Bill S962-2011

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

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

Details

Actions

  • Jan 4, 2012: REFERRED TO LOCAL GOVERNMENT
  • Jan 5, 2011: REFERRED TO LOCAL GOVERNMENT

Memo

 BILL NUMBER:  S962

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

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

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

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

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

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

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

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : This act shall take effect on the sixtieth day after it shall have become a law.

Text

STATE OF NEW YORK ________________________________________________________________________ S. 962 A. 689 2011-2012 Regular Sessions S E N A T E - A S S E M B L Y (PREFILED) January 5, 2011 ___________
IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print- ed, and when printed to be committed to the Committee on Local Govern- ment IN ASSEMBLY -- Introduced by M. of A. THIELE -- read once and referred to the Committee on Local Governments AN ACT to amend the general municipal law, in relation to the acquisi- tion of property by eminent domain THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The general municipal law is amended by adding a new section 360-a to read as follows: S 360-A. ACQUISITION OF PROPERTY BY EMINENT DOMAIN. 1. NOTWITHSTAND- ING THE PROVISIONS OF THE EMINENT DOMAIN PROCEDURE LAW, THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE ACQUISITION OF PROPERTY FOR THE PURPOSES ENUMERATED IN SECTION THREE HUNDRED SIXTY OF THIS ARTICLE BY THE POWER OF EMINENT DOMAIN, PROVIDED, HOWEVER, TO THE EXTENT THAT PROVISIONS HEREIN DO NOT SUPERSEDE OR CONFLICT WITH THE PROVISIONS OF THE EMINENT DOMAIN PROCEDURE LAW, THE PROVISIONS OF SUCH LAW SHALL APPLY. 2. WHEN ANY REAL PROPERTY IS SOUGHT TO BE ACQUIRED BY THE EXERCISE OF THE POWER OF EMINENT DOMAIN, AND AFTER THE MUNICIPAL CORPORATION SHALL HAVE ENTERED INTO NEGOTIATIONS FOR THE PURCHASE OF SUCH PROPERTY, THE MUNICIPAL CORPORATION SHALL CAUSE A SURVEY AND MAP TO BE MADE THEREOF AND SHALL CAUSE SUCH SURVEY AND MAP TO BE FILED IN ITS OFFICE AND IN THE OFFICE OF THE COUNTY CLERK IN THE COUNTY IN WHICH SUCH PROPERTY IS LOCATED. THERE SHALL BE ANNEXED TO SUCH SURVEY AND MAP A CERTIFICATE EXECUTED BY THE CHIEF EXECUTIVE OFFICER OF THE MUNICIPAL CORPORATION OR BY SUCH OTHER OFFICER OR EMPLOYEE AS MAY BE DESIGNATED BY THE GOVERNING
BOARD, STATING THAT THE PROPERTY OR INTEREST THEREIN DESCRIBED IN SUCH SURVEY AND MAP IS NECESSARY FOR ITS PURPOSE. 3. UPON FILING SUCH SURVEY AND MAP, THE MUNICIPAL CORPORATION SHALL PETITION A SPECIAL TERM OF THE SUPREME COURT IN THE JUDICIAL DISTRICT IN WHICH THE PROPERTY IS LOCATED FOR THE ACQUISITION OF SUCH PROPERTY OR INTEREST THEREIN. SUCH PETITION SHALL DESCRIBE THE PROPERTY BEING ACQUIRED, THE VALUATION DATE, AS DETERMINED BY THE MUNICIPAL CORPO- RATION, AND SUCH ADDITIONAL INFORMATION AS THE MUNICIPAL CORPORATION MAY REASONABLY DEEM NECESSARY TO FACILITATE THE PROCESS OF CONDEMNATION AND PAYMENT. THE PETITION SHALL STATE THAT THE MUNICIPAL CORPORATION WILL ELECT WHETHER OR NOT TO PAY THE AMOUNT OF SUCH AWARD WHEN IT HAS BEEN FINALLY DETERMINED. IN ALL OTHER RESPECTS, SUCH PETITION SHALL BE GENER- ALLY IN THE FORM PRESCRIBED BY THE EMINENT DOMAIN PROCEDURE LAW, SO FAR AS CONSISTENT HEREWITH. SUCH PETITION, TOGETHER WITH A NOTICE OF PENDEN- CY OF THE PROCEEDING, SHALL BE FILED IN THE OFFICE OF THE COUNTY CLERK OF THE COUNTY IN WHICH THE PROPERTY IS LOCATED AND SHALL BE INDEXED AND RECORDED AS PROVIDED BY LAW. A COPY OF SUCH PETITION, TOGETHER WITH A NOTICE OF THE PRESENTATION THEREOF TO SUCH SPECIAL TERM OF THE SUPREME COURT, SHALL BE SERVED UPON THE OWNERS OF SUCH PROPERTY AS PROVIDED IN THE EMINENT DOMAIN PROCEDURE LAW. THE MUNICIPAL CORPORATION MAY CAUSE A DUPLICATE ORIGINAL AFFIDAVIT OF THE SERVICE THEREOF TO BE RECORDED IN THE BOOKS USED FOR THE RECORDING OF DEEDS IN THE OFFICE OF THE COUNTY CLERK OF THE COUNTY IN WHICH THE PROPERTY DESCRIBED IN SUCH NOTICE IS LOCATED, AND THE RECORDING OF SUCH AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE OF DUE SERVICE THEREOF. 4. SUBSEQUENT PROCEEDINGS SHALL BE CONDUCTED GENERALLY IN THE MANNER PRESCRIBED IN THE EMINENT DOMAIN PROCEDURE LAW EXCEPT TO THE EXTENT THE PROVISIONS THEREOF ARE INCONSISTENT WITH THE PROVISIONS OF THIS ARTICLE, IN WHICH CASE THE PROVISIONS OF THIS ARTICLE SHALL CONTROL. 5. IN ANY PROCEEDING INVOLVING THE VALUATION OF PROPERTY TAKEN BY THE MUNICIPAL CORPORATION THE SUPREME COURT SHALL ASCERTAIN AND DETERMINE JUST COMPENSATION FOR THE PROPERTY TAKEN AS OF THE VALUATION DATE, GIVING DUE CONSIDERATION TO ANY APPLICABLE FINDINGS AND DETERMINATIONS OF THE LEGISLATURE. 6. SHOULD PROPERTY BE TAKEN BY THE EXERCISE OF THE POWER OF EMINENT DOMAIN AND IF THE OWNER SHALL HAVE AGREED UPON THE COMPENSATION TO BE PAID THEREFOR IN SETTLEMENT OF THE PROCEEDING, THEN THE OWNER SHALL BE ENTITLED TO PAYMENT OF THE AGREED UPON OR AWARDED COMPENSATION WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE DATE OF THE AGREEMENT UPON THE AMOUNT OF THE COMPENSATION OR OF THE ENTRY OF THE AWARD, TOGETHER WITH INTEREST UPON THE AMOUNT OF SUCH COMPENSATION FROM THE TIME OF ACQUISITION THERE- OF BY THE MUNICIPAL CORPORATION TO THE DATE OF PAYMENT OF SUCH COMPEN- SATION; BUT SUCH INTEREST SHALL CEASE UPON THE SERVICE BY THE MUNICIPAL CORPORATION, UPON THE PERSON OR CORPORATION ENTITLED THERETO, OF A FIFTEEN DAYS' NOTICE THAT THE MUNICIPAL CORPORATION IS READY AND WILLING TO PAY THE AMOUNT OF SUCH COMPENSATION UPON THE PRESENTATION OF PROPER PROOFS AND VOUCHERS. SUCH NOTICE SHALL BE SERVED PERSONALLY OR BY REGIS- TERED MAIL AND PUBLICATION THEREOF SHALL BE MADE AT LEAST ONCE A WEEK FOR THREE CONSECUTIVE WEEKS IN A DAILY NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY IN WHICH SUCH PROPERTY OR ANY PART THEREOF IS LOCATED. 7. UPON THE ENTRY OF AN AWARD FINALLY DETERMINING JUST COMPENSATION FOR THE PROPERTY, THE MUNICIPAL CORPORATION SHALL HAVE SIXTY DAYS AFTER RECEIPT OF NOTICE OF ENTRY OF SUCH AWARD WITHIN WHICH TO ELECT TO PROCEED WITH THE TAKING OR TO ABANDON SUCH ACQUISITION AS PROVIDED IN SUBDIVISION NINE OF THIS SECTION. NOTICE OF SUCH ELECTION SHALL BE SERVED BY THE MUNICIPAL CORPORATION ON THE OWNERS OF SUCH PROPERTY IN
THE MANNER PRESCRIBED IN SUBDIVISION THREE OF THIS SECTION. IF THE MUNICIPAL CORPORATION ELECTS TO PROCEED WITH THE ACQUISITION, IT SHALL DEPOSIT WITH THE SUPREME COURT IN WHICH THE CONDEMNATION PROCEEDING WAS HELD AN AMOUNT EQUAL TO THE AWARD WITHIN ONE HUNDRED EIGHTY DAYS AFTER RECEIPT BY THE MUNICIPAL CORPORATION OF NOTICE OF ENTRY OF SUCH AWARD. UPON THE MAKING OF SUCH DEPOSIT, THE MUNICIPAL CORPORATION SHALL NOTIFY THE OWNER IN WRITING OF SUCH DEPOSIT. THE SUM SO DEPOSITED SHALL BE APPLIED AS PROVIDED IN THE EMINENT DOMAIN PROCEDURE LAW. UPON MAKING SUCH DEPOSIT AND GIVING SUCH NOTICE TO THE OWNER, TITLE TO ALL PROPERTY DESCRIBED IN THE NOTICE OF TAKING SHALL IMMEDIATELY VEST IN THE MUNICI- PAL CORPORATION AND THE MUNICIPAL CORPORATION SHALL HAVE IMMEDIATE RIGHT THERETO. THE ORDER SETTING FORTH THE AWARD, TOGETHER WITH THE EVIDENCE FROM THE CLERK OF THE COURT OF RECEIPT OF THE AMOUNT OF THE AWARD, SHALL BE FILED IN THE OFFICE OF THE COUNTY CLERK OF THE COUNTY IN WHICH THE PROPERTY IS LOCATED AND SHALL BE INDEXED AND RECORDED IN THE SAME MANNER AS A NOTICE OF PENDENCY UNDER THE EMINENT DOMAIN PROCEDURE LAW. THE OWNER OR PERSON IN POSSESSION OF SUCH PROPERTY SHALL DELIVER POSSESSION THEREOF TO THE MUNICIPAL CORPORATION UPON DEMAND, AND IN CASE POSSESSION IS NOT DELIVERED WHEN DEMANDED OR DEMAND IS NOT CONVENIENT BECAUSE OF ABSENCE OF THE OWNER OR INABILITY TO LOCATE OR DETERMINE THE OWNER, THE MUNICIPAL CORPORATION MAY APPLY TO THE COURT WITHOUT NOTICE FOR AN ORDER REQUIRING THE SHERIFF TO PUT IT INTO POSSESSION OF SUCH REAL PROPERTY. SUCH AN ORDER SHALL BE EXECUTED AS IF IT WERE AN EXECUTION FOR THE DELIVERY OF THE POSSESSION OF THE PROPERTY. IN THE EVENT THE MUNICIPAL CORPORATION ELECTS TO ABANDON THE ACQUISITION, THE PROVISIONS OF SUBDI- VISION NINE OF THIS SECTION SHALL APPLY. 8. AT ANY TIME THE MUNICIPAL CORPORATION AND ITS DULY AUTHORIZED AGENTS AND EMPLOYEES MAY, ON REASONABLE NOTICE AND DURING BUSINESS HOURS, ENTER UPON ANY REAL PROPERTY PROPOSED TO BE ACQUIRED FOR THE PURPOSE OF MAKING THE SURVEYS OR MAPS MENTIONED IN THIS SECTION, OR OF MAKING SUCH OTHER SURVEYS, INSPECTIONS OR EXAMINATIONS OF REAL OR PERSONAL PROPERTY AS THE MUNICIPAL CORPORATION MAY DEEM NECESSARY OR CONVENIENT FOR THE PURPOSES OF THIS ARTICLE. 9. IF THE MUNICIPAL CORPORATION DETERMINES, IN ITS SOLE DISCRETION, THAT THE TOTAL COST OF ACQUISITION WILL EXCEED THE MAXIMUM COST PROVIDED FOR IN THE RESOLUTION ADOPTED PURSUANT TO SUBDIVISION THREE OF SECTION THREE HUNDRED SIXTY OF THIS ARTICLE, THE MUNICIPAL CORPORATION MAY ABAN- DON THE ACQUISITION. IN SUCH EVENT, THE MUNICIPAL CORPORATION SHALL SERVE NOTICE OF SUCH ABANDONMENT IN THE SAME MANNER AS PROVIDED FOR THE SERVICE OF A PETITION FOR ACQUISITION PURSUANT TO SUBDIVISION THREE OF THIS SECTION. IN ADDITION, THE MUNICIPAL CORPORATION SHALL FILE A COPY OF THE NOTICE OF ABANDONMENT WITH THE COUNTY CLERK OF THE COUNTY IN WHICH IS LOCATED ANY REAL PROPERTY THAT WAS TAKEN AND WITH THE CLERK OF THE SUPREME COURT IN WHICH THE PROCEEDING WAS INSTITUTED. S 2. This act shall take effect on the sixtieth day after it shall have become a law.

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