177 - Acquisition of real property for armories and other military facilities of the state.

§  177.   Acquisition of real property for armories and other military  facilities of the state.  1.  The adjutant general, provided that  funds  have  been appropriated or provided by the state or by the United States  or by both for such purposes, is authorized to acquire  by  purchase  or  gifts  or,  pursuant  to  the provisions of the eminent domain procedure  law, any real property which he may deem necessary for the  purposes  of  armories,  camps,  ranges,  bases,  or  facilities  for  the  use of the  organized militia, the title to all such property to  be  taken  in  the  name  of  and  be  vested in the people of the state; provided, however,  that no such property shall be acquired by purchase or gift  unless  the  title thereto shall be approved by the attorney general.    2.    Whenever  real  property  is  to  be  acquired  pursuant  to the  provisions of the eminent domain procedure  law,  the  adjutant  general  shall  cause  to  be  made  by the state department of transportation an  accurate acquisition map  prepared  from  an  accurate  survey,  of  the  property  to  be  so  acquired  or  in or to which any easement is to be  acquired and, in the case of  an  easement,  specifying  the  particular  nature  and  the  duration thereof.   The adjutant general and the state  commissioner of transportation  and  their  respective  duly  authorized  agents  and  employees  may  enter  upon  such  real  property  or, when  necessary, upon any adjacent real property for  the  purpose  of  making  such survey.    3.  On  the approval of such map by the adjutant general, the original  tracing of such map shall be filed in the main office of the division of  military and naval affairs, pursuant to the provisions  of  the  eminent  domain procedure law.    4.  If  the  adjutant  general shall determine, prior to the filing of  such map in the office of the clerk or  register  of  the  county,  that  changes, alterations or modifications of such map as filed in the office  of  the  division  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 by the department of transportation  of an amended map. On the approval of such amended map by  the  adjutant  general,  it  shall  be filed in the main office of the division and the  amended map shall  thereupon  in  all  respects  and  for  all  purposes  supersede the map previously filed.    5.  If  the  adjutant general shall determine prior to the filing of a  copy of such 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 may  file  a  certificate  of  withdrawal  in  the  offices of the division and 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.    6. The adjutant general 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 adjutant general the names  of  the  owners  of  the property, easements, interest 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 as provided for in the eminent domain procedure  law, the adjutant general shall deem it necessary to cause the   removal  of an owner or occupant from any real property so acquired, he may cause  such  owner  or  occupant  to  be    removed  therefrom by proceeding in  accordance  with  section  four  hundred  five  of  the  eminent  domain  procedure  law.    The  proceeding  shall  be brought in the name of theadjutant general as agent of the state and the  attorney  general  shall  represent  the  petitioner in the proceedings.  No execution shall issue  for costs, if any, awarded against the state or  the  adjutant  general,  but  they  shall  be  part  of  the costs of the acquisition of the real  property and be paid  in  like  manner.    Proceedings  may  be  brought  separately  against  one  or more of the owners or occupants of any such  property, or one proceeding may be brought against all or several of the  owners or occupants of any or all such property within  the  territorial  jurisdiction  of  the  same  court,  justice  or  judge; and in any case  judgement shall 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.  Upon  making  any  agreement provided for in section three hundred  four of the eminent domain procedure law,  the  adjutant  general  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 amounts so fixed shall be  paid out of the state treasury  after  audit  by  the  comptroller  from  moneys  appropriated for the acquisition of such property, 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 adjutant general upon forms prescribed by him  and  shall  be  accompanied by such information and evidence as the adjutant general  may require.  Upon approval of such application,  the  adjutant  general  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  adjutant  general,  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  adjutant  general;  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  adjutant  general 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 ordiscontinues 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 adjutant general 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  adjutant  general  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 adjutant general upon forms prescribed by him  and  shall  be  accompanied by such information and evidence as the adjutant general  may require.  Upon approval of such application,  the  adjutant  general  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.    11.  Authorization is hereby given to the  adjutant  general  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  adjutant general, 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 adjutant general 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  amountshall 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  adjutant general.  Application for payment under this subdivision  shall  be  made  to the adjutant general upon forms prescribed by him and shall  be accompanied by such information and evidence as the adjutant  general  may  require.    Upon approval of such application, the adjutant general  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.12.  The owner of any real property so 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  acquired,  and for legal damages caused by such acquisition, 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 after audit by the comptroller from  moneys appropriated for the acquisition of such real property.    13.   If the  adjutant  general  shall  determine  subsequent  to  the  acquisition  of  a  temporary  easement  in  any  real property that the  purposes  for  which  such  easement  right  was  acquired   have   been  accomplished  and  that  the  exercise  of  such  easement  is no longer  necessary, he shall make his  certificate  that  the  exercise  of  such  easement  is  no  longer  necessary  and  that  such  easement  right is  therefore terminated, released and extinguished.   The adjutant  general  shall cause such certificate to be filed in the office of the department  of  state  and upon such filing all rights acquired by the state in such  property shall cease and determine.  The adjutant general shall cause  a  certified  copy  of  such  certificate  as so filed in the office of the  department of state 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  and  such  adjutant   general   shall  cause  a  further  certified  copy  of  such  certificate to be filed in the office of the recording officer  of  each  county  in  which the property affected or any part thereof is situated.  On the filing of such certified  copy  of  such  certificate  with  such  recording officer, it shall be his duty to record the same in his office  in  the books used for recording deeds and to index the same against the  name of the people of the state of New York as grantor.