senate Bill S962

Extends powers of municipal corporations to acquire public utilities by the power of eminent domain

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 05 / Jan / 2011
    • REFERRED TO LOCAL GOVERNMENT
  • 04 / Jan / 2012
    • REFERRED TO LOCAL GOVERNMENT

Summary

Extends the powers of municipal corporations to establish, own and operate public utility services by the power of eminent domain; provides that municipal corporations need not make a final decision on the acquisition of assets until the value of such assets has been determined.

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Bill Details

See Assembly Version of this Bill:
A689
Versions:
S962
Legislative Cycle:
2011-2012
Current Committee:
Senate Local Government
Law Section:
General Municipal Law
Laws Affected:
Add §360-a, Gen Muni L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S239, A339
2007-2008: A1293

Sponsor Memo

BILL NUMBER: S962

TITLE OF BILL :
An act to amend the general municipal law, in relation to the
acquisition of property by eminent domain


PURPOSE :
To promote competition in the electric power industry by reducing the
risk to the acquisition of private utility property by a municipal
power agency.

SUMMARY OF PROVISIONS :
Adds a new §360-a to the General Municipal Law.

JUSTIFICATION :
All levels of government are now making efforts to promote competition
in the once monopolistic world of the electric power industry. Once
source of possible completion on the retail level are municipal power
agencies. Municipal power has been a cost effective option in many
parts of New York State.

However, current law relating to the eminent domain procedure law has
had a chilling impact on municipal power. Specifically, a municipal
power agency must first take title to any private utility property it
may condemn, without knowing its value. Given the great uncertainty in
the judicial process as to how such property should be valued, this
process has had a very chilling impact on municipal power initiatives.

In the case of the Long Island Power Authority and LILCO, eminent
domain procedures were set up quite differently. LIPA need not make a
final decision on the acquisition of LILCO's assets, until their value
has been determined. Then LIPA can proceed or abandon the effort,
based upon judicial evaluation.

LEGISLATIVE HISTORY :
2009-10, S.239; 2007-08, S.655; 2005-06, S.1474; 2003-04, S.826;
2001-02, S.2085; 1999-00, S.1625; 1997-98, S.1400; 1995-96, S.6029.

FISCAL IMPLICATIONS :
None.

EFFECTIVE DATE :
This act shall take effect on the sixtieth day after it shall have
become a law.
view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 962                                                    A. 689

                       2011-2012 Regular Sessions

                      S E N A T E - A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Local Govern-
  ment

IN  ASSEMBLY  -- Introduced by M. of A. THIELE -- read once and referred
  to the Committee on Local Governments

AN ACT to amend the general municipal law, in relation to  the  acquisi-
  tion of property by eminent domain

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general municipal  law  is  amended  by  adding  a  new
section 360-a to read as follows:
  S  360-A. ACQUISITION OF PROPERTY BY EMINENT DOMAIN. 1.  NOTWITHSTAND-
ING THE PROVISIONS OF THE EMINENT DOMAIN PROCEDURE LAW,  THE  PROVISIONS
OF  THIS  SECTION  SHALL  APPLY  TO  THE ACQUISITION OF PROPERTY FOR THE
PURPOSES ENUMERATED IN SECTION THREE HUNDRED SIXTY OF  THIS  ARTICLE  BY
THE  POWER  OF  EMINENT  DOMAIN,  PROVIDED,  HOWEVER, TO THE EXTENT THAT
PROVISIONS HEREIN DO NOT SUPERSEDE OR CONFLICT WITH  THE  PROVISIONS  OF
THE  EMINENT  DOMAIN  PROCEDURE  LAW,  THE  PROVISIONS OF SUCH LAW SHALL
APPLY.
  2. WHEN ANY REAL PROPERTY IS SOUGHT TO BE ACQUIRED BY THE EXERCISE  OF
THE  POWER  OF EMINENT DOMAIN, AND AFTER THE MUNICIPAL CORPORATION SHALL
HAVE ENTERED INTO NEGOTIATIONS FOR THE PURCHASE OF  SUCH  PROPERTY,  THE
MUNICIPAL  CORPORATION  SHALL  CAUSE A SURVEY AND MAP TO BE MADE THEREOF
AND SHALL CAUSE SUCH SURVEY AND MAP TO BE FILED IN ITS OFFICE AND IN THE
OFFICE OF THE COUNTY CLERK IN THE  COUNTY  IN  WHICH  SUCH  PROPERTY  IS
LOCATED.  THERE  SHALL  BE  ANNEXED TO SUCH SURVEY AND MAP A CERTIFICATE
EXECUTED BY THE CHIEF EXECUTIVE OFFICER OF THE MUNICIPAL CORPORATION  OR
BY  SUCH OTHER OFFICER OR EMPLOYEE AS MAY BE DESIGNATED BY THE GOVERNING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03730-01-1

S. 962                              2                             A. 689

BOARD, STATING THAT THE PROPERTY OR INTEREST THEREIN DESCRIBED  IN  SUCH
SURVEY AND MAP IS NECESSARY FOR ITS PURPOSE.
  3.  UPON  FILING  SUCH SURVEY AND MAP, THE MUNICIPAL CORPORATION SHALL
PETITION A SPECIAL TERM OF THE SUPREME COURT IN THE JUDICIAL DISTRICT IN
WHICH THE PROPERTY IS LOCATED FOR THE ACQUISITION OF  SUCH  PROPERTY  OR
INTEREST  THEREIN.  SUCH  PETITION  SHALL  DESCRIBE  THE  PROPERTY BEING
ACQUIRED, THE VALUATION DATE, AS  DETERMINED  BY  THE  MUNICIPAL  CORPO-
RATION, AND SUCH ADDITIONAL INFORMATION AS THE MUNICIPAL CORPORATION MAY
REASONABLY  DEEM NECESSARY TO FACILITATE THE PROCESS OF CONDEMNATION AND
PAYMENT. THE PETITION SHALL STATE THAT THE  MUNICIPAL  CORPORATION  WILL
ELECT  WHETHER  OR  NOT TO PAY THE AMOUNT OF SUCH AWARD WHEN IT HAS BEEN
FINALLY DETERMINED. IN ALL OTHER RESPECTS, SUCH PETITION SHALL BE GENER-
ALLY IN THE FORM PRESCRIBED BY THE EMINENT DOMAIN PROCEDURE LAW, SO  FAR
AS CONSISTENT HEREWITH. SUCH PETITION, TOGETHER WITH A NOTICE OF PENDEN-
CY  OF  THE PROCEEDING, SHALL BE FILED IN THE OFFICE OF THE COUNTY CLERK
OF THE COUNTY IN WHICH THE PROPERTY IS LOCATED AND SHALL BE INDEXED  AND
RECORDED  AS  PROVIDED  BY LAW. A COPY OF SUCH PETITION, TOGETHER WITH A
NOTICE OF THE PRESENTATION THEREOF TO SUCH SPECIAL TERM OF  THE  SUPREME
COURT,  SHALL  BE SERVED UPON THE OWNERS OF SUCH PROPERTY AS PROVIDED IN
THE EMINENT DOMAIN PROCEDURE LAW. THE MUNICIPAL CORPORATION MAY CAUSE  A
DUPLICATE  ORIGINAL  AFFIDAVIT  OF THE SERVICE THEREOF TO BE RECORDED IN
THE BOOKS USED FOR THE RECORDING OF DEEDS IN THE OFFICE  OF  THE  COUNTY
CLERK  OF  THE  COUNTY IN WHICH THE PROPERTY DESCRIBED IN SUCH NOTICE IS
LOCATED, AND THE RECORDING  OF  SUCH  AFFIDAVIT  SHALL  BE  PRIMA  FACIE
EVIDENCE OF DUE SERVICE THEREOF.
  4.  SUBSEQUENT  PROCEEDINGS SHALL BE CONDUCTED GENERALLY IN THE MANNER
PRESCRIBED IN THE EMINENT DOMAIN PROCEDURE LAW EXCEPT TO THE EXTENT  THE
PROVISIONS THEREOF ARE INCONSISTENT WITH THE PROVISIONS OF THIS ARTICLE,
IN WHICH CASE THE PROVISIONS OF THIS ARTICLE SHALL CONTROL.
  5.  IN ANY PROCEEDING INVOLVING THE VALUATION OF PROPERTY TAKEN BY THE
MUNICIPAL CORPORATION THE SUPREME COURT SHALL  ASCERTAIN  AND  DETERMINE
JUST  COMPENSATION  FOR  THE  PROPERTY  TAKEN  AS OF THE VALUATION DATE,
GIVING DUE CONSIDERATION TO ANY APPLICABLE FINDINGS  AND  DETERMINATIONS
OF THE LEGISLATURE.
  6.  SHOULD  PROPERTY  BE TAKEN BY THE EXERCISE OF THE POWER OF EMINENT
DOMAIN AND IF THE OWNER SHALL HAVE AGREED UPON THE  COMPENSATION  TO  BE
PAID  THEREFOR  IN SETTLEMENT OF THE PROCEEDING, THEN THE OWNER SHALL BE
ENTITLED TO PAYMENT OF THE AGREED UPON OR  AWARDED  COMPENSATION  WITHIN
ONE  HUNDRED EIGHTY DAYS AFTER THE DATE OF THE AGREEMENT UPON THE AMOUNT
OF THE COMPENSATION OR OF THE ENTRY OF THE AWARD, TOGETHER WITH INTEREST
UPON THE AMOUNT OF SUCH COMPENSATION FROM THE TIME OF ACQUISITION THERE-
OF BY THE MUNICIPAL CORPORATION TO THE DATE OF PAYMENT OF  SUCH  COMPEN-
SATION;  BUT SUCH INTEREST SHALL CEASE UPON THE SERVICE BY THE MUNICIPAL
CORPORATION, UPON THE PERSON  OR  CORPORATION  ENTITLED  THERETO,  OF  A
FIFTEEN DAYS' NOTICE THAT THE MUNICIPAL CORPORATION IS READY AND WILLING
TO  PAY  THE AMOUNT OF SUCH COMPENSATION UPON THE PRESENTATION OF PROPER
PROOFS AND VOUCHERS. SUCH NOTICE SHALL BE SERVED PERSONALLY OR BY REGIS-
TERED MAIL AND PUBLICATION THEREOF SHALL BE MADE AT LEAST  ONCE  A  WEEK
FOR  THREE CONSECUTIVE WEEKS IN A DAILY NEWSPAPER OF GENERAL CIRCULATION
IN THE COUNTY IN WHICH SUCH PROPERTY OR ANY PART THEREOF IS LOCATED.
  7. UPON THE ENTRY OF AN AWARD FINALLY  DETERMINING  JUST  COMPENSATION
FOR  THE PROPERTY, THE MUNICIPAL CORPORATION SHALL HAVE SIXTY DAYS AFTER
RECEIPT OF NOTICE OF ENTRY OF  SUCH  AWARD  WITHIN  WHICH  TO  ELECT  TO
PROCEED  WITH  THE  TAKING OR TO ABANDON SUCH ACQUISITION AS PROVIDED IN
SUBDIVISION NINE OF THIS SECTION.  NOTICE  OF  SUCH  ELECTION  SHALL  BE
SERVED  BY  THE  MUNICIPAL CORPORATION ON THE OWNERS OF SUCH PROPERTY IN

S. 962                              3                             A. 689

THE MANNER PRESCRIBED IN SUBDIVISION  THREE  OF  THIS  SECTION.  IF  THE
MUNICIPAL  CORPORATION  ELECTS TO PROCEED WITH THE ACQUISITION, IT SHALL
DEPOSIT WITH THE SUPREME COURT IN WHICH THE CONDEMNATION PROCEEDING  WAS
HELD  AN  AMOUNT EQUAL TO THE AWARD WITHIN ONE HUNDRED EIGHTY DAYS AFTER
RECEIPT BY THE MUNICIPAL CORPORATION OF NOTICE OF ENTRY OF  SUCH  AWARD.
UPON  THE MAKING OF SUCH DEPOSIT, THE MUNICIPAL CORPORATION SHALL NOTIFY
THE OWNER IN WRITING OF SUCH DEPOSIT. THE  SUM  SO  DEPOSITED  SHALL  BE
APPLIED  AS  PROVIDED  IN  THE EMINENT DOMAIN PROCEDURE LAW. UPON MAKING
SUCH DEPOSIT AND GIVING SUCH NOTICE TO THE OWNER, TITLE TO ALL  PROPERTY
DESCRIBED  IN THE NOTICE OF TAKING SHALL IMMEDIATELY VEST IN THE MUNICI-
PAL CORPORATION AND THE MUNICIPAL CORPORATION SHALL HAVE IMMEDIATE RIGHT
THERETO. THE ORDER SETTING FORTH THE AWARD, TOGETHER WITH  THE  EVIDENCE
FROM THE CLERK OF THE COURT OF RECEIPT OF THE AMOUNT OF THE AWARD, SHALL
BE  FILED  IN  THE OFFICE OF THE COUNTY CLERK OF THE COUNTY IN WHICH THE
PROPERTY IS LOCATED AND SHALL BE INDEXED AND RECORDED IN THE SAME MANNER
AS A NOTICE OF PENDENCY UNDER THE  EMINENT  DOMAIN  PROCEDURE  LAW.  THE
OWNER  OR PERSON IN POSSESSION OF SUCH PROPERTY SHALL DELIVER POSSESSION
THEREOF TO THE MUNICIPAL CORPORATION UPON DEMAND, AND IN CASE POSSESSION
IS NOT DELIVERED WHEN DEMANDED OR DEMAND IS NOT  CONVENIENT  BECAUSE  OF
ABSENCE  OF THE OWNER OR INABILITY TO LOCATE OR DETERMINE THE OWNER, THE
MUNICIPAL CORPORATION MAY APPLY TO THE COURT WITHOUT NOTICE FOR AN ORDER
REQUIRING THE SHERIFF TO PUT IT INTO POSSESSION OF SUCH  REAL  PROPERTY.
SUCH  AN  ORDER  SHALL  BE  EXECUTED  AS IF IT WERE AN EXECUTION FOR THE
DELIVERY OF THE POSSESSION OF THE PROPERTY.  IN THE EVENT THE  MUNICIPAL
CORPORATION  ELECTS TO ABANDON THE ACQUISITION, THE PROVISIONS OF SUBDI-
VISION NINE OF THIS SECTION SHALL APPLY.
  8. AT ANY TIME THE  MUNICIPAL  CORPORATION  AND  ITS  DULY  AUTHORIZED
AGENTS  AND  EMPLOYEES  MAY,  ON  REASONABLE  NOTICE AND DURING BUSINESS
HOURS, ENTER UPON ANY REAL PROPERTY PROPOSED  TO  BE  ACQUIRED  FOR  THE
PURPOSE  OF  MAKING THE SURVEYS OR MAPS MENTIONED IN THIS SECTION, OR OF
MAKING SUCH OTHER  SURVEYS,  INSPECTIONS  OR  EXAMINATIONS  OF  REAL  OR
PERSONAL  PROPERTY  AS  THE  MUNICIPAL CORPORATION MAY DEEM NECESSARY OR
CONVENIENT FOR THE PURPOSES OF THIS ARTICLE.
  9. IF THE MUNICIPAL CORPORATION DETERMINES, IN  ITS  SOLE  DISCRETION,
THAT THE TOTAL COST OF ACQUISITION WILL EXCEED THE MAXIMUM COST PROVIDED
FOR  IN  THE RESOLUTION ADOPTED PURSUANT TO SUBDIVISION THREE OF SECTION
THREE HUNDRED SIXTY OF THIS ARTICLE, THE MUNICIPAL CORPORATION MAY ABAN-
DON THE ACQUISITION. IN SUCH  EVENT,  THE  MUNICIPAL  CORPORATION  SHALL
SERVE  NOTICE OF SUCH ABANDONMENT IN THE SAME MANNER AS PROVIDED FOR THE
SERVICE OF A PETITION FOR ACQUISITION PURSUANT TO SUBDIVISION  THREE  OF
THIS  SECTION.  IN ADDITION, THE MUNICIPAL CORPORATION SHALL FILE A COPY
OF THE NOTICE OF ABANDONMENT WITH THE COUNTY  CLERK  OF  THE  COUNTY  IN
WHICH  IS LOCATED ANY REAL PROPERTY THAT WAS TAKEN AND WITH THE CLERK OF
THE SUPREME COURT IN WHICH THE PROCEEDING WAS INSTITUTED.
  S 2. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

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