N.Y. Environmental Conservation Law § 57-0123: Implementation of the Central Pine Barrens comprehensive land use plan

§ 57-0123. Implementation of the Central Pine Barrens comprehensive land

use plan.

1. Within three months after the land use plan has been adopted by the

commission, each town board and village board with jurisdiction within

the Central Pine Barrens area shall adopt and amend as necessary land

use and zoning regulations, by local law or ordinance, rule or

regulation to conform their land use regulations to the land use plan.

Such action shall not be subject to the provisions of article eight of

this chapter if it is in conformance with the conditions and thresholds

of the land use plan. At least thirty days before adoption thereof, the

town or village board shall submit the proposed regulations to the

commission for its review and approval. Within ten days of receipt of

such proposed regulations, the commission shall review and approve such

proposed regulations, or if it does not approve them, return them with

comments on what needs to be done to make them approvable. For each

jurisdiction, the land use plan shall be deemed to be implemented upon

adoption by the town or village board of approved land use regulations.

The interim regulation provisions of subdivisions eight, nine, and ten

of section 57-0121 of this title shall remain in effect for each town or

village until it has adopted approved land use regulations to conform to

the adopted comprehensive management plan. Within villages that were

incorporated on or before June 30, 1993, whose land use and zoning

regulations are approved by the commission consistent with the land use

plan pursuant to section 57-0121 of this title, development which

conforms to such land use and zoning regulations and does not have

significant adverse impacts on the goals of the land use plan shall not

be subject to review by the commission. After town or village land use

regulations have been approved and upon a finding that a town or village

has changed such regulations in a manner substantially inconsistent with

the land use plan or has administered its approved land use regulations

in a manner substantially inconsistent with the land use plan, the

commission shall withdraw approval of such land use regulations and the

provisions of subdivisions eight, nine and ten of section 57-0121 of

this title shall be reinstituted. Such withdrawal of approval shall be

made not before fourteen days after the commission holds a public

hearing in the affected town or village on the proposed withdrawal.

Notice of such hearing shall be published in a newspaper having general

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

shall also be given by registered mail to the affected supervisor or

mayor.

2. (a) The commission shall have jurisdiction to review and approve

all proposed development in critical resource areas and developments of

regional significance as identified in the land use plan and proposed

developments found by the commission after petition by a commissioner to

have significant adverse impact on the land use plan. Any commissioner

may petition the commission to assert review jurisdiction over a

proposed development outside of a critical resource area or which is

other than a project of regional significance which has a significant

adverse impact on the goals of the land use plan. If the commissioner by

majority vote asserts jurisdiction, such project or action shall be

subject to review by the commission. For the purposes of review and

identification of projects coming under the jurisdiction of the

commission by virtue of critical resource area or area of regional

impact or at the request of any commission member, the commission shall

designate the responsible planning entity or staff for the purposes of

advising the commission with respect to such applications or projects.

To the fullest extent possible, the commission shall consolidate and

coordinate its review with the appropriate local government. A person,

the state or a public corporation proposing development in a critical

resource area or development of regional significance shall apply to the

commission for approval of the development. Applications shall be made

to the commission on forms and in such manner as the land use plan and

commission shall designate.

(b) The commission must make a decision within one hundred twenty days

of the 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 the commission. The commission must make

a decision within one hundred twenty days of asserting jurisdiction over

a project that is before the commission based on the petition by a

commissioner. If the commission fails to make a decision within one

hundred twenty days of the date of asserting jurisdiction, the

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

extended by mutual agreement of the applicant and the commission.

3. (a) Subsequent to the adoption of the land use plan, the provisions

of any other law, ordinance, rule or regulation to the contrary

notwithstanding, no application for development within the Central Pine

Barrens area shall be approved by any municipality or county or agency

thereof or the commission, and no state approval, certificate, license,

consent, permit, or financial assistance for the construction of any

structure or the disturbance of any land within such area shall be

granted, unless such approval or grant conforms to the provisions of

such land use plan; provided, however, that the commission by majority

vote is hereby authorized to waive strict compliance with such plan or

with any element or standard contained therein, for an application for

development of any person, upon finding that such waiver is necessary to

alleviate hardship for proposed development in the core preservation

area according to the conditions and finding of extraordinary hardship

or compelling public need pursuant to subdivision ten of section 57-0121

of this title, or for an application for development by the state or

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

corporation finding that such waiver is necessary to alleviate hardship

for proposed development in the core preservation area according to the

conditions and finding of compelling public need pursuant to subdivision

ten of section 57-0121 of this title, and every application is

consistent with the purposes and provisions of this article and would

not result in substantial impairment of the resources of the Central

Pine Barrens area.

(b) The commission by majority vote is also authorized to waive strict

compliance with such plan or with any element or standard contained

therein, upon finding that such waiver is necessary to alleviate

hardship for development proposed by any person, the state or a public

corporation in the compatible growth area according to the conditions

and findings of hardship pursuant to subdivision nine of section 57-0121

of this title, is consistent with the purposes and provisions of this

title and would not result in substantial impairment of the resources of

the Central Pine Barrens area.

(c) The commission must make a decision within the time periods

established pursuant to subdivision ten of section 57-0121 of this

title. 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 the

commission. The aforesaid time period and the processing and review of

an application shall be suspended by the commission with notice to the

applicant where a proceeding pursuant to section 57-0136 of this title

is pending against the applicant with respect to the property at issue

or otherwise arising out of the ownership or use of such property.

4. Notwithstanding any inconsistent provisions in article eight of

this chapter and within towns and villages with approved land use

regulations, actions wholly within the Central Pine Barrens area in

conformance with the conditions and thresholds of the land use plan and

the generic environmental impact statement thereof shall require no

further environmental impact statement with respect to impacts addressed

in such generic environmental impact statement. Further project-specific

compliance with article eight of this chapter may be required. Upon

ratification by the towns and adoption of the land use plan by the

commission, the consistency provisions of article fifty-five are no

longer required.

5. Notwithstanding any other provision of law, any state agency may

provide in implementing a ranking system for allocating funds for

infrastructure, land acquisition, farmland preservation or park

assistance projects a preference not to exceed the equivalent of an

advantage of five percent for such projects which are identified in a

land use plan.

6. For the county of Suffolk, and each town or village implementing

regulations wholly within the Central Pine Barrens area approved by the

commission, there may be defense by and shall be indemnity from the

state in the event of legal actions or proceedings brought against any

such municipalities or their agents, servants, officials or employees

that may result from the municipal acquisition of land consistent with

the land use plan or comprehensive management plan or the adoption or

implementation of any land use control including, but not limited to,

the provisions of a zoning law, ordinance, or regulation consistent with

this title or required by the minimum standards and criteria of the land

use plan. Indemnity shall not apply to any such claim in which a final

court determination results in a finding of intentional wrongdoing,

recklessness, or an unlawful discriminatory practice including the

finding that the land use control was intended to exclude a particular

group or individual, or gross negligence on the part of such

municipality or its agents, servants, officials, or employees. Actions

or proceedings brought under subdivisions two, two-a, three-b, four,

paragraphs (a) and (b) of subdivision five and subdivisions six, seven,

fourteen, and eighteen of section two hundred ninety-six of the

executive law and 42 U.S.C. 55 1981, 1983, 1988 shall be indemnified by

the state only so far as the grievance alleged in such action or

proceeding was the result of an act consistent with this title or the

plan.

(a) Such indemnity shall apply only to the extent that any such claim

exceeds any insurance coverage obtained by the commission from revenues

in the Pine Barrens fund.

(b) Such indemnity shall be conditioned upon (i) delivery by the

governing body or its agent against whom the legal action or proceeding

was commenced to the attorney general or an assistant attorney general

at an office of the department of law in the state the original or a

copy of any summons, complaint, process, notice, demand or pleading

within fifteen days after such document is served upon such governing

body or its agent, and (ii) the full cooperation of the governing body

or its agents against whom the action or proceeding was commenced in the

defense of such action or proceeding and in defense of any action or

proceeding against the state based upon the same act or omission, and in

the prosecution of any appeal.

(c) There shall be no indemnity in the event of a settlement between

or among the parties to such legal action or proceeding in those

instances in which the attorney general is not providing the defense for

the governing body or its agents, unless such settlement is approved by

the commission with the concurrence of the attorney general.

7. Notwithstanding any other provision of law to the contrary and in

addition to any existing authority therefor, a town or village in

implementing regulations approved by the commission and acting in

furtherance of the land use plan may enter into an agreement to

condition a zoning amendment.