N.Y. Town Law § 261-b: Incentive zoning; definitions, purpose, conditions, procedures

§ 261-b. Incentive zoning; definitions, purpose, conditions,

procedures. 1. Definitions. As used in this section:

(a) "Incentives or bonuses" shall mean adjustments to the permissible

population density, area, height, open space, use, or other provisions

of a zoning ordinance or local law for a specific purpose authorized by

the town board.

(b) "Community benefits or amenities" shall mean open space, housing

for persons of low or moderate income, parks, elder care, day care or

other specific physical, social or cultural amenities, or cash in lieu

thereof, of benefit to the residents of the community authorized by the

town board.

(c) "Incentive zoning" shall mean the system by which specific

incentives or bonuses are granted, pursuant to this section, on

condition that specific physical, social, or cultural benefits or

amenities would inure to the community.

2. Authority and purposes. In addition to existing powers and

authorities to regulate by planning or zoning, including authorization

to provide for the granting of incentives, or bonuses pursuant to other

enabling law, a town board is hereby empowered, as part of a zoning

ordinance or local law adopted pursuant to this article, or by local law

or ordinance adopted pursuant to other enabling law, to provide for a

system of zoning incentives, or bonuses, as the town board deems

necessary and appropriate consistent with the purposes and conditions

set forth in this section. The purpose of the system of incentive, or

bonus, zoning shall be to advance the town's specific physical, cultural

and social policies in accordance with the town's comprehensive plan and

in coordination with other community planning mechanisms or land use

techniques. The system of zoning incentives or bonuses shall be in

accordance with a comprehensive plan within the meaning of section two

hundred sixty-three of this article.

3. Implementation. A system of zoning incentives or bonuses may be

provided subject to the conditions hereinafter set forth.

(a) The town board shall provide for the system of zoning incentives

or bonuses pursuant to this section as part of the zoning ordinance or

local law. In providing for such system the board shall follow the

procedure for adopting and amending its zoning ordinance or local law,

including all provisions for notice and public hearing applicable for

changes or amendments to a zoning ordinance or local law.

(b) Each zoning district in which incentives or bonuses may be awarded

under this section shall be designated in the town zoning ordinance or

local law and shall be incorporated in any map adopted in connection

with such zoning ordinance or local law or amendment thereto.

(c) Each zoning district in which incentives or bonuses may be

authorized shall have been found by the town board, after evaluating the

effects of any potential incentives which are possible by virtue of the

provision of community amenities, to contain adequate resources,

environmental quality and public facilities, including adequate

transportation, water supply, waste disposal and fire protection.

Further, the town board shall, in designating such districts, determine

that there will be no significant environmentally damaging consequences

and that such incentives or bonuses are compatible with the development

otherwise permitted.

(d) A generic environmental impact statement pursuant to article eight

of the environmental conservation law and regulations adopted by the

department of environmental conservation shall be prepared by the town

board for any zoning district in which the granting of incentives or

bonuses have a significant effect on the environment before any such

district is designated, and such statement shall be supplemented from

time to time by the town board if there are material changes in

circumstances that may result in significant adverse impacts. Any zoning

ordinance or local law enacted pursuant to this section shall provide

that any applicant for incentives or bonuses shall pay a proportionate

share of the cost of preparing such environmental impact statement, and

that such charge shall be added to any site-specific charge made

pursuant to the provisions of section 8-0109 of the environmental

conservation law.

(e) The town board shall set forth the procedure by which incentives

may be provided to specific lands. Such procedure shall describe:

(i) the incentives, or bonuses, which may be granted by the town to

the applicant;

(ii) the community benefits or amenities which may be accepted from

the applicant by the town;

(iii) criteria for approval, including methods required for

determining the adequacy of community amenities to be accepted from the

applicant in exchange for the particular bonus or incentive to be

granted to the applicant by the town;

(iv) the procedure for obtaining bonuses, including applications and

the review process, and the imposition of terms and conditions attached

to any approval; and

(v) provision for a public hearing, if such public hearing is required

as part of a zoning ordinance or local law adopted pursuant to this

section and give public notice thereof by the publication in the

official newspaper of such hearing at least five days prior to the date

thereof.

(f) All other requirements of article eight of the environmental

conservation law shall be complied with by project sponsors for actions

in areas for which a generic environmental impact statement has been

prepared including preparation of an environmental assessment form and a

supplemental environmental impact statement, if necessary.

(g) Prior to the adoption or amendment of the zoning ordinance or

local law pursuant to this section to establish a system of zoning

incentives or bonuses the town board shall evaluate the impact of the

provision of such system of zoning incentives or bonuses upon the

potential development of affordable housing gained by the provision of

any such incentive or bonus afforded to an applicant or lost in the

provision by an applicant of any community amenity to the town.

Further, the town board shall determine that there is approximate

equivalence between potential affordable housing lost or gained or that

the town has or will take reasonable action to compensate for any

negative impact upon the availability or potential development of

affordable housing caused by the provisions of this section.

(h) If the town board determines that a suitable community benefit or

amenity is not immediately feasible, or otherwise not practical, the

board may require, in lieu thereof, a payment to the town of a sum to be

determined by the board. If cash is accepted in lieu of other community

benefit or amenity, provision shall be made for such sum to be deposited

in a trust fund to be used by the town board exclusively for specific

community benefits authorized by the town board.

4. Invalidations. Nothing in this section shall be construed to

invalidate any provision for incentives or bonuses heretofore adopted by

any town board.