§ 809 — Agency administration and enforcement of the land use and development plan

New York § 809

• Jurisdiction: New York
• Law EXC: Executive
• Art. 27: Adirondack Park Agency

Text

§ 809. Agency administration and enforcement of the land use and\ndevelopment plan. 1. The agency shall have jurisdiction to review and\napprove all class A regional projects, including those proposed to be\nlocated in a land use area governed by an approved local land use\nprogram, and all class B regional projects in any land use area not\ngoverned by an approved and validly enacted or adopted local land use\nprogram.\n All projects shall be reviewed and acted upon as expeditiously as\npractical. In particular, to facilitate the review of minor project\napplications, the agency shall develop simplified application forms to\ndeal with such projects, and will comply with the special procedures for\nsuch projects set forth in this section. For the purposes of this\nsection, "minor project" shall mean any individual single family\ndwelling or mobile home or any subdivision involving two lots, parcels\nor sites.\n 2. a. Any person proposing to undertake a class A regional project in\nany land use area, or a class B regional project in any land use area\nnot governed by an approved and validly enacted or adopted local land\nuse program, shall make application to the agency for approval of such\nproject and receive an agency permit therefor prior to undertaking the\nproject. Such application shall be filed in such form and manner as the\nagency may prescribe. The agency shall, upon receipt of such\napplication, provide notice of receipt of the application and a brief\ndescription of the project to the Adirondack park local government\nreview board, the chairman of the county planning board, if any, of the\ncounty wherein the project is proposed to be located, to the chairman of\nthe appropriate regional planning board, and to the chief elected\nofficer, clerk and planning board chairman, if any, of the local\ngovernment wherein such project is proposed to be located. The agency\nshall, upon request, furnish or make a copy of the application available\nto the review board or to the officials listed in this paragraph.\n b. On or before fifteen calendar days after the receipt of such\napplication the agency shall notify the project sponsor by certified\nmail whether or not the application is complete. For the purposes of\nthis section, a "complete application" shall mean an application for a\npermit which is in an approved form and is determined by the agency to\nbe complete for the purpose of commencing review of the application but\nwhich may need to be supplemented during the course of review as to\nmatters contained in the application in order to enable the agency to\nmake the findings and determinations required by this section. If the\nagency fails to mail such notice within such fifteen-day period, the\napplication shall be deemed complete. If the agency determines the\napplication is not complete, the notice shall include a concise\nstatement of the respects in which the application is incomplete. The\nsubmission by the project sponsor of the requested additional\ninformation shall commence a new fifteen calendar day period for agency\nreview of the additional information for the purposes of determining\ncompleteness. If the agency determines the application is complete, the\nnotice shall so state.\n A notice of application completion shall not be required in the case\nof applications for minor projects which the agency determines to be\ncomplete when filed. Such applications shall be deemed complete for the\npurposes of this section upon the date of receipt.\n c. The project sponsor shall not undertake the project for a period of\nninety days, or in the case of a minor project, forty-five days,\nfollowing the date of such notice of application completion, or the date\nthe application is deemed complete pursuant to the provisions of this\nsection, unless a permit is issued prior to the expiration of such\nperiods.\n d. Immediately upon determining that an application is complete, the\nagency shall, except in relation to minor projects, cause a notice of\napplication to be published in the next available environmental notice\nbulletin published by the department of environmental conservation\npursuant to section 3-0306 of the environmental conservation law, which\npublication shall be not later than ten calendar days after the date of\nsuch notice. The time period for public comment on a permit application\nshall be stated in the notice of application. The agency shall at the\nsame time mail a copy of the notice of application completion to the\nAdirondack park local government review board and to the persons named\nin paragraph a of subdivision two of this section, and invite their\ncomments.\n 3. a. Within the time periods specified in paragraphs b and c of this\nsubdivision, the agency shall make a decision on a permit application by\nnotifying the project sponsor by certified mail of its decision to\napprove the project, approve the project subject to conditions or\ndisapprove the project.\n b. In the case of an application for a permit for which no public\nhearing has been held, the agency decision shall be mailed on or before\nninety calendar days or, in the case of a minor project, forty-five\ncalendar days, after the agency notifies the project sponsor that the\napplication is complete or after the application is deemed complete\npursuant to the provisions of this section.\n c. In the case of an application for a permit for which a public\nhearing has been held, the agency decision shall be mailed on or before\nsixty calendar days after receipt by the agency of a complete record, as\nthat term is defined in paragraphs (a) through (e) of subdivision one of\nsection three hundred two of the state administrative procedure act.\n d. If the agency determines to hold a public hearing on an application\nfor a permit, the agency shall notify the project sponsor of its\ndetermination by certified mail on or before sixty calendar days or, in\nthe case of a minor project, forty-five calendar days after the agency\nnotifies the project sponsor that the application is complete or after\nthe application is deemed complete pursuant to the provisions of this\nsection. The determination of whether or not to hold a public hearing on\nan application shall be based on whether the agency's evaluation or\ncomments of the review board, local officials or the public on a project\nraise substantive and significant issues relating to any findings or\ndeterminations the agency is required to make pursuant to this section,\nincluding the reasonable likelihood that the project will be disapproved\nor can be approved only with major modifications because the project as\nproposed may not meet statutory or regulatory criteria or standards. The\nagency shall also consider the general level of public interest in a\nproject. No project may be disapproved without a public hearing first\nbeing held thereon.\n e. If the agency has notified the project sponsor of its determination\nto hold a public hearing, the sponsor shall not undertake the project\nduring the time period specified in paragraph c of this subdivision. The\nnotice of determination to hold a public hearing shall state that the\nproject sponsor has the opportunity within fifteen days to withdraw his\napplication or submit a new application. A public hearing shall commence\non or before ninety calendar days, or in the case of a minor project,\nseventy-five days, after the agency notifies the project sponsor that\nthe application is complete or after the application is deemed complete\npursuant to the provisions of this section. In addition to notice of\nsuch hearing being mailed to the project sponsor, such notice shall also\nbe given by publication at least once in the environmental notice\nbulletin and in a newspaper having general circulation in each local\ngovernment wherein the project is proposed to be located, by conspicuous\nposting of the land involved, and by individual notice served by\ncertified mail upon each owner of record of the land involved, and by\nmail upon: the Adirondack park local government review board, the\npersons named in paragraph a of subdivision two of this section, any\nadjoining landowner, to the extent reasonably discernible from the\nlatest completed tax assessment roll, and the clerk of any local\ngovernment within five hundred feet of the land involved. Public\nhearings held pursuant to this section shall be consolidated or held\njointly with other state or local agencies whenever practicable.\n 4. The agency shall make provision in its rules and regulations\nadopted pursuant to subdivision fourteen of this section for the\nAdirondack park local government review board and county and regional\nplanning agencies receiving notice under subdivision two to have\nopportunity to review and render advisory comments on the project under\nreview by the agency.\n 5. Notice of an agency decision shall be given by mail to those\nentitled to individual notice of application under subdivision two and\nnotice of hearing under subdivision three, if a hearing is held. If the\ndecision is approval, the agency shall within ten days of issuance of\nits notification of approval grant a permit to the project sponsor to\nundertake the project. If the decision is approval subject to\nconditions, the agency shall grant a permit only upon satisfactory\nfulfillment of such conditions. Approval subject to conditions shall\nexpire six months from the date of such approval, or such longer time as\nis specified in the notification or approval, unless a permit has been\ngranted. An agency permit shall serve as authorization for the project\nsponsor to undertake the project in accordance with the terms and\nconditions thereof.\n 6. a. If the agency fails to mail a decision on an application for a\npermit within the time periods specified in paragraphs b and c of\nsubdivision three of this section, the project sponsor may cause notice\nof such failure to be made to the agency by means of certified mail,\nreturn receipt requested, addressed to the agency at its headquarters\noffice. If, within five working days after the receipt of such notice\nthe agency fails to mail a decision, the application shall be deemed\napproved and a permit deemed granted subject to any standard terms or\nconditions applicable to such a permit and the agency shall provide the\nproject sponsor with a written certification to this effect.\n b. Any time period specified in this section may be waived and\nextended for good cause by written request of the project sponsor and\nconsent of the agency, or by written request of the agency and consent\nof the project sponsor.\n c. At any time during the review of an application for a permit or a\nrequest by a permit holder for the renewal, reissuance, or modification\nof an existing permit pursuant to subdivision eight of this section, the\nagency may request additional information from the project sponsor or\npermit holder with regard to any matter contained in the application or\nrequest when such additional information is necessary for the agency to\nmake any findings or determinations required by law. Such a request\nshall not extend any time period for agency action contained in this\nsection. Failure by the project sponsor or permit holder to provide such\ninformation may be grounds for denial by the agency of the application\nor request.\n 7. a. A permit or certificate issued by the agency pursuant to\nsubdivision five or six of this section shall expire within sixty days\nfrom the date thereof unless within such sixty-day period such permit or\ncertificate shall have been duly recorded in the name of the landowner\nin the office of the clerk of the county wherein the project is proposed\nto be located. Where a permit involves action in concert by two or more\nlandowners as described by paragraph c of subdivision ten of this\nsection, the permit shall be recorded in the name of each landowner.\n b. A permit when properly recorded shall operate and be construed as\nactual notice of the right to undertake the project and of the terms and\nconditions imposed by such permit. Such right shall extend to and such\nterms and conditions shall be binding upon all subsequent grantees of\nthe land area subject to the permit, except those conditions which by\ntheir nature or wording are to be performed by the original project\nsponsor and except as may be otherwise provided by the terms of such\npermit.\n c. If a project for which a permit has been granted, or a certificate\nissued, is not in existence within two years after the recording of such\npermit or certificate, unless the terms of the permit provides for a\nlonger period of time, the project may not thereafter be undertaken or\ncontinued unless an application for a new permit therefor has been\napplied for and granted in the same manner and subject to all conditions\ngoverning the application for and granting of a permit as provided in\nthis section. In determining whether to provide a longer period of time\nby when the project must be in existence, the agency shall give due\nconsideration to the potential of the land related to the project to\nremain suitable for the use allowed by the permit and to the economic\nconsiderations attending the project.\n 8. a. Upon the provision of notice stating the grounds for its action\nand giving an opportunity for hearing to the permit holder, the agency\nmay modify, suspend or revoke a permit.\n b. A permit holder may make written request to the agency for the\nrenewal, reissuance, or modification of an existing permit. Such a\nrequest shall be accompanied by sufficient information supporting the\nrequest for the agency action sought.\n (1) In the case of a request which does not involve a material change\nin permit conditions, the applicable law, environmental conditions or\ntechnology since the date of issuance of the existing permit, the agency\nshall on or before fifteen calendar days after the receipt of a request\nmail a written determination to the permit holder of its decision on the\nrequest. If the decision is to deny the request, the permit holder shall\nbe afforded an opportunity for hearing and notice of such decision shall\nbe given by the agency in the next available issue of the environmental\nnotice bulletin.\n (2) In the case of a request which may involve a material change as\ndescribed in subparagraph one of this paragraph, the agency shall on or\nbefore fifteen calendar days after the receipt of a request mail a\nwritten determination to the permit holder that the request shall be\ntreated as an application for a new permit.\n If pursuant to subparagraph one or two of this paragraph, the agency\nfails to mail a written determination to the permit holder within such\nfifteen calendar day period, the provisions of subdivision six of this\nsection shall apply.\n 9. The agency shall not approve any class A regional project proposed\nto be located in a land use area governed by an approved local land use\nprogram, or grant a permit therefor, unless it first determines that\nsuch project meets all of the pertinent requirements and conditions of\nsuch approved local land use program and that the project would not have\nan undue adverse impact upon the natural, scenic, aesthetic, ecological,\nwildlife, historic, recreational or open space resources of the park or\nupon the ability of the public to provide supporting facilities and\nservices made necessary by the project, taking into account the\ncommercial, industrial, residential, recreational or other benefits that\nmight be derived from the project. In making this determination, as to\nthe impact of the project upon such resources of the park, the agency\nshall consider those pertinent factors contained in the development\nconsiderations and provided for in such approved local land use program.\nThe agency shall, in connection with its review of a project under this\nsubdivision, make provision in its rules and regulations adopted under\nsubdivision fourteen for the early involvement of the local government\nwherein such project is proposed to be located in the review of such\nproject on an informal basis. Such local government shall have standing\nas a party in any public hearing on such project held by the agency.\n 10. The agency shall not approve any project proposed to be located in\nany land use area not governed by an approved local land use program, or\ngrant a permit therefor, unless it first determines that such project\nmeets the following criteria:\n a. The project would be consistent with the land use and development\nplan.\n b. The project would be compatible with the character description and\npurposes, policies and objectives of the land use area wherein it is\nproposed to be located. If the project is on the classification of\ncompatible uses list for the land use area involved, there shall be a\npresumption of compatibility with the character description, purposes,\npolicies and objectives of such land use area. If the project is a class\nB regional project because, as provided in section eight hundred ten, it\nis not listed as either a primary use or a secondary use on the\nclassification of compatible uses list for the land use area wherein it\nis proposed to be located, there shall be a presumption that such\nproject would not be compatible with the character description,\npurposes, policies and objectives of such land use area and the burden\nshall be on the project sponsor to demonstrate such compatibility to the\nsatisfaction of the agency.\n c. The project would be consistent with the overall intensity\nguideline for the land use area involved. A landowner shall not be\nallowed to construct, either directly or as a result of a proposed\nsubdivision, more principal buildings on the land included within the\nproject than the overall intensity guideline for the given land use area\nin which the project is located. In determining the land area upon which\nthe intensity guideline is calculated and which is included within a\nproject, the landowner shall only include land under his ownership and\nmay include all adjacent land which he owns within that land use area\nirrespective of such dividing lines as lot lines, roads, rights of way,\nor streams and, in the absence of local land use programs governing the\nintensity of land use and development, irrespective of local government\nboundaries. Principal buildings in existence within the area included\nwithin a project, as such area is defined by the landowner, shall be\ncounted in applying the intensity guidelines. As between two or more\nseparate landowners in a given land use area the principal buildings on\none landowner's property shall not be counted in applying the intensity\nguidelines to another landowner's project, except that two or more\nlandowners whose lands are directly contiguous and located in the same\ngeneral tax district or special levy or assessment district may, when\nacting, in concert in submitting a project, aggregate such lands for\npurposes of applying the intensity guidelines to their lands thus\naggregated. The area upon which the intensity guideline is calculated\nshall not include (a) bodies of water, such as lakes and ponds, (b) any\nland in the same ownership that is directly related to any principal\nbuilding in existence on August first, nineteen hundred seventy-three,\nwhich land is not included in the project, and (c), in the case of any\nprincipal building constructed after August first, nineteen hundred\nseventy-three, any land in the same or any other ownership that was\nincluded within the area of any previous project in order to comply with\nthe overall intensity guideline.\n d. The project would comply with the shoreline restrictions if\napplicable. The agency may require a greater setback of any on-site\nsewage drainage field or seepage pit than required under the shoreline\nrestrictions if it determines that soils or other pertinent conditions\nrequire such greater setback to reasonably protect the water quality of\nthe water body involved.\n e. The project would not have an undue adverse impact upon the\nnatural, scenic, aesthetic, ecological, wildlife, historic, recreational\nor open space resources of the park or upon the ability of the public to\nprovide supporting facilities and services made necessary by the\nproject, taking into account the commercial, industrial, residential,\nrecreational or other benefits that might be derived from the project.\nIn making this determination, as to the impact of the project upon such\nresources of the park, the agency shall consider those factors contained\nin the development considerations of the plan which are pertinent to the\nproject under review.\n 11. Where there are practical difficulties or unnecessary hardships in\nthe way of carrying out the strict letter of the provisions of the plan\nor the shoreline restrictions, the agency shall have authority in\nconnection with a project under its review to vary or modify, after\npublic hearing thereon, the application of any of such provisions or\nrestrictions relating to the use, construction or alteration of\nbuildings or structures, or the use of land, so that the spirit of the\nprovisions or restrictions shall be observed, public safety and welfare\nsecured and substantial justice done.\n 12. The agency may conduct such investigations, examinations tests and\nsite evaluations as it deems necessary to verify information contained\nin an application for a development permit, and the project sponsor, or\nowner of the land upon which the project is proposed, shall grant the\nagency or its agents permission to enter upon his land for these\npurposes.\n 13. The agency shall have authority to impose such requirements and\nconditions with its granting of a permit as are allowable within the\nproper exercise of the police power. The agency shall have specific\nauthority in connection with its project review jurisdiction: a. To\nimpose reasonable conditions and requirements, including the posting of\nperformance bonds in favor of the local government as obligee, to ensure\nthat any project for which a permit is granted will be adequately\nsupported by basic services and improvements made necessary by the\nproject. The cost of any such services or improvements may be imposed by\nrequiring that the project sponsor provide the service or improvement or\nreserve land, or any interest therein, or contribute money in lieu\nthereof to the local government wherein the project is proposed to be\nlocated if such local government consents thereto. In the exercise of\nthe authority contained in this provision, the agency shall consult with\nthe affected municipalities and give due consideration to their views.\n b. To impose reasonable conditions and requirements to ensure that a\nproject for which a permit is granted by the agency, when undertaken or\ncontinued, will be completed in accordance with the terms and conditions\nof the permit, and that the project sponsor furnish appropriate\nguarantees of completion or otherwise demonstrate financial capacity to\ncomplete the project or any material part thereof and furnish\nappropriate guarantees or otherwise demonstrate that the project will be\nmanaged and maintained once completed in accordance with the terms of\nthe permit.\n c. To impose reasonable conditions and requirements to ensure that\nupon approval of a project the applicable overall intensity guideline\nfor the land use area involved will be respected. Such requirement may\ninclude the restriction of land against further development of principal\nbuildings, whether by deed restriction, restrictive covenant or other\nsimilar appropriate means.\n d. To allow, upon request of a project sponsor, projects to be\nreviewed conceptually, and thereafter or simultaneously therewith to be\ndivided into and reviewed by sections, and to grant or deny permits for\nsuch sections. Conceptual determinations may be made, and sectional\npermits may be granted subject to the provision of those requirements\nand conditions for improvements and services for, and for completion of\nthe total project as the agency deems reasonable and necessary.\nConceptual review shall focus upon the existing environmental setting\nand the likely impacts which would result from the project, including\nall proposed phases or segments thereof, but shall not result in a\nbinding approval or disapproval. The agency shall in rules and\nregulations establish criteria, guidelines, and procedures for the\nconceptual and sectional review of proposed projects. Except to the\nextent, and only for such period of time as otherwise specifically\nstated in the agency's decision upon an application for a sectional\npermit, the granting of any sectional permit shall not constitute a\nfinding, or be binding upon the agency, with respect to any portion of\nthe total project not included in the section for which the permit is\ngranted.\n e. To issue a general permit for any class of projects concerning\nwhich the agency determines it may make the requisite statutory findings\non a general basis.\n 14. The agency may, after public hearing, adopt, and have authority to\namend or repeal, rules and regulations, consistent with the provisions\nof this section, to govern its project review procedures and to provide\nfurther guidance to potential project sponsors through further\ndefinition of the development considerations as they would apply to\nspecific classes of projects in specific physical and biological\nconditions. Such rules and regulations may include but not be limited\nto:\n a. Procedures prior to formal application to the agency for a permit\nfor the informal discussion of preliminary plans for a proposed project\nand for preliminary approval or recommendations in regard to the\nproject. Such informal discussion shall be optional with the project\nsponsor and no such preliminary approval or recommendations shall\nrelieve the sponsor from complying with the provisions governing\nsubmission of a project for review and obtaining a permit therefor as\nprovided in this section.\n b. Procedures for cooperation and joint action, including joint\nhearings, insofar as practical, with other state agencies having review\nor regulatory jurisdiction which relates with that of the agency's so as\nto avoid unnecessary costs and burdens both to the state and to project\nsponsors and landowners.\n c. Procedures to insure communication and discussion with any federal\nagency, including the Army Corps of engineers and the soil conservation\nservice, in regard to any federal development proposals in the park.\n Such agency rules and regulations, and any amendments thereof, shall\nbe adopted only after consultation with the Adirondack park local\ngovernment review board and at least one public hearing thereon. Fifteen\ndays notice of such hearing shall be made by publication at least once\nin a newspaper of general circulation in each county wholly or partially\nwithin the Adirondack park and in a least three metropolitan areas of\nthe state, and by individual notice served by mail upon the clerk of\neach county and each local government of the park, and the chairman of\nall local government, county and regional planning agencies having\njurisdiction in the park. Such notice shall contain a statement\ndescribing the subject matter of the proposed rules and regulations, and\nthe time and place of the hearing and where further information thereon\nmay be obtained.\n 15. This section shall not apply to any emergency project which is\nimmediately necessary for the protection of life or property as defined\nby the agency by rule and regulation adopted under subdivision fourteen.\n