§ 862. Restrictions on funds of the agency. (1) No funds of the agency
shall be used in respect of any project if the completion thereof would
result in the removal of an industrial or manufacturing plant of the
project occupant from one area of the state to another area of the state
or in the abandonment of one or more plants or facilities of the project
occupant located within the state, provided, however, that neither
restriction shall apply if the agency shall determine on the basis of
the application before it that the project is reasonably necessary to
discourage the project occupant from removing such other plant or
facility to a location outside the state or is reasonably necessary to
preserve the competitive position of the project occupant in its
respective industry.

(2) (a) Except as provided in paragraph (b) of this subdivision, no
financial assistance of the agency shall be provided in respect of any
project where facilities or property that are primarily used in making
retail sales to customers who personally visit such facilities
constitute more than one-third of the total project cost. For the
purposes of this article, "retail sales" shall mean: (i) sales by a
registered vendor under article twenty-eight of the tax law primarily
engaged in the retail sale of tangible personal property, as defined in
subparagraph (i) of paragraph four of subdivision (b) of section eleven
hundred one of the tax law; or (ii) sales of a service to such
customers. Except, however, that tourism destination projects shall not
be prohibited by this subdivision. For the purpose of this paragraph,
"tourism destination" shall mean a location or facility which is likely
to attract a significant number of visitors from outside the economic
development region as established by section two hundred thirty of the
economic development law, in which the project is located.

(b) Notwithstanding the provisions of paragraph (a) of this
subdivision, financial assistance may, however, be provided to a project
where facilities or property that are primarily used in making retail
sales of goods or services to customers who personally visit such
facilities to obtain such goods or services constitute more than
one-third of the total project cost, where: (i) the predominant purpose
of the project would be to make available goods or services which would
not, but for the project, be reasonably accessible to the residents of
the city, town, or village within which the proposed project would be
located because of a lack of reasonably accessible retail trade
facilities offering such goods or services; or (ii) the project is
located in a highly distressed area.

(c) With respect to projects authorized pursuant to paragraph (b) of
this subdivision, no project shall be approved unless the agency shall
find after the public hearing required by section eight hundred
fifty-nine-a of this title that undertaking the project will serve the
public purposes of this article by preserving permanent, private sector
jobs or increasing the overall number of permanent, private sector jobs
in the state. Where the agency makes such a finding, prior to providing
financial assistance to the project by the agency, the chief executive
officer of the municipality for whose benefit the agency was created
shall confirm the proposed action of the agency.