Title 9 Part 270

The purpose of these regulations is to implement article 6 of the Public Lands Law to establish a set of regulations in accordance with the statutory amendments. In furtherance thereof, it is hereby declared to be the purpose and intent to manage the State's interest in its underwater lands, to regulate the projects and structures constructed in or over such underwater lands consistent with the public interest in navigation, commerce, public access, fishing, bathing, recreation, environmental and aesthetic protection, and to ensure the waterfront owners reasonable exercise of riparian rights and access to those underwater lands.

If any provision of Part 270 or 271 of this Title, or its application to any person or circumstance, is held invalid, it is hereby expressly declared to be the intent of the commissioner that the remainder of Part 270 and/or Part 271 of this Title and the application thereof to any person or circumstances shall not be affected thereby.

No wharf, dock, pier, jetty, platform, breakwater, mooring or other structure shall be constructed, erected, anchored, suspended or expanded or substantially replaced, altered, modified, enlarged or expanded in, on or above State-owned land underwater, nor shall any fill be placed on such land underwater unless a lease, easement, permit or other interest is obtained from the Commissioner of General Services in accordance with section 75(b) of the Public Lands Law and this Part; excepting therefrom easements for cables, conduits, pipelines and hydroelectric power which shall be subject to the provisions of section 3(2) of the Public Lands Law and Part 271 of this Title.

Any applicant may request a preapplication conference with appropriate agency staff as a means of clarifying application procedures. Such a request should be made at the earliest possible stage of the applicant's project planning. At the conference, the proposed or existing project will be informally discussed, permits required will be identified and the applicant will be provided with guidance in the mechanics of the application and review process based upon information provided by the applicant.

Grants of land underwater in fee simple, including conversion grants pursuant to section 75(11) of the Public Lands Law, shall be limited to exceptional circumstances and only to those conveyances which will not impair the public interest in the lands and waters remaining, based upon factors set forth in section 270-3.2 of this Part. Applicants shall be required to apply to the Office of General Services pursuant to the provisions of article 6 of the Public Lands Law and the following regulations, which are generally outlined as follows:

Preliminary notice advising the commissioner of the lands sought to be conveyed.

If lands can be conveyed, appropriate map and description are prepared according to regulatory specifications - payment of $500 fee; submission of deeds, abstract of title, for review.

Upon approval of map and description, applicant proceeds with publication, posting of notice of application and service of notice on adjoining owners and municipality, as required.

Applicant submits necessary affidavits and papers together with final application for formal approval and preparation of the instrument of conveyance.

Any person, firm or corporation intending to apply for a grant of State-owned land underwater pursuant to section 75 of the Public Lands Law shall give written notice of such intention (forms available) to the Commissioner of General Services, Albany, NY, setting forth in said notice the complete name and address of the applicant, and if a corporation, the state of incorporation and, if an out-of-state corporation, whether licensed to do business in the State of New York. Said notice shall state the purpose for which the application is made and shall be accompanied by certified copies of the applicant's deeds to the lands adjacent to such lands underwater, together with certified copies of the deeds to the lands of others adjoining such lands of the applicants along the waterfront. Notices pursuant to the provisions of subdivision 11 of section 75 of said law (Conversion Grants), shall, in addition, set forth the name of the original grantee, the date of the Letters Patent and the purpose for which the grant was made. All notices shall state fully and in detail the contemplated use and the estimated cost of same, and shall limit the land to be surveyed and applied for to such area as is necessary for said use. The applicant shall also send a copy of the notice form to DEC, DOS and OPR&HP.

The application must include a map which shall be prepared by a New York State licensed land surveyor to show the land underwater applied for and the adjacent land owned by the applicant. The survey shall be referenced to the New York Plane Coordinate System. Said map shall be 24 by 36 inches in size. The working space on the tracing shall be 22 by 34 inches, except that sufficient space shall be reserved in the lower corner for the title, scale and date of preparation, and in the upper corner for a location map. The scale of said maps will be as set forth in this section:

A certified check in the amount of $500 made payable to the New York State Commissioner of General Services shall accompany any notices of intention referred to in section 270-4.2 of this Subpart. Such check will be used to defray the cost of reviewing the survey map(s), title and description(s). A refund may be made in the event the application is withdrawn.

Any person, firm or corporation intending to apply for a grant of State-owned land underwater pursuant to section 75 of the Public Lands Law shall file with the Commissioner of General Services a notice of application. Such notice of application shall state the date on which an application will be made to such commissioner. It shall contain a description of the land underwater applied for as set forth on the official map(s) and directions that all objections to such grant shall be filed with the Division of Land Utilization on or before the date such application will be made and in all applications, except those made pursuant to the provisions of subdivision 11 of section 75 of the Public Lands Law, the names of adjacent landowners and the boundaries of said land, together with an explanation of how the applicant intends to use the lands applied for and specifying the exceptional circumstances necessitating a grant in fee. Service of the notice shall be in the manner hereinafter provided.

The following affidavits, maps and papers are to be filed with the Commissioner of General Services on or before the return date set forth in the application.

All affidavits shall be fastened together in the order listed above, preceded by a copy of the appropriate notice of application.

The Commissioner of General Services will determine if a hearing on the objection(s) is to be held. If a hearing is scheduled, the Division of Land Utilization will advise the applicant, the objector and DEC, DOS and OPR&HP as to when and where such a hearing shall be held. If an objector does not appear at such hearing, the objection may be deemed withdrawn.

All grants thereof of land under the waters of the Niagara River hereinafter made by the State shall contain the following provisions:

“The Patentee hereby covenants with The People of the State of New York, their successors and assigns, that the Patentee, his heirs, distributees, successors in interest, legal representatives and assigns, will forever release the State and Power Authority of the State of New York, their respective successors and assigns, of and from any and all claims for damages or loss occurring to the lands hereby conveyed arising out of, or by reason of, or occasioned at any time or times by, the control or regulation of the waters of the Niagara River by the State or Power Authority of the State of New York in the interests of commerce including navigation, the development of hydroelectric power or the preservation and enhancement of the scenic beauty of the Niagara River, and Patentee further covenants that Patentee, his heirs, distributees, successors in interest, legal representatives and assigns, will not make claim against or sue the State or Power Authority of the State of New York, their successors in interest or assigns, or any of them, for or on account of any cause of action, claim or demand of any kind whatsoever by reason of any such damages or loss.

The covenants herein contained shall run with the land herein granted.

The foregoing covenants shall in no event be construed to be an admission on the part of the State or Power Authority of the State of New York that they are legally responsible for any damage or loss to any adjoining land by reason of or arising from the control or regulation of the waters of the Niagara River.”

All grants thereof of land under the waters of the St. Lawrence River hereafter made by the State shall contain the following provisions:

“The Patentee hereby covenants with The People of the State of New York, their successors and assigns, that the Patentee, his heirs, distributees, successors in interest, legal representatives and assigns, will forever release the State and Power Authority of the State of New York, their respective successors and assigns, of and from any and all claims for damages or loss occurring to the lands hereby conveyed arising out of, or by reason of, or occasioned at any time or times by, the control or regulation of the waters of the St. Lawrence River by the State or Power Authority of the State of New York in the interests of commerce including navigation, the development of hydroelectric power or the preservation and enhancement of the scenic beauty of the river or in the interest of public recreation and/or fish and wildlife resources and Patentee further covenants that Patentee, his heirs, distributees, successors in interest, legal representatives and assigns, will not make claim against or sue the State or Power Authority of the State of New York, their successors in interest or assigns, or any of them for or on account of any cause of action, claim or demand of any kind whatsoever by reason of any such damages or loss.

The covenants herein contained shall run with the land herein granted.

The foregoing covenants shall in no event be construed to be an admission on the part of the State or Power Authority of the State of New York that they are legally responsible for any damage or loss to any adjoining land by reason of or arising from the control or regulation of the waters of the St. Lawrence River.”

An application for a grant of an easement, lease, permit or lesser interest pursuant to subdivision 7 of section 75 of the Public Lands Law shall be made to the Commissioner of General Services and shall state the full name and address of the applicant (if a corporation, the state in which incorporated and the address of its principal office and place of business). It shall also describe the existing or proposed use, structures or facility located or to be located upon the land applied for and directions that all objections to such easement, lease, permit or lesser interest shall be filed with the Division of Land Utilization on or before the date such application will be made. Review of applications shall be in accordance with the factors set forth in section 270-3.2 of this Part.

The following documents shall be submitted with the notice of application for lease, easement, permit or lesser interest:

The applicant shall serve a notice of application to apply for such grant upon the city, town or village in which the land is situated and upon the owner of properties adjoining along the shorefront. Such notice of application shall state the date on which the application will be made to the Commissioner of General Services and shall contain a description of the land underwater applied for, the use of the land underwater applied for, and directions that all objections to such application shall be filed with the Division of Land Utilization on or before the date such application will be made. All such notices shall be served 20 days before the date such application will be made. Affidavits of service of such notice shall be attached to the notice of application.

The Commissioner of General Services will determine if a hearing on the objection(s) is to be held. If a hearing is scheduled, the Division of Land Utilization will advise the applicant, the objector and DEC, DOS and OPR&HP as to when and where such a hearing shall be held. If an objector does not appear at such hearing, the objection may be deemed withdrawn.

All grants of easements and leases in land under the waters of the Niagara River hereafter made by the State shall contain the following provisions:

“The Grantee hereby covenants with The People of the State of New York, their successors and assigns, that the Grantee, his heirs, distributees, successors in interest, legal representatives and assigns, will forever release the State and Power Authority of the State of New York, their respective successors and assigns, of and from any and all claims for damages or loss occurring to the easement rights hereby conveyed arising out of, or by reason of, or occasioned at any time or times by, the control or regulation of the waters of the Niagara River by the State or Power Authority of the State of New York in the interests of commerce including navigation, the development of hydroelectric power or the preservation and enhancement of the scenic beauty of the Niagara River, and Grantee further covenants that Grantee, his heirs, distributees, successors in interest, legal representatives and assigns, will not make claim against or sue the State or Power Authority of the State of New York, their successors in interest or assigns, or any of them, for or on account of any cause of action, claim or demand of any kind whatsoever by reason of any such damages or loss.

The foregoing covenants shall in no event be construed to be an admission on the part of the State or Power Authority of the State of New York that they are legally responsible for any damage or loss to any adjoining land by reason of or arising from the control or regulation of the waters of the Niagara River.”

All grants of easements and leases in land under the waters of the St. Lawrence River hereafter made by the State shall contain the following provisions:

“The Grantee hereby covenants with The People of the State of New York, their successors and assigns, that the Grantee, his heirs, distributees, successors in interest, legal representatives and assigns, will forever release the State and Power Authority of the State of New York, their respective successors and assigns, of and from any and all claims for damages or loss occurring to the easement rights hereby conveyed arising out of, or by reason of, or occasioned at any time or times by, the control or regulation of the waters of the St. Lawrence River by the State or Power Authority of the State of New York in the interests of commerce including navigation, the development of hydroelectric power or the preservation and enhancement of the scenic beauty of the river or in the interest of public recreation and of fish and wildlife resources and Grantee further covenants that Grantee, his heirs, distributees, successors in interest, legal representatives and assigns, will not make claim against or sue the State or Power Authority of the State of New York, their successors in interest or assigns, or any of them for on account of any cause or action, claim or demand of any kind whatsoever by reason of any such damage or loss.

The foregoing covenants shall in no event be construed to be an admission on the part of the State or Power Authority of the State of New York that they are legally responsible for any damage or loss to any adjoining land by reason of or arising from the control or regulation of the waters of the St. Lawrence River.”

The commissioner may require, as a condition to a lease, easement, permit or lesser interest and prior to commencement of work, that the lessee, grantee or permittee post a bond of specified amount with the commissioner. The bonds shall be required in an amount to ensure faithful compliance with the terms and conditions of the lease, easement, permit or lesser interest, and is used for the indemnification of the State for any costs which might result from failure to so comply. Such bond may also be utilized by the commissioner to implement performance of conditions upon the failure of a lessee, grantee or permittee to properly implement any such conditions. The bond shall remain in effect until the work is completed to the satisfaction of the commissioner.

The consideration to be charged for each grant of easement, lease, permit or lesser interest in lands underwater shall be fixed by the Commissioner of General Services in accordance with article 6 of the Public Lands Law and the following guidelines.

Year 1 -.2 (two tenths) of one percent

Year 2 -.4 (four tenths) of one percent

Year 3 -.6 (six tenths) of one percent

Year 4 -.8 (eight tenths) of one percent

Year 5 and thereafter, one percent.

The annual fee to be charged for nonexempt residential use of structures shall be the lesser of $20 per slip or $100.

Condominiums and cooperative forms of real property ownership, residential multi-lot subdivision and keyhole developments and their accompanying use of structures on State-owned lands underwater including those described in article 6 of the Public Lands Law shall be appraised based upon market analysis of comparable structures.

The Commissioner of General Services, in determining the fee to be charged, may negotiate a more flexible payment schedule and otherwise mitigate fees based upon factors such as public access, surrender of prior State grants pursuant to section 76 of the Public Lands Law, preservation of open space or other actual public benefits as determined by the commissioner with the approval of the State Comptroller.

Fees to be paid for placement of nonexempt structures set forth in Public Lands Law section 75(7)(b) by the following corporations shall be limited to an administrative fee upon satisfactory evidence of the following.

Use of dock or structures for public, noncommercial uses offering services to the public either free or for nominal fees.

Corporate status as a “Type B” corporation pursuant to subdivision (b) of section 201 of the Not-For-Profit Corporation Law.

Corporate status as a religious corporation pursuant to the Religious Corporation Law or by special act of the Legislature.

In the event an applicant for a lease, easement or other interest in real property shall dispute and request a reduction of the commissioner's determination of the value of the interest to be conveyed, the commissioner shall, upon the applicant's submission of an appraisal of the value of such property interest conducted in accord with standard and accepted appraisal methodology by an independent appraiser qualified as prescribed in this section and which appraisal varies in its conclusion as to value by 10 percent or more or the value previously established by the commissioner, and upon the applicant's agreement to be bound thereby, contract with a second independent appraiser, qualified as prescribed in this section, to render an appraisal of the value of the interest proposed to be conveyed, the results of which appraisal shall be binding upon both the applicant and the Commissioner of General Services. Such appraiser shall be selected by the Commissioner of General Services from among a group of at least three appraisers identified by the applicant all of whom must be qualified as prescribed in this section and each of whom must agree to employ standard appraisal methodology. For the purposes of this provision a qualified appraiser shall be certified by the Secretary of State to transact business as a real estate general appraiser and shall conduct a regular business of the appraisal of real property interest. In the event that the appraisal contracted for in such manner shall conclude that the value of the property interest in question is equal to the value previously determined by the commissioner plus or minus 10 percent, the entire cost of such appraisal shall be borne by the applicant, otherwise, the entire cost thereof shall be borne by the Commissioner of General Services.

The commissioner may impose an administrative fee not to exceed $500, based upon the costs of processing the conveyance or interest, such costs to be in addition to any other fee or appraised value. The fee may be prorated and collected annually over the term of the conveyance or interest.

Grants in fee simple of State-owned lands underwater shall be appraised based upon the value of the adjacent upland developed from the income, cost or market approach to value, as appropriate, reduced by the value of the riparian or littoral interest of the adjacent upland owner. Grants converting prior conditional conveyances to fee conveyances shall be appraised based upon the value of the remaining interest in the State.

The Commissioner of General Services in determining qualifications for exemption from the statute may require proof of the date of construction including but not limited to regulatory permits, construction contracts and/or affidavits of the applicant detailing the age and date of construction of the structure.

The Commissioner of General Services shall not require the person or entity who was the upland owner on June 17, 1992 adjacent to filled State-owned lands underwater or formerly underwater, to make application for a lease, easement, permit or other interest pursuant to section 75 of the Public Lands Law. The exemption provided in this section does not in any way impair or diminish the title of the State of New York to the lands previously filled. Upland owners may apply for a grant of such lesser interest as may be required to allow conveyance of a marketable title of the adjacent upland or to resolve outstanding title questions. Fill placed in State-owned lands underwater after June 17, 1992 will require a grant, easement, lease, permit or lesser interest pursuant to section 75 of the Public Lands Law may be considered a trespass pursuant to section 8 of the Public Lands Law. The Commissioner of General Services may require upland owners not otherwise exempt to apply for conveyance of the interest of the State in such filled land upon application to the Office of General Services for a grant, lease, easement, permit or lesser interest of any parcel of State-owned land adjoining said filled area. The area of the fill on State-owned lands shall be established by a licensed surveyor.

Structures not exempted by this Part and located in, on or over State-owned lands underwater at Lake George and complying with Environmental Conservation Law article 43 and accompanying regulations shall be exempt from this Part, except in those cases where in the judgment of the commissioner and the Lake George Park Commission, a review of the structure pursuant to this Part will assist in the protection and preservation of Lake George Park and the State's proprietary interest, then in such event the commissioner shall assist the Lake George Park Commission by providing services including but not limited to examination of title and/or issuance of an easement, lease, permit or lesser interest for a fee determined, pursuant to this Part with an appropriate credit for fees paid to the Lake George Park Commission.

The Commissioner of General Services may make cessions of jurisdiction involving the United States of America on State-owned lands underwater pursuant to the procedures set forth in section 75(8) of the Public Lands Law and article 3 of the State Law.

Pursuant to the provisions of section 3, subdivision 4 and section 75(7a) of the Public Lands Law, upon the application of any State department or a division, bureau or agency thereof, or upon the application of any State agency, the commissioner may transfer to such State department State-owned lands underwater to such agency for the purpose of protecting environmentally sensitive lands underwater. The transfer of jurisdiction may be made even if the State agency is not the proprietor of the adjacent upland but shall be subject to the provisions of section 75(9) of the Public Lands Law. The agency requesting the transfer of jurisdiction shall submit a findings with its transfer application explaining the reasons why the subject lands require protection, describing the environmental sensitivity of the lands.

This Part shall apply in all civil administrative enforcement proceedings brought pursuant to Public Lands Law article 6 by the commissioner against an alleged violator of Public Lands Law article 6, or rules or regulations promulgated thereunder, or any determination or orders issued by the commissioner.

All notices, papers and intermediate process connected with a hearing, other than the notice of violation and hearing and the order containing the final determination of the commissioner, may be served by ordinary mail. Except where otherwise specifically provided, service by ordinary mail shall be complete when mailed.

A party to a hearing under this Part, upon receipt of notice to produce documents and things from any other party, shall furnish all such requested items relevant to the proceeding within 10 days of receipt of such notice.

Consistent with the CPLR, any attorney of record in a proceeding under this Part, or any person designated by the commissioner for this purpose shall have the power to issue subpoenas. A party who is not represented by an attorney may request the hearing officer to issue a subpoena by submitting a petition stating the items or witnesses needed by the party to present its case.

Following the close of the record, including receipt of the transcript, if any, the hearing officer shall prepare and submit to the commissioner a hearing report, which shall become part of the record.