Sponsor:
KRUGER
Committee: FINANCE
Law Section: Executive Law
Committee: FINANCE
Law Section: Executive Law
S3361 Summary
Relates to applications for minor and major projects before the Adirondack park agency.S3361 Actions
S3361A - AMEND AND RECOMMIT TO FINANCE - Jun 15, 2009S3361A - PRINT NUMBER 3361A - Jun 15, 2009
S3361 - REFERRED TO FINANCE - Mar 17, 2009
S3361 Memo
BILL NUMBER: S3361
TITLE OF BILL : An act to amend the executive law, in relation to applications for minor and major projects before the Adirondack park agency
PURPOSE : The purpose of this bill is to clarify various provisions of the Adirondack Park Agency Act (Act), Executive Law (EL) Article 27, modify certain. time periods and procedural requirements relating to the project application process established in EL ?809, and provide for greater opportunity for transfer of development rights.
SUMMARY OF PROVISIONS :
Section 1 of this bill: * amends EL ?809(2)(b) and (d) to extend from 15 to 30 days the period for initial review of a major project application, eliminates the 10-day requirement for the publication of major project notices in the Environmental Notice Bulletin (ENB,) and clarify other language of these provisions; * amends EL ?809(3)(b), (c), (d) and (e) to extend from 60 to 90 days the time for mailing of a hearing notice for major projects, change the timing and procedures for public hearings applicable to project denials, and clarify other language contained in these provisions; * amends EL ?809(6)(c) to clarify procedures relating to permit renewal, reissuance or modification; * amends EL ?809(8) to provide 30 days for an appeal and an additional days on good cause shown, and provide for a super-majority requirement for all appeals to the full Agency of a prior full Agency permit determination; and * amends EL ?809(10)(c) to modify provisions relating to application of the Act's intensity guidelines to allow greater opportunity for transfer of development rights.
Section 2 of this bill adds a new paragraph b to subdivision 8 of EL ? to establish procedures for the appeal of permit terms and conditions.
Section 3 of this bill provides that the bill will be effective immediately.
EXISTING LAW : EL ? 809 provides the statutory timeframes and procedures that govern Adirondack Park Agency (Agency) administration of permits required by the Act for new land use and development regulated by the Adirondack Park Land Use and Development Plan. A uniform 15day timeframe currently governs the initial review of minor and major projects, which repeats each time an applicant responds to an Agency request for information. This process continues until the Agency determines it has a "complete" application and can begin project review. EL ?809 also provides that the ability to direct a project to public hearing expires 60 days after application completion. As a result, the last date at which a proposal may be subjected to material modifications or denial is 30 days before the 90 day deadline for final decision. Finally, EL ?809 currently limits development "rights" transfer to owners of adjacent or contiguous properties within the same land use area acting in concert.
LEGISLATIVE HISTORY : This is a new bill.
STATEMENT IN SUPPORT : This bill addresses several problems related to the regional project permit process established in EL ?809. The Agency often must make an information request to an applicant to obtain additional information before making a completeness determination on an application. The current 15-day period in which the Agency's request must be made does not allow sufficient time for a field visit to a proposed site prior to issuance of the request. This leads to broad and generalized information requests which can delay completeness determinations and project review. The amendment to EL ?809(2)(b) extends this initial review period to 30 days for major projects to allow for field visits which in turn will result in more focused information requests. The 10-day requirement for the publication of major project notices in the ENB is impractical under long-standing ENB publication procedures, and is unnecessary because of the additional requirement that publication occur "in the next available ENB" is sufficient to ensure prompt publication of such notices. The 30-day gap between the 60-day hearing determination deadline and the 90-day permit issuance deadline for major project applications provided for in EL ? 809(3)(d) has been problematic. It encourages Agency staff to rush to make a recommendation to the Agency board on whether or not to approve an application before the time period for a hearing determination deadline runs. (Once the 60-day time period expires, the Agency is required by the Act to approve the project.) This can be especially problematic on large, complex or controversial projects. As a result, ad hoc agreements are often reached with applicants to extend the statutory deadline. Rushed hearing determinations may also impose costly hearing requirements particularly where an application does not present questions of disputed fact or other issues that are the appropriate subject of an adjudicatory hearing. This bill establishes a uniform 90-day timeframe for both hearing and approvability determinations. The amendment to EL ?809(3)(d) also provides that the Agency may deny a permit without hearing, removing the threat of "default approval" which presently exists. Importantly, this change does not eliminate a hearing requirement, because the project sponsor retains the right to request an adjudicatory hearing in the event of a permit denial. In such case, a new Agency decision will be required based upon the hearing record. The amendment to EL ?809(6)(c) to allow the Agency to modify a permit condition without a hearing provided there has been no change in the original project, applicable law, environmental conditions or technology since the issuance of the permit will increase efficiency and decrease costs for the Agency and project sponsors. The amendment to EL ?809(8)(b) clarifies that a permit holder has 30 days to appeal the terms and conditions of a permit plus and an additional 30 days on good cause shown, and that a two-thirds vote of agency members is required to modify a prior permit determination made by the Agency's members. This is a technical change to conform the statute to existing regulation and practice, and serves to clarify procedural distinctions between an appeal and a request to modify a permit.
Development rights transfer is available pursuant to Town or Village law within approved local land use programs within the same land use classification. The amendment to EL ?809(10)(c) extends the potential for development rights transfer from a more restrictive to a less restrictive land use classification within the same municipality and regardless of whether there is an Agency-approved local land use program. Transfer would occur only pursuant to an Agency permit which will assure that the increased development associated with the transfer does not result in "undue adverse environmental impact" and meets other criteria for permit issuance. Finally, this bill clarifies language throughout EL ?809 regarding the
application of time frames and related provisions:
BUDGET IMPLICATIONS : This bill will have no significant fiscal impact but may reduce agency costs by improving efficiency.
EFFECTIVE DATE : This bill would take effect immediately and apply to applications received after such date.
S3361 Text
S T A T E O F N E W Y O R K3361
2009-2010 Regular Sessions I N SENATE March 17, 2009
Introduced by Sen. KRUGER -- (at request of the Adirondack Park Agency) -- read twice and ordered printed, and when printed to be committed to the Committee on Finance
AN ACT to amend the executive law, in relation to applications for minor and major projects before the Adirondack park agency THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs b and d of subdivision 2, paragraphs b, c, d and e of subdivision 3, paragraph c of subdivision 6, the opening paragraph and subparagraphs 1 and 2 of paragraph b of subdivision 8, and paragraph c of subdivision 10 of section 809 of the executive law, paragraphs b and d of subdivision 2, paragraphs b, c, d and e of subdivision 3, para graph c of subdivision 6 as amended and the opening paragraph and subparagraphs 1 and 2 of paragraph b of subdivision 8 as added by chap ter 428 of the laws of 1979 and paragraph c of subdivision 10 as amended by chapter 578 of the laws of 1979, are amended to read as follows:
b. [On or before] WITHIN fifteen [calendar] days [after] OF the receipt of [such] A MINOR PROJECT application, OR, WITHIN THIRTY DAYS OF THE RECEIPT OF A MAJOR PROJECT APPLICATION, the agency shall [notify] MAIL WRITTEN NOTICE TO the project sponsor by certified mail INDICATING whether or not the application is complete. For the purposes of this section, a "complete application" shall mean an application for a permit which is in an approved form and is determined by the agency to be complete for the purpose of commencing review of the application but which may need to be supplemented during the course of review as to matters contained in the application in order to enable the agency to make the findings and determinations required by this section. If the agency fails to mail such notice within [such fifteen-day] THE APPLICA BLE TIME period, the application shall be deemed complete. If the agency determines the application is not complete, the notice shall include a concise statement of the respects in which the application is incom EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07116-03-9
S. 3361 2 plete. [The submission by the project sponsor of the requested addi tional information shall commence a new fifteen calendar day period for agency review of the additional information for the purposes of deter mining completeness.] WITHIN FIFTEEN DAYS OF THE SUBMISSION BY THE PROJECT SPONSOR OF REQUESTED ADDITIONAL INFORMATION, THE AGENCY SHALL MAIL WRITTEN NOTICE TO THE PROJECT SPONSOR BY CERTIFIED MAIL INDICATING WHETHER OR NOT THE APPLICATION IS COMPLETE. If the agency determines the application is complete, the notice shall so state. d. [Immediately upon] UPON determining that an application is complete, the agency shall, except in relation to minor projects, cause a notice of application to be published in the next available environ mental notice bulletin published by the department of environmental conservation pursuant to section 3-0306 of the environmental conserva tion law[, which publication shall be not later than ten calendar days after the date of such notice]. The time period for public comment on a permit application shall be stated in the notice of application. The agency shall at the same time mail a copy of the notice of application completion to the Adirondack park local government review board and to the persons named in paragraph a of subdivision two of this section, and invite their comments. b. In the case of an application for a permit for which no public hearing has been held, the agency SHALL MAIL ITS decision [shall be mailed on or before] WITHIN ninety [calendar] days or, in the case of a minor project, WITHIN forty-five [calendar] days[, after] OF (I) THE DATE the agency [notifies] MAILS the project sponsor NOTICE that the application is complete or [after] (II) THE DATE ON WHICH the applica tion is deemed complete pursuant to the provisions of this section. c. In the case of an application for a permit for which a public hear ing has been held, the agency SHALL MAIL ITS decision [shall be mailed on or before] WITHIN sixty [calendar] days [after] OF receipt by the agency of a complete record, as that term is defined in paragraphs (a) through (e) of subdivision one of section three hundred two of the state administrative procedure act. d. If the agency determines to hold a public hearing on an application for a permit, the agency shall [notify] MAIL WRITTEN NOTICE TO the project sponsor of its determination by certified mail [on or before sixty calendar] WITHIN NINETY days or, in the case of a minor project, WITHIN forty-five [calendar] days [after] OF (I) THE DATE the agency [notifies] MAILS the project sponsor NOTICE that the application is complete or [after] (II) THE DATE the application is deemed complete pursuant to the provisions of this section. The determination of whether or not to hold a public hearing on an application shall be based on whether the agency's evaluation or comments of the review board, local officials or the public on a project raise substantive and significant issues relating to any findings or determinations the agency is required to make pursuant to this section, including the reasonable likelihood that the project will be disapproved or can be approved only with major modifications because the project as proposed may not meet statutory or regulatory criteria or standards. The agency shall also consider the general level of public interest in a project. [No project may be disap proved without a public hearing first being held thereon.] THE AGENCY MAY DENY A PROJECT WITHOUT FIRST HOLDING A PUBLIC HEARING. HOWEVER, IF A PROJECT IS DENIED WITHOUT A PUBLIC HEARING, THE PROJECT SPONSOR MAY WITHIN FIFTEEN DAYS OF THE DATE OF THE NOTICE OF THE DECISION DENYING THE PROJECT MAKE A WRITTEN REQUEST FOR A HEARING. SUCH HEARING MUST COMMENCE WITHIN FORTY-FIVE DAYS OF THE DATE OF RECEIPT BY THE AGENCY OF S. 3361 3 THE WRITTEN REQUEST. THE AGENCY DECISION MUST BE MADE WITHIN THE TIME FRAMES PROVIDED IN PARAGRAPH C OF THIS SUBDIVISION. e. If the agency has notified the project sponsor of its determination to hold a public hearing OR THE PROJECT SPONSOR HAS REQUESTED SUCH HEAR ING, the sponsor shall not undertake the project during the time period specified in paragraph c of this subdivision. The notice of determi nation to hold a public hearing shall state that the project sponsor has the opportunity within fifteen days to withdraw his application or submit a new application. A public hearing INITIATED BY THE AGENCY shall commence [on or before] WITHIN ninety [calendar] days, or in the case of a minor project, WITHIN seventy-five days, [after] OF THE DATE ON WHICH the agency [notifies] MAILED NOTICE TO the project sponsor that the application is complete or [after] THE DATE ON WHICH the application is deemed complete pursuant to the provisions of this section. In addition to notice of such hearing being mailed to the project sponsor, such notice shall also be given by publication at least once in the environ mental notice bulletin and in a newspaper having general circulation in each local government wherein the project is proposed to be located, by conspicuous posting of the land involved, and by individual notice served by certified mail upon each owner of record of the land involved, and by mail upon: the Adirondack park local government review board, the persons named in paragraph a of subdivision two of this section, any adjoining landowner, to the extent reasonably discernible from the latest completed tax assessment roll, and the clerk of any local govern ment within five hundred feet of the land involved. Public hearings held pursuant to this section shall be consolidated or held jointly with other state or local agencies whenever practicable. c. At any time during the review of an application for a permit or a request by a permit holder for the renewal, reissuance, or modification of an existing permit pursuant to subdivision eight of this section, the agency may request additional information from the project sponsor or permit holder with regard to any matter contained in the application or request when such additional information is necessary for the agency to make any findings or determinations required by law. Such a request shall not extend any time period for agency action contained in this section, UNLESS THE AGENCY DETERMINES THAT SUCH RENEWAL, REISSUANCE, OR MODIFICATION WOULD CONSTITUTE A MATERIAL CHANGE, IN WHICH CASE AT THE AGENCY'S DISCRETION SUCH RENEWAL, REISSUANCE, OR MODIFICATION SHALL BE TREATED AS A NEW APPLICATION WITH NEW TIME PERIODS. Failure by the project sponsor or permit holder to provide such information may be grounds for denial by the agency of the application or request. A permit holder may make written request to the agency for the renewal, reissuance, or modification of an existing permit AFTER THE TIME TO APPEAL HAS EXPIRED. Such a request shall be accompanied by sufficient information supporting the request for the agency action sought. UPON RECEIPT OF ALL THE NECESSARY INFORMATION TO MAKE AN ASSESS MENT:
(1) In the case of a request TO THE AGENCY FOR A CHANGE TO THE PERMIT which does not involve a material change in [permit conditions] THE PERMITTED PROJECT, the applicable law, environmental conditions or tech nology since the date of issuance of the existing permit, the agency shall [on or before] WITHIN fifteen [calendar] days after the receipt of a request mail a written determination to the permit holder of its deci sion on the request. [If the decision is to deny the request, the permit holder shall be afforded an opportunity for hearing and notice of such decision shall be given by the agency in the next available issue of the S. 3361 4 environmental notice bulletin.] IN SUCH CASE, THE AGENCY MAY GRANT OR DENY THE REQUEST WITHOUT A HEARING. (2) In the case of a request which may involve a material change as described in subparagraph one of this paragraph, the agency shall [on or before] WITHIN fifteen [calendar] days [after] OF the receipt of a request mail a written determination to the permit holder [that] AS TO WHETHER the request shall be treated as an application for a new permit. c. The project would be consistent with the overall intensity guide line for the land use area involved. A landowner shall not be allowed to construct, either directly or as a result of a proposed subdivision, more principal buildings on the land included within the project than the overall intensity guideline for the given land use area in which the project is located. [In determining the] THE land area upon which the intensity guideline is calculated [and which is included within a project, the landowner shall only include land under his ownership] INCLUDES THE LAND OWNED BY THE PROJECT SPONSOR THAT IS INCLUDED WITHIN THE PROJECT, and may include [all adjacent land which he owns within that land use area irrespective of such dividing lines as lot lines, roads, rights of way, or streams and, in the absence of local land use programs governing the intensity of land use and development, irrespec tive of local government boundaries] OTHER LAND WITHIN THE SAME OR ANY MORE RESTRICTIVE LAND USE AREA AND WITHIN THE SAME MUNICIPALITY WITH THE PERMISSION OF THE OWNER OF SUCH OTHER LAND PROVIDED THAT: THE OTHER LAND IS LAWFULLY ELIGIBLE FOR AND WILL BE PERMANENTLY RESTRICTED BY DEED BY ITS OWNER FROM DEVELOPMENT WITH THE SAME NUMBER OF ADDITIONAL PRINCIPAL BUILDINGS ACTUALLY UTILIZED FOR THE PROJECT, THE ADDITIONAL PRINCIPAL BUILDINGS ARE NOT LOCATED WITHIN ONE-QUARTER MILE OF ANY LAKE, POND, RIVER OR STREAM, AND ALL OTHER STATUTORY CONDITIONS FOR PROJECT APPROVAL ARE MET. Principal buildings in existence within the [area included within a project, as such area is defined by the landowner,] PROPERTY BOUNDARIES OF THE LAND ON WHICH ANY PORTION OF THE PROJECT IS SITUATED shall be counted in applying the intensity guidelines. [As between two or more separate landowners in a given land use area the principal buildings on one landowner's property shall not be counted in applying the intensity guidelines to another landowner's project, except that two or more landowners whose lands are directly contiguous and located in the same general tax district or special levy or assessment district may, when acting, in concert in submitting a project, aggregate such lands for purposes of applying the intensity guidelines to their lands thus aggregated.] The area upon which the intensity guideline is calcu lated shall not include (a) bodies of water, such as lakes and ponds, (b) any land in the same ownership that is directly related to any prin cipal building in existence on August first, nineteen hundred seventy three, which land is not included in the project, and (c), in the case of any principal building constructed after August first, nineteen hundred seventy-three, any land in the same or any other ownership that was included within the area of any previous project in order to comply with the overall intensity guideline.
S 2. Pargraph b of subdivision 8 of section 809 of the executive law is relettered paragraph c and a new paragraph b is added to read as follows:
B. A PERMIT HOLDER MAY APPEAL THE TERMS AND CONDITIONS OF ANY PERMIT WITHIN THIRTY DAYS OF ISSUANCE OF THE PERMIT, AND AN ADDITIONAL THIRTY DAYS TO APPEAL MAY BE ALLOWED UPON GOOD CAUSE SHOWN. AN APPEAL OF A PERMIT ISSUED PURSUANT TO DELEGATED AUTHORITY UNDER THIS ARTICLE SHALL BE DETERMINED BY THE AGENCY'S MEMBERS. AN AFFIRMATIVE VOTE OF TWO-THIRDS S. 3361 5 OF THE AGENCY'S MEMBERS SHALL BE REQUIRED TO MODIFY A PERMIT DETERMI NATION MADE BY THE AGENCY'S MEMBERS.
S 3. This act shall take effect immediately and shall apply to appli cations received after such date.
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