S T A T E O F N E W Y O R K ________________________________________________________________________ 7848 2015-2016 Regular Sessions I N A S S E M B L Y May 28, 2015 ___________ Introduced by M. of A. LUPARDO, MAGNARELLI, McDONALD -- read once and referred to the Committee on Local Governments AN ACT to amend the not-for-profit corporation law, in relation to authorizing land banks to access real property prior to acquisition of the property and to the liabilities and exemptions from liability of land banks with relation to the acquisition and ownership of vacant, abandoned or tax delinquent real property THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The not-for-profit corporation law is amended by adding two 2 new sections 1608-a and 1608-b to read as follows: 3 S 1608-A. ACCESS TO REAL PROPERTY PRIOR TO ACQUISITION. 4 NOTWITHSTANDING ANY GENERAL, SPECIAL OR LOCAL LAW OR ORDINANCE TO THE 5 CONTRARY: 6 (A) TO CARRY OUT THE POWERS, DUTIES AND GOALS IDENTIFIED IN THIS ARTI- 7 CLE, LAND BANKS SHALL BE AUTHORIZED, IN ACCORDANCE WITH THE PROCEDURE 8 DESCRIBED IN THIS SECTION, TO ACCESS ANY TAX DELINQUENT PARCEL OF REAL 9 PROPERTY THAT THE LAND BANK INTENDS TO ACQUIRE FROM ANY FORECLOSING 10 GOVERNMENTAL UNIT, IN ORDER TO DETERMINE THE PHYSICAL CONDITION OF ANY 11 BUILDINGS OR STRUCTURES ON SUCH PARCEL, OR TO ASSESS THE ENVIRONMENTAL 12 CONDITION OF SUCH PARCEL. IF DEEMED APPROPRIATE, SUCH ACCESS SHALL 13 INCLUDE THE ABILITY TO ENGAGE AN ENVIRONMENTAL PROFESSIONAL TO CONDUCT 14 ALL APPROPRIATE INQUIRIES INTO THE FORMER USE AND OWNERSHIP OF SUCH 15 PROPERTY, IN ORDER TO DETERMINE WHETHER HAZARDOUS MATERIALS, HAZARDOUS 16 SUBSTANCES OR OTHER CONTAMINANTS WERE PREVIOUSLY RELEASED OR DISPOSED OF 17 ON SUCH PARCEL, CONSISTENT WITH GOOD COMMERCIAL AND CUSTOMARY PRACTICE. 18 (B) FOLLOWING THE COMMENCEMENT OF A PROCEEDING TO FORECLOSE A TAX LIEN 19 BY THE TAXING DISTRICT HAVING ANY RIGHT, TITLE OR INTEREST IN OR LIEN 20 UPON ANY PARCEL, A LAND BANK MAY, UPON NOT LESS THAN TWENTY DAYS' NOTICE 21 TO ALL PARTIES HAVING RIGHT, TITLE, OR INTEREST IN, OR LIEN UPON SUCH 22 PARCEL, MOVE, AT A SPECIAL TERM IN THE COURT IN WHICH THE FORECLOSURE EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11251-01-5 A. 7848 2 1 PROCEEDING WAS INITIATED, OR IF SUCH PROCEEDING IS AN ADMINISTRATIVE 2 PROCEEDING PURSUANT TO THE PROVISIONS OF A COUNTY CHARTER, CITY CHARTER, 3 ADMINISTRATIVE CODE, OR SPECIAL LAW WHEN APPLICABLE UNDER SECTION ELEVEN 4 HUNDRED FOUR OF THE REAL PROPERTY TAX LAW, THEN SUCH MOTION SHALL BE AT 5 A SPECIAL TERM OF THE SUPREME COURT IN THE COUNTY IN WHICH SUCH PARCEL 6 IS LOCATED, FOR AN ORDER GRANTING THE LAND BANK THE TEMPORARY INCIDENTS 7 OF OWNERSHIP OF SUCH PARCEL FOR THE SOLE PURPOSE OF ENABLING THE LAND 8 BANK AND ITS AGENTS TO ENTER THE PARCEL TO CONDUCT VISUAL INSPECTION AND 9 SUCH FURTHER ENVIRONMENTAL INVESTIGATION OF THE PARCEL AS THE LAND BANK 10 DEEMS NECESSARY IN ORDER TO DETERMINE WHETHER HAZARDOUS MATERIALS, 11 HAZARDOUS SUBSTANCES OR OTHER CONTAMINANTS WERE PREVIOUSLY RELEASED OR 12 DISPOSED OF ON SUCH PARCEL. SUCH INSPECTION MAY INCLUDE INVASIVE TEST- 13 ING, INCLUDING BUT NOT LIMITED TO SAMPLING OF SURFACE AND SUBSURFACE 14 SOIL AND/OR GROUNDWATER, AS IS CONSIDERED BY AN ENVIRONMENTAL PROFES- 15 SIONAL TO BE NECESSARY AND CONSISTENT WITH GOOD COMMERCIAL AND CUSTOMARY 16 PRACTICE FOR CONDUCTING ALL APPROPRIATE INQUIRIES INTO THE FORMER USE 17 AND CONDITION OF SUCH PARCEL. FOLLOWING ANY SUCH INVASIVE TESTING, THE 18 LAND BANK SHALL RETURN THE PARCEL, TO THE EXTENT PRACTICABLE, TO THE 19 CONDITION IT WAS IN BEFORE THE INVESTIGATION. 20 (C) UNLESS PRIOR TO THE RETURN DATE OF THE MOTION BROUGHT PURSUANT TO 21 THIS SECTION THE PROPERTY HAS BEEN REDEEMED BY THE PARTY HAVING THE 22 RIGHT OF REDEMPTION, THE COURT SHALL ENTER AN ORDER GRANTING SUCH RELIEF 23 TO THE LAND BANK. SUCH ORDER SHALL BE GRANTED UPON SUCH TERMS AND CONDI- 24 TIONS AS THE COURT SHALL DEEM JUST AND PROPER TO PERMIT THE INSPECTION 25 TO OCCUR UNHINDERED AS WELL AS TO PROTECT THE INTERESTS OF ALL OTHER 26 PARTIES HAVING AN OWNERSHIP INTEREST IN THE PARCEL. SUCH ORDER SHALL ACT 27 AS A STAY TO THE FORECLOSURE ACTION ON SUCH PARCEL OF PROPERTY UNTIL THE 28 INSPECTION HAS BEEN COMPLETED AND A REPORT OF THE INVESTIGATION HAS BEEN 29 FILED WITH THE COURT. 30 (D) SUCH TEMPORARY INCIDENTS OF OWNERSHIP IN THE PARCEL BY THE LAND 31 BANK SHALL NOT BE SUFFICIENT OR CONSTRUED TO CONSTITUTE ACTUAL OWNERSHIP 32 OF THE PARCEL FOR PURPOSES OF ANY APPLICABLE ENVIRONMENTAL LAW WHICH 33 CONFERS LIABILITY FOR DAMAGES CAUSED BY THE RELEASE OF ANY HAZARDOUS 34 MATERIAL, SUBSTANCE OR CONTAMINANT, UNLESS SUCH RELEASE WAS ACTUALLY 35 CAUSED BY THE LAND BANK. 36 (E) WITHIN THIRTY DAYS FOLLOWING THE COMPLETION OF THE INSPECTION, 37 INCLUDING RECEIPT OF A FINAL REPORT RECEIVED FROM AN ENVIRONMENTAL 38 PROFESSIONAL CONDUCTING THE INSPECTION, IF ANY, THE LAND BANK SHALL FILE 39 ANY SUCH REPORT, OR A DESCRIPTION OF THE RESULTS OF THE INSPECTION IF NO 40 FORMAL ENVIRONMENTAL INVESTIGATION OF THE PARCEL WAS UNDERTAKEN, WITH 41 THE COURT ON NOTICE TO THE COURT AND ALL OTHER PARTIES OF RECORD, AND 42 THE STAY OF THE FORECLOSURE SHALL BE LIFTED (UNLESS LIFTED EARLIER BY A 43 PRIOR COURT ORDER), AND ALL INCIDENTS OF TEMPORARY OWNERSHIP OF THE LAND 44 BANK THAT WAS AWARDED TO SUCH LAND BANK, SHALL CEASE TO EXIST, AND NOTH- 45 ING IN THIS SUBDIVISION SHALL PRECLUDE THE LAND BANK THAT CONDUCTED THE 46 INSPECTION FROM MAKING A DETERMINATION NOT THE ACQUIRE THE PARCEL, OR 47 PRECLUDE THE TAXING JURISDICTION THAT COMMENCED THE FORECLOSURE ACTION, 48 FROM WITHDRAWING THE PARCEL FROM FORECLOSURE PURSUANT TO SECTION ELEVEN 49 HUNDRED THIRTY-EIGHT OF THE REAL PROPERTY TAX LAW OR PURSUANT TO THE 50 PROVISIONS OF A COUNTY CHARTER, CITY CHARTER, ADMINISTRATIVE CODE, OR 51 SPECIAL LAW WHEN APPLICABLE UNDER SECTION ELEVEN HUNDRED FOUR OF THE 52 REAL PROPERTY TAX LAW. 53 S 1608-B. LIABILITY EXEMPTION AND DEFENSES. 54 NOTWITHSTANDING ANY GENERAL, SPECIAL OR LOCAL LAW OR ORDINANCE TO THE 55 CONTRARY, IN CARRYING OUT THE POWERS, DUTIES AND GOALS IDENTIFIED IN 56 THIS ARTICLE WITH RESPECT TO THE ACQUISITION AND OWNERSHIP OF VACANT, A. 7848 3 1 ABANDONED OR TAX DELINQUENT REAL PROPERTY, NO LAND BANK ORGANIZED PURSU- 2 ANT TO THIS TITLE SHALL INCUR LIABILITY FROM ANY STATUTORY CLAIMS OF THE 3 STATE RELATING TO THE PRESENCE, RELEASE OR DISPOSAL OF HAZARDOUS WASTE, 4 HAZARDOUS SUBSTANCES, PETROLEUM OR OTHER CONTAMINANTS ON REAL PROPERTY, 5 BY VIRTUE OF ITS ACQUISITION AND OWNERSHIP OF ANY PROPERTY CONTAMINATED 6 BY SUCH HAZARDOUS WASTE, HAZARDOUS SUBSTANCES, PETROLEUM OR OTHER 7 CONTAMINANTS, PROVIDED THAT THE FOLLOWING CONDITIONS ARE MET: 8 (A) SUCH PROPERTY CONSTITUTED VACANT, ABANDONED OR TAX DELINQUENT 9 PROPERTY AND WAS ACQUIRED BY THE LAND BANK TO EFFECT THE PURPOSES 10 DESCRIBED IN SECTION SIXTEEN HUNDRED ONE OF THIS ARTICLE; 11 (B) THE RELEASE OR DISPOSAL OF THE HAZARDOUS WASTE, HAZARDOUS 12 SUBSTANCES, PETROLEUM OR OTHER CONTAMINANTS OCCURRED BEFORE THE ACQUISI- 13 TION OF THE PROPERTY BY THE LAND BANK; 14 (C) THE LAND BANK DID NOT CAUSE OR CONTRIBUTE TO THE RELEASE OR 15 THREATENED RELEASE OF THE HAZARDOUS WASTE OR PETROLEUM FROM OR ONTO THE 16 PROPERTY, OR GENERATE, TRANSPORT, OR DISPOSE OF SUCH HAZARDOUS WASTE OR 17 PETROLEUM, OR ARRANGE FOR, OR CAUSE THE GENERATION, TRANSPORTATION, OR 18 DISPOSAL OF HAZARDOUS WASTE, FROM OR ONTO THE SITE; AND 19 (D) SUCH PROPERTY WAS ACQUIRED BY THE LAND BANK EITHER DIRECTLY, 20 THROUGH FORECLOSURE OF A TAX LIEN, OR, WAS ACQUIRED FROM ANY PUBLIC 21 CORPORATION, AS DEFINED IN SECTION SIXTY-FIVE OF THE GENERAL 22 CONSTRUCTION LAW, FOLLOWING THE INVOLUNTARY ACQUISITION OF OWNERSHIP AND 23 CONTROL BY SUCH PUBLIC CORPORATION, INCLUDING BUT NOT LIMITED TO: 24 (1) ACQUISITIONS BY A PUBLIC CORPORATION IN ITS SOVEREIGN CAPACITY, 25 INCLUDING BUT NOT LIMITED TO ACQUISITIONS PURSUANT TO ABANDONMENT 26 PROCEEDINGS OR BEQUEST; 27 (2) ACQUISITIONS BY A PUBLIC CORPORATION, OR ITS AGENT, ACTING AS A 28 CONSERVATOR OR RECEIVER PURSUANT TO A CLEAR AND DIRECT STATUTORY MANDATE 29 OR REGULATORY AUTHORITY; 30 (3) ACQUISITIONS OF ASSETS THROUGH FORECLOSURE AND ITS EQUIVALENTS, OR 31 OTHERWISE, BY A PUBLIC CORPORATION IN THE COURSE OF ADMINISTERING A 32 LOAN, LOAN GUARANTEE, TAX LIEN, OR TAX FORBEARANCE AGREEMENT, OR LOAN 33 INSURANCE PROGRAM; OR 34 (4) ACQUISITIONS BY A PUBLIC CORPORATION PURSUANT TO SEIZURE, INJUNC- 35 TION, CONDEMNATION, OR FORFEITURE AUTHORITY; PROVIDED THAT SUCH OWNER- 36 SHIP OR CONTROL IS NOT RETAINED PRIMARILY FOR INVESTMENT PURPOSES. 37 S 2. This act shall take effect immediately.