Relates to vested rights of property owners relating to the development of their land; requires notice by applicant to property owners within 250 feet of land development application.
BILL NUMBER: S1988A
TITLE OF BILL : An act to amend the general municipal law, in relation to vested rights relating to land development
PURPOSE OR GENERAL IDEA OF BILL : This bill would amend Article 7B of the general municipal law by adding a new section 150 relative to the ability of a property. owner to develop or alter his/her property under local codes, laws, ordinances, rules and regulations which are in existence nine months after the filing of a complete application for approval of improvement, development or addition to property which also includes an Environmental Assessment Form, or alternatively, at the discretion of the applicant, after the filing of a Draft Environmental Impact Statement. This modification to existing law allows in-progress changes to the codes, ordinances, rules and regulations applicable to all other property in the municipality. This legislation allows exceptions where, for instance, there are changes in federal and state law or newly discovered information or changes in circumstances so that the project would be likely to harm or endanger public health, safety or biological habitat and the harm will not be prevented by existing laws, codes, rules or governmental entities or agencies.
SUMMARY OF SPECIFIC PROVISIONS : Section one amends the general municipal law by adding a new section one hundred and fifty. Subdivision 1 provides that there shall be a rebuttable presumption that municipal zoning, planning, environmental and all other applicable enactments by a village, town or city regulating the development of land which are applicable to a particular parcel of land as of nine months after the filing date of a complete application for a project or, at the discretion of the applicant, as of nine months after the filing date of a draft environmental impact statement, shall remain applicable to the proposed project for a period of six years after such filing date, as long as it is being pursued with reasonable efforts by the applicant.
Subdivision 2 provides that in order to rebut the presumption, a municipal body must show with a detailed written finding that there has been a change in federal or state law, which alters the relevant requirements; or that there is newly discovered information or changes in circumstances which will establish that the proposed project is likely to harm or endanger public health, safety or biological habitat that is not being prevented by existing laws, codes, ordinances or other governmental entities. Thus, while the property owner will be protected to the extent that his project will be judged according to the laws, codes, and regulations in existence nine months from the filing of the application, the municipality will not be prevented from applying a new or amended law in those situations where the application of the new or amended law is warranted due to a change in circumstances or newly discovered information, which establishes a likely harm to public health, safety or biological habitat. Additionally, where the municipality is already considering a change in the local codes or laws before the filing of the proposed application, such changes are allowable.
Subdivision 3 provides that the time constraints under Article 78 of the civil practice law and rules are to be applicable if there is a challenge and, therefore, must be challenged within four months.
Subdivision 4 provides that the bill does not prevent the municipality from enforcing all existing laws as to the subject property and changes in the codes, laws and regulations before and after the nine month window that apply to other properties in the municipality.
Subdivision 5 provides that the bill shall not apply to applications requiring zoning changes. In those situations, where the application does not fit under existing zoning laws and requires a zoning change, the applicant is permitted to make such application and the local municipality may decide whether or not to grant it.
Subdivision 6 provides that if the applicant makes substantial changes in the application (other than in response to comments made during the SEQRA process), it will be considered a new application and the constraints of this section will be inapplicable.
EFFECTS OF THE PRESENT LAW WHICH THE BILL WILL ALTER : Present law allows a municipality to continually modify existing codes, laws, rules and regulations at any stage in the SEQRA or site plan approval, or subdivision or building permit process which effects the application and requires the applicant to start the process anew, regardless of the amount of time and money the applicant has invested in the project. This change will minimize that from occurring except at times when there is a legitimate reason as delineated within the legislation. This legislation does not prevent a municipality from changing the law, codes or regulations as to future applications.
JUSTIFICATION : Currently, the law in New York allows a municipality to continually modify existing codes, laws, rules and regulations at any stage in the SEQRA or site plan approval, subdivision or building permit process. Landowners often make a substantial investment prior to the start of construction, both before and during the review process. Property owners often purchase property based on an understanding of the zoning regulations that exist at that time, and when a property owner wants to add a pool, deck or addition to a home, for example, he or she may engage engineers and/or architects who put forth a proposal in accordance with current zoning laws or building regulations. It is unreasonable that the municipality may change an ordinance or regulation at any time without sound reason after a property owner has filed the application. Such action may prevent a property owner, who relied upon the ordinances and regulations that were in place at the time of filing, from using the property as he or she expected. Property developers often make substantial investments prior to the start of filing the application by preparing surveys, plans, reports, sale models, and studies such as those regarding engineering, wetlands, traffic, noise and air quality, and conducting ecological or archeological surveys. Due to a reasonable expectation that a project will be completed, substantial expenses are incurred prior to a formal application is filed. At the same time, municipalities should be given a reasonable amount of time to respond to the filing of a completed application and should be allowed to consider and enact new legislation.
Municipalities, currently, may change the law and impose new and restrictive conditions, such as increased buffer areas, steep slopes, lower floor area ratio requirements or upzoning, causing property owners to alter their plans or change the intended use of their property. This bill enforces, as a matter of equity, a property owner's right to develop property in accordance with laws, codes, ordinances, rules and regulations in effect nine months after the date the property owner makes the application, but does not prevent a municipality from promulgating changes as to any other property in the municipality. However, when a municipality has regulatory changes in progress at the time the property owner makes an application, the municipality may continue to promulgate the changes.
Importantly, a municipality may, under certain circumstances, change applicable laws, codes, ordinances, or rules and regulations relating to land use during the approval process when there is a change in federal or state laws, rules, or regulations or when newly discovered information or changes in circumstances establish that the project is likely to harm or endanger public health, safety or biological habitat and the project is not being prevented by existing laws, codes, regulations or other governmental entities.
PRIOR LEGISLATIVE HISTORY : A.10666 of 2005-2006 A.6023B/S.3852B of 2007-2008 A.3353/S.1988 of 2009
FISCAL IMPLICATIONS : None to the State or local governments.
EFFECTIVE DATE : This act shall take effect on the one hundred eightieth day after it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 1988--A 2009-2010 Regular Sessions IN SENATE February 10, 2009 ___________Introduced by Sens. VALESKY, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government -- recommitted to the Committee on Local Government in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general municipal law, in relation to vested rights relating to land development THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The general municipal law is amended by adding a new arti- cle 7-B to read as follows: ARTICLE 7-B VESTED RIGHTS RELATING TO LAND DEVELOPMENT SECTION 150. VESTED RIGHTS RELATING TO LAND DEVELOPMENT. S 150. VESTED RIGHTS RELATING TO LAND DEVELOPMENT. 1. THERE SHALL BE A PRESUMPTION, REBUTTABLE BY A MUNICIPALITY ONLY PURSUANT TO SUBDIVISION TWO OF THIS SECTION BY CLEAR AND CONVINCING EVIDENCE, THAT MUNICIPAL ZONING, PLANNING, ENVIRONMENTAL, AND ALL OTHER APPLICABLE VILLAGE, TOWN, OR CITY ORDINANCES, REGULATIONS, AND OTHER ENACTMENTS REGULATING THE DEVELOPMENT OF LAND WHICH ARE APPLICABLE TO A PARTICULAR PARCEL OF LAND AS OF THE NINTH MONTH AFTER THE FILING DATE OF AN APPLICATION FOR SITE PLAN, SUBDIVISION, OR OTHER DEVELOPMENT PLAN APPROVAL OF SUCH PARCEL, WHICH APPLICATION MEETS ALL NON-DISCRETIONARY REQUIREMENTS SPECIFIED THEREFORE, AND IS ACCOMPANIED BY AN ENVIRONMENTAL ASSESSMENT FORM, IF REQUIRED, OR AT THE DISCRETION OF THE APPLICANT A DRAFT ENVIRONMENTAL IMPACT STATEMENT, SHALL REMAIN APPLICABLE TO THE PROPOSED PROJECT THAT IS THE SUBJECT OF THE APPLICATION OR THE DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR A PERIOD OF SIX YEARS AFTER THE FILING DATE, AS LONG AS IT IS BEING PURSUED WITH REASONABLE EFFORTS BY THE APPLICANT. IF NO STATEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03365-03-0 S. 1988--A 2
OR LOCAL AGENCY HAS DISCRETIONARY AUTHORITY OVER THE PROJECT, THE FILING DATE SHALL BE THAT OF THE FILING OF AN APPLICATION FOR A BUILDING PERMIT, IN WHICH CASE NO ENVIRONMENTAL DOCUMENTATION NEED BE FILED IN ORDER FOR THIS SECTION TO APPLY. 2. IN ORDER TO REBUT THE PRESUMPTION ESTABLISHED PURSUANT TO SUBDIVI- SION ONE OF THIS SECTION, A MUNICIPAL BOARD MUST ADOPT A DETAILED WRIT- TEN FINDING AND HAS THE BURDEN OF PROOF TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT: A. A CHANGE IN APPLICABLE FEDERAL OR STATE LAWS, RULES, OR REGULATIONS ALTERS THE RELEVANT REQUIREMENTS; OR B. NEWLY DISCOVERED INFORMATION OR CHANGES IN CIRCUMSTANCES SPECIF- ICALLY RELATED TO THE PROPOSED PROJECT OR ITS SITE, WILL ESTABLISH THAT: (I) THE PROJECT IS LIKELY TO HARM OR ENDANGER THE PUBLIC HEALTH, SAFE- TY, OR BIOLOGICAL HABITAT; AND (II) SUCH HARM OR ENDANGERMENT WILL NOT BE PREVENTED BY EXISTING LAWS, CODES, ORDINANCES, RULES, OR REGULATIONS, OR BY GOVERNMENTAL ENTITIES; OR C. THE MUNICIPAL BOARD IS APPLYING A NEW OR ALTERED REQUIREMENT THAT HAS BEEN THE SUBJECT OF A DRAFT ENVIRONMENTAL IMPACT STATEMENT THAT WAS FILED BEFORE THE FILING DATE OF THE SUBJECT APPLICATION, AND HAS SUBSE- QUENTLY BECOME FINAL IN NOT SUBSTANTIALLY MORE STRINGENT FORM THAN THAT DESCRIBED IN SUCH DOCUMENT, INSOFAR AS IS RELEVANT TO THE SUBJECT PROJECT. 3. SUCH A FINDING SHALL BE DEEMED TO BE A FINAL AGENCY ACTION FOR PURPOSES OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES AND MUST BE CHALLENGED WITHIN FOUR MONTHS OF THE ADOPTION OF THE FINDING BY A MUNICIPAL BOARD. 4. NOTHING IN THIS SECTION SHALL BE INTERPRETED TO PRECLUDE: A. THE ADMINISTRATION OF ALL EXISTING LAWS, RULES AND REGULATIONS AS A RESULT OF WHICH THERE COULD BE REQUIREMENTS IMPOSED ON THE PROPOSED PROJECT; OR B. CHANGES TO SUCH LAWS, RULES AND REGULATIONS THAT WOULD AFFECT FUTURE APPLICATIONS. 5. THIS SECTION SHALL NOT APPLY TO APPLICATIONS REQUIRING CHANGES IN ZONING PROVISIONS THAT ARE SOUGHT BY THE APPLICANT IN CONNECTION WITH THE PROPOSED PROJECT PRIOR TO THE ADOPTION OF ANY SUCH CHANGES. 6. ANY SUBSTANTIAL CHANGES TO THE PROPOSED PROJECT WHICH IS THE SUBJECT OF THE APPLICATION BY THE APPLICANT, WHICH HAVE NOT BEEN GENER- ATED IN RESPONSE TO A COMMENT (EXCEPTING A COMMENT BY, ON BEHALF OF OR AT THE BEHEST OF THE APPLICANT) DURING THE REVIEW PROCESS, WILL BE DEEMED A NEW APPLICATION. S 2. This act shall take effect on the one hundred eightieth day after it shall have become a law.