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Part 590: Payment Of Expenses Upon Acquisition Of Real Property

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Contents:

Sec.

§590.1 Purpose

The laws stated above provided that the Commissioner of Environmental Conservation, with the approval of the Director of the Budget shall establish and may amend rules and regulations authorizing the payment of reasonable and necessary moving expenses, supplemental relocation payments, loss of favorable mortgage financing and closing costs to occupants of property acquired pursuant to such laws. The following rules and regulations shall apply to moving expenses, supplemental relocation payments, loss of favorable mortgage financing and closing costs to eligible persons caused by their displacement from real property acquired pursuant to such laws.

§590.2 Definitions

For the purposes of this Part, the following terms shall mean:

(a) Commissioner. The State Commissioner of Environmental Conservation.

(b) Department. The State Department of Environmental Conservation.

(c) Individual. A person who is not a member of a family as hereinafter defined.

(d) Family. The term family means two or more individuals one of whom is the head of a household, plus all other individuals regardless of blood or legal ties who live with and are considered a part of the family unit. Where two or more individuals occupy the same dwelling with no identifiable head of a household, they shall be treated as one family.

(e) Business. The term business means any lawful activity, excepting a farm operation, conducted primarily:

(1) 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;

(2) for the sale of services to the public;

(3) by a nonprofit organization; or

(4) solely for the purpose of moving and related expenses, 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.

(f) Nonprofit organization. A corporation, partnership, individual or other public or private entity, engaged in a business, professional or instructional activity on a nonprofit basis, necessitating fixtures, equipment, stock in trade, or other tangible property for the carrying on of the business, professional or institutional activity on the premises.

(g) Farm operation. The term farm operation means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.

(h) Moving expenses. The reasonable necessary expenses of moving personal property, including the costs of dismantling, disconnecting, crating, loading, insuring, temporary storage, transporting, unloading and reinstalling such personal property. Reimbursement for necessary moving expenses is also intended to include payment for temporary lodging and transportation and the cost of transferring licenses, exclusive of legal fees. Moving expense reimbursement is exclusive of any betterments or improvements (except when required by law) or additives to the replacement site.

(i) Counted rooms. That space in the appropriate structure containing a substantial and usual quantity of household furniture, equipment and personal property. They shall include the usual acceptable defined rooms such as bedrooms, living rooms, kitchens, etc. but will exclude vestibules, hallways, bathrooms and powder rooms.

(j) Dwelling. Any single family house, a single family unit in a multi-family building, a unit of a condominium or cooperative housing project, a mobile home, or any other residential unit.

(k) Comparable replacement dwelling. One which is:

(1) decent, safe and sanitary as otherwise defined in this Part;

(2) functionally equivalent and substantially the same as the acquired dwelling with respect to:

(i) number of rooms;

(ii) area of living space;

(iii) type of construction;

(iv) age;

(v) state of repair.

(3) fair housing (open to all persons regardless of race, color, religion, sex or national origin);

(4) in areas not generally less desirable than the dwelling to be acquired in regard to:

(i) public utilities; and

(ii) public and commercial facilities.

(5) reasonably accessible to the relocatee's place of employment;

(6) adequate to accommodate the relocatee;

(7) in an equal or better neighborhood;

(8) available on the market to the displaced person; and

(9) within the financial means of the displaced family or individual.

(l) Mortgage. Such classes of liens as are commonly given to secure advances on, or the unpaid purchase price of, real property, under the laws of the State, together with the credit instruments, if any, secured thereby.

(m) Owner. An individual owning, legally or equitably, the fee simple estate, a life estate, a 99 year lease; the contract purchaser of any of the foregoing estates or interests or who has succeeded to any of the foregoing interests by devise, bequest, inheritance or operation of law.

(n) Loss of favorable mortgage financing. The amount to compensate a displaced person for the increased interest costs that person is required to pay for financing a replacement dwelling based on the existing and replacement housing mortgage.

(o) Incidental expenses. The amount necessary for the actual, reasonable and necessary costs incurred incident to the purchase of a replacement dwelling, not including prepaid expenses.

(p) Hardship case. A situation determined by the commissioner to represent an extenuating or unusual circumstance where serious financial, social or personal hardship would be imposed upon an owner/tenant because of a delay in receiving payment of moving expenses, supplemental housing benefits, or related eligible expenses.

(q) Initiation of negotiations for the parcel. The date of the first personal contact with the owner of any property to be acquired or that person's designated representative where price is discussed.

(r) Initiation of negotiations for the project. The date of the first personal contact with the owner of any property or that person's designated representative where price is discussed except where such contact is made solely for protective buying or because of hardship.

(s) Date of eligibility for benefits. Eligibility for the payments enumerated in this Part are specified under the respective subdivision hereof. However, no eligibility will accrue to any person moving onto any project subsequent to the date of initiation of negotiations for the project, except for the payment of moving expenses, unless it be determined by the commissioner to be in the public interest to so make a finding of eligibility.

(t) Standards for decent, safe and sanitary housing. A decent, safe and sanitary dwelling is one which meets all of the following minimum requirements:

(1) Conforms to State and local housing codes and ordinances. Conforms with all applicable provisions for existing structures that have been established under State or local building, plumbing, electrical, housing and occupancy codes and similar ordinances or regulations.

(2) Water. Has a continuing and adequate supply of potable safe water.

(3) Kitchen requirements. Has a kitchen or an area set aside for kitchen use which contains a sink in good working condition and connected to hot and cold water, and an adequate sewage system. A stove and refrigerator in good operating condition shall be provided when required by local codes, ordinances or custom. When these facilities are not so required by local codes, ordinances or custom, the kitchen area or area set aside for such use shall have utility service connections and adequate space for the installation of such facilities.

(4) Heating system. Has an adequate heating system in good working order which will maintain a minimum temperature of 70 degrees Fahrenheit in the living area under local outdoor design temperature conditions. A heating system will not be required in those geographical areas where such is not normally included in new housing. Bedrooms are not included in the "living area" as referred to in this paragraph.

(5) Bathroom facilities. Has a bathroom, well lighted and ventilated and affording privacy to a person within it, containing a lavatory, basin and a bathtub or stall shower, properly connected to an adequate supply of hot and cold running water, and a flush closet, all in good working order and properly connected to a sewage disposal system.

(6) Electric system. Has an adequate and safe wiring system for lighting and other electrical services. When the utility is not reasonably accessible and is not required by local codes, ordinances or custom, an exception may be approved by the Superintendent of Land Acquisition.

(7) Structurally sound. Is structurally sound, weathertight, in good repair and adequately maintained.

(8) Egress. Each building used for dwelling purposes shall have a safe unobstructed means of egress leading to safe open space at ground level. Each dwelling unit in a multi-dwelling building must have access either directly or through a common corridor to a means of egress to open space at ground level. In buildings of three stories or more, the common corridor on each story must have at least two means of egress.

(9) Habitable floor space. Has 150 square feet of habitable floor space for the first occupant in a standard living unit and at least 100 square feet (70 square feet for mobile home) of habitable floor space for each additional occupant. The floor space is to be subdivided into sufficient rooms to be adequate for the family. All rooms must be adequately ventilated. Habitable floor space is defined as that space used for sleeping, living, cooking or dining purposes and excludes such enclosed places as closets, pantries, bath or toilet rooms, service rooms, connecting corridors, laundries and unfurnished attics, foyers, storage spaces, cellars, utility rooms and similar spaces.

(10) The standards for decent, safe and sanitary housing as applied to rental of sleeping rooms shall include the minimum requirements contained in paragraphs (1), (4), (6), (7) and (8) of this subdivision and the following:

(i) Habitable floor space. At least 100 square feet of habitable floor space for the first occupant and 50 square feet of habitable floor space for each additional occupant.

(ii) Bathroom facilities. Lavatory, bath and toilet facilities that provide privacy including a door that can be locked if such facilities are separate from the room.

(11) A mobile home is to be considered to be decent, safe and sanitary if it meets the standards set forth above except that the space requirements are reduced to a minimum of 150 square feet of habitable floor space for the first occupant and a minimum of 70 square feet of habitable floor space for each additional occupant and that one means of egress is available.

§590.3 General Provisions Applicable to Residential and Commercial Moving Expenses

The provisions stated herein apply to eligible persons occupying property on or after July 1, 1971. Application for payment of moving expenses shall be made by an eligible person in writing to the commissioner upon forms prescribed by the commissioner and shall be accompanied by such information, evidence and executed vouchers as the commissioner may require. Such application shall be submitted to the commissioner through the Land Acquisition Office, Department of Environmental Conservation and payment of such moving expenses shall be made to eligible persons under the circumstances and to the extent set forth herein.

(a) Any individual, family, business, or farm operator is eligible to receive payment for the reasonable expenses of moving their personal property subsequent to the earlier of the following two dates:

(1) that person is in occupancy at the initiation of negotiations for the acquisition of the real property in whole or in part; or

(2) that person is in occupancy at the time he or she is given written notice by the State that it is their intent to acquire the property by a given date or he or she is given notice to vacate the property by a specific date.

(b) Where the acquisition of real property used for a business or farm operation which is eligible for a payment under (a) above causes a person to vacate a dwelling from other real property not acquired or move his or her personal property from other real property not acquired, the additional expenses of moving such personalty are eligible for the appropriate moving payments.

(c) Moving expenses shall not exceed the cost of transportation beyond 50 miles, except in the case of a business or farm when the State determines that relocation cannot be accomplished within the 50 mile area; such exceptions may only be allowed to the nearest adequate and available site.

(d) The cost of insurance premiums covering loss and damage of personal property while in storage or transit will be eligible for reimbursement. Moving expenses shall not include any direct losses or losses due to negligence.

(e) The type of interest acquired does not affect the eligibility of relocation costs for reimbursement provided the interest acquired is sufficient to cause displacement. If, in the opinion of the commissioner, the acquisition of a portion of an entire premises or of access thereto renders all or the remainder of such premises unsuitable for continued use and occupation or renders it without suitable access the removal of persona

l property from the entire property may be considered eligible for the payment of moving expenses.

(f) Moving expenses shall not include the cost of moving any fixtures or equipment considered part of the realty from the acquired property nor will reimbursement be made for any cost of construction or improvement to the new location or for any remodeling, redecorating or reinforcing of the new structure to accommodate the eligible person or his or her personal property, unless required by law, or deemed to be in the public interest by the commissioner.

(g) Reimbursement for electrical wiring and plumbing charges and communication systems work covers only that work which is directly related to the personal property being relocated. Reimbursement is to exclude any costs of bringing electrical or plumbing services to the new site but may include costs of labor and materials of distributing these services to the personal property relocated. Reimbursement under this category excludes costs of installing basic electrical wiring or plumbing to a new structure or that normally found and expected in an existing structure and is intended to cover only those costs necessary to provide sufficient and adequate but not super-adequate utilities to operate the displaced business.

(h) No reimbursement for overtime payments will be allowed unless prior approval is received in writing from the department.

(i) It is expected that in anticipation of moving, the business or farm will reduce their inventories of stock or merchandise as much as practicable in order to have the removal accomplished in the most businesslike and economical manner.

(j) Application for payment of moving expenses must be made within 12 months after vacating of acquired premises or six months after final award determination in a case litigated in the courts of the State, whichever is the later. Such limitation shall include any eligible storage period.

(k) In case a building or structure acquired by the State is returned to the owners under an agreement, an eligible person will be entitled to the moving expenses for any personal effects, furniture and household equipment remaining in the building or structure at the time of removal of such building or structure; however, the cost of moving the structure is not eligible for moving expenses. The eligible person, at his or her option, may accept a room count allowance or receive reimbursement on the actual cost basis.

(l) In the case where the acquisition of real property causes the displacement of an advertising sign and such sign constitutes the only improvement to the property acquired or where the acquisition causes a person to remove his or her advertising sign from real property not acquired, the owner of the advertising sign is eligible for appropriate moving payments. However, where the advertising sign is owned by and located on the business or farm displaced there will be no separate moving or related expenses considered.

(m) Moving junkyards and automobile graveyards. The State will pay the cost to put the junk or automobile bodies in an acceptable condition for delivery to the nearest reasonable salvage collection point, together with the transportation costs from the appropriated property to said salvage collection point. In the case of moving the material from an appropriated junkyard to a substitute location the State will pay the processing cost to prepare the junk for removal by the most economical means. The State will not pay the cost of disassembly for resale of parts.

(n) An advertising sign, junkyard or automobile graveyard that is otherwise eligible for moving payments will not be eligible when it is moved to a site in violation of State, Federal or local regulations.

(o) An otherwise eligible owner of an advertising sign or a nonprofit business is not entitled to an "in lieu of" moving expense payment.

(p) If the actual costs incurred by the eligible person exceed the department's approved limit of moving expenses, the eligible person may submit to the department a fully detailed explanation for the excess costs. The department's approval limit may be adjusted accordingly.

(q) The cost of necessary storage for a period not to exceed six months may be considered as part of moving expenses and will be subject to the following provisions:

(1) Moving expenses may include the cost of moving into dead storage at the prevailing rate in a commercial storage facility or warehouse; no payment will be made for storage on premises owned or occupied by the eligible person, members of his or her immediate family, or his legal or financial representative.

(2) If personal property is subsequently sold or delivered from storage to third parties, reimbursement for storage or moving out of storage will not be allowed.

(r) The costs of storage or moving out of storage will not be considered in calculating a figure for determining the extent of participation in any other benefits defined herein.

(s) The State will not participate in more than one move of a displaced person unless in the opinion of the commissioner it is in the public interest to do so.

(t) In the case of a hardship where advance payment of moving expenses is requested, the eligible person must submit in advance a written application setting forth the full extent and circumstances of the hardship. A written determination will be made by the department. If the department determines a hardship exists, an advanced payment of reasonable necessary moving expenses may be made.

(u) In unusual or hardship situations, when determined to be in the public interest, the commissioner may authorize a payment even though the strict requirements of eligibility specified herein are not met.

§590.4 Residential Moving Expenses

All eligible residential occupants will be entitled to reimbursement of actual, reasonable and necessary moving expenses or may elect a fixed amount in accordance with the counted room allowance.

(a)

(1) If the eligible person elects to receive a scheduled payment in lieu of actual, reasonable and necessary moving expenses, the following schedules will apply:

Room Count Schedule
Unfurnished Units (Including Mobile Homes)
1st room 2nd 3rd 4th 5th 6th & over
$50 $110 $150 $190 $225 $25 each
Mobile Homes
sq. ft. 300 300/500 500/700 700/800 800 over
$100 $150 $200 $250 $300
Furnished Units, sleeping rooms (Including Mobile Homes)
1st room 2nd + remaining
25 15

(2) In addition to the amounts specified in paragraph (1) of subdivision (a) above, each relocated individual or family will be entitled to an additional $200 dislocation allowance. When garages, sheds and outbuildings are acquired and the eligible person's place of residence is not disturbed, or when the eligible person's principal place of residence is not the appropriated site, a fixed allowance may be applied per the aforementioned room count schedules less the $200 dislocation allowance.

(b)

(1) If the eligible residential occupant elects to receive reimbursement on the basis of actual, reasonable and necessary moving expenses, that person shall submit to the department at least four weeks prior to the moving date at least one estimate or bid from a recognized household furniture concern, together with a detailed inventory of all personal property to be removed. Such estimate or bid is to be in a form as prescribed in section 590.6 of this Part. After receipt of the estimate in acceptable form, an amount will be deemed reasonable and necessary by the department and the eligible person notified in writing to commence moving. Upon completion of the move, actual, reasonable and necessary moving expenses will be paid based upon receipted bills submitted to the department in an acceptable form consistent with section 590.6 of this Part, limited to an amount not to exceed the approved estimate.

(2) In the case of a residential self move performed by the eligible person, his or her family and others not normally in the moving business, the move must be in compliance with all applicable State and Federal laws. All charges must be detailed in the form of a summary affidavit. In the event of failure to meet any of the above requirements as provided, payment will be limited to a lump sum amount based on the count room schedule plus the dislocation allowance.

§590.5 Commercial Moving Expenses

An eligible person occupying a business, farm operation or a nonprofit organization will be reimbursed for actual, reasonable and necessary moving expenses, actual, reasonable and necessary expenses in searching for a replacement site and actual direct losses of tangible personal property in moving or discontinuing the operation or activity.

(a) The eligible person shall notify the department eight weeks prior to the starting date of the move of his or her definite intentions regarding the manner and method of moving. At the option of the department, personnel of the department may conduct an inventory of personal property and merchandise to be moved, including a description of each phase of the work to be performed and an explanation of any unusual or peculiar circumstances that will be pertinent to arriving at a comprehensive cost of moving figure. The address of the appropriated property, address the eligible person is moving to and the approximate distance between is to be included therein. This inventory is to be signed by the eligible person and is to be supplied to all estimators and bidders for each phase of the work and they are to base their estimates and bids on removal of the items listed therein. The occupant may at his or her own expense, obtain competitive bids on the costs of moving and may submit a competitive self-move bid on all or a portion of the removal.

(b) Actual costs must be documented upon receipted, detailed bills from recognized movers, skilled craftsmen and are not to exceed the total of the lowest acceptable bids or estimates obtained on each phase of the move.

(c) Estimates and bids on each phase of the move shall be obtained by the department from generally recognized, qualified movers and skilled craftsmen. Upon receipt and review of all estimates and bids, the department will determine the lowest acceptable bid. This bid will be sent to the eligible person advising him or her to commence moving and setting forth the limits of reimbursement and the time and manner in which payment will be made. After the removal has been accomplished actual cost must be documented by detailed, receipted bills from recognized movers, skilled craftsmen and are not to exceed the approved amount based on a total of the lowest acceptable bids or estimates obtained on each phase of the move. All bids from movers and craftsmen must be submitted in accordance with section 590.6 of this Part.

(d) In the case of a self move the owner of a relocated business may be paid an amount to be negotiated between the State and the business not to exceed the lower of two firm bids or estimates obtained by the State from qualified moving firms.

(e) When personal property which is used in connection with the business to be moved is of low value and high bulk and the estimated cost of moving would be disproportionate in relation to the value, the State may negotiate with the owner for an amount not to exceed the difference between the cost of replacement of comparable item(s) on the market and the amount which would probably have been received for the item(s) on liquidation.

(f) All books and records kept by eligible persons shall be subject to review and audit by a State representative during reasonable business hours.

(g) Payment of moving expenses is based upon the preapproval of estimates and bids submitted to the department before commencing the move. If, due to extraordinary circumstances a move is completed without submitting necessary bids, the commissioner may, upon receipt of sufficient written justification for failure to submit estimates, pay reasonable and necessary actual expenses upon verification and support for the expenses incurred.

§590.6 Procedure for Actual Cost Basis Moving Expenses

On an actual cost basis, all bids, estimates and final bills being submitted on each phase of the move by moving concerns or skilled craftsmen, herein referred to as contractors, shall contain as a minimum the following information:

(a) Name and address of the contractor and date prepared.

(b) If estimates, bids or bills are to be made on an hourly rate or some other basis, then such method must contain sufficient data and explicit details to expedite meaningful analysis.

(c) An itemized list of the estimated or actual charges for packing, unpacking, crating, dismantling, disconnecting, reassembling and reconnection.

(d) If any material is required, it must be itemized together with the costs. No reimbursement will be made for the use of new materials in the reinstallation of the personalty except when it is in the best interest of the State.

(e) In cases where use of trucks and other equipment are necessary, an itemized list of charges shall be based upon an hourly, daily, weekly or monthly rate, whichever total amount is lesser, based upon the number of estimated hours equipment will be used. The estimated equipment rate or hourly wage rate shall not exceed the prevailing industry rate for such equipment or labor. If the eligible person utilized equipment or labor at a rate less than the rates paid by commercial movers, the lesser rate will be used.

(f) If it is determined by the commissioner that the bids, estimates or bills submitted appear unreasonable, unnecessary or noncompensable, the eligible person may be required to submit additional information considered necessary to determine the reasonable and necessary cost of moving.

§590.7 "In Lieu of" Moving Expenses for Business or Farm Occupants

"In lieu of" actual, reasonable and necessary moving expenses, searching fees and actual direct losses of tangible personal property, a business or farm operation is eligible for a payment equal to the average annual net earnings of the displaced business or farm, except such payment shall not be less than $2,500 nor more than $10,000 providing the following requirements are met:

(a) Business. The owner of the business eligible for relocation expenses must submit a written application as prescribed by the commissioner, with eligibility for payment contingent upon the State's determination that the business:

(1) cannot be relocated without a substantial loss of patronage, herein defined as the average dollar volume of business transacted during the two taxable years immediately preceding the year in which the business is relocated, and

(2) 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 and which is engaged in the same or similar business, and

(3) the business contributes materially to the income of the displaced owner.

(b) Farm. The owner of a displaced farm operation must submit a written application as prescribed by the commissioner, with eligibility for payment contingent upon the State's determination that:

(1) the farm operator has discontinued or relocated his entire operation at the present location, and

(2) in the case of a partial taking, the property remaining after the acquisition is no longer an economic unit as determined by the State in its appraisal process.

(c) The department will calculate a payment "in lieu of" moving expenses equivalent to the average annual net earnings. The term "average annual net earnings" means one-half of any net earnings of the business or farm before Federal, State and local income taxes during the two taxable years immediately preceding the taxable year in which the business or farm is relocated. Such earnings shall include any compensation paid by the business or farm to the owner and his or her immediate family during the base year period. In the case of a corporation, earnings shall include any compensation paid by the corporation to the owner of a majority interest in the corporation. For purposes of determining majority ownership, stock held by a person and his or her immediate family shall be treated as one unit.

(d) If the business or farm affected can show that it was in business 12 consecutive months during the two taxable years prior to the taxable year in which it is required to relocate; had income during such period and is otherwise eligible, the owner of a business is eligible to receive the "in lieu of" payment. Where the business was in operation for 12 consecutive months or more but was not in operation during the entire two preceding taxable years, the payment shall be computed by dividing the net earnings by the number of months the business was operated and multiplying by 12. A taxable year is defined as any 12-month period used by the business in filing income tax returns.

(e) For the owner of a business or farm to be entitled to this payment, the business or farm must provide information to support the net earnings. State or Federal income tax returns for the years in question are acceptable as evidence of earnings. Any commonly accepted method of verifying earnings may be offered provided it grants the State the right to review the records and accounts of the business or farm. The eligible person will be notified in writing by the department regarding his or her eligibility and the amount of the "in lieu of" payment, if any, will be set forth therein.

§590.8 Actual, Reasonable and Necessary Searching Fees

(a) In the case of a business, farm operation, or nonprofit organization, the eligible person or his or her qualified representative may be reimbursed for the actual, reasonable and necessary expenses in searching for a replacement site not to exceed $ 500. The owner of a displaced advertising sign, eligible under section 590.3 of this Part, may be reimbursed his or her actual, reasonable expenses in searching for a replacement sign site not to exceed $ 100. Reimbursement will be limited to the above amounts unless in exceptional cases the commissioner deems otherwise.

(b) The expenses in searching for a replacement site may include transportation expenses, meals and lodging away from home and the reasonable value of time actually spent in searching for a replacement site, including the actual, reasonable fees of realtors or real estate brokers in such searching but not including any commission for the sale of a property.

(c) The application for reimbursement shall take the form of a summary affidavit which is to include the name and address of the eligible person, a detailed summary of the work performed, dates and hours worked and wage rate applied not to exceed $10 per hour. Lodging, mileage, and subsistence charges will be allowed according to and consistant with the prevailing rates approved for State travel and expense purposes by the State Comptroller for those type of expenditures.

(d) All actual, reasonable and necessary expenses directly related to the search for replacement property must be documented by detailed, receipted bills.

§590.9 Actual Direct Losses of Tangible Personal Property

(a) Actual direct losses of tangible personal property are allowed in the case of a business, farm, or nonprofit organization when an eligible person who is displaced is entitled to relocate such personal property but elects not to do so. Payments for such losses may only be made after a bona fide effort has been made by the owner to sell the item(s) involved. When the item(s) is sold, payment will be made according to the following standards:

(1) If the business, farm, etc. is reestablished, but the personal property is replaced with a comparable item at the new location, payment shall be the lesser of:

(i) the replacement cost less the net proceeds of the sale; or

(ii) the estimated cost of moving the item

(2) If the business, etc. is discontinued, or the item is not replaced in the reestablished business, payment shall be the lesser of:

(i) the depreciated value of the item in place less the net proceeds of the sale; or

(ii) the estimated cost of moving the item

(b) If a bona fide sale is not effected above because no offer is received for the personalty, the owner shall be entitled to the reasonable expenses of the sale plus the estimated cost of moving the item(s). Payment to the owner for losses for the item involved in this circumstance will not be made unless and until the owner thereof submits a suitable declaration of abandonment of the item(s) involved. Upon receipt of this abandonment notice, the item(s) become the property of the State, subject to disposal in the most economical manner. If the person makes no attempt to dispose of the property by sale or removal, the owner will not be entitled to payment of any moving expenses, or losses, for the item involved.

(c) Under the above conditions, the eligible person shall notify the department at least three months prior to the starting date of the move of his or her definite intentions toward application for a payment for direct losses of tangible personal property. Upon receipt of this notice, an inventory will be compiled by the department distinguishing the realty and the personalty, and the eligible person will sign this inventory. The department will further obtain estimates on the costs of moving the personal property to the new location. Upon written notification from the department, the eligible person may make arrangements for a public sale, advertising to be accomplished in the most economical manner and with provision for adequate notification through the media appropriate for the sale of the personalty. The sale will be held publicly during reasonable hours and in the presence of a representative of the department. The sale price, if any, and the actual, reasonable costs of advertising costs or related costs in conducting the sale incurred by an auctioneer or sales manager, shall be supported by a copy of the bill of sale or similar documents and by copies of any advertisements, offers to sell, auction records and other data supporting the bona fide nature of the sale are to be presented to the department when making application for payment under this subdivision. The eligible owner of an advertising sign may be reimbursed for actual direct losses when he or she is entitled to relocate the sign but does not do so; the owner need not attempt to conduct a bona fide sale; the loss will be the lesser of

(1) the depreciated reproduction cost of the sign as determined by the State, or

(2) the estimated cost of moving the sign.

§590.10 Supplemental Relocation Payments, Loss of Favorable Mortgage Financing, Incidental Expenses

In addition to other payments and benefits authorized by State law, individuals and families displaced from dwellings on real property acquired by the Department of Environmental Conservation, who were in occupancy on or after July 1, 1971 are entitled to supplemental relocation payments, payment for loss of favorable mortgage financing, and incidental expenses in accordance with the following criteria and eligibility standards.

(a) General requirements to receive replacement housing payments.

(1) In addition to the occupancy requirements as specifically enumerated herein, a displaced person is otherwise eligible for the appropriate payments when that person relocates and occupies a decent, safe and sanitary dwelling within one year, beginning on the latter of the following dates: the date on which that person receives final payment from the State for legal damages directly connected with the acquisition of his or her dwelling unit; or the date required to move from the dwelling acquired; or the date on which that person actually moves from the dwelling acquired, if in fact this latter date is earlier than the date required to move. The date required to move is here defined and elsewhere in this section as that date specified in writing by the State, by which the property must be vacated.

(2) Application for payments under this section shall be in writing on forms prescribed by the commissioner. The application must be filed no later than six months after the expiration of the one-year period specified immediately above, except that in cases litigated in the Court of Claims, the six-month period shall start from the date of final judgment of that court.

(3) If two or more eligible families occupy the same single family dwelling unit, each family is eligible for a replacement housing payment if they relocate to separate dwelling units.

(4) If two or more eligible individuals with no identifiable head of household occupy the same single family dwelling unit they are considered as one family for replacement housing payment purposes. When all individuals do not relocate to decent, safe and sanitary housing the department shall determine and pay those individuals who do relocate into decent, safe and sanitary housing a pro rata share of the amount that would have been received if all of the individuals had relocated together.

(b) Supplemental payments; owner-occupants over 180 days who repurchase.

(1) A displaced owner-occupant of a dwelling may receive additional payments, the combined total of which may not exceed $ 15,000, for the additional cost necessary to purchase replacement housing; to compensate the owner for the loss of favorable financing on his or her existing mortgage in the financing of replacement housing; and to reimburse the owner for incidental expenses incident to the purchase of replacement housing when such costs are incurred as specified herein.

(2) The owner-occupant is eligible for such payments when:

(i) that person is in occupancy at the initiation of negotiations for the acquisition of the real property, in whole or in part; or

(ii) that person is in occupancy at the time he or she is given a written notice by the State that it is their intent to acquire the property by a given date; and

(iii) such occupancy has been for at least 180 consecutive days immediately prior to the date of vacation or initiation of negotiations whichever is earlier; and

(iv) that person purchases and occupies a decent, safe and sanitary dwelling within the time period specified in paragraph (1) of subdivision (a).

(3) The replacement housing payment is the amount, if any, which when added to the amount for which the State acquired his or her dwelling, equals the actual cost which the owner is required to pay for a decent, safe and sanitary dwelling, or the amount determined by the department as necessary to purchase a comparable dwelling, whichever is less. The State's determination of the amount necessary to purchase a comparable dwelling may be made on the basis of either of the two following methods:

(i) The State may establish a schedule of probable selling prices of comparable dwellings in the various types of dwellings being acquired. Such schedule may be prepared from an analysis of the current probable selling prices of dwellings available on the market.

(ii) The State may determine the probable selling price of a comparable dwelling by analyzing those selected comparable dwellings available for sale which are most nearly comparable to the property being acquired by the State. All calculations or supplemental relocation payments are to be predicated on the basis of the probable selling price of the available comparable housing, not the asking prices.

(4) An owner-occupant desiring to retain his or her acquired dwelling may be paid a replacement housing payment according to the following computations:

(i) If the dwelling to be moved is decent, safe and sanitary, the payment shall be the amount by which the cost to relocate the dwelling exceeds the acquisition price of the dwelling. The costs to relocate may include the reasonable costs of acquiring the dwelling, acquiring a new site and other expenses incident to retaining, moving the dwelling and restoring it to a condition comparable to that before the move.

(ii) If the dwelling to be moved is not decent, safe and sanitary, the payment shall be computed as above except that the costs to cure the decent, safe and sanitary deficiencies shall be included in the costs to relocate.

(iii) The payments computed under subparagraph (i) or (ii) above may not exceed the amount which the owner would have obtained had he or she purchased a replacement dwelling and his or her payment computed as per paragraph (3) of subdivision (b) above.

(c) Owner-occupant over 180 days who rents replacement housing. An owner-occupant eligible for a replacement housing payment under subdivision (b) above who elects to rent a replacement dwelling is eligible for a rental replacement housing payment not to exceed $ 4,000. The payment shall be computed and disbursed according to the following criteria:

(1) The payment shall be determined by subtracting from the amount necessary to rent a comparable dwelling for the next four years, 48 times the economic rental of the dwelling unit occupied as computed by the State.

(2) In cases where the economic rental of the acquired dwelling exceeds 25 percent of the owner's gross monthly income, and he or she elects to relocate into public subsidized rental housing, the computation of benefits will be in accordance with paragraph (3) of subdivision (c).

(3) The State may determine the rental rates of comparable housing by a schedule or an individual analysis of comparable available rentals.

(4) The payment under this section may not exceed the maximum amount the owner would have received had that person elected to repurchase a dwelling unit under the provisions of subdivision (b) above.

(d) Owner-occupant; less than 180 days but more than 90 days who purchases. A displaced owner-occupant otherwise eligible under subdivision (b) except that he or she has owned and occupied the dwelling for less than 180 days but more than 90 days may receive an amount, not to exceed $ 4,000, to enable him or her to make a downpayment on the purchase of a replacement dwelling and reimbursement for actual expenses incident to such purchase; or for additional costs to relocate his or her retained dwelling in accordance with the following regulations:

(1) The amount of the downpayment shall be determined by the State as the amount required as a downpayment on a comparable dwelling if such purchase was financed with a conventional loan.

(2) The expenses incident to the purchase of replacement housing as described in subdivision (j) succeeding.

(3) Upon purchase and occupancy of a decent, safe and sanitary dwelling by the relocatee within the time limits specified in paragraph (a)(1) the relocatee may be reimbursed:

(i) the full amount of the downpayment determined in paragraph (1) above and the eligible incidental expenses if such total amount does not exceed $ 2,000; or if more than $ 2,000,

(ii) $ 2,000, plus 50 percent of the amount in excess of $ 2,000 providing the relocatee contributes 50 percent of the amount in excess of $ 2,000.

(4) The full amount of the downpayment must be applied to the purchase price of the replacement property and any downpayment and incidental costs claimed must be shown in the closing statement. To process for payment, the State must be furnished a copy of the closing statement. If the owner elects to retain his or her dwelling, the replacement housing payment will be determined in accordance with paragraph (4) of subdivision (b), except that such payment shall not exceed $ 4,000. If the owner first elects to rent a replacement property, but later decides to apply for a downpayment on a purchase of a replacement property, any payments made under the rental provisions are to be deducted from the payments authorized under this paragraph.

(e) Owner-occupant; less than 180 days but more than 90 days; who rents. An owner-occupant otherwise eligible under subdivision (b) except that he has owned and occupied the dwelling for less than 180 days but more than 90 days, and elects to rent a replacement dwelling is eligible for a rental housing payment not to exceed $4,000. The specific payment will be determined in accordance with the provisions of paragraphs (1), (2) and (3) of subdivision (c).

(f) Tenant-occupant; over 90 days; renting replacement housing.

(1) A displaced tenant is eligible for a rental replacement housing payment, not to exceed $4,000 when:

(i) that person is in occupancy at the beginning of negotiations for the acquisition of the real property; or

(ii) that person is in occupancy at the time he or she is given a written notice by the State that it is their intent to acquire the property by a given date; and

(iii) such occupancy has been for at least 90 consecutive days immediately prior to the date of vacation or initiation of negotiations, whichever is earlier; and

(iv) that person rented and occupied a decent, safe and sanitary dwelling within the time period specified in paragraph (1) of subdivision (a);

(2) The payment, not to exceed $ 4,000, shall be determined by subtracting from the amount necessary to rent a comparable dwelling for the next four years the following amount:

(i) 48 times the average monthly rental paid by the relocated individual or family during the last three months; or

(ii) if such average monthly rental is not reasonably equal to market rentals for similar dwellings, the economic rent as established by the State shall be used.

(iii) The "rent being paid" shall include any rent supplements supplied by others except when, by law, such supplement is to be discontinued upon vacation of the property.

(3) When the average monthly rental being paid by the relocatee, not including supplemental rent by public agencies, exceeds 25 percent of the monthly gross income of such individual or family, the payment, not to exceed $ 4,000, shall be determined by subtracting 12 times the average monthly income of the relocatee from:

(i) 48 times the monthly rental determined by the State as necessary to rent a private comparable dwelling if the relocatee moves into private housing; or

(ii) if the relocatee moves into public subsidized housing, the lesser of:

(a) 48 times the monthly rental determined by the State as necessary to rent a private comparable dwelling; or

(b) 48 times the monthly rental the relocatee is required to pay if that person relocates in the subsidized housing.

(4) The State may determine the rental rates of comparable housing by a schedule or an individual analysis of comparable rentals.

(g) Tenant-occupant; over 90 days; downpayment for purchase. A tenant-occupant eligible for a rental replacement payment under subdivision (f) who elects to purchase a replacement dwelling is eligible to receive an amount, not to exceed $ 4,000 to enable him or her to make a downpayment on the purchase of a replacement dwelling, including the incidental expenses incident to such purchase. The payment will be computed in accordance with the provisions of subdivision (d).

(h) Sleeping room tenant; over 90 days. A displaced tenant of a sleeping room who is eligible for a replacement housing payment under subdivision (f) may receive an amount, not to exceed $ 4,000, as a rental replacement housing payment or to enable him or her to make a downpayment on a replacement dwelling in accordance with the following regulations:

(1) For rental replacement housing the payment, not to exceed $ 4,000, shall be determined by subtracting from the amount necessary to rent a comparable sleeping room for the next four years the following amount:

(i) 48 times the average monthly rental paid by the displaced tenant during the last three months; or

(ii) if such average monthly rental is not reasonably equal to market rentals for similar sleeping rooms, the economic rent as established by the State.

(2) The State may determine the rental rates of comparable housing by a schedule or an individual analysis of comparable available rentals.

(3) The downpayment amount, including the expenses incident to purchase of the replacement dwelling are to be computed in accordance with the provisions of subdivision (d).

(i) Increased interest payments; owner-occupant over 180 days who purchases.

(1) An owner-occupant, otherwise eligible under subdivision (b), is entitled to a payment for the loss of favorable financing on his or her existing mortgage in the financing of replacement housing, providing such payment falls within the $ 15,000 limit established in subdivision (b), and further providing that the following conditions are met:

(i) the dwelling acquired was encumbered by a bona fide mortgage which was a valid lien on such dwelling for not less than 180 days prior to the established eligibility date as specified in subdivision (b), and

(ii) the mortgage on the replacement dwelling bears a higher rate of interest than the mortgage interest rate on the acquired dwelling.

(2) The increased interest payment will be based on and limited to the lesser of the following amounts:

(i) the present worth of the right to receive the monthly difference in mortgage payments on the existing mortgage using the old and new interest rates; or

(ii) the present worth of the right to receive the monthly difference in mortgage payments on the new mortgage using the old and new interest rates.

(3) Payment computation. The amount of increased interest payment will be computed in accordance with the following procedures:

(i) The monthly principal and interest payment differences caused by the change in interest rates is computed for both the existing mortgage and new mortgage for their respective remaining terms and amounts. The old and new interest rates are used in each case.

(ii) The present worth of the monthly interest difference found in subparagraph (i) above is computed for each mortgage by discounting the annual difference (the sum of the monthly difference for one year) at the savings deposit interest rate for the remaining term of each mortgage. The lesser of the amounts so derived is the increased interest payment.

(4) Interest rate of replacement dwelling mortgage.

(i) The interest rate on the mortgage for the replacement dwelling to be used in the computation shall be the actual rate but may not exceed the prevailing interest rate currently charged by mortgage lending institutions in the vicinity.

(ii) When the lending agency imposes debt service charges as an incident to the extension of credit, and such charges are normal to the market, the annual percentage rate shown in the truth in lending statement shall be used in lieu of the mortgage interest rate in computing the monthly principal and interest payments.

(5) Discount rate. The discount rate shall be the prevailing rate of interest paid on passbook savings account deposits by commercial banks in the general area in which the replacement dwelling is located.

(6) To whom payment made. The payment described in this paragraph may be made directly to the relocated individual or family, or upon written instruction from the relocated individual or family, directly to the mortgagee of the replacement dwelling.

(7) Partial acquisition.

(i) Where the dwelling is located on a tract normal for residential use in the area, the interest payment shall be reduced to the percentage ratio that the acquisition price bears to the before value; except, the reduction shall not apply when the mortgagee requires the entire mortgage balance to be paid because of the acquisition and it is necessary to refinance.

(ii) Where a dwelling is located on a tract larger than normal for residential use in the area, the interest payment shall be reduced to the percentage ratio that the value of the residential portion bears to the before value. This reduction shall apply whether or not it is required that the entire mortgage balance be paid.

(8) Multi-use properties. The interest payment on multi-use properties shall be reduced to the percentage ratio that the residential value of the multi-use property bears to the before value.

(9) Other highest and best use. If a dwelling is located on a tract where the fair market value is established on a higher and better than residential use, and if the mortgage is based on residential value, the interest payment shall be computed as provided above. If the mortgage is obviously based on the higher use, however, the interest payment shall be reduced to the percentage ratio that the estimated residential value of the parcel bears to the before value.

(j) Incidental expenses.

(1) An otherwise eligible owner-occupant or tenant-occupant who purchases a replacement dwelling, is entitled to a payment for the incidental expenses incident to the purchase of the replacement dwelling, providing such payment falls within the $15,000 and $4,000 limits as otherwise established in this section. The following expenses, insofar as they do not constitute prepaid expenses, are eligible for reimbursement on an actual cost basis:

(i) Legal, closing and related costs including title search, preparing conveyance contracts, notary fees, surveys, preparing drawings or plats, and charges paid incident to recordation;

(ii) Lenders, FHA or VA appraisal fees;

(iii) FHA or VA application fee;

(iv) Certification of structural soundness;

(v) Credit report;

(vi) Owner's title policy or abstract of title;

(vii) Escrow agent's fee;

(viii) State revenue stamps;

(ix) Sales or transfer taxes.

(2) No fee, cost, charge or expense is reimbursable as an incidental expense which is part of the debt service, or finance, charge under the Federal Truth in Lending Act.

(3) Reimbursement for these eligible incidental expenses shall be contingent upon showing the actual expense and shall be accompanied by a copy of the closing statement for the replacement dwelling.

(k) Mobile homes; replacement housing payments; general provisions.

(1) A mobile home is considered to be decent, safe and sanitary if it meets the defined standards in this Part.

(2) Where the department determines that a sufficient portion of a mobile home park is taken to justify the operator of such park to move his or her business or go out of business and the operator does in fact move or go out of business, the owners and occupants of the mobile home dwellings not within the actual taking but who are forced to move are eligible to receive the same payments as though their dwellings were within the actual taking.

(3) When a comparable mobile home dwelling is not available, the supplemental relocation payment is to be calculated on the basis of the next higher type dwelling that is available and meets the applicable requirements and standards, i.e., a higher type mobile home or a conventional dwelling.

(l) Mobile homes; owner-occupants over 180 days. A displaced owner of a mobile home who has occupied, for at least 180 days, the mobile home on the site from which he or she is being displaced and is otherwise eligible under the provisions of paragraph (2) of subdivision (b), is eligible for payments, the total of which may not exceed $ 15,000, for the additional costs necessary to purchase replacement housing under the following circumstances:

(1) When owner-occupant owns both mobile home and site, the replacement housing payment will be the amount, if any, when added to the amount for which the State acquired his or her mobile home and site equals the lesser of:

(i) the amount the owner is required to pay for a decent, safe and sanitary conventional dwelling or a decent, safe and sanitary replacement mobile home and site; or

(ii) the amount determined by the State as necessary to purchase a comparable mobile home and site. If the owner-occupant decides to rent, the rental replacement payment shall be the difference between the State's determination of the amount necessary to rent a comparable mobile home and site for a period of four years and 48 times the economic rent of the existing mobile home and site. The calculated rental replacement payment may not exceed the amount determined by the State in subparagraphs (i) and (ii) above, or $ 4,000, whichever is lesser.

(2) Owner-occupant; acquisition of site only. Upon acquisition of the site, but not the home situated upon the site and the mobile home is required to be moved, the replacement housing payment will be determined as follows: the amount, if any, when added to the amount for which the State acquired his or her mobile homesite equals the lesser of:

(i) the amount the owner is required to pay for a comparable homesite, or

(ii) the amount determined by the State as necessary to purchase a comparable mobile homesite. If the owner elects to rent, the rental replacement payment shall be the difference in the amount determined by the State as necessary to rent a comparable mobile homesite for a period of four years and 48 times the economic rent of the site acquired. The calculated rental replacement payment may not exceed the amount determined by the State in subparagraph (ii) of paragraph (2) above, or $ 4,000 whichever is lesser.

(3) When owner-occupant owns mobile home; rents site. The replacement housing payment will be the amount, if any, when added to the amount for which the State acquired his or her mobile home equals the lesser of:

(i) the amount the owner is required to pay for a replacement dwelling; or

(ii) the amount determined by the State as necessary to purchase a comparable mobile home, plus the difference in the amount determined by the State as necessary to rent a comparable mobile homesite for a period of four years and 48 times the rent being paid on the site acquired. If the owner elects to rent a replacement mobile home, the rental replacement housing payment, not to exceed $ 4,000, shall be the difference in the amount determined by the State as necessary to rent a comparable mobile home and site for four years and 48 times the economic rent of the mobile home plus the actual rent of the site acquired.

(4) In addition to the replacement housing payments specified above, the owner-occupant is entitled to a payment to compensate him or her for the loss of favorable financing on his or her existing mortgage in the financing of replacement housing and payment for incidental expenses incident to the purchase of replacement housing. These payments will be calculated and paid in accordance with subdivisions (i) and (j) of this section.

(m) Mobile homes; owner-occupants less than 180 days, but more than 90 days. A displaced owner of a mobile home who has occupied, for less than 180 days but more than 90 days, the mobile home on the site from which he or she is displaced and who is otherwise eligible under the provisions of paragraph (2) of subdivision (b), is eligible for an amount, not to exceed $4,000, to enable him or her to make a downpayment on the purchase of replacement housing and to reimburse him or her for the actual expenses incident thereto in accordance with the following provisions:

(1) Owner-occupant owning both mobile home and site. If the owner purchases a replacement dwelling, the replacement housing payment will be determined in accordance with the heretofore defined provisions relating to downpayment calculations, except that the amount of the downpayment shall be determined by the State as the amount required on the purchase of a comparable mobile home and site. If the owner-occupant elects to rent, the rental replacement payment, not to exceed $ 4,000, shall be the difference in the amount determined by the State as necessary to rent a comparable mobile home and site for a period of four years and 48 times the economic rental of the mobile home and site.

(2) Owner-occupant; acquisition of site only. If the owner purchases conventional housing or a site to which the mobile home is moved, the replacement housing payment will be in an amount determined in accordance with the provisions relating to downpayment calculations except that the amount of the downpayment shall be determined by the State as the amount required as a downpayment on the purchase of a comparable site. If the owner-occupant elects to rent, the rental replacement payment, not to exceed $ 4,000, shall be the difference in the amount determined by the State as necessary to rent a comparable site for four years and 48 times the economic rent of the site acquired.

(3) Owner-occupant owns mobile home; rents site. If the owner purchases replacement housing, the replacement housing payment, not to exceed $ 4,000, will be:

(i) an amount determined in accordance with the provisions relating to downpayment calculations, except that the amount of the downpayment shall be determined by the State as the amount required as a downpayment on the purchase of a comparable mobile home; plus

(ii) the difference in the amount determined by the State as necessary to rent a comparable mobile homesite for four years and 48 times the rent being paid on the site acquired. If the owner elects to rent, the rental replacement payment shall be the difference in the amount determined by the State as necessary to rent a comparable mobile home and site for four years and 48 times the economic rent of the mobile home and the actual rent of the site acquired.

(n) Mobile homes; tenants over 90 days. A displaced tenant of a mobile home who has occupied for at least 90 days the mobile home on the site from which he or she has been displaced and is otherwise eligible under the provisions of paragraph (1) of subdivision (f), is eligible for a replacement housing payment, not to exceed $ 4,000.

(1) to enable him or her to make a downpayment on the purchase of a replacement dwelling and to reimburse him or her for the expenses incident to such purchase; or

(2) if he or she elects to rent, payment shall be the difference in the amount determined by the State as necessary to rent a comparable mobile home and site for four years and 48 times the actual rent being paid for the mobile home and site acquired.

(o) Supplemental replacement housing payments; miscellaneous provisions.

(1) Inspection of replacement dwelling. In order to be eligible for and receive any supplemental relocation payments, the State must inspect the replacement dwelling and determine that it meets the decent, safe and sanitary standards as defined in section 590.2 of this Part. In any application for payment, the individual or family must indicate that, to the best of their knowledge and belief, the replacement dwelling meets the defined standards for decent, safe and sanitary housing.

(2) Advanced replacement housing payments in litigated cases. An advance replacement housing payment can be authorized and paid to a property owner if the determination of the State's acquisition price will be delayed pending the outcome of a trial in the Court of Claims. A provisional replacement housing payment may be calculated by deeming the State's maximum offer for the property as the acquisition price. Payment of such amount may be made upon the owner-occupant's agreement that:

(i) Upon final judgment of the Court of Claims the replacement housing payment will be recomputed using the acquisition price determined by the court as compared to the actual price paid or the amount determined by the State necessary to acquire a comparable decent, safe and sanitary dwelling, and

(ii) If the amount awarded by the court as the fair market value of the property acquired plus the amount of the recomputed replacement housing payment exceeds the price paid for, or the State's determined cost of a comparable dwelling, the owner will refund to the State from the judgment amount, an amount equal to the excess. In no event, however, shall that person be required to refund more than the amount of the replacement housing payment advanced, and

(iii) If the property owner does not agree to such adjustment, the replacement housing payment shall be deferred until the case is finally adjudicated and computed on the basis of the final determination, using the award as the acquisition price.

(3) Ownership of replacement dwelling prior to displacement. Any person who has obtained legal ownership of a replacement dwelling any time after the initiation of negotiations on the project and occupies the replacement dwelling after being displaced but within the time limit specified in paragraph (1) of subdivision (a), is eligible for a replacement housing payment if the replacement dwelling meets decent, safe and sanitary standards.

(4) Partial taking situations.

(i) Where a dwelling is located on a tract normal for residential use in the area, the maximum replacement housing payment shall be determined by subtracting the "before value" of the property from the estimated selling price of a comparable dwelling on a lot typical for the area.

(ii) Where a dwelling is located on a tract larger than normal for residential use in the area, the maximum replacement housing payment shall be determined by estimating the value of the dwelling at the present location on a homesite typical in size for the area and deducting this amount from the selling price of a comparable dwelling on a site typical for the area.

(5) Dwelling on land with higher and better use. Where a dwelling is located on a tract where the fair market value is established on a higher and better than residential use, the maximum replacement housing payment shall be determined by estimating the value of the dwelling at the present location on a homesite typical for the area and zoned for residential use and deducting this amount from the selling price of a comparable dwelling on a typical residential homesite for the area.

(6) Joint residential and business use. Where displaced individuals or families occupy living quarters on the same premises as a displaced business, farm or nonprofit organization, such individuals or families are separate displaced persons for purposes of determining entitlement to relocation payments.

(7) Payments on assignments. Payments described herein may be made, upon written instructions and assignment from the displaced person, directly to a lessor for rent or to a seller for application on a payment for a decent, safe and sanitary dwelling.

(8) Owner-occupant; prohibitions on double payments. If an owner-occupant eligible for the maximum $ 15,000 payment elects initially not to repurchase a replacement dwelling, but rather to claim benefits on the four year rent differential basis, he or she cannot receive double payment in excess of $ 15,000 if he or she later decides (within the allowable period) to purchase a replacement house. The amount of any payment made on the rent differential basis is to be deducted from the calculated differential necessary to purchase a replacement dwelling.

(9) All rental replacement housing payments in excess of $ 500 will be made in four equal installments on an annual basis, except that prior to receiving such installment payment the tenant must certify to the State that he or she is occupying decent, safe and sanitary housing.

§590.11 Appeals Procedure

An applicant for a moving expense and/or replacement housing payment shall be notified promptly in writing concerning his or her eligibility for the payment claimed, the amount, if any, he or she is entitled to receive, and the time and manner in which such payment will be made. If any or all of the amounts claimed are disallowed or require additional documentation, the eligible person shall be so notified in writing to this effect.

(a) If the claimant is not satisfied with the payment offered, that person may within 18 months of vacating or six months after final award determination by the courts of the State request an informal conference to present his or her case. When requested, such a conference shall be scheduled in the regional office of the department for the region in which the property is located and shall be conducted by the regional director or his or her designee. The claimant may bring whomever he or she wishes to represent him or her or present some facet of his or her claim. The decision of the regional director or such designee shall be made in writing and mailed to the claimant or his or her representative.

(b) In the event this claimant is not satisfied with the results achieved at this stage he or she may then request a formal hearing. This request shall be directed to the Superintendent of Land Acquisition at the department's main office in Albany. The formal hearing shall be conducted by a hearing officer designated by the commissioner at a time and place to be determined by the hearing officer. Minutes of the proceedings shall be taken.

(c) Based upon all the evidence produced at the hearing, the hearing officer shall make his or her recommendation to the Superintendent of Land Acquisition who shall then make a final determination regarding the claim presented.

(d) In the instance of an appeal, no payment of such calculated moving expenses or supplemental housing and related benefits shall be made until a decision has been rendered by the Superintendent of Land Acquisition. In the instance where an owner files a claim in the Court of Claims for adjudication of the fair market value of the property acquired, and similarly files for an appeal hearing disputing the amount of the supplemental payment proferred, no appeal hearing shall be held until final award determination by the courts of the State.

§590.12 Hardship Cases

Notwithstanding any other provisions contained in this Part, the commissioner is authorized in hardship cases to make advance payments in anticipation of the eligible person actually completing his or her moving of personal property or actually purchasing or renting and occupying decent, safe and sanitary replacement housing. The commissioner may authorize the advance payment of the amount determined by him or her to represent reasonable and necessary moving expenses or the amount of the approved supplemental relocation payment deemed necessary to purchase or rent decent, safe and sanitary replacement housing. In the case of a supplemental relocation payment, payment can only be made if there is a signed contract for the purchase of a replacement property, or in the case of a replacement rental unit, if there is a signed lease or some other firm commitment. In both instances, the proposed replacement housing must be inspected prior to payment for a determination of compliance with decent, safe and sanitary standards.