be

borne by the commissioner of general services.

(ii) For leases, easements and conveyances of such interests for

commercial use of structures on state-owned underwater lands, the annual

fee imposed shall not exceed two percent of the user's net annual income

for structures not in existence on the effective date of this paragraph.

Nor, in connection with a structure in existence and in commercial use

on the effective date of this paragraph, shall the fee charged in

connection with such a conveyance made after the effective date of this

subparagraph exceed annually the following schedule for five years

following the effective date of the interest conveyed pursuant to

subdivision (b) of this section provided timely application pursuant to

that subdivision has been made: .2 (two-tenths) of one percent; second

year: .4 (four-tenths) of one percent; third-year: .6 (six-tenths) of

one percent; fourth year: .8 (eight-tenths) of one percent; fifth year,

and thereafter: one percent; provided that all such percentages in this

paragraph shall be that percentage of the net income derived from the

structure or structures on state-owned lands, excluding transactions

involving sales or repair of boats, and sale of gasoline; and the dollar

valuation of the interest conveyed shall not be increased from year to

year during that five year period. The fee charged shall be discounted

ten percent for annual permits.

(iii) For leases, easements and conveyances of such interests for

residential use of non-exempt structures in existence and residential

use on the effective date of this paragraph, the annual fee shall not

exceed the lesser of twenty dollars per slip or one hundred dollars.

(iv) Nothing in this paragraph shall preclude the commissioner of

general services from agreeing, upon the request of and negotiation with

the owner or user of adjacent upland, to such other conveyances or

agreements consistent with this section providing for different periodic

payments, or a more flexible payment structure, than the fee caps and

fees, respectively, set forth for commercial and residential facilities

herein. Moreover, notwithstanding the fee caps set in this section, the

commissioner may exceed those caps if required to cover the yearly pro

rata share, over the term of the conveyance or interest, of the

administrative costs in connection with that conveyance or interest.

(f) The commissioner, in consultation with the commissioner of

environmental conservation, the secretary of state, the office of parks,

recreation and historic preservation and other interested state agencies

administering state-owned lands underwater, shall promulgate pursuant to

article two of the state administrative procedure act such rules with

respect to grants, leases, easements and lesser interests for the use of

state-owned land underwater, and the cession of jurisdiction thereof, as

in his or her judgment are reasonable and necessary to protect the

interests of the people in such lands underwater. Such regulations shall

include without being limited to: the fees to be charged, consistent

with the provisions of this section, including mitigation of such fees

in the event of economic hardship on existing commercial enterprises;

fee limitations to administrative expenses for municipal uses which are

public, non-commercial and offer services free or for nominal fees, and

for uses undertaken and operated for public and non-commercial purposes

by not-for-profit corporations characterized as charitable corporations

as defined in paragraph (a) of section one hundred two (Definitions) of

the not-for-profit corporation law, and for uses undertaken and operated

for public purposes by a corporation formed pursuant to the religious

corporation law or by a corporation formed pursuant to a special act of

this state and which has as its principal purpose a religious purpose;

such further exemptions for projects as the commissioner determines do

not represent significant encroachments; limitations on grants,

including conversion grants, with respect to underwater lands consistent

with the public purposes of this subdivision and limiting such grants to

exceptional circumstances; and factors to be examined in considering an

application for a lease, easement or other interest. Those factors shall

include without limitation the following: (i) the environmental impact

of the project; (ii) the values for natural resource management,

recreational uses, and commercial uses of the pertinent underwater land;

(iii) the size, character and effects of the project in relation to

neighboring uses; (iv) the potential for interference with navigation,

public uses of the waterway and rights of other riparian owners; (v) the

effect of the project on the natural resource interests of the state in

the lands; (vi) the water-dependent nature of the use; (vii) and any

adverse economic impact on existing commercial enterprises. The final

promulgation of rules establishing fees or fee structures shall be

subject to the approval of the director of the budget.

(g) (i) From one year after the effective date of the rules authorized

by paragraph (f) of this subdivision and adopted pursuant to subdivision

five of section two hundred two of the state administrative procedure

act, and thereafter, any person who violates any of the provisions of

this subdivision; or who fails to perform any duty imposed by this

subdivision; or who violates or fails to comply with any rule,

regulation, determination or order of the commissioner promulgated

pursuant to this subdivision may be enjoined from continuing such

violation, and in any event shall be liable for a civil penalty of not

more than five hundred dollars for each such violation and an additional

civil penalty of not more than one hundred dollars for each day during

which such violation continues; provided, however, that such penalties

shall be imposed by the commissioner only after written notice and an

opportunity to be heard are given to the owner, occupier or other person

or entity having a legal or beneficial interest in a prohibited

structure or area of fill which notice shall be transmitted by certified

mail, return receipt requested and which shall set forth the provisions

of this section, a description of the prohibited structure or area of

fill, the amount of the penalty, that the person must comply with the

provisions of this section within thirty days, and the specific date

thirty days thereafter following which the person shall be subject to

such penalty and after which further penalties shall accrue on a daily

basis.

(ii) If the commissioner of environmental conservation notifies the

commissioner of any failure to comply with conditions of a lease,

easement or other interest, the commissioner shall investigate such

suspected violation. The commissioner, on his or her own initiative or

at the request of the commissioner of environmental conservation, shall

thereafter take enforcement action as described herein or request the

attorney general to institute an action to enjoin such violation and to

recover any damages therefor.

8. The commissioner may authorize the use and occupation by the United

States of lands of the state under water, for the purpose of improvement

of navigation, including sites for lighthouses, beacons and lighthouse

keepers' dwellings and navy yards and naval stations, and may cede

jurisdiction over any such land but such jurisdiction so ceded shall be

upon the express condition that the state of New York shall retain a

concurrent jurisdiction with the United States in and over the property

and premises so conveyed, so far as that all civil and criminal process,

which may issue under the laws or authority of the state of New York,

may be executed thereon in the same way and manner as if such

jurisdiction had not been ceded, except so far as such process may

affect the real or personal property of the United States. The

provisions of section seventy-seven shall not apply to any authorization

of use and occupation under the provisions of this subdivision.

9. Private rights or rights of property of individuals, if any, of any

nature or description, shall not be taken away nor impaired nor impeded

without due process of law.

10. No grant for public park, beach, street, highway, parkway,

playground, recreation or conservation purposes shall be made under this

section to other than a county, city, town or village. A grant so made

may be made with or without consideration and shall be upon such terms

and conditions as may be imposed by the commissioner. A grant so made

shall be upon the condition that if at any time the land so granted

shall not be used for the purpose set forth therein or shall be used for

any other purpose, the title so granted shall thereupon revert to and be

in the people of the state of New York. Where a grant has heretofore

been made by the commissioner for one or more of the purposes enumerated

herein, the commissioner, in his discretion and upon such terms and

conditions as he may impose and with or without consideration, upon

application by the county board of supervisors, board of estimate,

common council, town board or village board, as the case may be, is

authorized to alter or amend such grant, in respect to the purposes

thereof and with respect to the whole or part of the land under water

therein granted and described, so that the grant may thenceforth

nevertheless be for one or more of the purposes enumerated herein. The

provisions of section seventy-seven of this article shall not apply upon

an application to alter or amend a grant so heretofore made.

11. Where a grant of land under water has previously been made by the

state under the provisions of this article, for the purposes of

commerce, commerce or beneficial enjoyment, restricted beneficial

enjoyment, or otherwise, where the purpose of the grant is less than

that of beneficial enjoyment, and by reason of the nature of which

previous grant there remains in the state a right, title or interest,

the commissioner may, in his discretion, grant such right, title or

interest in or to the whole of the land under water so granted or part

thereof, to the grantee or to one who has succeeded to the title or

interest so previously granted, and a grant so made may be made

regardless of upland ownership and without publication or posting of

notice of application as provided by section seventy-seven of this

article, but no such grant shall be made for less than the appraised

value of the right, title or interest of the state in the land under

water or part thereof, as the case may be, and shall be upon such terms

and conditions as shall be imposed by the commissioner to protect the

interests of the state.

12. The commissioner, in his discretion, upon such terms and

conditions and for such consideration as the commissioner may determine

may grant and convey to the owner or owners of the adjacent land the

right, title and interest of the people of the state of New York in and

to the lands now or formerly under the waters of the arms, branches or

tributaries of any navigable waters of the state which arms, branches or

tributaries have become non-navigable, and a grant so made may be made

without publication or posting of notice of application as provided by

section seventy-seven of this chapter.

13. The powers granted to the commissioner by this section may,

notwithstanding any other law to the contrary, continue to be exercised

by it in respect to lands under the waters of the Niagara and St.

Lawrence rivers except as to those areas thereof that are natural

resources of the state of New York for the creation and development of

hydroelectric power, but the commissioner shall not make any grant of

lands under the water of either of said rivers unless the power

authority of the state of New York shall, prior to the issuance of any

such grant, advise the commissioner, in writing, that such grant, if

made, will not interfere with its St. Lawrence or Niagara project.

14. Proceeds from the sales, leases, grants of easements and lesser

interests, including permits for the use of lands under water pursuant

to this section shall be deposited in the environmental protection fund

established pursuant to section ninety-two-s of the state finance law.