N.Y.
Transportation Law Section 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 Eminent Domain Procedure Law § 402 (Filing of acquisition maps)section four hundred two of the eminent domain procedure law, that such map should be withdrawn, he or she shall file a certificate of withdrawal in the office of the department of law.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 Eminent Domain Procedure Law § 403 (Names of reputed condemnees)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 Eminent Domain Procedure Law § 304 (Advance payment)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 Eminent Domain Procedure Law § 702 (Incidental expenses)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 Eminent Domain Procedure Law § 305 (Use and occupancy)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 General Construction Law § 26-B (Just compensation as including loss of mortgage financing)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 Eminent Domain Procedure Law § 503 (Filing and service of claims)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 Eminent Domain Procedure Law § 404 (Right of entry prior to acquisition)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 Eminent Domain Procedure Law § 406 (Abandonment)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.
Source:
Section 228 — Acquisition of property required for grade crossing elimination projects, https://www.nysenate.gov/legislation/laws/TRA/228 (updated Sep. 22, 2014; accessed Apr. 27, 2024).
