Senate Bill S1988B

                                 BILL NUMBER:  S1988

 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 add Article 7-B of the General Municipal Law relative
to the ability of a property owner to develop or alter his/her
property under local codes, laws, ordinances, rules and regulations
which are in existence one hundred eighty days after the filing of a
complete application for approval of the improvement, development or
addition with an Environmental Assessment Form, or alternatively, at
the discretion of the applicant, one hundred eighty days after the
filing of a Draft Environmental Impact Statement. This modification to
existing law allows subsequent approval of in-progress changes to the
codes, ordinances, rules and regulations applicable to all other
property in the municipality.

Exceptions to the new rule that existing rules remain in effect are
made for a change in federal and state law and for newly discovered
information or changes in circumstances in cases where the project is
likely to harm or endanger public health, safety or biological habitat
and the harm will not be prevented by existing laws, codes, rules or
governmental entities or agencies. All new changes in the codes,
              

ordinances, rules and regulations will apply to all other properties
where no application has been filed.

 SUMMARY OF SPECIFIC PROVISIONS :
Subdivision 1 of the bill states 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 the one hundred eightieth day after the filing date of a
complete application for a project or, at the discretion of the
applicant, as of the one hundred eightieth day 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.

Subdivision 2 states that in order to rebut the presumption, a
municipal 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 circumstances which will establish that the proposed project is
likely to harm or endanger public health, safety or biological habitat
and 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 one hundred eighty days
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 or biological habitat. Another
exception applies where the municipality is already considering a
change in the local codes or laws before the filing of the proposed
application.

Subdivision 3 states that the time constraints under Article 78, i.e.,
4 months, are to be applicable if there is a challenge.

Subdivision 4 provides that the bill does not prevent the municipality
from enforcing all existing laws as to the subject property or changes
in the codes, laws and regulations before and after the one hundred
eighty day window as they refer to other properties in the
municipality.

Subdivision 5 states that the bill shall not apply to applications
requiring zoning changes. In those situations, where the application
does not fit under existing zoning and requires a zoning change the
applicant is permitted to make such application and the local
municipality can 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 often
change materially the effects of 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
limit that from happening except for legitimate reasons that are
delineated within the legislation. It does not prevent the
municipality from changing the law, codes or regulations as to future
applications.

 JUSTIFICATION :
In the past a property owner had vested rights in a project only after
investing money and at least starting the construction of the
foundation. This, historically, was what was considered a substantial
investment. However, presently 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. A property owner purchases property
based on an understanding of the then present zoning regulations, and
when that property owner wants to add a pool, deck or addition to a
home, for example, they engage engineers and architects who put forth
a proposal in accordance with present zoning. It is unfair that after
they file their application the municipality can change the ordinance
at any time, preventing them from using the property as they expected
and relied upon, and absent the legitimate reasons and time frame
covered by this legislation this should be prohibited. A developer
makes a substantial investment prior to the start of filing of the
application in the preparation of surveys, plans, reports, sale
models, including engineering, architectural planning, traffic,
landscape architecture, wetlands studies, ecological surveys and
analysis, noise studies, air quality studies, archeological surveys
and reports. Reasonable expectations and often substantial expenses
are incurred prior to a formal application being filed. At the same
time, municipalities should be given a reasonable amount of time to
respond to the filing of a completed application by considering and
enacting legislation that would become effective within one hundred
eighty days of the filing of a completed application.

Accordingly, the municipality would have a reasonable amount of time
to respond to the application and the property owner would have the
protection of proceeding with the application pursuant to the zoning
and property use requirements in effect one hundred eighty days after
the filing of the completed application.

This issue is much like Eminent Domain. In this case, municipal action
which changes the rules midstream, when it is not based on legitimate
concerns, constitute an impairment of a property owner's rights by
preventing the owner from having the liberty to use his land, it often
devalues the property and causes substantial additional expenses to
the property owner. Over the years, municipalities have used their
ability to change the law and impose new and restrictive conditions,
such as increased buffer areas, steep slopes, lower Floor Area Ratio
requirements or upzoning causing a property owner to recast the
proposed development or property addition in light of these new codes
and regulations. If a new local government is elected it can change
the laws even after substantial work has been commenced, and prevent
completion of a project that originally met all the requirements at
the time of the original application.  Further, these municipalities
have even occasionally made changes more than once during the
application process causing substantial expense, delay and hardship to
the applicant. This bill will prevent that from happening. However,
when the municipality has property regulatory changes in progress at
the time of the application by the property owner, the municipality
can continue to promulgate the changes. This bill enforces as a matter
of equity a property owners rights to develop property in accordance
with laws, codes, ordinances, rules and regulations in effect one
hundred eighty days after the date the property owner makes the
application but does not prevent the municipality from promulgating
changes as to any other property in the municipality.

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

 PRIOR LEGISLATIVE HISTORY :
2005-2006: A.10666
2007-2008: A.6023-B

 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.

                                 BILL NUMBER:  S1988A

 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 ability 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
Statement. 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 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 a
complete application 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.

Subdivision 2 provides that in order to rebut the presumption, a
municipal 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 circumstances which will establish that the proposed project is
likely to harm or endanger public health, 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 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 changes 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
challenge 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
municipality 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 regulations 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. Property
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, substantial 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 develop property in accordance with laws, codes,
ordinances, rules and regulations 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
information 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 :
A.10666 of 2005-2006
A.6023B/S.3852B of 2007-2008
A.3353/S.1988 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.