Relates to vested rights of property owners relating to the development of their land

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.