18 - Acquisition of abandoned railroad transportation property.
§ 18. Acquisition of abandoned railroad transportation property. 1. Notwithstanding the provisions of any general, special or local law to the contrary, the commissioner shall have a preferential right to acquire, for and in behalf of the people of the state of New York, for use in the future for transportation purposes, as such purposes are set forth in this chapter, the highway law or the canal law, any property as defined in subdivision six of this section and which has been abandoned for railroad transportation purposes as defined in subdivision two of this section. No property owner shall dispose of any such property without having first obtained notification from the commissioner that the preferential right of acquisition granted under this section does not apply, or a release of such preferential right from the commissioner. Conveyances of property in violation of this section shall be null and void. Acquisition of property pursuant to this section shall be in the manner provided by section thirty of the highway law. No acquisition shall be made until the director of the budget shall have issued a certificate of availability of funds therefor. Before any property is acquired pursuant to this section, the commissioner shall determine that it is in the best interests of the state to acquire such property for use in the future for transportation purposes. 1-a. The department of transportation is hereby designated the official state agency to receive all notifications from the federal interstate commerce commission or any other federal or state agency in regard to discontinuance of service or railroad property abandonment proceedings, including notification of applications from railroad companies for any such purposes. 1-b. The department of transportation shall promptly inform in writing all interested state agencies, transportation authorities, and every county, city, town and village in which such property is located and the appropriate entity designated by the governor pursuant to title IV of the federal intergovernmental cooperation act of nineteen hundred sixty-eight and the federal office of management and budget circular A-98 of (a) the issuance of any certificate from the federal interstate commerce commission or other federal or state agency authorizing discontinuance of railroad service or abandonment of railroad transportation property, (b) approval of discontinuance of service or a determination of abandonment of railroad transportation property pursuant to this section, and (c) the receipt of an application to release a preferential acquisition right to railroad transportation property pursuant to this section. 1-c. Whenever a property owner intends to dispose of abandoned railroad transportation property, it shall notify the department of transportation in writing of its intention. Upon receipt of such notification, the department of transportation shall have ninety days to make a determination and notify the property owner as to the applicability of the preferential right of acquisition granted under this section, except that this period may be suspended by the department upon its finding that the property owner has not submitted information sufficient to enable the department to make its determination. If suspended, this period will resume upon receipt of this required information. In the event the department fails to notify the property owner of its determination, the preferential right of acquisition shall be deemed not to apply. The department shall inform the appropriate state agencies, every metropolitan or regional transportation authority and every county, city, town and village in which such railroad property or portion thereof is located, of the intention of the property owner and the department's finding of applicability of the preferential right of acquisition. If notified by the department that the preferentialright of acquisition does not extend to the subject property, or the department has not notified the property owner of its determination prior to the expiration of the foregoing ninety day period, notwithstanding any suspension, the property owner shall not enter into a binding contract to sell the property within forty-five days after this notification by the department. Such state agencies, metropolitan or regional transportation authorities, and counties, cities, towns and villages shall have preferential acquisition rights to be determined as herein provided. No state agency, metropolitan or regional transportation authority, county, city, town, or village shall have any preferential right of acquisition unless specifically authorized in writing by the department. Within a reasonable time thereafter, any agency of government which intends to exercise a preferential acquisition right for such property shall notify the department of transportation in writing. Within a reasonable time, not greater than one hundred twenty days after receipt of such notification by the property owner, the department of transportation shall notify the property owner in writing whether the department of transportation intends to exercise its preferential acquisition right under this section or, if not, whether it has determined that any other agency of government has been authorized by it to exercise a preferential acquisition right to such property. If the department of transportation notifies the property owner that it does not intend to exercise its right and that it has not authorized any other state or local agency of government to so exercise its right, the commissioner shall issue the property owner a written release of the preferential acquisition rights granted under this section. In the event the department fails to provide notice of the intent to release the preferential right of acquisition, such right shall be deemed to have expired. If the department of transportation, or any other state or local agency of government shall be qualified to exercise such preferential acquisition right, the department of transportation shall notify the property owner of such intention and the property owner shall not dispose of such abandoned railroad transportation property without first having obtained a release of the preferential right from the department of transportation. There shall be good faith bargaining between the property owner and the department or any party of interest either authorized by the department to exercise the preferential right of acquisition or notified by the department as to the inapplicability of the preferential right of acquisition. The department of transportation shall issue a written release of the preferential acquisition right within one hundred eighty days after demand by the property owner, or such right will be deemed to have been expired. The department shall make a good faith effort to issue such release. 1-d. Whenever a conflict occurs between one or more agencies of government as to the exercise of a preferential right, the department of transportation shall in the exercise of its sole discretion resolve such conflict and make a prompt determination of the reasonable and proper order of priority with respect to the same. In making such determination, the department shall take into consideration the provisions of the comprehensive state-wide master transportation plan and its actions shall be consistent to the extent practicable with the effectuation of all state plans, policies and objectives. 1-e. The commissioner of transportation shall promulgate rules and regulations consistent with and for the purpose of adequately implementing the foregoing subdivisions. 2. For the purposes of this section, property shall be deemed to be abandoned for railroad transportation purposes (a) when, where requiredby law, a certificate of abandonment of the railroad line situate thereon has been issued by the interstate commerce commission and/or any other federal or state agency having jurisdiction thereof; or (b) when such a certificate of abandonment is not so required and the use of such property for railroad transportation purposes has been discontinued with the intent not to resume. Intent not to resume may be inferred from circumstances. Non-use of the property for railroad transportation purposes for two consecutive years shall create a presumption of abandonment. When use of such property for railroad transportation purposes has been discontinued and upon request of the property owner or his own motion, the commissioner shall undertake an investigation thereof, which may include consultation with the interstate commerce commission, and shall render a determination as to whether or not (a) the property owner has definite plans for the use of such property for purposes ordinarily associated with the safe and normal operation of a railroad or associated transportation purposes; (b) such property continues to be suitable for such railroad transportation purposes; and (c) such property is necessary, either presently or in the future, for such railroad transportation purposes. Such property shall be deemed to be abandoned for railroad transportation purposes if the commissioner shall determine that (a) the property owner has no definite plans for the use of such property for purposes ordinarily associated with the safe and normal operation of a railroad or associated transportation purposes; or (b) such property is no longer suitable for such railroad transportation purposes; and (c) such property is not necessary, either presently or in the future, for such railroad transportation purposes. The commissioner shall render such determination within ninety days after the commencement of such investigation and such determination shall be conclusive except that if the property is determined not to be so abandoned such determination shall not preclude the undertaking of a subsequent investigation concerning the same property. Sales of abandoned railroad transportation property for continued or resumed rail transportation use may be exempted at the commissioner's discretion from the preferential right of acquisition. This section shall not apply to the subsequent resale of property lawfully acquired subject to the provisions of this section as then applicable, except when the subsequent sale involves property previously exempted from this section by the commissioner. 3. 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 appropriation, publication, making title searches, appraisals and agreements, and examinations and readings and approval of titles made by the attorney-general, expenses incurred by the commissioner or the attorney-general in proceedings for removal of owners or occupants, and expenses incurred by the commissioner in connection with the management and supervision of the property, shall together be deemed to constitute the cost of property acquired pursuant to this section. The comptroller is hereby authorized to charge against the moneys appropriated for highway or other transportation purposes 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 setting forth such estimated expenses. Such expenses shall be paid from the funds so reserved after audit by the state comptroller.4. Any moneys received by the commissioner from rentals or other sources of revenue in connection with the management, operations, occupancy, use or the sale of or exchange of property, under this section, that has been acquired by the commissioner pursuant to this section shall be deposited in the treasury of the state to the credit of the capital construction fund. 5. The commissioner may determine whether any property acquired pursuant to this section 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, notwithstanding the provisions of any general, special or local law, so dispose of such property. 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. 6. The term "property" as used in this section means all abandoned railroad property, except: (a) property noncontiguous to line rights of way and yards, except when such property has been made noncontiguous as a result of a previous sale or release of the preferential right, and (b) side and spur track properties not greater than one-fourth mile in length, except when sales of such property would make adjoining rights of way noncontiguous. 7. The commissioner, when he deems it necessary, may in the manner provided by subdivision twelve of section thirty of the highway law, obtain possession of any property acquired pursuant to this section. 8. The commissioner, in the manner provided by subdivision thirteen-c of section thirty of the highway law, shall manage and receive fair and reasonable value for the holding, use or occupancy of property acquired pursuant to this section. 9. The provisions of this section shall not apply to a railroad company owned and operated by a municipal corporation.