NY Exec L § 809 (2021)
2021 New York Laws EXC - Executive Article 27 - Adirondack Park Agency 809 - Agency Administration and Enforcement of the Land Use and Development Plan.

§ 809. Agency  administration  and  enforcement  of  the  land use and development plan. 1. The agency shall have jurisdiction  to  review  and approve  all  class  A regional projects, including those proposed to be located in a land use area  governed  by  an  approved  local  land  use program,  and  all  class  B  regional projects in any land use area not governed by an approved and validly enacted or adopted  local  land  use program.   All  projects  shall  be  reviewed  and acted upon as expeditiously as practical. In particular, to facilitate  the  review  of  minor  project applications,  the  agency shall develop simplified application forms to deal with such projects, and will comply with the special procedures for such projects set forth in  this  section.  For  the  purposes  of  this section,  "minor  project"  shall  mean  any  individual  single  family dwelling or mobile home or any subdivision involving two  lots,  parcels or sites.   2.  a. Any person proposing to undertake a class A regional project in any land use area, or a class B regional project in any  land  use  area not  governed  by  an approved and validly enacted or adopted local land use program, shall make application to the agency for approval  of  such project  and  receive an agency permit therefor prior to undertaking the project. Such application shall be filed in such form and manner as  the agency   may   prescribe.   The  agency  shall,  upon  receipt  of  such application, provide notice of receipt of the application  and  a  brief description  of  the  project  to  the  Adirondack park local government review board, the chairman of the county planning board, if any, of  the county wherein the project is proposed to be located, to the chairman of the  appropriate  regional  planning  board,  and  to  the chief elected officer, clerk and  planning  board  chairman,  if  any,  of  the  local government  wherein  such  project is proposed to be located. The agency shall, upon request, furnish or make a copy of the application available to the review board or to the officials listed in this paragraph.   b. On or before fifteen  calendar  days  after  the  receipt  of  such application  the  agency  shall  notify the project sponsor by certified mail whether or not the application is complete.  For  the  purposes  of this  section,  a "complete application" shall mean an application for a permit which is in an approved form and is determined by the  agency  to be  complete for the purpose of commencing review of the application but which may need to be supplemented during the  course  of  review  as  to matters  contained  in  the application in order to enable the agency to make the findings and determinations required by this  section.  If  the agency  fails  to  mail  such notice within such fifteen-day period, the application shall be deemed  complete.  If  the  agency  determines  the application  is  not  complete,  the  notice  shall  include  a  concise statement of the respects in which the application  is  incomplete.  The submission   by   the   project  sponsor  of  the  requested  additional information shall commence a new fifteen calendar day period for  agency review  of  the  additional  information for the purposes of determining completeness. If the agency determines the application is complete,  the notice shall so state.   A  notice  of application completion shall not be required in the case of applications for minor projects which the  agency  determines  to  be complete  when filed. Such applications shall be deemed complete for the purposes of this section upon the date of receipt.   c. The project sponsor shall not undertake the project for a period of ninety days, or in  the  case  of  a  minor  project,  forty-five  days, following the date of such notice of application completion, or the date the  application  is  deemed complete pursuant to the provisions of this  section, unless a permit is issued  prior  to  the  expiration  of  such periods.   d.  Immediately  upon determining that an application is complete, the agency shall, except in relation to minor projects, cause  a  notice  of application  to  be published in the next available environmental notice bulletin published  by  the  department  of  environmental  conservation pursuant  to section 3-0306 of the environmental conservation law, which publication shall be not later than ten calendar days after the date  of such  notice. The time period for public comment on a permit application shall be stated in the notice of application. The agency  shall  at  the same  time  mail  a  copy of the notice of application completion to the Adirondack park local government review board and to the  persons  named in  paragraph  a  of  subdivision  two of this section, and invite their comments.   3. a. Within the time periods specified in paragraphs b and c of  this subdivision, the agency shall make a decision on a permit application by notifying  the  project  sponsor  by  certified  mail of its decision to approve the project,  approve  the  project  subject  to  conditions  or disapprove the project.   b.  In  the  case  of  an application for a permit for which no public hearing has been held, the agency decision shall be mailed on or  before ninety  calendar  days  or,  in  the case of a minor project, forty-five calendar days, after the agency notifies the project  sponsor  that  the application  is  complete  or  after  the application is deemed complete pursuant to the provisions of this section.   c. In the case of an application for  a  permit  for  which  a  public hearing  has been held, the agency decision shall be mailed on or before sixty calendar days after receipt by the agency of a complete record, as that term is defined in paragraphs (a) through (e) of subdivision one of section three hundred two of the state administrative procedure act.   d. If the agency determines to hold a public hearing on an application for a permit, the  agency  shall  notify  the  project  sponsor  of  its determination  by certified mail on or before sixty calendar days or, in the case of a minor project, forty-five calendar days after  the  agency notifies  the  project sponsor that the application is complete or after the application is deemed complete pursuant to the  provisions  of  this section. The determination of whether or not to hold a public hearing on an  application  shall  be  based  on whether the agency's evaluation or comments of the review board, local officials or the public on a project raise substantive and significant issues relating  to  any  findings  or determinations  the agency is required to make pursuant to this section, including the reasonable likelihood that the project will be disapproved or can be approved only with major modifications because the project  as proposed may not meet statutory or regulatory criteria or standards. The agency  shall  also  consider  the general level of public interest in a project. No project may be disapproved without a  public  hearing  first being held thereon.   e. If the agency has notified the project sponsor of its determination to  hold  a  public hearing, the sponsor shall not undertake the project during the time period specified in paragraph c of this subdivision. The notice of determination to hold a public hearing shall  state  that  the project  sponsor has the opportunity within fifteen days to withdraw his application or submit a new application. A public hearing shall commence on or before ninety calendar days, or in the case of  a  minor  project, seventy-five  days,  after  the agency notifies the project sponsor that the application is complete or after the application is deemed  complete pursuant  to  the  provisions  of this section. In addition to notice of such hearing being mailed to the project sponsor, such notice shall also  be given by publication  at  least  once  in  the  environmental  notice bulletin  and  in  a  newspaper having general circulation in each local government wherein the project is proposed to be located, by conspicuous posting  of  the  land  involved,  and  by  individual  notice served by certified mail upon each owner of record of the land  involved,  and  by mail  upon:  the  Adirondack  park  local  government  review board, the persons named in paragraph a of subdivision two  of  this  section,  any adjoining  landowner,  to  the  extent  reasonably  discernible from the latest completed tax  assessment  roll,  and  the  clerk  of  any  local government  within  five  hundred  feet  of  the  land  involved. Public hearings held pursuant to this section shall  be  consolidated  or  held jointly with other state or local agencies whenever practicable.   4.  The  agency  shall  make  provision  in  its rules and regulations adopted pursuant  to  subdivision  fourteen  of  this  section  for  the Adirondack  park  local  government review board and county and regional planning  agencies  receiving  notice  under  subdivision  two  to  have opportunity  to review and render advisory comments on the project under review by the agency.   5. Notice of an agency decision  shall  be  given  by  mail  to  those entitled  to  individual notice of application under subdivision two and notice of hearing under subdivision three, if a hearing is held. If  the decision  is  approval,  the agency shall within ten days of issuance of its notification of approval grant a permit to the  project  sponsor  to undertake   the   project.  If  the  decision  is  approval  subject  to conditions, the agency shall  grant  a  permit  only  upon  satisfactory fulfillment  of  such  conditions.  Approval subject to conditions shall expire six months from the date of such approval, or such longer time as is specified in the notification or approval, unless a permit  has  been granted.  An  agency permit shall serve as authorization for the project sponsor to undertake the  project  in  accordance  with  the  terms  and conditions thereof.   6.  a.  If the agency fails to mail a decision on an application for a permit within the time periods  specified  in  paragraphs  b  and  c  of subdivision  three of this section, the project sponsor may cause notice of such failure to be made to the agency by  means  of  certified  mail, return  receipt  requested,  addressed to the agency at its headquarters office. If, within five working days after the receipt  of  such  notice the  agency  fails  to  mail a decision, the application shall be deemed approved and a permit deemed granted subject to any  standard  terms  or conditions  applicable to such a permit and the agency shall provide the project sponsor with a written certification to this effect.   b. Any time period  specified  in  this  section  may  be  waived  and extended  for  good  cause by written request of the project sponsor and consent of the agency, or by written request of the agency  and  consent of the project sponsor.   c.  At  any time during the review of an application for a permit or a request by a permit holder for the renewal, reissuance, or  modification of an existing permit pursuant to subdivision eight of this section, the agency  may  request  additional information from the project sponsor or permit holder with regard to any matter contained in the application  or request  when such additional information is necessary for the agency to make any findings or determinations required  by  law.  Such  a  request shall  not  extend  any  time period for agency action contained in this section. Failure by the project sponsor or permit holder to provide such information may be grounds for denial by the agency of  the  application or request.   7.  a.  A  permit  or  certificate  issued  by  the agency pursuant to subdivision five or six of this section shall expire within  sixty  days  from the date thereof unless within such sixty-day period such permit or certificate  shall  have been duly recorded in the name of the landowner in the office of the clerk of the county wherein the project is proposed to  be located. Where a permit involves action in concert by two or more landowners as described by  paragraph  c  of  subdivision  ten  of  this section, the permit shall be recorded in the name of each landowner.   b.  A  permit when properly recorded shall operate and be construed as actual notice of the right to undertake the project and of the terms and conditions imposed by such permit. Such right shall extend to  and  such terms  and  conditions  shall be binding upon all subsequent grantees of the land area subject to the permit, except those  conditions  which  by their  nature  or  wording  are  to be performed by the original project sponsor and except as may be otherwise provided by  the  terms  of  such permit.   c.  If a project for which a permit has been granted, or a certificate issued, is not in existence within two years after the recording of such permit or certificate, unless the terms of the  permit  provides  for  a longer  period  of time, the project may not thereafter be undertaken or continued unless an application for  a  new  permit  therefor  has  been applied for and granted in the same manner and subject to all conditions governing  the  application  for and granting of a permit as provided in this section. In determining whether to provide a longer period of  time by  when  the  project  must  be in existence, the agency shall give due consideration to the potential of the land related  to  the  project  to remain  suitable  for  the use allowed by the permit and to the economic considerations attending the project.   8. a. Upon the provision of notice stating the grounds for its  action and  giving  an opportunity for hearing to the permit holder, the agency may modify, suspend or revoke a permit.   b. A permit holder may make written request  to  the  agency  for  the renewal,  reissuance,  or  modification  of  an  existing permit. Such a request shall be accompanied by sufficient  information  supporting  the request for the agency action sought.  (1)  In the case of a request which does not involve a material change in permit conditions, the applicable law,  environmental  conditions  or technology since the date of issuance of the existing permit, the agency shall  on or before fifteen calendar days after the receipt of a request mail a written determination to the permit holder of its decision on the request. If the decision is to deny the request, the permit holder shall be afforded an opportunity for hearing and notice of such decision shall be given by the agency in the next available issue of the  environmental notice bulletin.  (2)  In  the  case of a request which may involve a material change as described in subparagraph one of this paragraph, the agency shall on  or before  fifteen  calendar  days  after  the  receipt of a request mail a written determination to the permit holder that  the  request  shall  be treated as an application for a new permit.   If  pursuant  to subparagraph one or two of this paragraph, the agency fails to mail a written determination to the permit holder  within  such fifteen  calendar  day period, the provisions of subdivision six of this section shall apply.   9. The agency shall not approve any class A regional project  proposed to  be located in a land use area governed by an approved local land use program, or grant a permit therefor, unless  it  first  determines  that such  project  meets all of the pertinent requirements and conditions of such approved local land use program and that the project would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park  or  upon  the  ability  of  the  public to provide supporting facilities and services  made  necessary  by  the  project,  taking  into  account  the commercial, industrial, residential, recreational or other benefits that might  be  derived from the project. In making this determination, as to the impact of the project upon such resources of the  park,  the  agency shall  consider  those  pertinent  factors  contained in the development considerations and provided for in such approved local land use program. The agency shall, in connection with its review of a project under  this subdivision,  make  provision in its rules and regulations adopted under subdivision fourteen for the early involvement of the  local  government wherein  such  project  is  proposed to be located in the review of such project on an informal basis. Such local government shall have  standing as a party in any public hearing on such project held by the agency.   10. The agency shall not approve any project proposed to be located in any land use area not governed by an approved local land use program, or grant  a  permit  therefor, unless it first determines that such project meets the following criteria:   a. The project would be consistent with the land use  and  development plan.   b.  The project would be compatible with the character description and purposes, policies and objectives of the land use  area  wherein  it  is proposed  to  be  located.  If  the  project is on the classification of compatible uses list for the land use area involved, there  shall  be  a presumption  of  compatibility with the character description, purposes, policies and objectives of such land use area. If the project is a class B regional project because, as provided in section eight hundred ten, it is not listed as either  a  primary  use  or  a  secondary  use  on  the classification  of compatible uses list for the land use area wherein it is proposed to be located,  there  shall  be  a  presumption  that  such project   would  not  be  compatible  with  the  character  description, purposes, policies and objectives of such land use area and  the  burden shall be on the project sponsor to demonstrate such compatibility to the satisfaction of the agency.   c.  The  project  would  be  consistent  with  the  overall  intensity guideline for the land use area  involved.  A  landowner  shall  not  be allowed  to  construct,  either  directly  or  as a result of a proposed subdivision, more principal buildings on the land  included  within  the project than the overall intensity guideline for the given land use area in which the project is located. In determining the land area upon which the  intensity  guideline  is  calculated and which is included within a project, the landowner shall only include land under his  ownership  and may  include  all  adjacent land which he owns within that land use area irrespective of such dividing lines as lot lines, roads, rights of  way, or  streams and, in the absence of local land use programs governing the intensity of land use and development, irrespective of local  government boundaries.  Principal  buildings  in existence within the area included within a project, as such area is defined by  the  landowner,  shall  be counted  in  applying  the  intensity guidelines. As between two or more separate landowners in a given land use area the principal buildings  on one  landowner's property shall not be counted in applying the intensity guidelines to another landowner's  project,  except  that  two  or  more landowners  whose  lands are directly contiguous and located in the same general tax district or special levy or assessment  district  may,  when acting,  in  concert  in  submitting a project, aggregate such lands for purposes of applying  the  intensity  guidelines  to  their  lands  thus aggregated.  The  area  upon which the intensity guideline is calculated shall not include (a) bodies of water, such as lakes and ponds, (b)  any land  in  the  same  ownership that is directly related to any principal  building in existence on August first, nineteen  hundred  seventy-three, which  land  is not included in the project, and (c), in the case of any principal building constructed  after  August  first,  nineteen  hundred seventy-three,  any  land  in  the  same or any other ownership that was included within the area of any previous project in order to comply with the overall intensity guideline.   d. The  project  would  comply  with  the  shoreline  restrictions  if applicable.  The  agency  may  require  a greater setback of any on-site sewage drainage field or seepage pit than required under  the  shoreline restrictions  if  it determines that soils or other pertinent conditions require such greater setback to reasonably protect the water quality  of the water body involved.   e.  The  project  would  not  have  an  undue  adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park or upon the ability of the public to provide  supporting  facilities  and  services  made  necessary  by  the project,  taking  into  account the commercial, industrial, residential, recreational or other benefits that might be derived from  the  project. In  making this determination, as to the impact of the project upon such resources of the park, the agency shall consider those factors contained in the development considerations of the plan which are pertinent to the project under review.   11. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of the  plan or  the  shoreline  restrictions,  the  agency  shall  have authority in connection with a project under its review  to  vary  or  modify,  after public  hearing  thereon,  the  application of any of such provisions or restrictions  relating  to  the  use,  construction  or  alteration   of buildings  or  structures, or the use of land, so that the spirit of the provisions or restrictions shall be observed, public safety and  welfare secured and substantial justice done.   12. The agency may conduct such investigations, examinations tests and site  evaluations  as it deems necessary to verify information contained in an application for a development permit, and the project sponsor,  or owner  of  the  land upon which the project is proposed, shall grant the agency or its agents  permission  to  enter  upon  his  land  for  these purposes.   13.  The  agency  shall have authority to impose such requirements and conditions with its granting of a permit as  are  allowable  within  the proper  exercise  of  the  police  power. The agency shall have specific authority in connection with its  project  review  jurisdiction:  a.  To impose  reasonable conditions and requirements, including the posting of performance bonds in favor of the local government as obligee, to ensure that any project for which  a  permit  is  granted  will  be  adequately supported  by  basic  services  and  improvements  made necessary by the project. The cost of any such services or improvements may be imposed by requiring that the project sponsor provide the service or improvement or reserve land, or any interest  therein,  or  contribute  money  in  lieu thereof  to  the  local government wherein the project is proposed to be located if such local government consents thereto. In  the  exercise  of the authority contained in this provision, the agency shall consult with the affected municipalities and give due consideration to their views.   b.  To  impose reasonable conditions and requirements to ensure that a project for which a permit is granted by the agency, when undertaken  or continued, will be completed in accordance with the terms and conditions of  the  permit,  and  that  the  project  sponsor  furnish  appropriate guarantees of completion or otherwise demonstrate financial capacity  to complete   the   project  or  any  material  part  thereof  and  furnish  appropriate guarantees or otherwise demonstrate that the project will be managed and maintained once completed in accordance with  the  terms  of the permit.   c.  To  impose  reasonable  conditions and requirements to ensure that upon approval of a project the applicable  overall  intensity  guideline for  the  land use area involved will be respected. Such requirement may include the restriction of land against further development of principal buildings, whether by deed restriction, restrictive  covenant  or  other similar appropriate means.   d.  To  allow,  upon  request  of  a  project  sponsor, projects to be reviewed conceptually, and thereafter or simultaneously therewith to  be divided  into and reviewed by sections, and to grant or deny permits for such sections. Conceptual determinations  may  be  made,  and  sectional permits  may  be  granted subject to the provision of those requirements and conditions for improvements and services for, and for completion  of the  total  project  as  the  agency  deems  reasonable  and  necessary. Conceptual review shall focus upon the  existing  environmental  setting and  the  likely  impacts which would result from the project, including all proposed phases or segments thereof,  but  shall  not  result  in  a binding   approval  or  disapproval.  The  agency  shall  in  rules  and regulations establish  criteria,  guidelines,  and  procedures  for  the conceptual  and  sectional  review  of  proposed projects. Except to the extent, and only for such  period  of  time  as  otherwise  specifically stated  in  the  agency's  decision  upon an application for a sectional permit, the granting of any sectional  permit  shall  not  constitute  a finding,  or  be binding upon the agency, with respect to any portion of the total project not included in the section for which  the  permit  is granted.   e.  To  issue  a  general  permit for any class of projects concerning which the agency determines it may make the requisite statutory findings on a general basis.   14. The agency may, after public hearing, adopt, and have authority to amend or repeal, rules and regulations, consistent with  the  provisions of  this section, to govern its project review procedures and to provide further  guidance  to  potential  project   sponsors   through   further definition  of  the  development  considerations  as they would apply to specific  classes  of  projects  in  specific  physical  and  biological conditions.  Such  rules  and regulations may include but not be limited to:   a. Procedures prior to formal application to the agency for  a  permit for  the informal discussion of preliminary plans for a proposed project and for  preliminary  approval  or  recommendations  in  regard  to  the project.    Such  informal discussion shall be optional with the project sponsor and  no  such  preliminary  approval  or  recommendations  shall relieve  the  sponsor  from  complying  with  the  provisions  governing submission of a project for review and obtaining a  permit  therefor  as provided in this section.   b.  Procedures  for  cooperation  and  joint  action,  including joint hearings, insofar as practical, with other state agencies having  review or regulatory jurisdiction which relates with that of the agency's so as to  avoid unnecessary costs and burdens both to the state and to project sponsors and landowners.   c. Procedures to insure communication and discussion with any  federal agency,  including the Army Corps of engineers and the soil conservation service, in regard to any federal development proposals in the park.   Such agency rules and regulations, and any amendments  thereof,  shall be  adopted  only  after  consultation  with  the  Adirondack park local government review board and at least one public hearing thereon. Fifteen  days notice of such hearing shall be made by publication at  least  once in a newspaper of general circulation in each county wholly or partially within  the  Adirondack  park and in a least three metropolitan areas of the  state,  and  by  individual notice served by mail upon the clerk of each county and each local government of the park, and the  chairman  of all  local  government,  county  and  regional  planning agencies having jurisdiction  in  the  park.  Such  notice  shall  contain  a  statement describing the subject matter of the proposed rules and regulations, and the  time and place of the hearing and where further information thereon may be obtained.   15. This section shall not apply to any  emergency  project  which  is immediately  necessary for the protection of life or property as defined by the agency by rule and regulation adopted under subdivision fourteen.