Assembly Bill A9563A

                                BILL NUMBER:A9563A

TITLE  OF BILL:   An act to amend the general municipal law, in relation
to vested rights relating to land development

PURPOSE OR GENERAL IDEA OF BILL: This bill would amend Article 7B of the
general municipal law by adding a new section 150 relative to the abili-
ty of a property owner to develop or alter his/her property under  local
codes,  laws,  ordinances,  rules and regulations which are in existence
nine months after the filing of a complete application for  approval  of
improvement,  development or addition to property which also includes an
Environmental Assessment Form, or alternatively, at  the  discretion  of
the  applicant,  after the filing of a Draft Environmental Impact State-
ment. This modification to existing law allows  in-progress  changes  to
the  codes,  ordinances,  rules  and regulations applicable to all other
property in the municipality. This legislation allows exceptions  where,
for  instance,  there  are  changes  in  federal  and state law or newly
discovered information or changes in circumstances so that  the  project
would  be  likely  to  harm  or  endanger public health, safety, general
welfare, or biological habitat and the harm will  not  be  prevented  by
existing laws, codes, rules or governmental entities or agencies.

SUMMARY OF SPECIFIC PROVISIONS: Section one amends the general municipal
law  by  adding  a  new  section  one hundred and fifty.   Subdivision 1
provides that there shall be a  rebuttable  presumption  that  municipal
zoning, planning, environmental and all other applicable enactments by a
              

village,  town  or  city  regulating  the  development of land which are
applicable to a particular parcel of land as of nine  months  after  the
filing date of an application deemed completed by the municipality for a
project  or, at the discretion of the applicant, as of nine months after
the filing date of a draft environmental impact statement, shall  remain
applicable  to the proposed project for a period of six years after such
filing date, as long as it is being pursued with reasonable  efforts  by
the  applicant.   Written notice of such application will be sent by the
applicant to all property owners within  250  feet  of  the  applicant's
property lines.

Subdivision 2 provides that in order to rebut the presumption, a munici-
pal body must show with a detailed written finding that there has been a
change  in federal or state law, which alters the relevant requirements;
or that there is newly discovered  information  or  changes  in  circum-
stances which will establish that the proposed project is likely to harm
or  endanger public health, public welfare, safety or biological habitat
that is not being prevented by existing laws, codes, ordinances or other
governmental entities. Thus, while the property owner will be  protected
to  the  extent  that  his project will be judged according to the laws,
codes, and regulations in existence nine months from the filing  of  the
application,  the municipality will not be prevented from applying a new
or amended law in those situations where the application of the  new  or
amended  law  is  warranted  due  to  a change in circumstances or newly
discovered information,  which  establishes  a  likely  harm  to  public
health,  safety,  general  welfare, or biological habitat. Additionally,

where the municipality is already considering  a  change  in  the  local
codes or laws before the filing of the proposed application, such chang-
es are allowable.

Subdivision 3 provides that the time constraints under Article 78 of the
civil  practice  law  and rules are to be applicable if there is a chal-
lenge and, therefore, must be challenged within four months.

Subdivision 4 provides that the bill does not prevent  the  municipality
from  enforcing all existing laws as to the subject property and changes
in the codes, laws and regulations  before  and  after  the  nine  month
window that apply to other properties in the municipality.

Subdivision  5  provides  that  the bill shall not apply to applications
requiring zoning changes. In those  situations,  where  the  application
does  not  fit  under existing zoning laws and requires a zoning change,
the applicant is permitted to make such application and the local  muni-
cipality may decide whether or not to grant it.

Subdivision  6  provides that if the applicant makes substantial changes
in the application (other than in response to comments made  during  the
SEQRA  process),  it  will  be  considered  a  new  application  and the
constraints of this section will be inapplicable.

EFFECTS OF THE PRESENT LAW WHICH THE  BILL  WILL  ALTER:    Present  law
allows  a municipality to continually modify existing codes, laws, rules
and regulations at any stage in the SEQRA  or  site  plan  approval,  or
subdivision or building permit process which effects the application and
requires  the  applicant  to  start  the process anew, regardless of the
amount of time and money the applicant has invested in the project. This
change will minimize that from occurring except at times when there is a
legitimate reason as delineated within the legislation. This legislation
does not prevent a municipality from changing the law,  codes  or  regu-
lations as to future applications.

JUSTIFICATION:  Currently,  the law in New York allows a municipality to
continually modify existing codes, laws, rules and  regulations  at  any
stage in the SEQRA or site plan approval, subdivision or building permit
process.  Landowners  often  make  a substantial investment prior to the
start of construction, both before and during the review process.  Prop-
erty  owners  often  purchase  property based on an understanding of the
zoning regulations that exist at that time, and when  a  property  owner
wants  to add a pool, deck or addition to a home, for example, he or she
may engage engineers and/or architects  who  put  forth  a  proposal  in
accordance  with  current  zoning  laws  or  building regulations. It is
unreasonable that the municipality may change an ordinance or regulation
at any time without sound reason after a property owner  has  filed  the
application.  Such  action may prevent a property owner, who relied upon
the ordinances and regulations that were in place at the time of filing,
from using the property as he or  she  expected.    Property  developers
often  make  substantial  investments  prior  to the start of filing the
application by preparing  surveys,  plans,  reports,  sale  models,  and

studies  such  as  those regarding engineering, wetlands, traffic, noise
and air quality, and conducting ecological or archeological surveys. Due
to a reasonable expectation that a project will be  completed,  substan-
tial  expenses  are  incurred prior to a formal application is filed. At
the same time, municipalities should be given  a  reasonable  amount  of
time  to  respond to the filing of a completed application and should be
allowed to consider and enact new legislation.

Municipalities, currently,  may  change  the  law  and  impose  new  and
restrictive  conditions,  such  as increased buffer areas, steep slopes,
lower floor area ratio requirements or upzoning, causing property owners
to alter their plans or change the intended use of their property.  This
bill enforces, as a matter of equity, a property owner's right to devel-
op  property in accordance with laws, codes, ordinances, rules and regu-
lations in effect nine months after the date the  property  owner  makes
the  application,  but does not prevent a municipality from promulgating
changes as to any other property in the municipality.  However,  when  a
municipality has regulatory changes in progress at the time the property
owner  makes an application, the municipality may continue to promulgate
the changes.

Importantly, a municipality may,  under  certain  circumstances,  change
applicable laws, codes, ordinances, or rules and regulations relating to
land  use  during the approval process when there is a change in federal
or state laws, rules, or regulations or when newly  discovered  informa-
tion or changes in circumstances establish that the project is likely to
harm  or  endanger  public  health, safety or biological habitat and the
project is not being prevented by existing laws, codes,  regulations  or
other governmental entities.

PRIOR  LEGISLATIVE HISTORY: A10666 of 2005-2006.  A6023B/S3852B of 2007-
2008. A3353/S1988 of 2009. A9553/S1988A of 2009.

FISCAL IMPLICATIONS: None to the State or local governments.

EFFECTIVE DATE: This act shall take effect on the one hundred  eightieth
day after it shall have become law.