2005 Pine Barrens State and Municipal Corporation
Core Hardship Legislation - Unofficial Copy

This bill (Assembly bill A6460B, S4148A) is an amendment to NY Environmental Conservation Law Articles 1 and 57.
It is contained within Chapter 448 of the Laws of 2005.  The effective date was 8/9/05.

Contents:
1.  Summary and Sponsors’ Memo
2. Legislative Actions
3.  Bill text

A06460B / S4148A Summary:

SAME AS Same as S 4148-A

SPONSOR DiNapoli

COSPNSR Sweeney, Englebright, Eddington, Thiele, Acampora

MLTSPNSR Weisenberg

Amd SS1-0303, 57-0107, 57-0121 & 57-0123, En Con L
Establishes different rules for public corporations and the state relating to land use planning and the Long Island Pine Barrens.

TITLE OF BILL: An act to amend the environmental conservation law, in relation to the Long Island Pine Barrens comprehensive land use plan

PURPOSE:
To provide technical clarifications in the Pine Barrens statute regarding the eligibility of government entities for hardship permits.

SUMMARY OF PROVISIONS:
The definition of "person" in the environmental conservation law (ECL) is modified to exclude the state and public corporations for the purpose of Article 57.

In section 57-0107(13) of the ECL, a new subsection is added to the list of "nondevelopment" provisions to exempt from the Central Pine Barrens Joint Planning and Policy Commission`s jurisdiction those government sponsored Core area projects which were identified in the
Commission`s 2004 Pine Barrens Plan amendments.

The remaining amendments, all of them applicable to Article 57 of the ECL, clarify that land use projects in the Core area sponsored by government entities (other than those identified in the list) are only eligible for applying to the Commission for "compelling public need" Core permits, and not "extraordinary hardship" Core permits.

JUSTIFICATION:
Since the Central Pine Barrens Joint Planning and Policy Commission`s inception in 1993, there have been a number of government sponsored land use activities or proposed activities that have been subjected to the overall Core permit application process, and the choice of type of Core permit application process has varied due to ambiguity as to the government`s roles and responsibilities under the Act. The proposed amendments would define clearly the mechanism through which future government sponsored projects must be considered and processed by the Commission, and enable the Commission to more consistently and reliably handle future government projects with the same clarity that privately sponsored development applications are already being handled.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

Legislative Actions:
03/15/2005 referred to environmental conservation
04/07/2005 amend and recommit to environmental conservation
04/07/2005 print number 6460a
05/17/2005 amend and recommit to environmental conservation
05/17/2005 print number 6460b
06/01/2005 reported referred to rules
06/06/2005 reported
06/06/2005 rules report cal.129 06/06/2005 ordered to third reading rules cal.129
06/06/2005 passed assembly
06/06/2005 delivered to senate
06/06/2005 REFERRED TO RULES
06/15/2005 SUBSTITUTED FOR S4148A
06/15/2005 3RD READING CAL.1466
06/15/2005 PASSED SENATE
06/15/2005 RETURNED TO ASSEMBLY
07/28/2005 delivered to governor
 

Bill Text:

S T A T E O F N E W Y O R K
 ________________________________________________________________________
 2005-2006 Regular Sessions
 I N A S S E M B L Y
 March 15, 2005
 ___________
Introduced by M. of A. DiNAPOLI, SWEENEY, ENGLEBRIGHT, EDDINGTON,  THIELE, ACAMPORA
Multi-Sponsored by -- M. of A. WEISENBERG -- read  once and referred to the Committee on Environmental Conservation –  committee discharged, bill amended, ordered reprinted as amended and  recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee

AN ACT to amend the environmental conservation law, in relation to the Long Island Pine Barrens comprehensive land use plan

 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 1 Section 1. Subdivision 18 of section 1-0303 of the environmental
 2 conservation law, as amended by chapter 639 of the laws of 1978, is
 3 amended to read as follows:
 4 18. "Person" shall mean any individual, public or private corporation,
 5 political subdivision, government agency, department or bureau of the
 6 state, municipality, industry, co-partnership, association, firm, trust,
 7 estate or any other legal entity whatsoever. Provided, however, that for
 8 purposes of sections 3-0109 through 3-0115 inclusive, and sections
 9 3-0305 and 3-0307 of article 3; articles 9, 11, 13 and 15; titles 7, 9,
 10 11 and 13 of article 21; article 23; articles 43, 45 and 47; SECTIONS
 11 57-0121 AND 57-0123 OF ARTICLE 57; and titles 1 through {15} 13 inclu-
 12 sive and title 33 of article 71 applicable to these provisions, "person"
 13 means any individual, firm, co-partnership, association or corporation
 14 other than the state and a "public corporation".
 15 S 2. Subparagraphs (xiii) and (xiv) of the second undesignated para-
 16 graph of subdivision 13 of section 57-0107 of the environmental conser-
 17 vation law, as added by chapter 262 of the laws of 1993 and as renum- 18 bered by chapter 145 of the laws of 1996, are amended and a new
 19 subparagraph (xv) is added to read as follows:
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 { } is old law to be omitted.
 LBD08789-04-5
 A. 6460--B 2

1 (xiii) in the compatible growth area, land divisions or subdivisions
 2 in the compatible growth area consisting of five or fewer residential
 3 lots which conform to the lot area requirement of the existing zoning
 4 for the subject parcel; {or}
 5 (xiv) in the compatible growth area, renovations, reconstructions,
 6 additions or extensions to existing commercial or industrial uses
 7 providing the addition or extension conforms to the uses permitted in
 8 the zoning district in which said parcel is located and which does not
 9 increase existing square footage by more than twenty-five percent{.}; OR
 10 (XV) IN THE CORE PRESERVATION AREA, THE STATE OR PUBLIC CORPORATION
 11 PROJECTS ON PARCELS IDENTIFIED IN THE COMPREHENSIVE LAND USE PLAN
 12 ADOPTED BY THE COMMISSION IN JUNE OF NINETEEN HUNDRED NINETY-FIVE, AS
 13 AMENDED ON FEBRUARY TWENTY-FIRST, TWO THOUSAND ONE AND OCTOBER TWENTI-
 14 ETH, TWO THOUSAND FOUR.
 15 S 3. The opening paragraph of subdivision 8 and subdivision 9 of
 16 section 57-0121 of the environmental conservation law, as added by chap-
 17 ter 262 of the laws of 1993, are amended to read as follows:
 18 In order to effectuate the purposes and provisions of this article, no
 19 person, PUBLIC CORPORATION OR THE STATE shall undertake or otherwise
 20 engage in development within the Central Pine Barrens area prior to
 21 approval and implementation of the land use plan except as provided by
 22 this section. No amendments to the existing town or village zoning laws,
 23 ordinances or regulations affecting development within the Central Pine
 24 Barrens area shall take effect prior to the approval of the land use
 25 plan as provided in this chapter except that a town may as part of a
 26 zoning ordinance adopted pursuant to article sixteen of the town law or
 27 by local law pursuant to other enabling law, provide for a planned unit
 28 development or planned development district ordinance for a development
 29 for which the designated lead agency, on or before June first, nineteen
 30 hundred ninety-three, accepted a draft environmental impact statement or
 31 draft generic environmental impact statement under article eight of this
 32 chapter. The provisions of this section shall not apply to development
 33 in the compatible growth area for which:
 34 9. Within three months of the effective date of this section, the
 35 commission shall publish interim goals and standards for development and
 36 for hardship before the land use plan is implemented in compatible 37 growth areas identified in the map. The commission may vary the proce-
 38 dures and time periods for compliance with article eight of this chapter
 39 as necessary and appropriate to comply with the three month deadline of
 40 this subdivision. Upon such publication, development may proceed in such
 41 compatible growth areas subject to existing laws, regulations and
 42 approval procedures and subject to the review and approval of the
 43 commission. {An applicant} ANY PERSON, THE STATE OR A PUBLIC CORPO-
 44 RATION APPLYING for development in such compatible growth areas who has
 45 received all necessary local and state approvals may petition the
 46 commission for approval of the development. Within thirty days of an
 47 application being received, the commission shall provide the applicant
 48 and any other {person} INTERESTED PARTY an opportunity to be heard.
 49 Notice of such hearing shall be published in a newspaper having a gener-
 50 al circulation in the Central Pine Barrens area, and notice of such
 51 hearing shall also be given by registered mail to the chief administra-
 52 tive officer of each town and village within whose boundary any proposed
 53 development is located. If the proposed development is consistent with
 54 the commission`s interim goals and standards, the commission shall
 55 approve the development and may include conditions for approval. If the
 56 applicant seeks an exemption based upon a demonstration of hardship, the
 A. 6460--B 3

 1 commission may approve development in the compatible growth area upon
 2 the finding that such interim goals and standards caused an unnecessary
 3 hardship. In making such finding the commission shall consider the
 4 criteria for a use variance pursuant to section two hundred {seventy-
 5 six-b} SIXTY-SEVEN-B of the town law. The commission must make a deci-
 6 sion within one hundred twenty days of receipt of a complete applica-
 7 tion. If the commission fails to make a decision within one hundred
 8 twenty days, the development shall be deemed to be approved by the
 9 commission, unless extended by mutual agreement of the applicant and
 10 commission.
 11 S 4. The opening paragraph, paragraph (a), paragraph (b) and the third
 12 undesignated paragraph of subparagraph (iii) of paragraph (c) of subdi-
 13 vision 10 of section 57-0121 of the environmental conservation law, as
 14 added by chapter 262 of the laws of 1993, the third undesignated para-
 15 graph of subparagraph (iii) of paragraph (c) as amended by chapter 145
 16 of the laws of 1996, are amended to read as follows:
 17 Any person, THE STATE OR A PUBLIC CORPORATION upon a showing of hard-
 18 ship caused by the provisions of subdivision eight of this section on
 19 development in the core preservation area, may apply to the commission
 20 for a permit exempting such {person} APPLICANT from such subdivision
 21 eight in connection with any proposed development in the core preserva-
 22 tion area. Such application for an exemption pursuant to the demon-
 23 stration of hardship within the core preservation area shall be approved
 24 only if the {applicant} PERSON satisfies the following conditions and 25 extraordinary hardship or compelling public need is determined to have
 26 been established under the following standards OR FOR DEVELOPMENT BY THE
 27 STATE OR A PUBLIC CORPORATION OR PROPOSED FOR LAND OWNED BY THE STATE OR
 28 A PUBLIC CORPORATION COMPELLING PUBLIC NEED IS DETERMINED TO HAVE BEEN
 29 ESTABLISHED UNDER THE FOLLOWING STANDARDS:
 30 (a) The particular physical surroundings, shape or topographical
 31 conditions of the specific property involved would result in an extraor-
 32 dinary hardship, as distinguished from a mere inconvenience, if the
 33 provisions of this act are literally enforced. {An applicant} A PERSON
 34 shall be deemed to have established the existence of extraordinary hard-
 35 ship only if he OR SHE demonstrates, based on specific facts, that the
 36 subject property does not have any beneficial use if used for its pres-
 37 ent use or developed as authorized by the provisions of this article,
 38 and that this inability to have a beneficial use results from unique
 39 circumstances peculiar to the subject property which:
 40 (i) Do not apply to or affect other property in the immediate vicini-
 41 ty;
 42 (ii) Relate to or arise out of the characteristics of the subject
 43 property rather than the personal situation of the applicant; or
 44 (iii) Are not the result of any action or inaction by the applicant or
 45 the owner or his OR HER predecessors in title including any transfer of
 46 contiguous lands which were in common ownership on or after June 1,
 47 1993.
 48 (b) {An applicant} A PERSON, THE STATE OR A PUBLIC CORPORATION shall
 49 be deemed to have established compelling public need if the applicant
 50 demonstrates, based on specific facts, one of the following:
 51 (i) The proposed development will serve an essential health or safety
 52 need of the {municipality or, in the case of an application serving more
 53 than one of the} municipalities IN THE CENTRAL PINE BARRENS SUCH that
 54 the public health and safety require the requested waiver, that the
 55 public benefits from the proposed use are of a character that {override}
 56 OVERRIDES the importance of the protection of the core preservation area
 A. 6460--B 4

 1 as established in this article, that the proposed use is required to
 2 serve existing needs of the residents, and that no feasible alternatives
 3 exist outside the core preservation area to meet the established public
 4 need and that no better alternatives exist within the county; or
 5 (ii) The proposed development constitutes an adaptive reuse of an
 6 historic resource designated by the commission and said reuse is the
 7 minimum relief necessary to ensure the integrity and continued
 8 protection of the designated historic resource and further that the
 9 designated historic resource`s integrity and continued protection cannot
 10 be maintained without the granting of a permit. 11 Within thirty days of the application being received, the commission
 12 shall provide the applicant and any other {person} INTERESTED PARTY an
 13 opportunity to be heard. Notice of any public hearing conducted in
 14 connection with an application for such a permit shall be published in a
 15 newspaper of general circulation in the Central Pine Barrens area. If
 16 the proposed development is not contrary to the policy or any provision
 17 of this article and meets the standards of extraordinary hardship or
 18 public need herein, and the commission so finds, it may issue a permit
 19 allowing the development or such development subject to appropriate
 20 conditions or modifications to occur, provided that permission may be
 21 revoked by the commission if its terms are violated, and provided
 22 further that any such hardship permit issued by the commission shall be
 23 in addition to, and not in lieu of, such permit or permits as may be
 24 required by any state agency or municipality within whose boundary such
 25 development is located. The time within which the commission must
 26 decide a core preservation area hardship application for which a nega-
 27 tive declaration has been made by the commission pursuant to article
 28 eight of this chapter is one hundred twenty days from receipt of such
 29 application. The time within which the commission must decide a core
 30 preservation area hardship application for which a positive declaration
 31 has been made by the commission pursuant to article eight of this chap-
 32 ter is sixty days from issuance of a findings statement by the commis-
 33 sion pursuant to article eight of this chapter. If the commission fails
 34 to make a decision within the aforesaid time periods, the development
 35 shall be deemed to be approved by the commission, unless extended by
 36 mutual agreement of the applicant and commission.
 37 S 5. Paragraph (a) of subdivision 2 of section 57-0123 of the environ-
 38 mental conservation law, as amended by chapter 145 of the laws of 1996,
 39 is amended to read as follows:
 40 (a) The commission shall have jurisdiction to review and approve all
 41 proposed development in critical resource areas and developments of
 42 regional significance as identified in the land use plan and proposed
 43 developments found by the commission after petition by a commissioner to
 44 have significant adverse impact on the land use plan. Any commissioner
 45 may petition the commission to assert review jurisdiction over a
 46 proposed development outside of a critical resource area or which is
 47 other than a project of regional significance which has a significant
 48 adverse impact on the goals of the land use plan. If the commissioner by
 49 majority vote asserts jurisdiction, such project or action shall be
 50 subject to review by the commission. For the purposes of review and
 51 identification of projects coming under the jurisdiction of the commis-
 52 sion by virtue of critical resource area or area of regional impact or
 53 at the request of any commission member, the commission shall designate
 54 the responsible planning entity or staff for the purposes of advising
 55 the commission with respect to such applications or projects. To the 56 fullest extent possible, the commission shall consolidate and coordinate
 A. 6460--B 5

1 its review with the appropriate local government. {An applicant for} A
 2 PERSON, THE STATE OR A PUBLIC CORPORATION PROPOSING development in a
 3 critical resource area or development of regional significance shall
 4 apply to the commission for approval of the development. Applications
 5 shall be made to the commission on forms and in such manner as the land
 6 use plan and commission shall designate.
 7 S 6. Paragraphs (a) and (b) of subdivision 3 of section 57-0123 of the
 8 environmental conservation law, paragraph (a) as amended and paragraph
 9 (b) as added by chapter 145 of the laws of 1996, are amended to read as
 10 follows:
 11 (a) Subsequent to the adoption of the land use plan, the provisions of
 12 any other law, ordinance, rule or regulation to the contrary notwith-
 13 standing, no application for development within the Central Pine Barrens
 14 area shall be approved by any municipality or county or agency thereof
 15 or the commission, and no state approval, certificate, license, consent,
 16 permit, or financial assistance for the construction of any structure or
 17 the disturbance of any land within such area shall be granted, unless
 18 such approval or grant conforms to the provisions of such land use plan;
 19 provided, however, that the commission by majority vote is hereby
 20 authorized to waive strict compliance with such plan or with any element
 21 or standard contained therein, FOR AN APPLICATION FOR DEVELOPMENT OF ANY
 22 PERSON, upon finding that such waiver is necessary to alleviate hardship
 23 for proposed development in the core preservation area according to the
 24 conditions and finding of extraordinary hardship or compelling public
 25 need pursuant to subdivision ten of section 57-0121 of this article, OR
 26 FOR AN APPLICATION FOR DEVELOPMENT BY THE STATE OR PUBLIC CORPORATION OR
 27 PROPOSED FOR LAND OWNED BY THE STATE OR PUBLIC CORPORATION FINDING THAT
 28 SUCH WAIVER IS NECESSARY TO ALLEVIATE HARDSHIP FOR PROPOSED DEVELOPMENT
 29 IN THE CORE PRESERVATION AREA ACCORDING TO THE CONDITIONS AND FINDING OF
 30 COMPELLING PUBLIC NEED PURSUANT TO SUBDIVISION TEN OF SECTION 57-0121 OF
 31 THIS ARTICLE, AND EVERY APPLICATION is consistent with the purposes and
 32 provisions of this article and would not result in substantial impair-
 33 ment of the resources of the Central Pine Barrens area.
 34 (b) The commission by majority vote is also authorized to waive strict
 35 compliance with such plan or with any element or standard contained
 36 therein, upon finding that such waiver is necessary to alleviate hard-
 37 ship for {proposed} development PROPOSED BY ANY PERSON, THE STATE OR A 38 PUBLIC CORPORATION in the compatible growth area according to the condi-
 39 tions and findings of hardship pursuant to subdivision nine of section
 40 57-0121 of this article, is consistent with the purposes and provisions
 41 of this article and would not result in substantial impairment of the
 42 resources of the Central Pine Barrens area.
 43 S 7. This act shall take effect immediately.