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SECTION 228
Acquisition of property required for grade crossing elimination projects
Transportation (TRA) CHAPTER 61-A, ARTICLE 10
§ 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procedure law, that such map should be withdrawn, he or she shall file a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.