N.Y. Rapid Transit Law § 82: Relocation of railroads

§ 82. Relocation of railroads. a. Upon application of any person

owning a railroad wholly or in part within the limits of the city, the

commission, if in its judgment the public interests so demand, with the

approval of the board of estimate and the mayor, may fix and determine

the route upon which such person may relocate its railroad, or some

specified portion thereof, including devices and appurtenances. The

commission shall fix and determine the location and plan of construction

of such railroad or portion thereof as so relocated upon such new route,

the times within which it shall be constructed upon such new route, and

such other terms, conditions and requirements as to such commission

shall appear just and proper for the exercise of the franchise of such

person upon such new route. Such railroad or portion thereof with the

devices and appurtenances when so relocated shall be held by such person

under the terms and privileges of his franchise except as may be

otherwise specified and agreed in such grant, in place of the railroad

or portion thereof as it existed prior to such relocation. Such railroad

or portion thereof theretofore existing prior to such relocation shall

thereupon be removed and all right to hold, maintain or operate it upon

the former route, except the portion if any thereof not so relocated,

shall cease. Provided, however, that the construction and operation of

such railroad or portion thereof as so relocated upon the new route,

fixed and determined by the commission as aforesaid, are authorized only

upon condition that the consent of the owners of one-half in value of

the property bounded on, and the consent also of the board of estimate

and the mayor, be first obtained. In case the consent of such property

owners cannot be obtained, the appellate division of the supreme court

in the department in which such relocation is proposed, upon application

in the same manner and on the same notice, specified in section

twenty-one of this chapter, may appoint three commissioners who shall

determine after a hearing of all the parties interested whether such

proposed relocated railroad ought to be constructed or operated, and

their determination, confirmed by the court, may be taken in lieu of the

consent of the property owners.

b. As part of the consideration for surrender by such person of any

and all right to maintain and operate its railroad or portion thereof

and the structures therefor upon any street in its existing route and

the grant of the right to relocate, the grant may provide that the

expense of taking away the structure and restoring the streets and of

reconstructing the structure in the new location, including the

acquisition of property necessary therefor, shall be borne by the person

or by the city or partly by the such person and partly by the city. The

grant may provide as to the amounts of contributions therefor and by

whom and at what time such contributions shall be made. The grant may

also provide as to the measure of compensation to be made for existing

railroad rights and structures and for such new rights and structures

acquired under such grant or for either thereof, and the manner of

paying for them, as to the mode and manner of making and carrying into

effect such relocation and the conditions upon which it is to be done

and how and when it shall take place and be completed and fix the

details incident and necessary to the removal, abandonment or rebuilding

of the old structure or any part thereof. If the public interests, in

the opinion of the commission shall justify the provisions, the grant

may provide that the construction of any part of the railroad or portion

thereof so relocated upon such new route included in such grant, with

the consent of the commission, may be suspended during the term of such

grant or any part of such term, provided that during such term or part

of term there shall be available for use, in lieu of such part of the

railroad or portion thereof, a railroad or a portion of a railroad

which, with the part of the railroad or a part of the portion of the

railroad relocated and constructed under such grant, shall form a

continuous and convenient route.

c. The grant may provide that in case the necessary consents have been

obtained the city shall itself in whole or in part construct, or shall

in whole or in part equip, the railroad or portion thereof as relocated

upon such new route, and in such case the commission, acting for and on

behalf of the city, as soon as such consents where necessary have been

obtained, with the approval of the board of estimate and the mayor, may

enter into a contract with any person which, in the opinion of the

commission, may be best qualified to carry out such contract for the

construction or equipment of such railroad or portion thereof, or such

part of such construction or equipment, for such sum of money to be

raised and paid out of the treasury of such city as provided in this

section and upon such terms and conditions as the commission shall

determine to be best for the public interests. The commission, in its

discretion, by separate contracts executed from time to time or at the

same time, may contract with one or more persons for the performance of

any kind of work or any portion of the work, or for the furnishing of

any material, or for the performance of any labor necessary for or

incidental to the construction or the equipment of such railroad or

portion thereof so relocated, or any part thereof, which, under the

terms of such grant, the city may be under obligation to construct or

equip.

d. For the purpose of constructing or of equipping such railroad or

portion thereof as relocated, for the construction or equipment of which

a contract shall have been made by the commission as aforesaid, and for

the operation thereof when constructed, the commission for and on behalf

of the city may acquire by conveyance or grant to such city, or by

condemnation or other legal or other proceedings, any and all property

which in the opinion of the commission it shall be necessary to acquire

or extinguish for the purpose of constructing, equipping or operating

such railroad or portion thereof, free of interference or right of

interference, in the same manner and to the same extent and with like

power and authority as provided in this chapter with reference to the

acquisition of property for the constructing or operating of any

railroad for the construction or operation of which a contract shall

have been made under section thirty-one or section forty of this

chapter.

e. For the purpose of providing the necessary means for the

construction or equipment by the city of any part of any railroad or

portion thereof relocated upon any such new route and the necessary

means to pay for property rights which shall be acquired by the city for

the purposes of the construction or the equipment or for the operation

of such part of any railroad or portion thereof relocated upon such new

route hereunder the city, from time to time, and as the same shall be

necessary, and upon the requisition of such commission, shall make funds

available therefor and the proceeds of the same shall be paid out and

expended for such purposes upon vouchers certified by such commission.

No contract for the construction or equipment of any part of such

railroad or portion thereof to be so relocated upon such new route shall

be made unless and until the city shall have consented thereto and

prescribed a limit to the amount of money available for the purposes of

this section which shall be sufficient to meet the requirements of such

contract in addition to all expenses theretofore incurred and to be

satisfied from such money.

f. A certificate shall be prepared by the commission, attested by its

seal and the signature of its presiding officer, setting forth in detail

the action taken by the commission with respect to such relocation of

such railroad or portion thereof and the terms, conditions and

requirements aforesaid. A like certificate shall be prepared in like

manner upon every modification of the terms of the contract. Such

certificate shall be delivered to such person upon the receipt by such

commission of a written acceptance of such terms, conditions and

requirements duly executed by such person so as to entitle it to be

recorded. Such certificate shall be filed in the office of the secretary

of state, and a duly certified copy thereof shall be filed in the office

of the clerk of each county to which the privilege granted thereunder

shall pertain.

g. Upon the filing of such certificate and upon fulfillment by such

person, so far as it relates to such relocation of such railroad or

position thereof of such of the requirements and conditions as are

necessary to be fulfilled in such cases under section seventeen of

article three of the constitution, and upon fulfillment by such person

of such other terms, conditions and requirements enumerated in such

certificate as the commission may require to be fulfilled as a condition

precedent to commencing such work, such person, in such cases, shall

possess in addition to its already existing franchises all the powers

conferred by this chapter upon corporations with respect to the

railroads authorized to be relocated as aforesaid. When any route for

the relocation of such railroad or portion thereof shall be so fixed and

determined, and a certificate as aforesaid shall have been duly filed,

such person may construct such railroad or portion thereof upon such new

route, with all the rights and with like effect as though the same had

been a part of the original route of such railroad then in actual

operation, except as may be otherwise provided in such certificate. A

franchise, right or authority shall not be granted under this section to

relocate any railroad or portion thereof for a longer period than the

unexpired term of the original grant, franchise or contract of the

railroad, and any renewal thereof contained in such contract, as to

which railroad or portion thereof such relocation may be authorized. Any

such franchise, right or authority granted hereunder shall also be

subject to be terminated by the city in like manner and under the same

terms and conditions and at the same time as may be provided in such

original grant or contract for the termination or taking by the city of

that grant, if provision therefor be made thereunder.

h. Such certificate when delivered and accepted by such person, shall

be deemed to constitute a contract between such city and such person

according to the terms of such certificate. Such contract shall be

enforceable by the commission, acting in the name of and in behalf of

such city, or by such person according to the terms thereof, but subject

to the provisions of this chapter. The terms of such contract, from time

to time, with the consent of such person, may be modified by the

commission.

i. A grant, certificate or contract resulting therefrom, or any

modification thereof, shall be invalid unless first approved by the

board of estimate and the mayor.

j. Whenever any railroad or portion thereof is to be removed from any

street and relocated on property, including existing railroad tracks,

structures, equipment, and appurtenances thereof, acquired by and

belonging to the city or held by or for it and used for bridge, bridge

approach, plaza or railroad or other purposes, the provisions of this

section shall be applicable to such removal and relocation.

Notwithstanding the provisions of any charter or administrative code of

such city or of any other act or law general, special or local or of any

local law of such city, any and all property rights in such property

including existing railroad tracks, structures, equipment and

appurtenances thereof constructed thereon or to be constructed thereon

under any such plan for such relocation may be granted under and in

accordance with the provisions of this section as may be necessary or

convenient to carry out such relocation in accordance with the terms of

such grant.