NY State Senate Bill 2009-S3361

Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to finance
Jun 15, 2009	print number 3361a
Jun 15, 2009	amend and recommit to finance
Mar 17, 2009	referred to finance

Bill Amendments

Original

A (Active)

2009-S3361 - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Amd §809, Exec L

2009-S3361 - Summary

Relates to applications for minor and major projects before the Adirondack park agency.

2009-S3361 - Sponsor Memo

                                 BILL NUMBER:  S3361

 TITLE OF BILL :  An act to amend the executive law, in relation to
applications for minor and major projects before the Adirondack park
agency


 PURPOSE :

The purpose of this bill is to clarify various provisions of the
Adirondack Park Agency Act (Act), Executive Law (EL) Article 27,
modify certain. time periods and procedural requirements relating to
the project application process established in EL §809, and provide
for greater opportunity for transfer of development rights.

 SUMMARY OF PROVISIONS :

Section 1 of this bill:

* amends EL §809(2)(b) and (d) to extend from 15 to 30 days the period
for initial review of a major project application, eliminates the
10-day requirement for the publication of major project notices in the
Environmental Notice Bulletin (ENB,) and clarify other language of
these provisions;

* amends EL §809(3)(b), (c), (d) and (e) to extend from 60 to 90 days

the time for mailing of a hearing notice for major projects, change
the timing and procedures for public hearings applicable to project
denials, and clarify other language contained in these provisions;

* amends EL §809(6)(c) to clarify procedures relating to permit
renewal, reissuance or modification;

* amends EL §809(8) to provide 30 days for an appeal and an additional
30 days on good cause shown, and provide for a super-majority
requirement for all appeals to the full Agency of a prior full Agency
permit determination; and

* amends EL §809(10)(c) to modify provisions relating to application
of the Act's intensity guidelines to allow greater opportunity for
transfer of development rights.

Section 2 of this bill adds a new paragraph b to subdivision 8 of EL §
809 to establish procedures for the appeal of permit terms and
conditions.

Section 3 of this bill provides that the bill will be effective
immediately.

 EXISTING LAW :

EL § 809 provides the statutory timeframes and procedures that govern
Adirondack Park Agency (Agency) administration of permits required by
the Act for new land use and development regulated by the Adirondack
Park Land Use and Development Plan. A uniform 15- day timeframe
currently governs the initial review of minor and major projects,
which repeats each time an applicant responds to an Agency request for
information. This process continues until the Agency determines it has
a "complete" application and can begin project review.

EL §809 also provides that the ability to direct a project to public
hearing expires 60 days after application completion. As a result, the
last date at which a proposal may be subjected to material
modifications or denial is 30 days before the 90 day deadline for
final decision.

Finally, EL §809 currently limits development "rights" transfer to
owners of adjacent or contiguous properties within the same land use
area acting in concert.

 LEGISLATIVE HISTORY :

This is a new bill.

 STATEMENT IN SUPPORT :

This bill addresses several problems related to the regional project
permit process established in EL §809.

The Agency often must make an information request to an applicant to
obtain additional information before making a completeness
determination on an application. The current 15-day period in which
the Agency's request must be made does not allow sufficient time for a
field visit to a proposed site prior to issuance of the request.  This
leads to broad and generalized information requests which can delay
completeness determinations and project review. The amendment to EL
§809(2)(b) extends this initial review period to 30 days for major
projects to allow for field visits which in turn will result in more
focused information requests.

The 10-day requirement for the publication of major project notices in
the ENB is impractical under long-standing ENB publication procedures,
and is unnecessary because of the additional requirement that
publication occur "in the next available ENB" is sufficient to ensure
prompt publication of such notices.

The 30-day gap between the 60-day hearing determination deadline and
the 90-day permit issuance deadline for major project applications
provided for in EL § 809(3)(d) has been problematic. It encourages
Agency staff to rush to make a recommendation to the Agency board on
whether or not to approve an application before the time period for a
hearing determination deadline runs. (Once the 60-day time period
expires, the Agency is required by the Act to approve the project.)
This can be especially problematic on large, complex or controversial
projects. As a result, ad hoc agreements are often reached with
applicants to extend the statutory deadline. Rushed hearing
determinations may also impose costly hearing requirements
particularly where an application does not present questions of
disputed fact or other issues that are the appropriate subject of an
adjudicatory hearing. This bill establishes a uniform 90-day timeframe
for both hearing and approvability determinations.

The amendment to EL §809(3)(d) also provides that the Agency may deny
a permit without hearing, removing the threat of "default approval"
which presently exists. Importantly, this change does not eliminate a
hearing requirement, because the project sponsor retains the right to
request an adjudicatory hearing in the event of a permit denial. In
such case, a new Agency decision will be required based upon the
hearing record.

The amendment to EL §809(6)(c) to allow the Agency to modify a permit
condition without a hearing - provided there has been no change in the
original project, applicable law, environmental conditions or
technology since the issuance of the permit - will increase efficiency
and decrease costs for the Agency and project sponsors.

The amendment to EL §809(8)(b) clarifies that a permit holder has 30
days to appeal the terms and conditions of a permit plus and an
additional 30 days on good cause shown, and that a two-thirds vote of
agency members is required to modify a prior permit determination made
by the Agency's members. This is a technical change to conform the
statute to existing regulation and practice, and serves to clarify
procedural distinctions between an appeal and a request to modify a
permit.

Development rights transfer is available pursuant to Town or Village
law within approved local land use programs within the same land use
classification. The amendment to EL §809(10)(c) extends the potential
for development rights transfer from a more restrictive to a less
restrictive land use classification within the same municipality and
regardless of whether there is an Agency-approved local land use
program. Transfer would occur only pursuant to an Agency permit which
will assure that the increased development associated with the
transfer does not result in "undue adverse environmental impact" and
meets other criteria for permit issuance.

Finally, this bill clarifies language throughout EL §809 regarding the
application of time frames and related provisions:

 BUDGET IMPLICATIONS :

This bill will have no significant fiscal impact but may reduce agency
costs by improving efficiency.

 EFFECTIVE DATE :
This bill would take effect immediately and apply to applications
received after such date.

2009-S3361 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3361

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 17, 2009
                               ___________

Introduced  by Sen. KRUGER -- (at request of the Adirondack Park Agency)
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Finance

AN ACT to amend the executive law, in relation to applications for minor
  and major projects before the Adirondack park agency

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

  Section 1. Paragraphs b and d of subdivision 2, paragraphs b, c, d and
e  of subdivision 3, paragraph c of subdivision 6, the opening paragraph
and subparagraphs 1 and 2 of paragraph b of subdivision 8, and paragraph
c of subdivision 10 of section 809 of the executive  law,  paragraphs  b
and d of subdivision 2, paragraphs b, c, d and e of subdivision 3, para-
graph  c  of  subdivision  6  as  amended  and the opening paragraph and
subparagraphs 1 and 2 of paragraph b of subdivision 8 as added by  chap-
ter 428 of the laws of 1979 and paragraph c of subdivision 10 as amended
by chapter 578 of the laws of 1979, are amended to read as follows:
  b.  [On  or  before]  WITHIN  fifteen  [calendar]  days [after] OF the
receipt of [such] A MINOR PROJECT application, OR, WITHIN THIRTY DAYS OF
THE RECEIPT OF A MAJOR PROJECT APPLICATION, the  agency  shall  [notify]
MAIL  WRITTEN NOTICE TO the project sponsor by certified mail INDICATING
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] THE  APPLICA-
BLE TIME 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  incom-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07116-03-9

S. 3361                             2

plete.  [The  submission  by  the project sponsor of the requested addi-
tional information shall commence a new fifteen calendar day period  for
agency  review  of the additional information for the purposes of deter-
mining  completeness.]  WITHIN  FIFTEEN  DAYS  OF  THE SUBMISSION BY THE
PROJECT SPONSOR OF REQUESTED ADDITIONAL INFORMATION,  THE  AGENCY  SHALL
MAIL  WRITTEN NOTICE TO THE PROJECT SPONSOR BY CERTIFIED MAIL INDICATING
WHETHER OR NOT THE APPLICATION IS COMPLETE. If the agency determines the
application is complete, the notice shall so state.
  d.  [Immediately  upon]  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  environ-
mental  notice  bulletin  published  by  the department of environmental
conservation pursuant to section 3-0306 of the  environmental  conserva-
tion  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.
  b. In the case of an application for a  permit  for  which  no  public
hearing  has  been  held,  the  agency SHALL MAIL ITS decision [shall be
mailed on or before] WITHIN ninety [calendar] days or, in the case of  a
minor  project,  WITHIN  forty-five  [calendar] days[, after] OF (I) THE
DATE the agency [notifies] MAILS the project  sponsor  NOTICE  that  the
application  is  complete or [after] (II) THE DATE ON WHICH the applica-
tion is deemed complete pursuant to the provisions of this section.
  c. In the case of an application for a permit for which a public hear-
ing has been held, the agency SHALL MAIL ITS decision [shall  be  mailed
on  or  before]  WITHIN  sixty [calendar] days [after] OF 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] MAIL WRITTEN NOTICE TO the
project sponsor of its determination by certified  mail  [on  or  before
sixty  calendar]  WITHIN NINETY days or, in the case of a minor project,
WITHIN forty-five [calendar] days [after] OF (I)  THE  DATE  the  agency
[notifies]  MAILS  the  project  sponsor  NOTICE that the application is
complete or [after] (II) THE DATE 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 disap-
proved without a public hearing first being held  thereon.]  THE  AGENCY
MAY DENY A PROJECT WITHOUT FIRST HOLDING A PUBLIC HEARING. HOWEVER, IF A
PROJECT  IS  DENIED  WITHOUT  A  PUBLIC HEARING, THE PROJECT SPONSOR MAY
WITHIN FIFTEEN DAYS OF THE DATE OF THE NOTICE OF  THE  DECISION  DENYING
THE  PROJECT  MAKE  A  WRITTEN  REQUEST FOR A HEARING. SUCH HEARING MUST
COMMENCE WITHIN FORTY-FIVE DAYS OF THE DATE OF RECEIPT BY THE AGENCY  OF

S. 3361                             3

THE  WRITTEN  REQUEST.  THE AGENCY DECISION MUST BE MADE WITHIN THE TIME
FRAMES PROVIDED IN PARAGRAPH C OF THIS SUBDIVISION.
  e. If the agency has notified the project sponsor of its determination
to hold a public hearing OR THE PROJECT SPONSOR HAS REQUESTED SUCH HEAR-
ING,  the sponsor shall not undertake the project during the time period
specified in paragraph c of this subdivision.  The  notice  of  determi-
nation 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 INITIATED BY THE AGENCY shall
commence [on or before] WITHIN ninety [calendar] days, or in the case of
a minor project, WITHIN seventy-five days, [after] OF THE DATE ON  WHICH
the  agency  [notifies]  MAILED  NOTICE  TO the project sponsor that the
application is complete or [after] THE DATE ON WHICH 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 environ-
mental 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 govern-
ment 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.
  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,  UNLESS THE AGENCY DETERMINES THAT SUCH RENEWAL, REISSUANCE, OR
MODIFICATION WOULD CONSTITUTE A MATERIAL CHANGE, IN WHICH  CASE  AT  THE
AGENCY'S  DISCRETION  SUCH RENEWAL, REISSUANCE, OR MODIFICATION SHALL BE
TREATED AS A NEW APPLICATION WITH NEW TIME  PERIODS.    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.
  A permit holder may  make  written  request  to  the  agency  for  the
renewal,  reissuance,  or  modification  of an existing permit AFTER THE
TIME TO APPEAL HAS EXPIRED. Such  a  request  shall  be  accompanied  by
sufficient  information  supporting  the  request  for the agency action
sought. UPON RECEIPT OF ALL THE NECESSARY INFORMATION TO MAKE AN ASSESS-
MENT:
  (1) In the case of a request TO THE AGENCY FOR A CHANGE TO THE  PERMIT
which  does  not  involve  a  material change in [permit conditions] THE
PERMITTED PROJECT, the applicable law, environmental conditions or tech-
nology since the date of issuance of the  existing  permit,  the  agency
shall [on or before] WITHIN fifteen [calendar] days after the receipt of
a request mail a written determination to the permit holder of its deci-
sion 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

S. 3361                             4

environmental notice bulletin.] IN SUCH CASE, THE AGENCY  MAY  GRANT  OR
DENY THE REQUEST WITHOUT A HEARING.
  (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] WITHIN fifteen [calendar] days  [after]  OF  the  receipt  of  a
request  mail  a written determination to the permit holder [that] AS TO
WHETHER the request shall be treated as an application for a new permit.
  c. The project would be consistent with the overall  intensity  guide-
line 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] 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]
INCLUDES THE LAND OWNED BY THE PROJECT SPONSOR THAT IS  INCLUDED  WITHIN
THE  PROJECT,  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,  irrespec-
tive  of  local government boundaries] OTHER LAND WITHIN THE SAME OR ANY
MORE RESTRICTIVE LAND USE AREA AND WITHIN THE SAME MUNICIPALITY WITH THE
PERMISSION OF THE OWNER OF SUCH OTHER LAND PROVIDED THAT: THE OTHER LAND
IS LAWFULLY ELIGIBLE FOR AND WILL BE PERMANENTLY RESTRICTED BY  DEED  BY
ITS  OWNER FROM DEVELOPMENT WITH THE SAME NUMBER OF ADDITIONAL PRINCIPAL
BUILDINGS ACTUALLY UTILIZED FOR THE PROJECT,  THE  ADDITIONAL  PRINCIPAL
BUILDINGS  ARE  NOT  LOCATED  WITHIN ONE-QUARTER MILE OF ANY LAKE, POND,
RIVER OR STREAM, AND ALL OTHER STATUTORY CONDITIONS FOR PROJECT APPROVAL
ARE MET.  Principal buildings in existence  within  the  [area  included
within  a  project,  as such area is defined by the landowner,] PROPERTY
BOUNDARIES OF THE LAND ON WHICH ANY PORTION OF THE PROJECT  IS  SITUATED
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  calcu-
lated  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 prin-
cipal 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.
  S  2.  Pargraph b of subdivision 8 of section 809 of the executive law
is relettered paragraph c and a new paragraph b  is  added  to  read  as
follows:
  B.  A  PERMIT HOLDER MAY APPEAL THE TERMS AND CONDITIONS OF ANY PERMIT
WITHIN THIRTY DAYS OF ISSUANCE OF THE PERMIT, AND AN  ADDITIONAL  THIRTY
DAYS  TO  APPEAL  MAY  BE ALLOWED UPON GOOD CAUSE SHOWN.  AN APPEAL OF A
PERMIT ISSUED PURSUANT TO DELEGATED AUTHORITY UNDER THIS  ARTICLE  SHALL
BE DETERMINED BY THE AGENCY'S MEMBERS. AN AFFIRMATIVE VOTE OF TWO-THIRDS

S. 3361                             5

OF  THE  AGENCY'S  MEMBERS SHALL BE REQUIRED TO MODIFY A PERMIT DETERMI-
NATION MADE BY THE AGENCY'S MEMBERS.
  S  3. This act shall take effect immediately and shall apply to appli-
cations received after such date.

2009-S3361A (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Amd §809, Exec L

2009-S3361A (ACTIVE) - Summary

Relates to applications for minor and major projects before the Adirondack park agency.

2009-S3361A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3361A

 TITLE OF BILL :

An act to amend the executive law, in relation to applications for
minor and major projects before the Adirondack park agency


 PURPOSE :

The purpose of this bill is to clarify various provisions of the
Adirondack Park Agency Act (Act), Executive Law (EL) Article 27,
modify certain. time periods and procedural requirements relating to
the project application process established in EL §809, and provide
for greater opportunity for transfer of development rights.

 SUMMARY OF PROVISIONS :

Section 1 of this bill:

* amends EL §809(2)(b) and (d) to extend from 15 to 30 days the period
for initial review of a major project application, eliminates the
10-day requirement for the publication of major project notices in the
Environmental Notice Bulletin (ENB) and clarify other language of
these provisions;

* amends EL §809(3)(b), (c), (d) and (e) to extend from 60 to 90 days
the time for mailing of a hearing notice for major projects, change
the timing and procedures for public hearings applicable to project
denials, and clarify other language contained in these provisions;

* amends EL §809(6)(c) to clarify procedures relating to permit
renewal, reissuance or modification;

* amends EL §809(8) to provide 30 days for an appeal and an additional
30 days on good cause shown, and provide for a super-majority
requirement for all appeals to the full Agency of a prior full Agency
permit determination; and

* amends EL §809(10)(c) to modify provisions relating to application
of the Act's intensity guidelines to allow greater opportunity for
transfer of development rights.

Section 2 of this bill adds a new paragraph b to subdivision 8 of EL §
809 to establish procedures for the appeal of permit terms and
conditions.

Section 3 of this bill provides that the bill will be effective
immediately.

 EXISTING LAW :

EL § 809 provides the statutory timeframes and procedures that govern
Adirondack Park Agency (Agency) administration of permits required by
the Act for new land use and development regulated by the Adirondack
Park Land Use and Development Plan. A uniform 15-day timeframe
currently governs the initial review of minor and major projects,
which repeats each time an applicant responds to an Agency request for
information. This process continues until the Agency determines it has
a "complete" application and can begin project review.

EL §809 also provides that the ability to direct a project to public
hearing expires 60 days after application completion. As a result, the
last date at which a proposal may be subjected to material
modifications or denial is 30 days before the 90 day deadline for
final decision.
Finally, EL §809 currently limits development "rights" transfer to
owners of adjacent or contiguous properties within the same land use
area acting in concert.

 LEGISLATIVE HISTORY :

This is a new bill.

 STATEMENT IN SUPPORT :

This bill addresses several problems related to the regional project
permit process established in EL §809.

The Agency often must make an information request to an applicant to
obtain additional information before making a completeness
determination on an application. The current 15-day period in which
the Agency's request must be made does not allow sufficient time for a
field visit to a proposed site prior to issuance of the request.  This
leads to broad and generalized information requests which can delay
completeness determinations and project review. The amendment to EL
§809(2)(b) extends this initial review period to 30 days for major
projects to allow for field visits which in turn will result in more
focused information requests.

The 10-day requirement for the publication of major project notices in
the ENB is impractical under long-standing ENB publication procedures,
and is unnecessary because of the additional requirement that
publication occur "in the next available ENB" is sufficient to ensure
prompt publication of such notices.

The 30-day gap between the 60-day hearing determination deadline and
the 90-day permit issuance deadline for major project applications
provided for in EL § 809(3)(d) has been problematic. It encourages
Agency staff to rush to make a recommendation to the Agency board on
whether or not to approve an application before the time period for a
hearing determination deadline runs. (Once the 60-day time period
expires, the Agency is required by the Act to approve the project.)
This can be especially problematic on large, complex or controversial
projects. As a result, ad hoc agreements are often reached with
applicants to extend the statutory deadline. Rushed hearing
determinations may also impose costly hearing requirements
particularly where an application does not present questions of
disputed fact or other issues that are the appropriate subject of an
adjudicatory hearing. This bill establishes a uniform 90-day timeframe
for both hearing and approvability determinations.

The amendment to EL §809(3)(d) also provides that the Agency may deny
a permit without hearing, removing the threat of "default approval"
which presently exists. Importantly, this change does not eliminate a
hearing requirement, because the project sponsor retains the right to
request an adjudicatory hearing in the event of a permit denial. In
such case, a new Agency decision will be required based upon the
hearing record.

The amendment to EL §809(6)(c) to allow the Agency to modify a permit
condition without a hearing - provided there has been no change in the
original project, applicable law, environmental conditions or
technology since the issuance of the permit - will increase efficiency
and decrease costs for the Agency and project sponsors.

The amendment to EL §809(8)(b) clarifies that a permit holder has 30
days to appeal the terms and conditions of a permit plus and an
additional 30 days on good cause shown, and that a two-thirds vote of
agency members is required to modify a prior permit determination made
by the Agency's members. This is a technical change to conform the
statute to existing regulation and practice, and serves to clarify
procedural distinctions between an appeal and a request to modify a
permit.

Development rights transfer is available pursuant to Town or Village
law within approved local land use programs within the same land use
classification. The amendment to EL §809(10)(c) extends the potential
for development rights transfer from a more restrictive to a less
restrictive land use classification within the same municipality and
regardless of whether there is an Agency-approved local land use
program. Transfer would occur only pursuant to an Agency permit which
will assure that the increased development associated with the
transfer does not result in "undue adverse environmental impact" and
meets other criteria for permit issuance.

Finally, this bill clarifies language throughout EL §809 regarding the
application of time frames and related provisions:

 BUDGET IMPLICATIONS :

This bill will have no significant fiscal impact but may reduce agency
costs by improving efficiency.

 EFFECTIVE DATE :
This bill would take effect immediately and apply to applications
received after such date.

2009-S3361A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3361--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 17, 2009
                               ___________

Introduced  by Sen. KRUGER -- (at request of the Adirondack Park Agency)
  -- read twice and ordered printed, and when printed to be committed to
  the Committee  on  Finance  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the executive law, in relation to applications for minor
  and major projects before the Adirondack park agency

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

  Section 1. Paragraphs b and d of subdivision 2, paragraphs b, c, d and
e of subdivision 3, paragraph c of subdivision 6, the opening  paragraph
and subparagraphs 1 and 2 of paragraph b of subdivision 8, and paragraph
c  of  subdivision 10 of section 809 of the executive law, paragraphs b,
c, d and e of subdivision 3, paragraph c of subdivision 6 as amended and
paragraphs b and d of subdivision 2, the opening paragraph and  subpara-
graphs  1  and 2 of paragraph b of subdivision 8 as added by chapter 428
of the laws of 1979 and paragraph c of  subdivision  10  as  amended  by
chapter 578 of the laws of 1979, are amended to read as follows:
  b.  [On  or  before  fifteen  calendar]  WITHIN THIRTY days [after the
receipt of such application] OF THE RECEIPT OF  A  PROJECT  APPLICATION,
the  agency shall [notify] MAIL WRITTEN NOTICE TO the project sponsor by
certified mail INDICATING 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] THE
APPLICABLE TIME 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07116-04-9

S. 3361--A                          2

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.] WITHIN FIFTEEN DAYS OF THE SUBMISSION BY THE
PROJECT SPONSOR OF REQUESTED ADDITIONAL INFORMATION,  THE  AGENCY  SHALL
MAIL  WRITTEN NOTICE TO THE PROJECT SPONSOR BY CERTIFIED MAIL INDICATING
WHETHER OR NOT THE APPLICATION IS COMPLETE. 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.
  d.   [Immediately  upon]  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 environ-
mental notice bulletin published  by  the  department  of  environmental
conservation  pursuant  to section 3-0306 of the environmental conserva-
tion 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.
  b.  In  the  case  of  an application for a permit for which no public
hearing has been held, the agency SHALL  MAIL  ITS  decision  [shall  be
mailed  on or before] WITHIN ninety [calendar] days or, in the case of a
minor project, WITHIN forty-five [calendar] days[,  after]  OF  (I)  THE
DATE  the  agency  [notifies]  MAILS the project sponsor NOTICE that the
application is complete or [after] (II) THE DATE ON WHICH  the  applica-
tion is deemed complete pursuant to the provisions of this section.
  c. In the case of an application for a permit for which a public hear-
ing  has  been held, the agency SHALL MAIL ITS decision [shall be mailed
on or before] WITHIN sixty [calendar] days [after]  OF  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]  MAIL  WRITTEN  NOTICE  TO  the
project  sponsor  of  its  determination by certified mail [on or before
sixty calendar] WITHIN NINETY days or, in the case of a  minor  project,
WITHIN  forty-five  [calendar]  days  [after] OF (I) THE DATE the agency
[notifies] MAILS the project sponsor  NOTICE  that  the  application  is
complete  or  [after]  (II)  THE DATE 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 disap-
proved  without  a  public hearing first being held thereon.] THE AGENCY
BOARD MAY DENY A PERMIT FOR A COMPLETE APPLICATION WITHOUT FIRST HOLDING

S. 3361--A                          3

A PUBLIC HEARING. HOWEVER, IF AN APPLICATION IS DENIED WITHOUT A  PUBLIC
HEARING, THE PROJECT SPONSOR MUST WITHIN FIFTEEN DAYS OF THE DATE OF THE
NOTICE  OF  THE DECISION DENYING THE PERMIT MAKE A WRITTEN REQUEST FOR A
HEARING PRIOR TO ANY APPEAL OR REQUEST FOR RECONSIDERATION. SUCH HEARING
MUST COMMENCE WITHIN FORTY-FIVE DAYS OF THE DATE OF RECEIPT BY THE AGEN-
CY  OF  THE WRITTEN REQUEST. THE AGENCY DECISION MUST BE MADE WITHIN THE
TIME FRAMES PROVIDED IN PARAGRAPH C OF THIS SUBDIVISION.
  e. If the agency has notified the project sponsor of its determination
to hold a public hearing OR THE PROJECT SPONSOR HAS REQUESTED SUCH HEAR-
ING, the sponsor shall not undertake the project during the time  period
specified  in  paragraph  c  of this subdivision. The notice of determi-
nation 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 INITIATED BY THE AGENCY shall
commence [on or before] WITHIN ninety [calendar] days, or in the case of
a  minor project, WITHIN seventy-five days, [after] OF THE DATE ON WHICH
the agency [notifies] MAILED NOTICE TO  the  project  sponsor  that  the
application  is complete or [after] THE DATE ON WHICH 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  environ-
mental  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 govern-
ment 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.
  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, UNLESS THE AGENCY DETERMINES THAT SUCH RENEWAL, REISSUANCE,  OR
MODIFICATION  WOULD  CONSTITUTE  A MATERIAL CHANGE, IN WHICH CASE AT THE
AGENCY'S DISCRETION SUCH RENEWAL, REISSUANCE, OR MODIFICATION  SHALL  BE
TREATED  AS  A  NEW  APPLICATION WITH NEW TIME PERIODS.   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.
  A  permit  holder  may  make  written  request  to  the agency for the
renewal, reissuance, or modification of an  existing  permit  AFTER  THE
TIME  TO  APPEAL  HAS  EXPIRED.  Such  a request shall be accompanied by
sufficient information supporting the  request  for  the  agency  action
sought. UPON RECEIPT OF ALL THE NECESSARY INFORMATION TO MAKE AN ASSESS-
MENT:
  (1)  In the case of a request TO THE AGENCY FOR A CHANGE TO THE PERMIT
which does not involve a material  change  in  [permit  conditions]  THE
PERMITTED PROJECT, the applicable law, environmental conditions or tech-
nology  since  the  date  of issuance of the existing permit, the agency

S. 3361--A                          4

shall [on or before] WITHIN fifteen [calendar] days after the receipt of
a request mail a written determination to the permit holder of its deci-
sion 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.] IN SUCH CASE, THE AGENCY  MAY  GRANT  OR
DENY THE REQUEST WITHOUT A HEARING.
  (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] WITHIN fifteen [calendar] days  [after]  OF  the  receipt  of  a
request  mail  a written determination to the permit holder [that] AS TO
WHETHER the request shall be treated as an application for a new permit.
  c. The project would be consistent with the overall  intensity  guide-
line 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] 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]
INCLUDES THE LAND OWNED BY THE PROJECT SPONSOR THAT IS  INCLUDED  WITHIN
THE  PROJECT,  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,  irrespec-
tive  of  local government boundaries] OTHER LAND WITHIN THE SAME OR ANY
MORE RESTRICTIVE LAND USE AREA AND WITHIN THE SAME MUNICIPALITY WITH THE
PERMISSION OF THE OWNER OF SUCH OTHER LAND PROVIDED THAT: THE OTHER LAND
IS LAWFULLY ELIGIBLE FOR AND WILL BE PERMANENTLY RESTRICTED BY  DEED  BY
ITS  OWNER FROM DEVELOPMENT WITH THE SAME NUMBER OF ADDITIONAL PRINCIPAL
BUILDINGS ACTUALLY UTILIZED FOR THE PROJECT,  THE  ADDITIONAL  PRINCIPAL
BUILDINGS  ARE  NOT  LOCATED  WITHIN ONE-QUARTER MILE OF ANY LAKE, POND,
NAVIGABLE RIVER OR  STREAM,  AND  ALL  OTHER  STATUTORY  CONDITIONS  FOR
PROJECT  APPROVAL  ARE MET.  Principal buildings in existence within the
[area included within a project, as such area is defined by the landown-
er,] PROPERTY BOUNDARIES OF THE LAND ON WHICH ANY PORTION OF THE PROJECT
IS SITUATED 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, nine-
teen  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.
  S  2. Paragraph b of subdivision 8 of section 809 of the executive law
is relettered paragraph c and a new paragraph b  is  added  to  read  as
follows:

S. 3361--A                          5

  B.  A  PERMIT HOLDER MAY APPEAL THE TERMS AND CONDITIONS OF ANY PERMIT
WITHIN THIRTY DAYS OF ISSUANCE OF THE PERMIT, AND AN  ADDITIONAL  THIRTY
DAYS  TO  APPEAL  MAY  BE ALLOWED UPON GOOD CAUSE SHOWN.  AN APPEAL OF A
PERMIT ISSUED PURSUANT TO DELEGATED AUTHORITY UNDER THIS  ARTICLE  SHALL
BE DETERMINED BY THE AGENCY'S MEMBERS. AN AFFIRMATIVE VOTE OF TWO-THIRDS
OF  THE  AGENCY'S  MEMBERS SHALL BE REQUIRED TO MODIFY A PERMIT DETERMI-
NATION MADE BY THE AGENCY'S MEMBERS.
  S 3. This act shall take effect immediately and shall apply to  appli-
cations received after such date.

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Carl Kruger

Archive: Last Bill Status - In Senate Committee Finance Committee

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