N.Y. Transportation Law § 18: Acquisition of abandoned railroad transportation property

§ 18. Acquisition of abandoned railroad transportation property. 1.

Notwithstanding the provisions of any general, special or local law to

the contrary, the commissioner shall have a preferential right to

acquire, for and in behalf of the people of the state of New York, for

use in the future for transportation purposes, as such purposes are set

forth in this chapter, the highway law or the canal law, any property as

defined in subdivision six of this section and which has been abandoned

for railroad transportation purposes as defined in subdivision two of

this section. No property owner shall dispose of any such property

without having first obtained notification from the commissioner that

the preferential right of acquisition granted under this section does

not apply, or a release of such preferential right from the

commissioner. Conveyances of property in violation of this section shall

be null and void. Acquisition of property pursuant to this section shall

be in the manner provided by section thirty of the highway law. No

acquisition shall be made until the director of the budget shall have

issued a certificate of availability of funds therefor. Before any

property is acquired pursuant to this section, the commissioner shall

determine that it is in the best interests of the state to acquire such

property for use in the future for transportation purposes.

1-a. The department of transportation is hereby designated the

official state agency to receive all notifications from the United

States department of transportation or any other federal or state agency

in regard to discontinuance of service or railroad property abandonment

proceedings, including notification of applications from railroad

companies for any such purposes.

1-b. The department of transportation shall promptly inform in writing

all interested state agencies, transportation authorities, and every

county, city, town and village in which such property is located and the

appropriate entity designated by the governor pursuant to title IV of

the federal intergovernmental cooperation act of nineteen hundred

sixty-eight and the federal office of management and budget circular

A-98 of (a) the issuance of any certificate from the United States

department of transportation or other federal or state agency

authorizing discontinuance of railroad service or abandonment of

railroad transportation property, (b) approval of discontinuance of

service or a determination of abandonment of railroad transportation

property pursuant to this section, and (c) the receipt of an application

to release a preferential acquisition right to railroad transportation

property pursuant to this section.

1-c. Whenever a property owner intends to dispose of abandoned

railroad transportation property, it shall notify the department of

transportation in writing of its intention. Upon receipt of such

notification, the department of transportation shall have ninety days to

make a determination and notify the property owner as to the

applicability of the preferential right of acquisition granted under

this section, except that this period may be suspended by the department

upon its finding that the property owner has not submitted information

sufficient to enable the department to make its determination. If

suspended, this period will resume upon receipt of this required

information. In the event the department fails to notify the property

owner of its determination, the preferential right of acquisition shall

be deemed not to apply. The department shall inform the appropriate

state agencies, every metropolitan or regional transportation authority

and every county, city, town and village in which such railroad property

or portion thereof is located, of the intention of the property owner

and the department's finding of applicability of the preferential right

of acquisition. If notified by the department that the preferential

right of acquisition does not extend to the subject property, or the

department has not notified the property owner of its determination

prior to the expiration of the foregoing ninety day period,

notwithstanding any suspension, the property owner shall not enter into

a binding contract to sell the property within forty-five days after

this notification by the department. Such state agencies, metropolitan

or regional transportation authorities, and counties, cities, towns and

villages shall have preferential acquisition rights to be determined as

herein provided. No state agency, metropolitan or regional

transportation authority, county, city, town, or village shall have any

preferential right of acquisition unless specifically authorized in

writing by the department. Within a reasonable time thereafter, any

agency of government which intends to exercise a preferential

acquisition right for such property shall notify the department of

transportation in writing. Within a reasonable time, not greater than

one hundred twenty days after receipt of such notification by the

property owner, the department of transportation shall notify the

property owner in writing whether the department of transportation

intends to exercise its preferential acquisition right under this

section or, if not, whether it has determined that any other agency of

government has been authorized by it to exercise a preferential

acquisition right to such property. If the department of transportation

notifies the property owner that it does not intend to exercise its

right and that it has not authorized any other state or local agency of

government to so exercise its right, the commissioner shall issue the

property owner a written release of the preferential acquisition rights

granted under this section. In the event the department fails to provide

notice of the intent to release the preferential right of acquisition,

such right shall be deemed to have expired. If the department of

transportation, or any other state or local agency of government shall

be qualified to exercise such preferential acquisition right, the

department of transportation shall notify the property owner of such

intention and the property owner shall not dispose of such abandoned

railroad transportation property without first having obtained a release

of the preferential right from the department of transportation. There

shall be good faith bargaining between the property owner and the

department or any party of interest either authorized by the department

to exercise the preferential right of acquisition or notified by the

department as to the inapplicability of the preferential right of

acquisition. The department of transportation shall issue a written

release of the preferential acquisition right within one hundred eighty

days after demand by the property owner, or such right will be deemed to

have been expired. The department shall make a good faith effort to

issue such release.

1-d. Whenever a conflict occurs between one or more agencies of

government as to the exercise of a preferential right, the department of

transportation shall in the exercise of its sole discretion resolve such

conflict and make a prompt determination of the reasonable and proper

order of priority with respect to the same. In making such

determination, the department shall take into consideration the

provisions of the comprehensive state-wide master transportation plan

and its actions shall be consistent to the extent practicable with the

effectuation of all state plans, policies and objectives.

1-e. The commissioner of transportation shall promulgate rules and

regulations consistent with and for the purpose of adequately

implementing the foregoing subdivisions.

2. For the purposes of this section, property shall be deemed to be

abandoned for railroad transportation purposes (a) when, where required

by law, a certificate of abandonment of the railroad line situate

thereon has been issued by the United States department of

transportation and/or any other federal or state agency having

jurisdiction thereof; or (b) when such a certificate of abandonment is

not so required and the use of such property for railroad transportation

purposes has been discontinued with the intent not to resume. Intent not

to resume may be inferred from circumstances. Non-use of the property

for railroad transportation purposes for two consecutive years shall

create a presumption of abandonment. When use of such property for

railroad transportation purposes has been discontinued and upon request

of the property owner or his own motion, the commissioner shall

undertake an investigation thereof, which may include consultation with

the United States department of transportation, and shall render a

determination as to whether or not (a) the property owner has definite

plans for the use of such property for purposes ordinarily associated

with the safe and normal operation of a railroad or associated

transportation purposes; (b) such property continues to be suitable for

such railroad transportation purposes; and (c) such property is

necessary, either presently or in the future, for such railroad

transportation purposes. Such property shall be deemed to be abandoned

for railroad transportation purposes if the commissioner shall determine

that (a) the property owner has no definite plans for the use of such

property for purposes ordinarily associated with the safe and normal

operation of a railroad or associated transportation purposes; or (b)

such property is no longer suitable for such railroad transportation

purposes; and (c) such property is not necessary, either presently or in

the future, for such railroad transportation purposes. The commissioner

shall render such determination within ninety days after the

commencement of such investigation and such determination shall be

conclusive except that if the property is determined not to be so

abandoned such determination shall not preclude the undertaking of a

subsequent investigation concerning the same property. Sales of

abandoned railroad transportation property for continued or resumed rail

transportation use may be exempted at the commissioner's discretion from

the preferential right of acquisition. This section shall not apply to

the subsequent resale of property lawfully acquired subject to the

provisions of this section as then applicable, except when the

subsequent sale involves property previously exempted from this section

by the commissioner.

3. 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

notice of appropriation, publication, making title searches, appraisals

and agreements, and examinations and readings and approval of titles

made by the attorney-general, expenses incurred by the commissioner or

the attorney-general in proceedings for removal of owners or occupants,

and expenses incurred by the commissioner in connection with the

management and supervision of the property, shall together be deemed to

constitute the cost of property acquired pursuant to this section. The

comptroller is hereby authorized to charge against the moneys

appropriated for highway or other transportation purposes 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 setting forth such estimated expenses. Such

expenses shall be paid from the funds so reserved after audit by the

state comptroller.

4. Any moneys received by the commissioner from rentals or other

sources of revenue in connection with the management, operations,

occupancy, use or the sale of or exchange of property, under this

section, that has been acquired by the commissioner pursuant to this

section shall be deposited in the treasury of the state to the credit of

the capital construction fund.

5. The commissioner may determine whether any property acquired

pursuant to this section may be, in whole or in part, sold or exchanged

on terms beneficial to the state, and in all cases of such

determination, he may, notwithstanding the provisions of any general,

special or local law, so dispose of 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, or a grant in and to, such property. Each

such instrument of conveyance shall be prepared by the attorney general

and before delivery thereof, shall be approved by him as to form and

manner of execution.

6. The term "property" as used in this section means all abandoned

railroad property, except:

(a) property noncontiguous to line rights of way and yards, except

when such property has been made noncontiguous as a result of a previous

sale or release of the preferential right, and

(b) side and spur track properties not greater than one-fourth mile in

length, except when sales of such property would make adjoining rights

of way noncontiguous.

7. The commissioner, when he deems it necessary, may in the manner

provided by subdivision twelve of section thirty of the highway law,

obtain possession of any property acquired pursuant to this section.

8. The commissioner, in the manner provided by subdivision thirteen-c

of section thirty of the highway law, shall manage and receive fair and

reasonable value for the holding, use or occupancy of property acquired

pursuant to this section.

9. The provisions of this section shall not apply to a railroad

company owned and operated by a municipal corporation.