1. The Laws of New York
  2. Consolidated Laws
  3. Highway
  4. Article 3: State Highways


Section 30 Acquisition by the state of property required for the construction and reconstruction of state highways and structures thereon

Highway (HAY)

Acquisition by the state of property required for the construction and reconstruction of state highways and structures thereon. 1. (a) Upon the construction, reconstruction or improvement, pursuant to this chapter of a state highway the property required therefor may be acquired by the state as provided in the eminent domain procedure law. A state highway indicated under this chapter for construction or improvement, or any portion of such highway, may be constructed, reconstructed or improved, as a controlled access highway, upon the adoption of a resolution by a majority vote of the members of the board of supervisors of the county in which the highway is to be constructed. The resolution of the board of supervisors herein referred to shall not be required in relation to highways to be projected as through trunk routes and principally on new locations.

  (b) Whenever plans for the construction, reconstruction or improvement of a state highway which is now or which shall hereafter be designated in section three hundred forty-one of this chapter, shall provide for the relocation of such state highway or portion thereof on a location which deviates from the location of the existing highway for a continuous length in excess of one mile as measured along the center line of the existing highway, the commissioner of transportation shall, before filing the descriptions and the original tracings of any maps or proceeding with the acquisition of property or the work of construction, reconstruction or improvement, transmit such plans to the board of supervisors of each county in which such relocation or any portion thereof is situated. In case the relocation or any portion thereof as proposed, is situated in a county other than the county in which the existing highway or portion thereof is located, such plans shall be transmitted to both of such counties and shall be subject to the approval, disapproval or modification by each of such counties in the manner as hereinafter provided. The board of supervisors, after the receipt of such plans, may conduct a public hearing or hearings upon such notice as such board of supervisors shall deem reasonable, but not less than ten days, to the commissioner of transportation and to such other party or parties deemed by said board of supervisors to be interested in the project. In any event, and within ninety days after receipt of the plans, the board of supervisors shall, by resolution, duly adopted by a majority vote of its members, approve, disapprove or recommend modifications in such plans as the public interest shall require. Within ten days after the adoption of the resolution, the clerk of the board of supervisors shall mail a certified copy thereof to the commissioner of transportation. In case such relocation is situated in two or more counties, such resolution must be separately adopted by the board of supervisors of each county as to the relocation situated therein. The form of the resolution shall be prescribed by the commissioner of transportation. In case the board of supervisors shall disapprove the plans, without proposing modifications, the commissioner of transportation may, in his discretion, prepare and submit to the board of supervisors for approval other plans for the construction, reconstruction or improvement of the state highway to be acted upon by the board of supervisors in the manner herein prescribed within sixty days after receipt of such plans. In case the board of supervisors shall disapprove the plans, and shall recommend modifications, the commissioner of transportation may approve the plans as so modified, or recommend other modifications for approval, and such state highway shall be constructed, reconstructed, or improved in accordance with such plans as finally approved. When the plans, for construction, reconstruction or improvement of a state highway have finally been approved as herein provided, no resolution thereafter adopted by the board of supervisors of a county shall rescind, annul or modify such prior resolution either directly or indirectly, excepting upon the advice and with the consent of the commissioner of transportation. Upon the failure or omission of any board of supervisors to act within the time and manner herein required, the said plans shall be deemed to be approved so far as such board of supervisors is concerned.

  2. The commissioner of transportation, for and in behalf of the people of the state of New York may acquire, pursuant to the eminent domain procedure law any and all property necessary for the construction, reconstruction and improvement of state highways and bridges or culverts on the state highway system, including the appropriation of property for drains, ditches, spoil banks, gravel pits and stone quarries; also for the removal of obstructions, improvement of sight distances; also for acquisition of property for the reconstruction of existing highway-railroad separation structures and for the separation of highway-railroad grades on newly laid-out highways; and for other purposes to improve safety conditions on the state highway system. When the commissioner is exercising the property acquisition power granted him pursuant to subdivision six of section eighty-nine of this chapter, relating to control of junkyards and scrap metal processing facilities, such term "property" shall include junk located upon land to be appropriated and described on the acquisition map in a manner sufficient to permit reasonable identification thereof.

  3. The commissioner of transportation shall cause to be prepared an accurate acquisition map of any property which he may deem necessary for purposes connected with such highway projects 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. Unless access to and from abutting property is expressly acquired by the terms of the description and map, any permanent drainage easement heretofor or hereafter acquired pursuant to this chapter shall be deemed as reserving to the owner of the property, his successors and assigns, the right of access over, through or across the easement for utility lines, cables or conduits and by foot or by vehicle and with the right to construct and maintain on such property a road or roads as necessary for the exercise of such right, provided that the exercise of such right does not interfere with the drainage for which the easement was acquired. On the approval of such acquisition map by the commissioner of transportation, he shall acquire such property, easements, interests or rights pursuant to the eminent domain procedure law.

  4. If the commissioner shall determine, prior to the filing of such copy of the acquisition map in the office of county clerk as aforesaid, that changes, alterations or modifications of such map as filed in the 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. On the approval of such amended map by the commissioner, it shall be filed in the main office of the department in the same manner as the original map was filed and the amended map shall thereupon in all respects and for all purposes supersede the map previously filed.

  5. If the commissioner shall determine, prior to filing a copy of an acquisition map in the office of the county clerk 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 offices of the department and 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.

  6. The commissioner of transportation 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 of transportation the names of the owners of the property, easements, interests or rights described in the said acquisition 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.

  7. 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 of transportation 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 said law. The proceeding shall be brought in the name of the commissioner of transportation 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 of transportation, 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.

  8. The commissioner of transportation, upon making any agreement provided for in section three hundred four of the eminent domain procedure law, shall deliver to the comptroller such agreement and a certificate stating the amount due such owner or owners thereunder on account of such appropriation of his or their property and the amount so fixed shall be paid out of the state treasury, after audit by the comptroller, from moneys appropriated for purposes connected with such highway 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.

  9. 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 monies appropriated for the acquisition of property under this section.

  10. 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 section; 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; of actual reasonable expenses in searching for a replacement business or farm; and of actual reasonable expenses necessary to reestablish a displaced farm, not-for-profit organization or small business at its new site, but not to exceed ten thousand dollars, or in hardship cases for the advance payment of such expenses and losses. 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 and actual reasonable reestablishment expenses, any such displaced owner or tenant of commercial property who meets eligibility criteria and 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 one thousand dollars nor more than twenty thousand dollars. A displaced not-for-profit organization may choose a fixed payment of one thousand to twenty thousand dollars in lieu of the payment for actual moving and related expenses and actual reasonable reestablishment expenses if eligibility criteria are met. 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 not-for-profit 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 not-for-profit organization. The term "small business" means a business having not more than five hundred employees working at the site being acquired or permanently displaced. As used in this subdivision, the term "farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities including timber, for sale or home use, and customarily producing such products or commodities in sufficient quantities to be capable of contributing materially to the operator's support.

  11. The commissioner of transportation 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 heretofore or hereafter 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 of transportation; or (2) by the commissioner of transportation 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 the provisions of this section 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.

  Expenses which are determined by the commissioner of transportation to have been incurred in connection with the use and occupancy of such property may be paid out of the state treasury after audit by the comptroller from moneys appropriated for the duly authorized project for which the property was acquired. However, such expenses incurred under a contract for management and supervision of such property may be paid out of the gross revenue therefrom. All moneys received by the commissioner of transportation for such use or occupancy shall be paid into the treasury of the state to the credit of the capital construction fund.

  12. Authorization is hereby given to the commissioner to 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 or replacement housing. 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 twenty-two thousand five hundred 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 a replacement dwelling which is decent, safe and sanitary. 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. 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 the department identifies, for the displaced owner, replacement housing actually available within the limits of the offer extended for replacement housing, 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 five thousand two hundred fifty 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 forty-two months, 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. Such payment may be used as a 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. Such payments may be made in installments as determined by the commissioner. However, notwithstanding the provisions of this subdivision, if it is determined by the commissioner that replacement housing cannot be obtained for the supplemental relocation payments specified herein, he may, subject to the approval of the director of the budget, take such action as is necessary or appropriate to provide last resort housing with the use of funds authorized for the project. 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.

  13. The owner of any property, easements, interests or rights acquired, may present to the court of claims, pursuant to section five hundred three of the eminent domain procedure law, a claim for the value of such property appropriated 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 the construction, reconstruction or improvement of state highways and bridges.

  14. If the work of construction or reconstruction of any highway project shall cause actual damage to property not acquired as above provided, the state shall be liable therefor, but this provision shall not be deemed to create any liability on the part of the state not already existing in law. Claims for such damage may be adjusted by the commissioner of transportation, 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 the cost of the construction or reconstruction of such highway project as prescribed by this section. If the amount of any such claim is not agreed upon, such claim may pursuant to the eminent domain procedure law, be presented to the court of claims which is hereby authorized to 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 final acceptance of the work by the commissioner of transportation.

  15. 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 payment therefor, if any, shall be made in the manner prescribed in this section 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.

  16. 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 acquisition, publication, making title searches, appraisals and agreements, and examinations and readings and approval of titles made by the attorney general, and expenses incurred by the commissioner of transportation or the attorney general in proceedings for removal of owners or occupants, shall be deemed part of the cost of such improvement. The comptroller is hereby authorized to charge against any moneys available for the construction and reconstruction or improvement of state highways and bridges 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 of transportation setting forth such estimated expenses. Such expenses shall be paid from the funds so reserved after audit by the state comptroller.

  17. Notwithstanding the provisions of any general, special or local law, the commissioner of transportation, his officers, agents or contractor and the officers or agents of the United States when engaged on such highway projects, may, pursuant to 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 twenty-five hundred dollars may be adjusted by agreement by the commissioner of transportation 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 of transportation 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 the acquisition of property for the project requiring such entry, work or occupation.

  18. The commissioner of transportation may determine whether any property heretofore or hereafter acquired pursuant to this section for any of the purposes connected with the highway system of the state of New York 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 compliance with section four hundred six of the eminent domain procedure law and notwithstanding the provisions of any general, special or local law, so dispose of such property, provided however, that on highways where access is not controlled such disposal of property shall not thereby 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 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.

  20. If, subsequent to the acquisition of a temporary easement right in property pursuant to this section, 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, the commissioner shall make a 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 main office of the department. 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.

  The commissioner shall cause a copy of such certificate together with notice of the filing thereof in the main office of the department to be mailed to the owner of the property affected, as certified by the attorney general, if the place of residence of such owner is known or can be ascertained by a reasonable effort. A further copy of such certificate and notice of filing shall be filed in the office of the recording officer of each county wherein the property affected is situated. On the filing of such certificate and notice with such officer it shall be the duty of such officer to record same in the books used for recording deeds in the office of such officer.

  21. 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 highway 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.