N.Y. Transportation Law § 228: Acquisition of property required for grade crossing elimination projects

§ 228. Acquisition of property required for grade crossing elimination

projects. 1. The commissioner shall cause to be prepared an accurate

acquisition map of any and all property which he may deem necessary for

purposes connected with the elimination of any grade crossing, or of any

property in and to which he may deem the acquisition or exercise of an

easement, interest or right to be necessary for such purposes,

indicating and describing in each case the particular easement, interest

or right. Such property may be acquired with controlled access when

acquired in connection with the construction of a controlled access

highway as defined by the highway law. On the approval of such map by

the commissioner, he may acquire such property, controlled access

rights, easements, interests or rights, pursuant to the provisions of

the eminent domain procedure law.

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

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

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

office of the department 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 of an amended map, either by

preparing a new map or by making changes on the original tracing of such

map, with a notation indicating such changes, and file a certified copy

of the same in the main office of the department in the same manner as

the original map was filed and said 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 such

copy of the 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procedure law, that such map should be withdrawn, he or she shall file a

certificate of withdrawal in the office 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.

4. The commissioner 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 commissioner the names of the

owners of the property, easements, interests or rights described in the

said aquisition 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.

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 for 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 such law. The

proceedings 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. Upon making any agreement provided for in section three hundred

four of the eminent domain procedure law, the commissioner 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 amount so fixed shall be paid out of the

state treasury from moneys appropriated for purposes connected with

elimination of grade crossing projects 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.

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 moneys

appropriated for the acquisition of porperty under this article.

8. 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 actual reasonable and necessary moving

expenses of occupants of property acquired pursuant to this article; 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 commissioner; 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 commissioner 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 commissioner 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 commissioner 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 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 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.

9. The commissioner pursuant to section three hundred five of the

eminent domain procedure law may make agreements on such terms,

conditions and consideration as he deems beneficial to the state with

respect to any property acquired whereby such property may be used and

occupied by the former owner, tenant or by any other party from a date

specified in said agreement, until such time as the state requires and

obtains actual physical possession. The agreements for the use and

occupancy of such property may be managed, supervised and enforced (1)

by the staff, forces and equipment of the department; or (2) by the

commissioner contracting for the management, supervision and enforcement

thereof with any person, firm or corporation; or (3) by a combination of

such methods. The use and occupancy of such property under this article

and the right of the state or its duly authorized agent to recover

possession thereof shall not be subject to the emergency housing rent

control law.

10. The commissioner may 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 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. 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 commissioner 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 commissioner. Application for payment under this

subdivision 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 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.

11. Any owner may present to the court of claims, pursuant to the

provisions of section five hundred three of the eminent domain procedure

law, a claim for the value of such property acquired and for legal

damages, 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 from moneys

appropriated for purposes connected with elimination of grade crossing

projects.

12. If the work of any grade crossing elimination project shall cause

actual damage to property not acquired as provided in this article, the

state shall be liable therefor, but this provision shall not be deemed

to create any liability not already existing by statute. Claims for such

damage may be adjusted by the commissioner, if the amounts thereof can

be agreed upon with the persons making such claims, and any amount so

agreed upon shall be paid as a part of this cost of such elimination

project. If the amount of any such claim is not agreed upon, such claim

may, pursuant to the provisions of the eminent domain procedure law, be

presented to the court of claims which shall hear such claim and

determine if the amount of such claim or any part thereof is a legal

claim against the state and, if it so determines, to make an award and

enter judgment thereon against the state, provided, however, that such

claim is filed with the court of claims within three years after the

acceptance by the commissioner of the final agreement of the completed

elimination project contract.

13. Notwithstanding any other provision of this article, the

commissioner may acquire by grant or purchase, in the name of the people

of the state of New York, any property which he deems necessary for any

of the purposes of this chapter, and payment therefor, if any, shall be

made in the manner prescribed in this article for the payment of

adjusted acquisition claims, provided, however, that no real property

shall be so acquired unless the title thereto shall be approved by the

attorney general.

14. The expense of such acquisitions including the cost of making

surveys and preparing descriptions and maps of lands to be acquired and

administrative duties in connection therewith, serving notices of

appropriation, publication, making appraisals and agreements and of

searches ordered and examinations and readings of title made by the

attorney general, and expenses incurred by the commissioner or attorney

general in proceedings for removal of owners and occupants, shall be

deemed part of the cost of such elimination project.

15. Notwithstanding any other law, the commissioner, his officers,

agents or contractors when engaged on such elimination projects, may

pursuant to the provisions of section four hundred four of the eminent

domain procedure law, enter upon property for the purpose of making

surveys, test pits, test borings, or other investigations and also for

temporary occupancy during construction. Claims for any damage caused by

such entry, work or occupation not exceeding two thousand five hundred

dollars may be adjusted by agreement by the commissioner with the owner

of the property affected as determined by him by reasonable

investigation without appropriating such property. Upon making any such

adjustment and agreement, the commissioner shall deliver to the

comptroller such agreement and a certificate stating the amount due such

owner and the amount so fixed shall be paid out of the state treasury

from monies appropriated for such elimination project.

16. The commissioner may determine whether any property acquired

pursuant to this article or grade crossing elimination acts in effect on

the date of enactment of this article for grade crossing elimination

purposes 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,

subject to the compliance with the provisions of section four hundred

six of the eminent domain procedure law and notwithstanding any other

law, dispose of such property, provided he shall have first determined

that such property is no longer necessary or useful for the purposes for

which it was acquired and provided that with respect to crossings where

access is not controlled the disposal of such property shall not deprive

an owner of any existing frontage thereon immediately in front of his

premises. In order to carry any such sale or exchange into effect the

commissioner may 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, shall be approved by him as to form and manner of

execution.

18. If subsequent to the acquisition of a temporary easement right in

property pursuant to this article, the commissioner shall determine; (a)

that the purposes for which such easement right was acquired have been

accomplished and that the use and occupancy of said property for such

purposes is no longer necessary, or (b) that the period fixed by the

terms of such easement for expiration of the same should be further

limited, or (c) if the acquisition of such easement was for an

indefinite period, that such period should be fixed and determined, he

shall make his certificate to such effect. Upon the expiration of the

then fixed and determined term of the easement, the easement will expire

by the terms of the certificate and the affected property will be

surrendered back to the owner, free of such easement, and the easement

will be accordingly thereupon terminated, released and extinguished. The

commissioner shall cause a copy of such certificate to be filed in the

office of the department of state. In the event that the term of a

temporary easement has been fixed at a specific period of time by the

description and map no further certificate shall be required.

19. Notwithstanding any other provision of this section, the

commissioner of transportation shall have the power to acquire by grant

or purchase, in the name of the people of the state of New York, any

property which he deems necessary for any of the purposes provided for

in this section and may also acquire for such purposes from the

Palisades interstate park commission, in the name of the people of the

state of New York, such lands and such easements, licenses, permits and

other rights over lands as the said commission is authorized to grant,

sell, exchange or convey. When the acquisition by appropriation, grant

or purchase of property deemed necessary for grade crossing elimination

purposes would result in substantial consequential damages to the

owner's remaining property, due to loss of access, severance or control

of access, the commissioner of transportation, for and in behalf of the

people of the state of New York, may acquire by purchase or grant all or

any portion of such remaining property. Payment therefor, if any, shall

be made in the manner prescribed in this section for the payment of

adjusted appropriation claims, provided, however, that no real property

shall be so acquired unless the title thereto shall be approved by the

attorney general.

20. After acceptance of the completed work, the railroad company shall

apply to the commissioner for the conveyance to it of any property,

acquired as aforesaid, and or any other property owned by the state

which property is under the jurisdiction of the commissioner and which

is used to accomplish a grade crossing elimination, necessary for the

proper operation and maintenance of the railroad. If it shall appear to

the commissioner that such application is reasonable and the property is

necessary for the proper operation and maintenance of such railroad and

such property is not necessary for highway, road or street purposes, the

commissioner shall grant and convey such property to such railroad

company upon such terms and conditions as he may prescribe.

21. In case any property acquired as aforesaid and not conveyed to a

railroad company physically forms a part of any existing highway, road

or street or a new highway, road or street opened to take the place of

an existing highway, road or street, the fee title of which existing

highway, road or street is vested in a municipality, such municipality

may apply to the commissioner for a conveyance of such property. The

commissioner may grant and convey such property to such municipality

upon such terms and conditions as he may prescribe.

22. Any property acquired as aforesaid and not conveyed to a railroad

company or a municipality, physically forming a part of any existing or

proposed highway, road or street shall become a part of the state,

county, town, city, village or other highway or street system of which

such existing or proposed highway, road or street forms a part and shall

be under the jurisdiction of and maintained by the proper authorities

having charge of such respective systems.

23. If a railroad company has acquired, is acquiring or is about to

acquire title to any property in addition to or beyond the normal or

reasonable limits of its existing right of way for the operation of the

railroad which the commissioner may deem necessary in the elimination of

any crossing, and such property is in the opinion of such commissioner

necessary for the proper operation and maintenance of the railroad of

such railroad company and not necessary for highway, road or street

purposes, same need not be acquired as aforesaid, but may be retained or

otherwise acquired by such railroad company, in which event such

railroad company shall be compensated for such property in such an

amount as may be agreed upon by and between such railroad company and

the commissioner. Any amount so agreed upon shall be paid out of the

state treasury from moneys appropriated for purposes connected with

elimination of grade crossing projects.

24. In fixing the consideration, if any, to be paid by any railroad

company or municipality for any property acquired by the people of the

state of New York for an elimination and to be conveyed to such railroad

company or municipality as prescribed by this article, due regard shall

be given by the commissioner to all facts involved and any other

property involved in connection with the acquisition of property for

such elimination and such consideration shall be fixed accordingly. Such

consideration shall be paid to the state and the expenses of the project

shall be adjusted to reflect such consideration. Any conveyance of any

such property shall contain a reservation to the people of the state of

New York of the title to any structures and construction work necessary

for highway, road or street purposes and, also, of the legal right to

maintain same.

25. Any railroad company or its lessee, during the progress of

changing the grade of its railroad under the provisions of this article,

is authorized to maintain such temporary structures and to occupy any

part or parts of an adjacent street and of intersecting streets as may

be necessary in the premises or for the continued operation of its

railroad and to lay down such temporary tracks on adjacent and

intersecting streets as may be necessary for carrying on the railroad

business during the progress of the work, all of which shall be done

only with the approval and direction of the commissioner as a part of

the elimination work. If any temporary acquisition of the rights of

abutting property owners is made for this purpose the compensation or

damages, if any, paid for such acquisition shall be deemed to be part of

the elimination cost whether paid in the first instance by the railroad

corporation or by the state.

26. Notwithstanding any other provision of law a municipality may

grant a permit to the commissioner to occupy, for grade crossing

elimination purposes, any of the property set forth and described on the

maps prescribed by this article which are owned by such municipality.

Such permit may be for permanent or temporary occupancy as shall be

determined by the commissioner, and the permit shall state the purposes

for which the property is obtained, together with the terms and

conditions including payment, if any, which is to be made under the

permit. The permit may be in lieu of acquisition of land pursuant to the

provisions of the eminent domain procedure law as provided in this

article. The property described in any such permit may be utilized by

the people of the state of New York, their officers and agents, or by

any railroad company to which such permit may be transferred or

assigned, for grade crossing elimination purposes. Payment, if any,

shall be made by the comptroller and paid out of the state treasury from

moneys appropriated for purposes connected with elimination of grade

crossing projects, after the department of transportation has filed a

copy of the approved permit with the comptroller.

27. The provisions of this article providing for the acquisition and

transfer of property shall apply in all respects to the acquisition and

transfer of property necessary for those incidental improvements held

necessary or desirable because of the elimination project.

28. Notwithstanding any other provisions of law, the commissioner may

use, for grade crossing elimination purposes, any property under his

jurisdiction acquired for other public purposes which he deems

necessary, exclusively for, or in conjunction with grade crossing

elimination purposes. Transfer of such use shall be effected by an

official order of the commissioner to be filed in the offices of the

department and of the department of state, accompanied by a description

and map of such property. When the use is to be exclusively for grade

crossing elimination purposes, then upon such filing of the description,

map and official order of transfer of use, the property shall be used

and maintained for grade crossing elimination purposes and be governed

as though the said property was acquired pursuant to this article for

grade crossing elimination purposes. When dual use is to be made of such

property for grade crossing elimination purposes and other public

purposes by the state, the official order of transfer shall so certify,

and upon such filing of the description, map and official order of

transfer, the property shall be used and maintained for such dual

purposes, and is, in the discretion of the commissioner, to be governed

either by this article or the statute under which jurisdiction was

acquired by the commissioner or both.

29. Notwithstanding any other provision of law, the commissioner may

accept in the name of the people of the state of New York from the

United States or any authorized agency, unit or subdivision thereof or

any instrumentality or corporation owned or controlled by the United

States a release, easement, grant, conveyance or permit, with or without

conditions, authorizing the construction and permanent maintenance of a

grade crossing elimination project, pursuant to this article, on

property in which any rights or easements or the fee is held or owned by

the United States or any authorized agency, unit or subdivision thereof

or any instrumentality or corporation owned or controlled by the United

States, or on property in which the fee or a perpetual easement was

theretofore appropriated by the state for flood control purposes,

pursuant to chapter eight hundred sixty-two of the laws of nineteen

hundred thirty-six, and acts amendatory thereof, whether retained by the

state or conveyed or to be conveyed to the United States.

30. (a) Notwithstanding any other provision of law, the commissioner

may accept in the name of the people of the state of New York any

property interest or easement right held or owned by the public service

commission in the name of the people of the state of New York pursuant

to grade crossing elimination acts. The commissioner may, in whole or in

part, sell, transfer or exchange such property interest or easement

right on terms beneficial to the state, provided that such property is

no longer necessary or useful for the purposes for which it was

acquired. To effect the sale, transfer or exchange, the commissioner may

execute and deliver, in the name of the people of the state, a quitclaim

of, or a grant in and to, such property or easement. Each such

instrument of grant or conveyance shall be prepared by the attorney

general.

(b) A municipality or a railroad company may apply to the commissioner

for the grant or conveyance of such property interest or easement right.

If it shall be made to appear to the commissioner that such grant or

conveyance is reasonable and the property or easement is necessary for

the proper operation and maintenance of highways, roads or streets owned

by such municipality or for the proper operation and maintenance of such

railroad, the commissioner may, upon reasonable terms and conditions,

grant and convey such property or easement to such municipality or

railroad company. The payment, if any, required by the commissioner for

such grant or conveyance shall be deposited in the state treasury.