N.Y. Environmental Conservation Law § 57-0121: Central Pine Barrens comprehensive land use plan; interim regulations

§ 57-0121. Central Pine Barrens comprehensive land use plan; interim

regulations.

1. As soon as practicable and within twelve months of the effective

date of this section, the commission shall, after consultation with the

advisory committee, prepare or cause to be prepared a draft

comprehensive land use plan and generic environmental impact statement

thereon which shall be part of the plan for the Central Pine Barrens

area. The land use plan shall be designed to preserve the Pine Barrens

ecology and to ensure the high quality of groundwater within the Central

Pine Barrens area and to balance the public and private interests in

development and in protection of the Pine Barrens ecology consistent

with the objectives of the land use plan. Where local plans exist, the

commission shall evaluate and incorporate such plans as is appropriate

in the land use plan.

2. The land use plan for the Central Pine Barrens area shall be

designed to:

(a) protect, preserve and enhance the functional integrity of the Pine

Barrens ecosystem and the significant natural resources, including plant

and animal populations and communities, thereof;

(b) protect the quality of surface water and groundwater;

(c) discourage piecemeal and scattered development;

(d) promote active and passive recreational and environmental

educational uses that are consistent with the land use plan; and

(e) accommodate development, in a manner consistent with the long term

integrity of the Pine Barrens ecosystem and to ensure that the pattern

of development is compact, efficient and orderly.

3. The land use plan with respect to the core preservation area shall

be designed to protect and preserve the ecologic and hydrologic

functions of the Pine Barrens by:

(a) preserving the Pine Barrens area in their natural state thereby

insuring the continuation of Pine Barrens environments which contain the

unique and significant ecologic, hydrogeologic and other resources

representative of such environments;

(b) promoting compatible agricultural, horticultural and open space

recreational uses within the framework of maintaining a Pine Barrens

environment and minimizing the impact of such activities thereon;

(c) prohibiting or redirecting new construction or development;

(d) accommodating specific Pine Barrens management practices, such as

prescribed burning, necessary to maintain the special ecology of the

preservation area;

(e) protecting and preserving the quality of surface and groundwaters;

and

(f) coordinating and providing for the acquisition of private land

interests as appropriate and consistent with available funds.

4. The land use plan with respect to the compatible growth areas shall

be designed to:

(a) preserve and maintain the essential character of the existing Pine

Barrens environment, including plant and animal species indigenous

thereto and habitats therefor;

(b) protect the quality of surface and groundwaters;

(c) discourage piecemeal and scattered development;

(d) encourage appropriate patterns of compatible residential,

commercial, agricultural, and industrial development in order to

accommodate regional growth influences in an orderly way while

protecting the Pine Barrens environment from the individual and

cumulative adverse impacts thereof;

(e) accommodate a portion of development redirected from the

preservation area. Such development may be redirected across municipal

boundaries; and

(f) allow appropriate growth consistent with the natural resource

goals pursuant to this title.

5. Preparation of the land use plan shall be based on the following

planning studies and reports:

(a) Previously undertaken and current groundwater and ecological

studies pertaining to the reserve, generally, and the Central Pine

Barrens area, specifically;

(b) General planning studies of the reserve, generally, and the

Central Pine Barrens area, specifically, including but not limited to:

(i) population and population distribution;

(ii) amount, type, intensity, and general location of commerce,

industry and agricultural production;

(iii) amount, type, quality, and general location of housing;

(iv) general location and extent of existing or currently planned

major transportation, utility, and community facilities;

(v) amount, general location, and interrelationship of different

categories of land use;

(vi) areas, sites, or structures of historical, archaeological,

architectural, or scenic significance;

(vii) natural resources, including air, water, open spaces, forests,

soils, rivers, wetlands and other waters, shorelines, fisheries,

wildlife, vegetation, threatened species, and minerals; and

(viii) any other matter found to be important to preservation and

future development.

(c) Scientific research prepared for other hydrological or ecological

areas analogous to the reserve, generally, and the Central Pine Barrens

area specifically. Such studies and reports may include, but are not

limited to those undertaken by the New Jersey Pinelands commission or

Cape Code commission.

(d) Public improvement studies including but not limited to the area

or subareas within the Central Pine Barrens area or outside such area

having an aggregation of sites with development potential to facilitate

application of transfer of development rights that could create the need

for new public improvements and/or public improvement expansions;

(e) Advisory committee recommendations or reports.

6. The land use plan shall provide for, address and include but not be

limited to the following:

(a) Statements of objectives, policies and standards as they pertain

to the purposes of this title and the land use plan.

(b) A map depicting the core preservation area.

(c) A map depicting compatible growth areas in the Central Pine

Barrens area where orderly and environmentally compatible development

can be encouraged and to which development potential within the preserve

may be transferred.

(d) A phased public improvement element for providing the public

facilities necessary for carrying out the goals for the core

preservation and compatible growth areas.

(e) Identification and mapping of critical resource areas within the

Central Pine Barrens area which are of regional or statewide

significance. Such areas shall include fragile lands, significant

shorelands of rivers, lakes, and streams; freshwater wetlands;

significant wildlife habitats; unique scenic or historic features; and

rare or valuable ecosystems and geological formations which are of

regional or statewide significance.

(f) Identification of sending districts in core preservation and

compatible growth areas and receiving districts in compatible growth

areas and outside the Central Pine Barrens area for the purpose of

providing for the transfer of development rights and values to further

the preservation and development goals of the land use plan and

methodologies and standards for procedural equity and appropriate values

in establishing rights and values consistent with the provisions of

section two hundred sixty-one-a of the town law.

(g) Identification of land suitable for agricultural use and necessary

and appropriate strategies to protect land capable of agricultural

production.

(h) Development criteria and performance standards.

(i) An intergovernmental coordination and consistency component

establishing the ways in which state and local programs and policies may

best be coordinated to promote the goals and implement the policies of

the land use plan.

(j) A financial component analyzing the public and private costs of

developing and implementing the land use plan which shall include:

(i) detailed costs including those for infrastructure improvements,

acquisition of fee simple or other interests in lands for preservation

or recreation purposes, compensation guarantees, general administrative

costs and any anticipated extraordinary or continuing costs; and

(ii) the source of revenue for covering such costs, including, but not

limited to, grants, donations and loans from local, state and federal

departments and agencies and from the private sector.

(k) A program for state, county and local governmental implementation

of the comprehensive land use plan and the various elements thereof in a

manner that will insure the continued, uniform, and consistent

protection of the Pine Barrens ecosystem and development objectives

including:

(i) minimum standards for the adoption, as required in this title, of

municipal and county plans, codes and ordinances concerning the

development and use of land including, but not limited to, standards for

minimum lot sizes, site clearance and wetland setbacks, appropriate

population and densities and regulated or prohibited uses for specific

portions of the Pine Barrens area and procedures for determining

hardship consistent with the purposes and provisions of this title;

(ii) guidelines and standards for review of projects of regional

significance which because of scale of intensity of use or location are

likely to impede implementation of the land use plan; and

(iii) guidelines for consistency with the land use plan by state,

county and local agencies.

(l) Professional staffing requirements necessary to carry out the land

use plan.

(m) Land protection mechanisms, including, but not limited to,

acquisition, conservation easements, rights and values transfers,

purchase of development rights, donations and clustering, planned unit

development, land trusts, exchanges between privately and publicly owned

lands, or other zoning activities consistent with the provisions of this

title.

(n) Provisions for use of best management practices, in all natural

resource-dependent commercial and industrial activities, including

agriculture, horticulture and related activities.

(o) Provisions for restoration of natural and cultural resources where

such resources have been damaged, lost, or otherwise impaired. Such work

shall address restoration of Pine Barrens habitats, stream and shore

revitalization, historic structures, traditional industries

demonstration programs, and strengthening of community character which

will be consistent with the provisions of the comprehensive management

plan pursuant to section 57-0115 of this title.

(p) Provisions for cumulative impact analyses, both environmental and

economic, for the effects of development, preservation, financial

policies and related factors upon the Central Pine Barrens area, its

private and public open space, its residents and constituents, school

and other special districts, and other pertinent aspects or demographic

sectors.

(q) Recommendations for further legislation at the state, county, and

local levels as may be necessary to fully implement the provisions of

this title.

(r) Provisions for management and stewardship of natural and cultural

resources which shall include coordination by owners of public lands

which will be consistent with the provisions of the comprehensive

management plan pursuant to section 57-0115 of this title.

(s) Provisions for appropriate and relevant scientific research

relating to the species, ecological communities and processes, natural

landscape features, and surface and groundwater resources of the Central

Pine Barrens necessary to ensure and enhance the long-term management of

the preserve. Such research may be addressed in a cooperative effort

with the state university of New York at Stony Brook through its

biological research station, established by the department of ecology

and evolution.

(t) Provisions for fire management for controlled, prescribed burning,

and responses to unanticipated fires. This shall include coordination

among the department and local fire departments.

(u) Description of developments of regional significance.

The land use plan shall also, as funds permit, provide for a follow-up

plan to be undertaken by the commission for a partnership infrastructure

and sustainable development plan for the reserve. Based on the land use

plan and the comprehensive management plan, such follow up plan shall be

designed to (i) coordinate the activities of all governmental entities

in the provision of infrastructure necessary to support orderly

development in the compatible growth areas and support of sustainable

development in the reserve outside of the preserve; and (ii) coordinate

and focus investment in sustainable development efforts.

7. Notwithstanding any provision contrary to any other provisions of

article eight of this chapter, the commission shall be the lead agency

for the generic environmental impact statement which is part of the land

use plan. Such generic environmental impact statement shall be prepared

in accordance with the provisions of article eight of this chapter.

8. In order to effectuate the purposes and provisions of this title,

no person, public corporation or the state shall undertake or otherwise

engage in development within the Central Pine Barrens area prior to

approval and implementation of the land use plan except as provided by

this section. No amendments to the existing town or village zoning laws,

ordinances or regulations affecting development within the Central Pine

Barrens area shall take effect prior to the approval of the land use

plan as provided in this chapter except that a town may as part of a

zoning ordinance adopted pursuant to article sixteen of the town law or

by local law pursuant to other enabling law, provide for a planned unit

development or planned development district ordinance for a development

for which the designated lead agency, on or before June first, nineteen

hundred ninety-three, accepted a draft environmental impact statement or

draft generic environmental impact statement under article eight of this

chapter. The provisions of this section shall not apply to development

in the compatible growth area for which:

(a) the designated lead agency, on or before June first, nineteen

hundred ninety-three, accepted a draft environmental impact statement or

draft generic environmental impact statement or issued a conditioned

negative declaration or a negative declaration under article eight of

this chapter, or

(b) all required municipal and state permits and approvals were issued

on or before June first, nineteen hundred ninety-three (except that a

building permit need not have been issued by said date), or

(c) The designated lead agency, after June first, nineteen hundred

ninety-three and prior to ninety days immediately following adoption of

this section or as extended at the discretion of the commission in its

interim rules and regulations adopted pursuant to section nine herein,

issues on an active application a conditioned negative declaration or a

negative declaration under article eight of this chapter and which does

conform to the use and lot area requirements of the zoning in effect in

the relevant municipality on June first, nineteen hundred ninety-three,

and does not necessitate a use variance. Notwithstanding the foregoing,

in the event a commissioner within thirty days of receiving notice of

said issuance requests review of the action by the full commission, the

development shall be subject to the interim rules and regulations and

reviewed as provided for in section nine herein.

In the event that an event referred to herein (acceptance of a draft

environmental impact statement or draft generic environmental impact

statement; issuance of a conditioned negative declaration or negative

declaration; or issuance of a required permit or approval) is annulled

or vacated by a court of competent jurisdiction and such judicial action

has not been reversed by a superior court, then, for purposes of this

section, such event shall be deemed not to have taken place.

Notwithstanding any other provision of law, any development which

includes land within the core preservation area for which the designated

lead agency, on or before June first, nineteen hundred ninety-three,

accepted a draft environmental impact statement or draft generic

environmental impact statement shall not require a supplemental draft or

generic environmental impact statement under article eight of this

chapter solely because such development includes land within the core

preservation area.

9. Within three months of the effective date of this section, the

commission shall publish interim goals and standards for development and

for hardship before the land use plan is implemented in compatible

growth areas identified in the map. The commission may vary the

procedures and time periods for compliance with article eight of this

chapter as necessary and appropriate to comply with the three month

deadline of this subdivision. Upon such publication, development may

proceed in such compatible growth areas subject to existing laws,

regulations and approval procedures and subject to the review and

approval of the commission. Any person, the state or a public

corporation applying for development in such compatible growth areas who

has received all necessary local and state approvals may petition the

commission for approval of the development. Within thirty days of an

application being received, the commission shall provide the applicant

and any other interested party an opportunity to be heard. Notice of

such hearing shall be published in a newspaper having a general

circulation in the Central Pine Barrens area, and notice of such hearing

shall also be given by registered mail to the chief administrative

officer of each town and village within whose boundary any proposed

development is located. If the proposed development is consistent with

the commission's interim goals and standards, the commission shall

approve the development and may include conditions for approval. If the

applicant seeks an exemption based upon a demonstration of hardship, the

commission may approve development in the compatible growth area upon

the finding that such interim goals and standards caused an unnecessary

hardship. In making such finding the commission shall consider the

criteria for a use variance pursuant to section two hundred

sixty-seven-b of the town law. The commission must make a decision

within one hundred twenty days of receipt of a complete application. If

the commission fails to make a decision within one hundred twenty days,

the development shall be deemed to be approved by the commission, unless

extended by mutual agreement of the applicant and commission.

10. Any person, the state or a public corporation upon a showing of

hardship caused by the provisions of subdivision eight of this section

on development in the core preservation area, may apply to the

commission for a permit exempting such applicant from such subdivision

eight in connection with any proposed development in the core

preservation area. Such application for an exemption pursuant to the

demonstration of hardship within the core preservation area shall be

approved only if the person satisfies the following conditions and

extraordinary hardship or compelling public need is determined to have

been established under the following standards or for development by the

state or a public corporation or proposed for land owned by the state or

a public corporation compelling public need is determined to have been

established under the following standards:

(a) The particular physical surroundings, shape or topographical

conditions of the specific property involved would result in an

extraordinary hardship, as distinguished from a mere inconvenience, if

the provisions of this act are literally enforced. A person shall be

deemed to have established the existence of extraordinary hardship only

if he or she demonstrates, based on specific facts, that the subject

property does not have any beneficial use if used for its present use or

developed as authorized by the provisions of this title, and that this

inability to have a beneficial use results from unique circumstances

peculiar to the subject property which:

(i) Do not apply to or affect other property in the immediate

vicinity;

(ii) Relate to or arise out of the characteristics of the subject

property rather than the personal situation of the applicant; or

(iii) Are not the result of any action or inaction by the applicant or

the owner or his or her predecessors in title including any transfer of

contiguous lands which were in common ownership on or after June 1,

1993.

(b) A person, the state or a public corporation shall be deemed to

have established compelling public need if the applicant demonstrates,

based on specific facts, one of the following:

(i) The proposed development will serve an essential health or safety

need of the municipalities in the Central Pine Barrens such that the

public health and safety require the requested waiver, that the public

benefits from the proposed use are of a character that overrides the

importance of the protection of the core preservation area as

established in this title, that the proposed use is required to serve

existing needs of the residents, and that no feasible alternatives exist

outside the core preservation area to meet the established public need

and that no better alternatives exist within the county; or

(ii) The proposed development constitutes an adaptive reuse of an

historic resource designated by the commission and said reuse is the

minimum relief necessary to ensure the integrity and continued

protection of the designated historic resource and further that the

designated historic resource's integrity and continued protection cannot

be maintained without the granting of a permit.

(c) An application for a permit in the core preservation area shall be

approved only if it is determined that the following additional

standards also are met:

(i) The granting of the permit will not be materially detrimental or

injurious to other property or improvements in the area in which the

subject property is located, increase the danger of fire, endanger

public safety or result in substantial impairment of the resources of

the core preservation area;

(ii) The waiver will not be inconsistent with the purposes, objectives

or the general spirit and intent of this title; or

(iii) The waiver is the minimum relief necessary to relieve the

extraordinary hardship, which may include the granting of a residential

development right to other lands in the compatible growth area that may

be transferred or clustered to those lands to satisfy the compelling

public need.

Any waiver or exemption granted under the provisions of this part

shall only be considered an exemption or waiver of the particular

standard of this title which the commission waived. It shall not

constitute an approval of the entire development proposal. Nor shall it

constitute a waiver from any requirements contained within any local,

county or state law or ordinance.

Within thirty days of the application being received, the commission

shall provide the applicant and any other interested party an

opportunity to be heard. Notice of any public hearing conducted in

connection with an application for such a permit shall be published in a

newspaper of general circulation in the Central Pine Barrens area. If

the proposed development is not contrary to the policy or any provision

of this title and meets the standards of extraordinary hardship or

public need herein, and the commission so finds, it may issue a permit

allowing the development or such development subject to appropriate

conditions or modifications to occur, provided that permission may be

revoked by the commission if its terms are violated, and provided

further that any such hardship permit issued by the commission shall be

in addition to, and not in lieu of, such permit or permits as may be

required by any state agency or municipality within whose boundary such

development is located. The time within which the commission must decide

a core preservation area hardship application for which a negative

declaration has been made by the commission pursuant to article eight of

this chapter is one hundred twenty days from receipt of such

application. The time within which the commission must decide a core

preservation area hardship application for which a positive declaration

has been made by the commission pursuant to article eight of this

chapter is sixty days from issuance of a findings statement by the

commission pursuant to article eight of this chapter. If the commission

fails to make a decision within the aforesaid time periods, the

development shall be deemed to be approved by the commission, unless

extended by mutual agreement of the applicant and commission.

11. In preparation of the land use plan, the commission shall:

(a) consult with appropriate officials of any regional, state or

federal agency which has jurisdiction over lands and waters within the

Central Pine Barrens area;

(b) consult with the officials of any municipality which has

jurisdiction over lands and waters within the Central Pine Barrens area;

(c) consult with interested professional, scientific and citizens'

organizations; and

(d) consult with citizens' committees.

12. Following consultation with the advisory committee and within the

twelve month period established therefor, the commission shall publish

the draft land use plan. Within three months of such publication, the

commission shall hold public informational meetings in the towns of

Brookhaven, Riverhead and Southampton and at least one public hearing

within the Central Pine Barrens area. During this period the commission

shall receive and review comments on the draft land use plan-generic

environmental impact statement from state and local governments and the

public and within three months, the commission shall recommend a revised

comprehensive land use plan pursuant to this title to the respective

town boards of such towns for their ratification and adoption. Within

two months of the commission recommending the plan to the respective

town boards, the town boards shall perform a comprehensive review of the

plan and shall provide final comments to the commission. The commission

at its discretion may modify the plan as requested by the town

representatives. After modifying the plan as necessary, the commission

shall prepare a draft supplemental generic environmental impact

statement and a final generic environmental impact statement, and the

towns and commission shall adopt the necessary statement of findings

pursuant to article eight of this chapter. Ratification and adoption of

the plan by the town boards of Brookhaven, Riverhead, and Southampton

shall represent commitment to implementation of the provisions contained

therein. Upon ratification and adoption by such three towns, the

commission itself will formally adopt the plan-generic environmental

impact statement and its provisions shall be in full force. Adoption by

the commission shall only be upon the signature of the governor, county

executive of Suffolk county, supervisor of the town of Brookhaven,

supervisor of the town of Riverhead and supervisor of the town of

Southampton.

13. Not less than once every five years after the land use plan has

become effective, the commission shall review and, if appropriate, make

amendments to the land use plan and update the generic impact statement.

Within each such period, the commission shall hold a public hearing and

shall receive comments on the effectiveness of implementation of the

land use plan. Not less than thirty days before voting on an amendment

to the land use plan, the commission shall publish notice thereof in a

newspaper of general circulation in the Central Pine Barrens area.