Senate Bill S3783

2009-2010 Legislative Session

Relates to protection of state lands and provides criminal and civil penalties for violation of provisions relating thereto

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Archive: Last Bill Status - In Senate Committee Environmental Conservation 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to environmental conservation
Apr 21, 2009	reported and committed to codes
Mar 31, 2009	referred to environmental conservation

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2009-S3783 (ACTIVE) - Details

Current Committee:: Senate Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Amd §§9-0303 & 71-0703, En Con L

2009-S3783 (ACTIVE) - Summary

Relates to protection of state lands and provides criminal and civil penalties for violation of provisions relating thereto.

2009-S3783 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3783

 TITLE OF BILL :

An act to amend the environmental conservation law, in relation to
protection of state lands


 PURPOSE :

The purpose of this bill is to amend the Environmental Conservation
Law (ECL) to clarify and confirm: (1) the prohibited activities that
constitute unlawful use of State lands, (2) the authority of the
Department of Environmental Conservation (DEC) to remove property
unlawfully placed on State lands, and (3) that unlawful use of State
lands can be the subject of criminal and civil prosecutions, including
increased penalties and injunctive relief.

 SUMMARY OF PROVISIONS :

Section 1 of this bill amends ECL §9-0303 to clarify and confirm that
no person may cut, remove, injure or destroy vegetation or erect, use,
maintain, store, or abandon any structure, improvement or fixture in
or on State lands, or remove any property from State lands, except as
authorized by DEC.

Section 2 of this bill amends ECL §71-0703(1) to clarify and confirm
that violations of ECL Article 9, relating to the State lands and
forests, are subject to criminal and civil prosecutions. It also
increases the criminal and civil penalties and provides injunctive
relief for violations of ECL Article 9. The fine is increased from not
more than $250, to not less than $50 nor more than $1,000; the civil
penalty is increased from not less than $10 nor more than $1 00, to
not less than $50 nor more than $1,000. Section 2 of this bill also
adds a new subdivision 9 to ECL §71-0703 to: (1) establish a civil
penalty of not more than $5,000 for each violation of ECL

§9-0303(2), or any rule or regulation pertaining to the erection, use,
maintenance, storage or abandonment of a structure, improvement or
fixture in or on State lands under DEC's jurisdiction, or any term or
condition of any permit or other authorization issued to a person
authorizing the use of State lands for a specific purpose, or any
final determination or order relating to State lands; and (2)
authorize injunctive relief, including authority for DEC to remove
structures, improvements and fixtures found in or on State lands.

Section 3 of this bill provides that the bill would take effect on the
90th day after it becomes a law.

 EXISTING LAW :

ECL §9-0303 sets forth the restrictions on the use of State lands. ECL
§71-0703(1) provides for a criminal fine of not more than $250 and/or
imprisonment for not more than 15 days and, in addition thereto, a
civil penalty of not less than $10 nor more than $100; it does not
provide injunctive relief.

 PRIOR LEGISLATIVE HISTORY :

In 2008, a DEC departmental bill which included a similar proposal
among other provisions was introduced in the Senate (S.8252) but died
in the Senate Environmental Conservation Committee.

 STATEMENT IN SUPPORT :


The proposed revisions to ECL §§ 9-0303 and 71-0703 would ensure
protection of the State's natural resources by clarifying and
confirming the existing restrictions on the use of State lands and
DEC's authority to remove illegal structures, improvements and
fixtures, as well as stored and abandoned property, from State lands.
Additionally, providing injunctive relief and increasing the penalties
applicable to violations of ECL Article 9, and other violations
related to the improper use of State lands, would provide a meaningful
deterrent to potential violators.

DEC administers over four million acres of State lands. These lands
include more than three million acres of Forest Preserve lands,
763,000 acres of State forests, and other lands including Unique
Areas, Wildlife Management Areas and tidal wetlands. There are over
17,000 miles of boundary lines on these properties which must be
protected from encroachments and other trespasses. The lands
administered by DEC are managed to protect and enhance significant
habitats, wetlands, and threatened and endangered species as well as
to provide recreational opportunities for the public, provide clean
water and wood products, and protect New York's wild areas.

It is increasingly common for neighboring landowners to use State
lands for their own purposes.  DEC estimates that there are presently
thousands of unresolved encroachments and trespasses which range from
mowing of State lands and storage of personal property to construction
of buildings on State lands. There are numerous examples of sheds,
swimming pools, garages, septic systems, lawns, driveways, and homes
constructed and maintained on State lands.

Existing penalties are insufficient to prevent these encroachments and
trespasses. Enhanced injunctive remedies and higher penalties would
help deter future encroachments and trespasses and provide additional
tools to rectify ongoing violations.

 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
The bill would take effect on the 90th day after it becomes a law.

2009-S3783 (ACTIVE) - Bill Text download pdf

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

                                  3783

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 31, 2009
                               ___________

Introduced  by  Sens.  THOMPSON,  FOLEY,  PARKER, PERKINS, SCHNEIDERMAN,
  STEWART-COUSINS -- (at request  of  the  Department  of  Environmental
  Conservation)  --  read twice and ordered printed, and when printed to
  be committed to the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  protection of state lands

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

  Section 1. Section  9-0303  of  the  environmental  conservation  law,
subdivision  1 as amended by chapter 602 of the laws of 2003, is amended
to read as follows:
S 9-0303. Restrictions on use of state lands.
  In order to protect the state lands described in this [article]  CHAP-
TER, the following provisions shall apply:
  1.  Trees [or], timber OR VEGETATION.  [Except as provided in subdivi-
sion 2 of section 9-0107 and in sections 9-0501 through 9-0507  of  this
article  no] NO person shall cut, remove, injure, destroy or cause to be
cut, removed, injured or destroyed any trees [or], timber OR  VEGETATION
or  other  property [thereon] ON STATE LANDS, or enter upon [such] STATE
lands with intent to [do so] ENGAGE IN THOSE ACTIVITIES, EXCEPT  AS  THE
DEPARTMENT MAY AUTHORIZE.
  2.  Structures, IMPROVEMENTS AND FIXTURES.  No [building] PERSON shall
[be erected, used or maintained upon] ERECT,  USE,  MAINTAIN,  STORE  OR
ABANDON  IN  OR ON ANY state lands ANY STRUCTURE, IMPROVEMENT OR FIXTURE
except [under permits from] AS the department MAY AUTHORIZE.
  3. Agricultural use. No person shall use any  portion  of  the  forest
preserve for agricultural purposes, nor shall cattle or domestic animals
of any kind be permitted to graze [thereon] ON ANY PORTION OF THE FOREST
PRESERVE.
  4.  Deposit  rubbish.  No person shall deposit or leave on state lands
any rubbish or other waste material.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09735-02-9

S. 3783                             2

  5. Transfer or lease. No person shall lease, transfer  or  accept  any
lease  or  transfer of any lands in the forest preserve or of any STRUC-
TURES, improvements [thereon] OR FIXTURES ON THOSE LANDS.
  6.  Disposal of STRUCTURES, improvements AND FIXTURES.  The department
may REMOVE AND dispose of any STRUCTURES, improvements AND FIXTURES upon
state lands under such conditions as it deems to be to the public inter-
est.
  7. Removal of [materials] PROPERTY generally. No person  shall  remove
any  [material]  PROPERTY  belonging to the state from [the] state lands
without the authorization of the department.
  S 2. Subdivision 1 of section 71-0703 of the  environmental  conserva-
tion  law, as amended by chapter 602 of the laws of 2003, is amended and
a new subdivision 9 is added to read as follows:
  1. Except as otherwise provided in subdivision 4[,] OR 5[, 6 or 7]  of
this section, any person who violates any provision of article 9, or the
rules,  regulations  or orders promulgated pursuant [thereto] TO ARTICLE
9, or the terms of any permit issued [thereunder] UNDER  ARTICLE  9,  or
who  fails  to  perform  any  duty imposed by any provision [thereof] OF
ARTICLE 9, shall BE SUBJECT TO CRIMINAL AND CIVIL PROSECUTION AND LIABLE
FOR CRIMINAL AND CIVIL PENALTIES AS FOLLOWS:
  A. CRIMINAL PENALTIES. THE OFFENSE SHALL be [guilty of]  a  violation,
and,  upon  conviction,  THE  PERSON  shall be punished by a fine of not
[more] LESS than [two hundred] fifty dollars NOR MORE THAN ONE  THOUSAND
DOLLARS,  or  by imprisonment for not more than fifteen days, or by both
[such] A fine and imprisonment[, and in addition thereto shall].
  B. CIVIL PENALTIES. THE PERSON SHALL be liable [to] FOR a civil penal-
ty of not less than [ten] FIFTY DOLLARS  nor  more  than  one  [hundred]
THOUSAND dollars FOR EACH VIOLATION.
  C.  IN  ADDITION  TO  ANY CRIMINAL OR CIVIL PENALTIES PROVIDED IN THIS
SUBDIVISION, THE PERSON MAY BE ENJOINED FROM  CONTINUING  THE  VIOLATION
AND  MAY  BE  REQUIRED  TO  UNDERTAKE APPROPRIATE REMEDIAL OR MITIGATION
MEASURES AS DIRECTED, AND ANY LICENSE,  PERMIT  OR  OTHER  AUTHORIZATION
ISSUED  TO  THE PERSON PURSUANT TO ARTICLE 9 MAY BE REVOKED OR SUSPENDED
AND ANY PENDING RENEWAL APPLICATION MAY BE DENIED. THE  COMMISSIONER  OR
COURT MAY IMPOSE THESE PENALTIES AND INJUNCTIVE RELIEF AFTER AN OPPORTU-
NITY  TO  BE  HEARD  AND  ANY  PENALTIES MAY BE RECOVERABLE IN AN ACTION
BROUGHT BY THE ATTORNEY GENERAL AT THE REQUEST AND IN THE  NAME  OF  THE
COMMISSIONER.
  9. A. IN ADDITION TO ANY OTHER PENALTY PROVIDED BY LAW, ANY PERSON WHO
VIOLATES  ANY PROVISION OF, OR WHO FAILS TO PERFORM ANY DUTY IMPOSED BY,
SUBDIVISION 2 OF SECTION 9-0303 OF THIS CHAPTER, OR ANY  RULE  OR  REGU-
LATION  PROMULGATED PURSUANT TO THIS CHAPTER PERTAINING TO THE ERECTION,
USE, MAINTENANCE, STORAGE OR ABANDONMENT OF A STRUCTURE, IMPROVEMENT  OR
FIXTURE  IN OR ON ANY STATE LANDS DESCRIBED IN THIS CHAPTER, OR ANY TERM
OR CONDITION OF ANY PERMIT OR OTHER  AUTHORIZATION  ISSUED  PURSUANT  TO
THIS  CHAPTER AUTHORIZING THE USE OF STATE LANDS FOR A SPECIFIC PURPOSE,
OR ANY FINAL DETERMINATION OR ORDER MADE PURSUANT TO THIS CHAPTER RELAT-
ING TO STATE LANDS, SHALL BE LIABLE FOR A CIVIL PENALTY OF NOT MORE THAN
FIVE THOUSAND DOLLARS FOR EACH VIOLATION.  IN ADDITION, THE  PERSON  MAY
BE  ENJOINED FROM CONTINUING THE VIOLATION AND MAY BE REQUIRED TO UNDER-
TAKE APPROPRIATE REMEDIAL OR MITIGATION MEASURES AS DIRECTED,  INCLUDING
REMOVAL  OF  ANY  STRUCTURE,  IMPROVEMENT  OR FIXTURE, AND THE PERMIT OR
OTHER AUTHORIZATION ISSUED TO THE PERSON AUTHORIZING THE PERSON'S USE OF
STATE LANDS FOR THE SPECIFIC PURPOSE MAY BE REVOKED OR SUSPENDED AND ANY
PENDING RENEWAL APPLICATION MAY BE DENIED. THE COMMISSIONER  MAY  IMPOSE
THESE  PENALTIES  AND INJUNCTIVE RELIEF AFTER AN OPPORTUNITY TO BE HEARD

S. 3783                             3

AND ANY PENALTIES MAY BE RECOVERABLE IN AN ACTION BROUGHT BY THE  ATTOR-
NEY GENERAL AT THE REQUEST AND IN THE NAME OF THE COMMISSIONER.
  B.  THE  DEPARTMENT,  SUBSEQUENT  TO A REASONABLE EFFORT TO NOTIFY THE
VIOLATOR, IS AUTHORIZED TO REMOVE AND DISPOSE OF ANY AND ALL STRUCTURES,
IMPROVEMENTS OR FIXTURES FOUND IN OR ON ANY STATE LANDS IN VIOLATION  OF
SECTION  9-0303 OF THIS CHAPTER, AND IS AUTHORIZED TO UNDERTAKE REMEDIAL
OR MITIGATION MEASURES, AND SHALL NOT BE LIABLE TO THE PERSON WHO OWNED,
ERECTED, USED, MAINTAINED, STORED OR ABANDONED THE  STRUCTURE,  IMPROVE-
MENT OR FIXTURE. ANY AND ALL EXPENSES ASSOCIATED WITH THE STATE'S DISPO-
SITION  OF  ANY  STRUCTURE,  IMPROVEMENT  OR FIXTURE AND ANY REMEDIAL OR
MITIGATION MEASURES UNDERTAKEN BY THE DEPARTMENT SHALL BE  PAID  BY  THE
PERSON  WHO  OWNED,  ERECTED,  USED, MAINTAINED, STORED OR ABANDONED THE
STRUCTURE, IMPROVEMENT OR FIXTURE AND SHALL BE A DEBT RECOVERABLE BY THE
STATE FROM THAT PERSON.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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Senate Bill S3783

Sponsored By

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

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co-Sponsors

2009-S3783 (ACTIVE) - Details

2009-S3783 (ACTIVE) - Summary

2009-S3783 (ACTIVE) - Sponsor Memo

2009-S3783 (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Antoine M. Thompson

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Actions

co-Sponsors

Brian X. Foley

Kevin S. Parker

Bill Perkins

Eric T. Schneiderman

2009-S3783 (ACTIVE) - Details

2009-S3783 (ACTIVE) - Summary

2009-S3783 (ACTIVE) - Sponsor Memo

2009-S3783 (ACTIVE) - Bill Text download pdf

Comments