N.Y. Executive Law § 809: Agency administration and enforcement of the land use and development plan

§ 809. Agency administration and enforcement of the land use and

development plan. 1. The agency shall have jurisdiction to review and

approve all class A regional projects, including those proposed to be

located in a land use area governed by an approved local land use

program, and all class B regional projects in any land use area not

governed by an approved and validly enacted or adopted local land use

program.

All projects shall be reviewed and acted upon as expeditiously as

practical. In particular, to facilitate the review of minor project

applications, the agency shall develop simplified application forms to

deal with such projects, and will comply with the special procedures for

such projects set forth in this section. For the purposes of this

section, "minor project" shall mean any individual single family

dwelling or mobile home or any subdivision involving two lots, parcels

or sites.

2. a. Any person proposing to undertake a class A regional project in

any land use area, or a class B regional project in any land use area

not governed by an approved and validly enacted or adopted local land

use program, shall make application to the agency for approval of such

project and receive an agency permit therefor prior to undertaking the

project. Such application shall be filed in such form and manner as the

agency may prescribe. The agency shall, upon receipt of such

application, provide notice of receipt of the application and a brief

description of the project to the Adirondack park local government

review board, the chairman of the county planning board, if any, of the

county wherein the project is proposed to be located, to the chairman of

the appropriate regional planning board, and to the chief elected

officer, clerk and planning board chairman, if any, of the local

government wherein such project is proposed to be located. The agency

shall, upon request, furnish or make a copy of the application available

to the review board or to the officials listed in this paragraph.

b. On or before fifteen calendar days after the receipt of such

application the agency shall notify the project sponsor by certified

mail 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 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 incomplete. The

submission by the project sponsor of the requested additional

information shall commence a new fifteen calendar day period for agency

review of the additional information for the purposes of determining

completeness. If the agency determines the application is complete, the

notice shall so state.

A notice of application completion shall not be required in the case

of applications for minor projects which the agency determines to be

complete when filed. Such applications shall be deemed complete for the

purposes of this section upon the date of receipt.

c. The project sponsor shall not undertake the project for a period of

ninety days, or in the case of a minor project, forty-five days,

following the date of such notice of application completion, or the date

the application is deemed complete pursuant to the provisions of this

section, unless a permit is issued prior to the expiration of such

periods.

d. Immediately 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 environmental notice

bulletin published by the department of environmental conservation

pursuant to section 3-0306 of the environmental conservation 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.

3. a. Within the time periods specified in paragraphs b and c of this

subdivision, the agency shall make a decision on a permit application by

notifying the project sponsor by certified mail of its decision to

approve the project, approve the project subject to conditions or

disapprove the project.

b. In the case of an application for a permit for which no public

hearing has been held, the agency decision shall be mailed on or before

ninety calendar days or, in the case of a minor project, forty-five

calendar days, after the agency notifies the project sponsor that the

application is complete or after the application is deemed complete

pursuant to the provisions of this section.

c. In the case of an application for a permit for which a public

hearing has been held, the agency decision shall be mailed on or before

sixty calendar days after 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 the project sponsor of its

determination by certified mail on or before sixty calendar days or, in

the case of a minor project, forty-five calendar days after the agency

notifies the project sponsor that the application is complete or after

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 disapproved without a public hearing first

being held thereon.

e. If the agency has notified the project sponsor of its determination

to hold a public hearing, the sponsor shall not undertake the project

during the time period specified in paragraph c of this subdivision. The

notice of determination 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 shall commence

on or before ninety calendar days, or in the case of a minor project,

seventy-five days, after the agency notifies the project sponsor that

the application is complete or after 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 environmental 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

government 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.

4. The agency shall make provision in its rules and regulations

adopted pursuant to subdivision fourteen of this section for the

Adirondack park local government review board and county and regional

planning agencies receiving notice under subdivision two to have

opportunity to review and render advisory comments on the project under

review by the agency.

5. Notice of an agency decision shall be given by mail to those

entitled to individual notice of application under subdivision two and

notice of hearing under subdivision three, if a hearing is held. If the

decision is approval, the agency shall within ten days of issuance of

its notification of approval grant a permit to the project sponsor to

undertake the project. If the decision is approval subject to

conditions, the agency shall grant a permit only upon satisfactory

fulfillment of such conditions. Approval subject to conditions shall

expire six months from the date of such approval, or such longer time as

is specified in the notification or approval, unless a permit has been

granted. An agency permit shall serve as authorization for the project

sponsor to undertake the project in accordance with the terms and

conditions thereof.

6. a. If the agency fails to mail a decision on an application for a

permit within the time periods specified in paragraphs b and c of

subdivision three of this section, the project sponsor may cause notice

of such failure to be made to the agency by means of certified mail,

return receipt requested, addressed to the agency at its headquarters

office. If, within five working days after the receipt of such notice

the agency fails to mail a decision, the application shall be deemed

approved and a permit deemed granted subject to any standard terms or

conditions applicable to such a permit and the agency shall provide the

project sponsor with a written certification to this effect.

b. Any time period specified in this section may be waived and

extended for good cause by written request of the project sponsor and

consent of the agency, or by written request of the agency and consent

of the project sponsor.

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. 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.

7. a. A permit or certificate issued by the agency pursuant to

subdivision five or six of this section shall expire within sixty days

from the date thereof unless within such sixty-day period such permit or

certificate shall have been duly recorded in the name of the landowner

in the office of the clerk of the county wherein the project is proposed

to be located. Where a permit involves action in concert by two or more

landowners as described by paragraph c of subdivision ten of this

section, the permit shall be recorded in the name of each landowner.

b. A permit when properly recorded shall operate and be construed as

actual notice of the right to undertake the project and of the terms and

conditions imposed by such permit. Such right shall extend to and such

terms and conditions shall be binding upon all subsequent grantees of

the land area subject to the permit, except those conditions which by

their nature or wording are to be performed by the original project

sponsor and except as may be otherwise provided by the terms of such

permit.

c. If a project for which a permit has been granted, or a certificate

issued, is not in existence within two years after the recording of such

permit or certificate, unless the terms of the permit provides for a

longer period of time, the project may not thereafter be undertaken or

continued unless an application for a new permit therefor has been

applied for and granted in the same manner and subject to all conditions

governing the application for and granting of a permit as provided in

this section. In determining whether to provide a longer period of time

by when the project must be in existence, the agency shall give due

consideration to the potential of the land related to the project to

remain suitable for the use allowed by the permit and to the economic

considerations attending the project.

8. a. Upon the provision of notice stating the grounds for its action

and giving an opportunity for hearing to the permit holder, the agency

may modify, suspend or revoke a permit.

b. A permit holder may make written request to the agency for the

renewal, reissuance, or modification of an existing permit. Such a

request shall be accompanied by sufficient information supporting the

request for the agency action sought.

(1) In the case of a request which does not involve a material change

in permit conditions, the applicable law, environmental conditions or

technology since the date of issuance of the existing permit, the agency

shall on or before fifteen calendar days after the receipt of a request

mail a written determination to the permit holder of its decision 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 environmental

notice bulletin.

(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 fifteen calendar days after the receipt of a request mail a

written determination to the permit holder that the request shall be

treated as an application for a new permit.

If pursuant to subparagraph one or two of this paragraph, the agency

fails to mail a written determination to the permit holder within such

fifteen calendar day period, the provisions of subdivision six of this

section shall apply.

9. The agency shall not approve any class A regional project proposed

to be located in a land use area governed by an approved local land use

program, or grant a permit therefor, unless it first determines that

such project meets all of the pertinent requirements and conditions of

such approved local land use program and that the project would not have

an undue adverse impact upon the natural, scenic, aesthetic, ecological,

wildlife, historic, recreational or open space resources of the park or

upon the ability of the public to provide supporting facilities and

services made necessary by the project, taking into account the

commercial, industrial, residential, recreational or other benefits that

might be derived from the project. In making this determination, as to

the impact of the project upon such resources of the park, the agency

shall consider those pertinent factors contained in the development

considerations and provided for in such approved local land use program.

The agency shall, in connection with its review of a project under this

subdivision, make provision in its rules and regulations adopted under

subdivision fourteen for the early involvement of the local government

wherein such project is proposed to be located in the review of such

project on an informal basis. Such local government shall have standing

as a party in any public hearing on such project held by the agency.

10. The agency shall not approve any project proposed to be located in

any land use area not governed by an approved local land use program, or

grant a permit therefor, unless it first determines that such project

meets the following criteria:

a. The project would be consistent with the land use and development

plan.

b. The project would be compatible with the character description and

purposes, policies and objectives of the land use area wherein it is

proposed to be located. If the project is on the classification of

compatible uses list for the land use area involved, there shall be a

presumption of compatibility with the character description, purposes,

policies and objectives of such land use area. If the project is a class

B regional project because, as provided in section eight hundred ten, it

is not listed as either a primary use or a secondary use on the

classification of compatible uses list for the land use area wherein it

is proposed to be located, there shall be a presumption that such

project would not be compatible with the character description,

purposes, policies and objectives of such land use area and the burden

shall be on the project sponsor to demonstrate such compatibility to the

satisfaction of the agency.

c. The project would be consistent with the overall intensity

guideline 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 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 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, irrespective of local government

boundaries. Principal buildings in existence within the area included

within a project, as such area is defined by the landowner, 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 calculated

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 principal

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.

d. The project would comply with the shoreline restrictions if

applicable. The agency may require a greater setback of any on-site

sewage drainage field or seepage pit than required under the shoreline

restrictions if it determines that soils or other pertinent conditions

require such greater setback to reasonably protect the water quality of

the water body involved.

e. The project would not have an undue adverse impact upon the

natural, scenic, aesthetic, ecological, wildlife, historic, recreational

or open space resources of the park or upon the ability of the public to

provide supporting facilities and services made necessary by the

project, taking into account the commercial, industrial, residential,

recreational or other benefits that might be derived from the project.

In making this determination, as to the impact of the project upon such

resources of the park, the agency shall consider those factors contained

in the development considerations of the plan which are pertinent to the

project under review.

11. Where there are practical difficulties or unnecessary hardships in

the way of carrying out the strict letter of the provisions of the plan

or the shoreline restrictions, the agency shall have authority in

connection with a project under its review to vary or modify, after

public hearing thereon, the application of any of such provisions or

restrictions relating to the use, construction or alteration of

buildings or structures, or the use of land, so that the spirit of the

provisions or restrictions shall be observed, public safety and welfare

secured and substantial justice done.

12. The agency may conduct such investigations, examinations tests and

site evaluations as it deems necessary to verify information contained

in an application for a development permit, and the project sponsor, or

owner of the land upon which the project is proposed, shall grant the

agency or its agents permission to enter upon his land for these

purposes.

13. The agency shall have authority to impose such requirements and

conditions with its granting of a permit as are allowable within the

proper exercise of the police power. The agency shall have specific

authority in connection with its project review jurisdiction: a. To

impose reasonable conditions and requirements, including the posting of

performance bonds in favor of the local government as obligee, to ensure

that any project for which a permit is granted will be adequately

supported by basic services and improvements made necessary by the

project. The cost of any such services or improvements may be imposed by

requiring that the project sponsor provide the service or improvement or

reserve land, or any interest therein, or contribute money in lieu

thereof to the local government wherein the project is proposed to be

located if such local government consents thereto. In the exercise of

the authority contained in this provision, the agency shall consult with

the affected municipalities and give due consideration to their views.

b. To impose reasonable conditions and requirements to ensure that a

project for which a permit is granted by the agency, when undertaken or

continued, will be completed in accordance with the terms and conditions

of the permit, and that the project sponsor furnish appropriate

guarantees of completion or otherwise demonstrate financial capacity to

complete the project or any material part thereof and furnish

appropriate guarantees or otherwise demonstrate that the project will be

managed and maintained once completed in accordance with the terms of

the permit.

c. To impose reasonable conditions and requirements to ensure that

upon approval of a project the applicable overall intensity guideline

for the land use area involved will be respected. Such requirement may

include the restriction of land against further development of principal

buildings, whether by deed restriction, restrictive covenant or other

similar appropriate means.

d. To allow, upon request of a project sponsor, projects to be

reviewed conceptually, and thereafter or simultaneously therewith to be

divided into and reviewed by sections, and to grant or deny permits for

such sections. Conceptual determinations may be made, and sectional

permits may be granted subject to the provision of those requirements

and conditions for improvements and services for, and for completion of

the total project as the agency deems reasonable and necessary.

Conceptual review shall focus upon the existing environmental setting

and the likely impacts which would result from the project, including

all proposed phases or segments thereof, but shall not result in a

binding approval or disapproval. The agency shall in rules and

regulations establish criteria, guidelines, and procedures for the

conceptual and sectional review of proposed projects. Except to the

extent, and only for such period of time as otherwise specifically

stated in the agency's decision upon an application for a sectional

permit, the granting of any sectional permit shall not constitute a

finding, or be binding upon the agency, with respect to any portion of

the total project not included in the section for which the permit is

granted.

e. To issue a general permit for any class of projects concerning

which the agency determines it may make the requisite statutory findings

on a general basis.

14. The agency may, after public hearing, adopt, and have authority to

amend or repeal, rules and regulations, consistent with the provisions

of this section, to govern its project review procedures and to provide

further guidance to potential project sponsors through further

definition of the development considerations as they would apply to

specific classes of projects in specific physical and biological

conditions. Such rules and regulations may include but not be limited

to:

a. Procedures prior to formal application to the agency for a permit

for the informal discussion of preliminary plans for a proposed project

and for preliminary approval or recommendations in regard to the

project. Such informal discussion shall be optional with the project

sponsor and no such preliminary approval or recommendations shall

relieve the sponsor from complying with the provisions governing

submission of a project for review and obtaining a permit therefor as

provided in this section.

b. Procedures for cooperation and joint action, including joint

hearings, insofar as practical, with other state agencies having review

or regulatory jurisdiction which relates with that of the agency's so as

to avoid unnecessary costs and burdens both to the state and to project

sponsors and landowners.

c. Procedures to insure communication and discussion with any federal

agency, including the Army Corps of engineers and the soil conservation

service, in regard to any federal development proposals in the park.

Such agency rules and regulations, and any amendments thereof, shall

be adopted only after consultation with the Adirondack park local

government review board and at least one public hearing thereon. Fifteen

days notice of such hearing shall be made by publication at least once

in a newspaper of general circulation in each county wholly or partially

within the Adirondack park and in a least three metropolitan areas of

the state, and by individual notice served by mail upon the clerk of

each county and each local government of the park, and the chairman of

all local government, county and regional planning agencies having

jurisdiction in the park. Such notice shall contain a statement

describing the subject matter of the proposed rules and regulations, and

the time and place of the hearing and where further information thereon

may be obtained.

15. This section shall not apply to any emergency project which is

immediately necessary for the protection of life or property as defined

by the agency by rule and regulation adopted under subdivision fourteen.