New York State Consolidated Laws
Town
ARTICLE 16
ZONING AND PLANNING
Section 261. Grant of power; appropriations for certain expenses
incurred under this article.
261-a. Transfer of development rights; definitions; conditions;
procedures.
261-b. Incentive zoning; definitions, purpose, conditions,
procedures.
262. Districts.
262-a. Town of Lansing; division of certain parts thereof.
263. Purposes in view.
264. Adoption of zoning regulations.
265. Changes.
265-a. Exemption of lots shown on approved subdivision plats.
266. Adoption of first zoning ordinance.
267. Zoning board of appeals.
267-a. Board of appeals procedure.
267-b. Permitted action by board of appeals.
267-c. Article seventy-eight procedures.
268. Enforcement and remedies.
269. Conflict with other laws.
270. Official map, establishment.
271. Planning board, creation, appointment.
272-a. Town comprehensive plan.
273. Official map, changes.
274-a. Site plan review.
274-b. Approval of special use permits.
276. Subdivision review; approval of plats; development of filed
plats.
277. Subdivision review; approval of plats; additional
requisites.
278. Subdivision review; approval of cluster development.
279. Subdivision review; record of plats.
280. Permits for buildings in bed of mapped streets.
280-a. Permits for buildings not on improved mapped streets.
281. Municipal improvements in streets.
282. Court review.
283. Issuance of licenses and permits in certain towns.
283-a. Coordination with agricultural districts program.
284. Intermunicipal cooperation in comprehensive planning and
land use regulation.
285. Separability clause.
S 261. Grant of power; appropriations for certain expenses incurred
under this article. For the purpose of promoting the health, safety,
morals, or the general welfare of the community, the town board is here-
by empowered by local law or ordinance to regulate and restrict the
height, number of stories and size of buildings and other structures,
the percentage of lot that may be occupied, the size of yards, courts,
and other open spaces, the density of population, and the location and
use of buildings, structures and land for trade, industry, residence or
other purposes; provided that such regulations shall apply to and affect
only such part of a town as is outside the limits of any incorporated
village or city; provided further, that all charges and expenses
incurred under this article for zoning and planning shall be a charge
upon the taxable property of that part of the town outside of any incor-
porated village or city. The town board is hereby authorized and
empowered to make such appropriation as it may see fit for such charges
and expenses, provided however, that such appropriation shall be the
estimated charges and expenses less fees, if any, collected, and
provided, that the amount so appropriated shall be assessed, levied and
collected from the property outside of any incorporated village or city.
Such regulations may provide that a board of appeals may determine and
vary their application in harmony with their general purpose and intent,
and in accordance with general or specific rules therein contained.
S 261-a. Transfer of development rights; definitions; conditions;
procedures. 1. As used in this section:
a. "Development rights" shall mean the rights permitted to a lot,
parcel, or area of land under a zoning ordinance or local law respecting
permissible use, area, density, bulk or height of improvements executed
thereon. Development rights may be calculated and allocated in accord-
ance with such factors as area, floor area, floor area ratios, density,
height limitations, or any other criteria that will effectively quantify
a value for the development right in a reasonable and uniform manner
that will carry out the objectives of this section.
b. "Receiving district" shall mean one or more designated districts or
areas of land to which development rights generated from one or more
sending districts may be transferred and in which increased development
is permitted to occur by reason of such transfer.
c. "Sending district" shall mean one or more designated districts or
areas of land in which development rights are designated for use in one
or more receiving districts.
d. "Transfer of development rights" shall mean the process by which
development rights are transferred from one lot, parcel, or area of land
in any sending district to another lot, parcel, or area of land in one
or more receiving districts.
2. In addition to existing powers and authorities to regulate by plan-
ning or zoning, including authorization to provide for transfer of
development rights pursuant to other enabling law, a town board is here-
by empowered to provide for transfer of development rights subject to
the conditions hereinafter set forth and such other conditions as the
town board deems necessary and appropriate that are consistent with the
purposes of this section. The purpose of providing for transfer of
development rights shall be to protect the natural, scenic or agricul-
tural qualities of open lands, to enhance sites and areas of special
character or special historical, cultural, aesthetic or economic inter-
est or value and to enable and encourage flexibility of design and care-
ful management of land in recognition of land as a basic and valuable
natural resource. The conditions hereinabove referred to are as follows:
a. That transfer of development rights, and the sending and receiving
districts, shall be established in accordance with a comprehensive plan
within the meaning of section two hundred sixty-three of this article.
The sending district from which transfer of development rights may be
authorized shall consist of natural, scenic, recreational, agricultural,
forest, or open land or sites of special historical, cultural, aesthetic
or economic values sought to be protected. Every receiving district to
which transfer of development rights may be authorized, shall have been
found by the town board, after evaluating the effects of potential
increased development which is possible under the transfer of develop-
ment rights provisions, to contain adequate resources, environmental
quality and public facilities, including adequate transportation, water
supply, waste disposal and fire protection, and that there will be no
significant environmentally damaging consequences and such increased
development is compatible with the development otherwise permitted by
the town and by the federal, state, and county agencies having jurisdic-
tion to approve permissible development within the district. A generic
environmental impact statement pursuant to the provisions of article
eight of the environmental conservation law shall be prepared by the
town board for the receiving district before any such district, or any
sending district, is designated, and such statement shall be amended
from time to time by the town board if there are material changes in
circumstances. Where a transfer of development rights affects districts
in two or more school, special assessment or tax districts, it may not
unreasonably transfer the tax burden between the taxpayers of such
districts. The receiving and sending districts need not be coterminous
with zoning districts.
b. That sending and receiving districts be designated and mapped with
specificity and the procedure for transfer of development rights be
specified. Notwithstanding any other provision of law to the contrary,
environmental quality review pursuant to article eight of the environ-
mental conservation law for any action in a receiving district that
utilizes development rights shall only require information specific to
the project and site where the action will occur and shall be limited to
review of the environmental impacts of the action, if any, not adequate-
ly reviewed in the generic environmental impact statement.
c. That the burden upon land within a sending district from which
development rights have been transferred shall be documented by an
instrument duly executed by the grantor in the form of a conservation
easement, as defined in title three of article forty-nine of the envi-
ronmental conservation law, which burden upon such land shall be
enforceable by the appropriate town in addition to any other person or
entity granted enforcement rights by the terms of the instrument. All
provisions of law applicable to such conservation easements pursuant to
such title shall apply with respect to conservation easements hereunder,
except that the town board may adopt standards pertaining to the dura-
tion of such easements that are more stringent than such standards
promulgated by the department of environmental conservation pursuant to
such title. Upon the designation of any sending district, the town board
shall adopt regulations establishing uniform minimum standards for
instruments creating such easements within the district. No such
modification or extinguishment of an easement shall diminish or impair
development rights within any receiving district. Any development right
which has been transferred by conservation easement shall be evidenced
by a certificate of development right which shall be issued by the town
to the transferee in a form suitable for recording in the registry of
deeds for the county where the receiving district is situated in the
manner of other conveyances of interests in land affecting its title.
d. That within one year after a development right is transferred, the
assessed valuation placed on the affected properties for real property
tax purposes shall be adjusted to reflect the transfer. A development
right which is transferred shall be deemed to be an interest in real
property and the rights evidenced thereby shall inure to the benefit of
the transferee, and his heirs, successors and assigns.
e. That development rights shall be transferred reflecting the normal
market in land, including sales between owners of property in sending
and receiving districts, a town may establish a development rights bank
or such other account in which development rights may be retained and
sold in the best interest of the town. Towns shall be authorized to
accept for deposit within the bank gifts, donations, bequests or other
development rights. All receipts and proceeds from sales of development
rights sold by the town shall be deposited in a special municipal
account to be applied against expenditures necessitated by the municipal
development rights program.
f. That prior to designation of sending or receiving districts, the
legislative body of the town shall evaluate the impact of transfer of
development rights upon the potential development of low or moderate
income housing lost in sending districts and gained in receiving
districts and shall find either there is approximate equivalence between
potential low and moderate housing units lost in the sending district
and gained in the receiving districts or that the town has or will take
reasonable action to compensate for any negative impact upon the avail-
ability or potential development of low or moderate income housing
caused by the transfer of development rights.
3. The town board adopting or amending procedures for transfer of
development rights pursuant to this section shall follow the procedure
for adopting and amending its zoning ordinance or local law, as the case
may be, including all provisions for notice applicable for changes or
amendments to a zoning ordinance or local law.
Nothing in this section shall be construed to invalidate any provision
for transfer of development rights heretofore or hereafter adopted by
any local legislative body.
S 261-b. Incentive zoning; definitions, purpose, conditions, proce-
dures. 1. Definitions. As used in this section:
(a) "Incentives or bonuses" shall mean adjustments to the permissible
population density, area, height, open space, use, or other provisions
of a zoning ordinance or local law for a specific purpose authorized by
the town board.
(b) "Community benefits or amenities" shall mean open space, housing
for persons of low or moderate income, parks, elder care, day care or
other specific physical, social or cultural amenities, or cash in lieu
thereof, of benefit to the residents of the community authorized by the
town board.
(c) "Incentive zoning" shall mean the system by which specific incen-
tives or bonuses are granted, pursuant to this section, on condition
that specific physical, social, or cultural benefits or amenities would
inure to the community.
2. Authority and purposes. In addition to existing powers and authori-
ties to regulate by planning or zoning, including authorization to
provide for the granting of incentives, or bonuses pursuant to other
enabling law, a town board is hereby empowered, as part of a zoning
ordinance or local law adopted pursuant to this article, or by local law
or ordinance adopted pursuant to other enabling law, to provide for a
system of zoning incentives, or bonuses, as the town board deems neces-
sary and appropriate consistent with the purposes and conditions set
forth in this section. The purpose of the system of incentive, or bonus,
zoning shall be to advance the town`s specific physical, cultural and
social policies in accordance with the town`s comprehensive plan and in
coordination with other community planning mechanisms or land use tech-
niques. The system of zoning incentives or bonuses shall be in accord-
ance with a comprehensive plan within the meaning of section two hundred
sixty-three of this article.
3. Implementation. A system of zoning incentives or bonuses may be
provided subject to the conditions hereinafter set forth.
(a) The town board shall provide for the system of zoning incentives
or bonuses pursuant to this section as part of the zoning ordinance or
local law. In providing for such system the board shall follow the
procedure for adopting and amending its zoning ordinance or local law,
including all provisions for notice and public hearing applicable for
changes or amendments to a zoning ordinance or local law.
(b) Each zoning district in which incentives or bonuses may be awarded
under this section shall be designated in the town zoning ordinance or
local law and shall be incorporated in any map adopted in connection
with such zoning ordinance or local law or amendment thereto.
(c) Each zoning district in which incentives or bonuses may be author-
ized shall have been found by the town board, after evaluating the
effects of any potential incentives which are possible by virtue of the
provision of community amenities, to contain adequate resources, envi-
ronmental quality and public facilities, including adequate transporta-
tion, water supply, waste disposal and fire protection. Further, the
town board shall, in designating such districts, determine that there
will be no significant environmentally damaging consequences and that
such incentives or bonuses are compatible with the development otherwise
permitted.
(d) A generic environmental impact statement pursuant to the
provisions of 6 NYCRR 617.15 shall be prepared by the town board for any
zoning district in which the granting of incentives or bonuses have a
significant effect on the environment before any such district is desig-
nated, and such statement shall be supplemented from time to time by the
town board if there are material changes in circumstances that may
result in significant adverse impacts. Any zoning ordinance or local law
enacted pursuant to this section shall provide that any applicant for
incentives or bonuses shall pay a proportionate share of the cost of
preparing such environmental impact statement, and that such charge
shall be added to any site-specific charge made pursuant to the
provisions of section 8-0109 of the environmental conservation law.
(e) The town board shall set forth the procedure by which incentives
may be provided to specific lands. Such procedure shall describe:
(i) the incentives, or bonuses, which may be granted by the town to
the applicant;
(ii) the community benefits or amenities which may be accepted from
the applicant by the town;
(iii) criteria for approval, including methods required for determin-
ing the adequacy of community amenities to be accepted from the appli-
cant in exchange for the particular bonus or incentive to be granted to
the applicant by the town;
(iv) the procedure for obtaining bonuses, including applications and
the review process, and the imposition of terms and conditions attached
to any approval; and
(v) provision for a public hearing, if such public hearing is required
as part of a zoning ordinance or local law adopted pursuant to this
section and give public notice thereof by the publication in the offi-
cial newspaper of such hearing at least five days prior to the date
thereof.
(f) All other requirements of article eight of the environmental
conservation law shall be complied with by project sponsors for actions
in areas for which a generic environmental impact statement has been
prepared including preparation of an environmental assessment form and a
supplemental environmental impact statement, if necessary.
(g) Prior to the adoption or amendment of the zoning ordinance or
local law pursuant to this section to establish a system of zoning
incentives or bonuses the town board shall evaluate the impact of the
provision of such system of zoning incentives or bonuses upon the poten-
tial development of affordable housing gained by the provision of any
such incentive or bonus afforded to an applicant or lost in the
provision by an applicant of any community amenity to the town.
Further, the town board shall determine that there is approximate equiv-
alence between potential affordable housing lost or gained or that the
town has or will take reasonable action to compensate for any negative
impact upon the availability or potential development of affordable
housing caused by the provisions of this section.
(h) If the town board determines that a suitable community benefit or
amenity is not immediately feasible, or otherwise not practical, the
board may require, in lieu thereof, a payment to the town of a sum to be
determined by the board. If cash is accepted in lieu of other community
benefit or amenity, provision shall be made for such sum to be deposited
in a trust fund to be used by the town board exclusively for specific
community benefits authorized by the town board.
4. Invalidations. Nothing in this section shall be construed to inval-
idate any provision for incentives or bonuses heretofore adopted by any
town board.
Sec. 262. Districts. For any or all of said purposes the
town board may divide that part of the town which is outside the
limits of any incorporated village or city into districts of such
number, shape and area as may be deemed best suited to carry out
the purposes of this act; and within such districts it may
regulate and restrict the erection, construction, reconstruction,
alteration or use of buildings, structures or land. All such
regulations shall be uniform for each class or kind of buildings,
throughout such district but the regulations in one district may
differ from those in other districts.
Sec. 262-a. Town of Lansing; division of certain parts
thereof. For any and all of the purposes set forth in article
sixteen of the town law, the town board of the town of Lansing
may divide all or part of that portion of the town which is
outside the limits of any incorporated village or city into
districts of such number, shape and area as may be deemed best
suited to carry out the purposes of this section; including
construction, reconstruction, alteration or use of buildings,
structures or land. All such regulations adopted by the town
board shall be uniform for each class or kind of buildings,
throughout such district; but the regulations in one district may
differ from those in other districts.
Sec. 263. Purposes in view. Such regulations shall be made
in accordance with a comprehensive plan and designed to lessen
congestion in the streets, to secure safety from fire, flood,
panic and other dangers; to promote health and general welfare;
to provide adequate light and air; to prevent the overcrowding of
land; to avoid undue concentration of population; to make
provision for, so far as conditions may permit, the accommodation
of solar energy systems and equipment and access to sunlight
necessary therefor; to facilitate the adequate provision of
transportation, water, sewerage, schools, parks and other public
requirements. Such regulations shall be made with reasonable
consideration, among other things, as to the character of the
district and its peculiar suitability for particular uses, and
with a view to conserving the value of buildings and encouraging
the most appropriate use of land throughout such municipality.
S 264. Adoption of zoning regulations. 1. Method of procedure. The
town board shall provide for the manner in which such regulations,
restrictions and the boundaries of such districts including any amend-
ments thereto shall be determined, established and enforced. However,
no such regulations, restrictions or boundaries shall become effective
until after a public hearing in relation thereto, at which the public
shall have an opportunity to be heard. At least ten days` notice of the
time and place of such hearing shall be published in a paper of general
circulation in such town.
Every zoning ordinance and every amendment to a zoning ordinance
(excluding any map incorporated therein) adopted pursuant to the
provisions of this chapter shall be entered in the minutes of the town
board; such minutes shall describe and refer to any map adopted in
connection with such zoning ordinance or amendment and a copy, summary
or abstract thereof (exclusive of any map incorporated therein) shall be
published once in a newspaper published in the town, if any, or in such
newspaper published in the county in which such town may be located
having a circulation in such town, as the town board may designate, and
affidavits of the publication thereof shall be filed with the town
clerk. Such ordinance shall take effect ten days after such publication,
but such ordinance or amendment shall take effect from the date of its
service as against a person served personally with a copy thereof,
certified by the town clerk under the corporate seal of the town; and
showing the date of its passage and entry in the minutes. Every town
clerk shall maintain a separate file or filing cabinet for each and
every map adopted in connection with a zoning ordinance or amendment and
shall file therein every such map hereafter adopted; said file or filing
cabinet to be available at any time during regular business hours for
public inspection.
2. Service of written notice. At least ten days prior to the date of
the public hearing, written notice of any proposed regulations,
restrictions or boundaries of such districts, including any amendments
thereto, affecting property within five hundred feet of the following
shall be served personally or by mail by the town upon each person or
persons listed below:
(a) The property of the housing authority erecting or owning a housing
project authorized under the public housing law; upon the executive
director of such housing authority and the chief executive officer of
the municipality providing financial assistance thereto.
(b) The boundary of a city, village or town; upon the clerk thereof.
(c) The boundary of a county; upon the clerk of the board of supervi-
sors or other person performing like duties.
(d) The boundary of a state park or parkway; upon the regional state
park commission having jurisdiction over such state park or parkway.
3. Additional requirements. The procedural requirements set forth
herein shall be in addition to the requirements of the provisions of
sections two hundred thirty-nine-l and two hundred thirty-nine-m of the
general municipal law relating to review by a county planning board or
agency or regional planning council; the provisions of the state envi-
ronmental quality review act under article eight of the environmental
conservation law and its implementing regulations which are codified in
title six part six hundred seventeen of the New York codes, rules and
regulations and any other general laws relating to land use and any
amendments thereto.
4. Public hearing. The public, including those served notice pursuant
to subdivision two of this section, shall have an opportunity to be
heard at the public hearing. Those parties set forth in paragraphs (a),
(b), (c) and (d) of subdivision two of this section, however, shall not
have the right of review by a court as hereinafter provided.
S 265. Changes. 1. Such regulations, restrictions and boundaries may from
time to time be amended. Such amendment shall be effected by a simple
majority vote of the town board, except that any such amendment shall
require the approval of at least three-fourths of the members of the town
board in the event such amendment is the subject of a written protest,
presented to the town board and signed by:
(a) the owners of twenty percent or more of the area of land included in
such proposed change; or
(b) the owners of twenty percent or more of the area of land immediately
adjacent to that land included in such proposed change, extending one
hundred feet therefrom; or
(c) the owners of twenty percent or more of the area of land directly
opposite thereto, extending one hundred feet from the street frontage of
such opposite land.
The provisions of the previous section relative to public hearings and
official notice shall apply equally to all proposed amendments.
2. Amendments made to any zoning ordinance (excluding any map
incorporated therein) adopted pursuant to the provisions of this chapter
shall be entered in the minutes of the town board; such minutes shall
describe and refer to any map adopted in connection with such change,
amendment or supplement and a copy, summary or abstract thereof (exclusive
of any map incorporated therein) shall be published once in a newspaper
published in the town, if any, or in such newspaper published in the county
in which such town may be located having a circulation in such town, as the
town board may designate, and affidavits of the publication thereof shall
be filed with the town clerk. Such ordinance shall take effect upon filing
in the office of the town clerk. Every town clerk shall maintain every map
adopted in connection with a zoning ordinance or amendment.
S 265-a. Exemption of lots shown on approved subdivision plats. 1.
Notwithstanding any inconsistent provision of this chapter or of any
general, special or local law, the provisions of a zoning ordinance or
local law hereafter adopted, or of a change or amendment thereto, which
provisions:
(a) establish or increase lot areas or lot dimensions which are in
excess of the areas or dimensions of the lots shown and delineated on a
residential subdivision plat which has been duly approved by the
planning board, or other board or officer vested with authority to
approve subdivision plats, if any, of the town in which the land shown
on said plat is situate and duly filed in the office of the recording
officer of the county in which the land shown on said subdivision plat
is situate; or
(b) establish or increase side, rear or front yard or set back
requirements in excess of those applicable to lots under the provisions
of the zoning ordinance or local law, if any, in force and effect at the
time of the filing of the said duly approved residential subdivision
plat or first section thereof
shall not, for the period of time prescribed in subdivision two of
this section, be applicable to or in any way affect any of the lots
shown and delineated on such subdivision plat.
2. If at the time of the filing of the subdivision plat or first
section thereof referred to in subdivision one of this section there was
in the town:
(a) both a zoning ordinance or local law and a planning board vested
with authority to approve subdivision plats, then the exemption provided
for in subdivision one of this section shall apply for a period of three
years after the filing of the approved subdivision plat or first section
thereof; or
(b) a zoning ordinance or local law in effect in the town but there
was no planning board in said town vested with authority to approve
subdivision plats, then the exemption provided for in subdivision one of
this section shall apply for a period of two years after the filing of
the approved subdivision plat or first section thereof; or
(c) no zoning ordinance or local law in the town but there was a
planning board vested with authority to approve subdivision plats, then
the exemption provided for in subdivision one of this section shall
apply for a period of two years after the filing of the approved
subdivision plat or first section thereof; or
(d) no zoning ordinance or local law in the town and no planning board
vested with authority to approve subdivision plats, then the exemption
provided for in subdivision one of this section shall apply for a period
of one year after the filing of the subdivision plat or first section
thereof.
3. If such period of exemption would expire within one year from the
date of the filing of a section of the approved plat, it shall be
extended for that section for a period of one year from the date of the
filing of such section.
S 266. Adoption of first zoning ordinance. 1. In order to avail itself
of the powers conferred by this article, such town board shall appoint a
commission to be known as the zoning commission to recommend the boundaries
of the various original districts and appropriate regulations to be
enforced therein.
2. Where a planning board already exists it may be appointed as the
zoning commission.
3. Such commission shall make a preliminary report and hold one or more
public hearings thereon as deemed appropriate by the commission before
submitting its final report.
4. The town board shall not hold its public hearing or take action until
it has received the final report of such commission.
5. Upon adoption of a resolution by the town board accepting the final
report, such commission shall cease to exist as a separate body.
S 267. Zoning board of appeals. 1. Definitions. As used in this
section:
(a) "Use variance" shall mean the authorization by the zoning board of
appeals for the use of land for a purpose which is otherwise not allowed
or is prohibited by the applicable zoning regulations.
(b) "Area variance" shall mean the authorization by the zoning board
of appeals for the use of land in a manner which is not allowed by the
dimensional or physical requirements of the applicable zoning regu-
lations.
2. Appointment of members. Each town board which adopts a local law or
ordinance and any amendments thereto pursuant to the powers granted by
this article shall appoint a board of appeals consisting of three or
five members as shall be determined by such local law or ordinance and
shall designate the chairperson thereof. In the absence of a chairperson
the board of appeals may designate a member to serve as acting chair-
person. The town board may provide for compensation to be paid to
experts, clerks and a secretary and provide for such other expenses as
may be necessary and proper, not exceeding the appropriation made by the
town board for such purpose. In making such appointments, the town board
may require board of appeals members to complete training and continuing
education courses in accordance with any local requirements for the
training of such members.
3. Town board members ineligible. No person who is a member of the
town board shall be eligible for membership on such board of appeals.
4. Terms of members first appointed. In the creation of a new board of
appeals, or the reestablishment of terms of an existing board, the
appointment of members to the board shall be for terms so fixed that one
member`s term shall expire at the end of the calendar year in which such
members were initially appointed. The remaining members` terms shall be
so fixed that one member`s term shall expire at the end of each year
thereafter. At the expiration of each original member`s appointment, the
replacement member shall be appointed for a term which shall be equal in
years to the number of members of the board.
5. Terms of members now in office. Members now holding office for
terms which do not expire at the end of a year shall, upon the expira-
tion of their term, hold office until the end of the year and their
successors shall then be appointed for terms which shall be equal in
years to the number of members of the board.
6. Increasing membership. Any town board may, by local law or ordi-
nance, increase a three member board of appeals to five members. Addi-
tional members shall be first appointed for single terms as provided by
resolution in order that the terms of members shall expire in each of
five successive years and their successors shall thereafter be appointed
for full terms of five years. No such additional member shall take part
in the consideration of any matter for which an application was on file
with the board of appeals at the time of his or her appointment.
7. Decreasing membership. A town board which has increased the number
of members of the board of appeals to five may, by local law or ordi-
nance, decrease the number of members of the board of appeals to three
to take effect upon the next two expirations of terms. Any board of
appeals which, upon the effective date of this section has seven
members, may continue to act as a duly constituted zoning board of
appeals until the town board, by local law or ordinance, reduces such
membership to three or five. However, no incumbent shall be removed from
office except upon the expiration of his or her term.
8. Vacancy in office. If a vacancy shall occur otherwise than by expi-
ration of term, the town board shall appoint the new member for the
unexpired term.
9. Removal of members. The town board shall have the power to remove,
after public hearing, any member of the zoning board of appeals for
cause. Any zoning board of appeals member may be removed for non-compli-
ance with minimum requirements relating to meeting attendance and train-
ing as established by the town board by local law or ordinance.
10. Chairperson duties. All meetings of the board of appeals shall be
held at the call of the chairperson and at such other times as such
board may determine. Such chairperson, or in his or her absence, the
acting chairperson, may administer oaths and compel the attendance of
witnesses.
11. Alternate members. (a) A town board may, by local law or ordi-
nance, or as a part of the local law or ordinance creating the zoning
board of appeals, establish alternate zoning board of appeals member
positions for purposes of substituting for a member in the event such
member is unable to participate because of a conflict of interest.
Alternate members of the zoning board of appeals shall be appointed by
resolution of the town board, for terms established by the town board.
(b) The chairperson of the zoning board of appeals may designate an
alternate member to substitute for a member when such member is unable
to participate because of a conflict of interest on an application or
matter before the board. When so designated, the alternate member shall
possess all the powers and responsibilities of such member of the board.
Such designation shall be entered into the minutes of the initial zoning
board of appeals meeting at which the substitution is made.
(c) All provisions of this section relating to zoning board of appeals
member training and continuing education, attendance, conflict of inter-
est, compensation, eligibility, vacancy in office, removal, and service
on other boards, shall also apply to alternate members.
S 267-a. Board of appeals procedure. 1. Meetings, minutes, records.
Meetings of such board of appeals shall be open to the public to the
extent provided in article seven of the public officers law. Such board
of appeals shall keep minutes of its proceedings, showing the vote of
each member upon every question, or if absent or failing to vote, indi-
cating such fact, and shall also keep records of its examinations and
other official actions.
2. Filing requirements. Every rule, regulation, every amendment or
repeal thereof, and every order, requirement, decision or determination
of the board of appeals shall be filed in the office of the town clerk
within five business days and shall be a public record.
3. Assistance to board of appeals. Such board shall have the authority
to call upon any department, agency or employee of the town for such
assistance as shall be deemed necessary and as shall be authorized by
the town board. Such department, agency or employee may be reimbursed
for any expenses incurred as a result of such assistance.
4. Hearing appeals. Unless otherwise provided by local law or ordi-
nance, the jurisdiction of the board of appeals shall be appellate only
and shall be limited to hearing and deciding appeals from and reviewing
any order, requirement, decision, interpretation, or determination made
by the administrative official charged with the enforcement of any ordi-
nance or local law adopted pursuant to this article. The concurring vote
of a majority of the members of the board of appeals shall be necessary
to reverse any order, requirement, decision or determination of any such
administrative official, or to grant a use variance or area variance.
Such appeal may be taken by any person aggrieved, or by an officer,
department, board or bureau of the town.
* 5. Time of appeal. Such appeal shall be taken within sixty days
after the filing in the town clerk`s office of any order, requirement,
decision, interpretation or determination of the administrative official
charged with the enforcement of such ordinance or local law by filing
with such administrative official and with the board of appeals a notice
of appeal, specifying the grounds thereof and the relief sought. The
administrative official from whom the appeal is taken shall forthwith
transmit to the board of appeals all the papers constituting the record
upon which the action appealed from was taken.
* NB Effective until 00/01/01
* 5. Filing of administrative decision and time of appeal. (a) Each
order, requirement, decision, interpretation or determination of the
administrative official charged with the enforcement of the zoning local
law or ordinance shall be filed in the office of such administrative
official, within five business days from the day it is rendered, and
shall be a public record. Alternately, the town board may, by resol-
ution, require that such filings instead be made in the town clerk`s
office.
(b) An appeal shall be taken within sixty days after the filing of any
order, requirement, decision, interpretation or determination of the
administrative official, by filing with such administrative official and
with the board of appeals a notice of appeal, specifying the grounds
thereof and the relief sought. The administrative official from whom the
appeal is taken shall forthwith transmit to the board of appeals all the
papers constituting the record upon which the action appealed from was
taken.
* NB Effective 00/01/01
6. Stay upon appeal. An appeal shall stay all proceedings in further-
ance of the action appealed from, unless the administrative official
charged with the enforcement of such ordinance or local law, from whom
the appeal is taken, certifies to the board of appeals, after the notice
of appeal shall have been filed with the administrative official, that
by reason of facts stated in the certificate a stay, would, in his or
her opinion, cause imminent peril to life or property, in which case
proceedings shall not be stayed otherwise than by a restraining order
which may be granted by the board of appeals or by a court of record on
application, on notice to the administrative official from whom the
appeal is taken and on due cause shown.
7. Hearing on appeal. The board of appeals shall fix a reasonable time
for the hearing of the appeal or other matter referred to it and give
public notice of such hearing by publication in a paper of general
circulation in the town at least five days prior to the date thereof.
The cost of sending or publishing any notices relating to such appeal,
or a reasonable fee relating thereto, shall be borne by the appealing
party and shall be paid to the board prior to the hearing of such
appeal. Upon the hearing, any party may appear in person, or by agent or
attorney.
8. Time of decision. The board of appeals shall decide upon the appeal
within sixty-two days after the conduct of said hearing. The time within
which the board of appeals must render its decision may be extended by
mutual consent of the applicant and the board.
9. Filing of decision and notice. The decision of the board of appeals
on the appeal shall be filed in the office of the town clerk within five
business days after the day such decision is rendered, and a copy there-
of mailed to the applicant.
10. Notice to park commission and county planning board or agency or
regional planning council. At least five days before such hearing, the
board of appeals shall mail notices thereof to the parties; to the
regional state park commission having jurisdiction over any state park
or parkway within five hundred feet of the property affected by such
appeal; and to the county planning board or agency or regional planning
council, as required by section two hundred thirty-nine-m of the general
municipal law, which notice shall be accompanied by a full statement of
such proposed action, as defined in subdivision one of section two
hundred thirty-nine-m of the general municipal law.
11. Compliance with state environmental quality review act. The board
of appeals shall comply with the provisions of the state environmental
quality review act under article eight of the environmental conservation
law and its implementing regulations as codified in title six, part six
hundred seventeen of the New York codes, rules and regulations.
12. Rehearing. A motion for the zoning board of appeals to hold a
rehearing to review any order, decision or determination of the board
not previously reheard may be made by any member of the board. A unani-
mous vote of all members of the board then present is required for such
rehearing to occur. Such rehearing is subject to the same notice
provisions as an original hearing. Upon such rehearing the board may
reverse, modify or annul its original order, decision or determination
upon the unanimous vote of all members then present, provided the board
finds that the rights vested in persons acting in good faith in reliance
upon the reheard order, decision or determination will not be prejudiced
thereby.
S 267-b. Permitted action by board of appeals. 1. Orders,
requirements, decisions, interpretations, determinations. The board of
appeals may reverse or affirm, wholly or partly, or may modify the
order, requirement, decision, interpretation or determination appealed
from and shall make such order, requirement, decision, interpretation or
determination as in its opinion ought to have been made in the matter by
the administrative official charged with the enforcement of such
ordinance or local law and to that end shall have all the powers of the
administrative official from whose order, requirement, decision,
interpretation or determination the appeal is taken.
2. Use variances. (a) The board of appeals, on appeal from the
decision or determination of the administrative official charged with
the enforcement of such ordinance or local law, shall have the power to
grant use variances, as defined herein.
(b) No such use variance shall be granted by a board of appeals
without a showing by the applicant that applicable zoning regulations
and restrictions have caused unnecessary hardship. In order to prove
such unnecessary hardship the applicant shall demonstrate to the board
of appeals that for each and every permitted use under the zoning
regulations for the particular district where the property is located,
(1) the applicant cannot realize a reasonable return, provided that lack
of return is substantial as demonstrated by competent financial
evidence; (2) that the alleged hardship relating to the property in
question is unique, and does not apply to a substantial portion of the
district or neighborhood; (3) that the requested use variance, if
granted, will not alter the essential character of the neighborhood; and
(4) that the alleged hardship has not been self-created.
(c) The board of appeals, in the granting of use variances, shall
grant the minimum variance that it shall deem necessary and adequate to
address the unnecessary hardship proven by the applicant, and at the
same time preserve and protect the character of the neighborhood and the
health, safety and welfare of the community.
3. Area variances. (a) The zoning board of appeals shall have the
power, upon an appeal from a decision or determination of the
administrative official charged with the enforcement of such ordinance
or local law, to grant area variances as defined herein.
(b) In making its determination, the zoning board of appeals shall
take into consideration the benefit to the applicant if the variance is
granted, as weighed against the detriment to the health, safety and
welfare of the neighborhood or community by such grant. In making such
determination the board shall also consider: (1) whether an undesirable
change will be produced in the character of the neighborhood or a
detriment to nearby properties will be created by the granting of the
area variance; (2) whether the benefit sought by the applicant can be
achieved by some method, feasible for the applicant to pursue, other
than an area variance; (3) whether the requested area variance is
substantial; (4) whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and (5) whether the alleged difficulty was
self-created, which consideration shall be relevant to the decision of
the board of appeals, but shall not necessarily preclude the granting of
the area variance.
(c) The board of appeals, in the granting of area variances, shall
grant the minimum variance that it shall deem necessary and adequate and
at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
4. Imposition of conditions. The board of appeals shall, in the
granting of both use variances and area variances, have the authority to
impose such reasonable conditions and restrictions as are directly
related to and incidental to the proposed use of the property. Such
conditions shall be consistent with the spirit and intent of the zoning
ordinance or local law, and shall be imposed for the purpose of
minimizing any adverse impact such variance may have on the neighborhood
or community.
S 267-c. Article seventy-eight proceeding. 1. Application to supreme
court by aggrieved persons. Any person or persons, jointly or severally
aggrieved by any decision of the board of appeals or any officer,
department, board or bureau of the town, may apply to the supreme court
for review by a proceeding under article seventy-eight of the civil
practice law and rules. Such proceeding shall be instituted within
thirty days after the filing of a decision of the board in the office of
the town clerk.
2. Costs of appeal. Costs shall not be allowed against the board of
appeals unless it shall appear to the court that it acted with gross
negligence or in bad faith or with malice in making the decision
appealed from.
3. Preference of appeal to court. All issues in any proceeding under
this section shall have preference over all other civil actions and
proceedings.
4. Power of court. If upon the hearing at the supreme court, it shall
appear to the court that testimony is necessary for the proper
disposition of the matter, it may take evidence or appoint a referee to
take such evidence as it may direct and report the same to the court
with his or her findings of fact and conclusions of law, which shall
constitute a part of the proceedings upon which the determination of the
court shall be made. The court may reverse or affirm, wholly or partly,
or may modify the decision brought up for review determining all
questions which may be presented for determination.
S 268. Enforcement and remedies. 1. The town board may provide by
local law or ordinance for the enforcement of this article and of any
local law, ordinance or regulation made thereunder. A violation of this
article or of such local law, ordinance or regulation is hereby declared
to be an offense, punishable by a fine not exceeding three hundred fifty
dollars or imprisonment for a period not to exceed six months, or both
for conviction of a first offense; for conviction of a second offense
both of which were committed within a period of five years, punishable
by a fine not less than three hundred fifty dollars nor more than seven
hundred dollars or imprisonment for a period not to exceed six months,
or both; and, upon conviction for a third or subsequent offense all of
which were committed within a period of five years, punishable by a fine
not less than seven hundred dollars nor more than one thousand dollars
or imprisonment for a period not to exceed six months, or both. However,
for the purpose of conferring jurisdiction upon courts and judicial
officers generally, violations of this article or of such local law,
ordinance or regulation shall be deemed misdemeanors and for such
purpose only all provisions of law relating to misdemeanors shall apply
to such violations. Each week`s continued violation shall constitute a
separate additional violation.
2. In case any building or structure is erected, constructed, recon-
structed, altered, converted or maintained, or any building, structure
or land is used, or any land is divided into lots, blocks, or sites in
violation of this article or of any local law, ordinance or other regu-
lation made under authority conferred thereby, the proper local authori-
ties of the town, in addition to other remedies, may institute any
appropriate action or proceedings to prevent such unlawful erection,
construction, reconstruction, alteration, conversion, maintenance, use
or division of land, to restrain, correct or abate such violation, to
prevent the occupancy of said building, structure, or land or to prevent
any illegal act, conduct, business or use in or about such premises; and
upon the failure or refusal of the proper local officer, board or body
of the town to institute any such appropriate action or proceeding for a
period of ten days after written request by a resident taxpayer of the
town so to proceed, any three taxpayers of the town residing in the
district wherein such violation exists, who are jointly or severally
aggrieved by such violation, may institute such appropriate action or
proceeding in like manner as such local officer, board or body of the
town is authorized to do.
S 269. Conflict with other laws. Wherever the regulations made under
authority of this article require a greater width or size of yards or
courts, or require a lower height of building or less number of stories,
or require a greater percentage of lot to be left unoccupied, or impose
other higher standards than are required in any other statute or local
law, ordinance or regulation, the provisions of the regulations made
under authority of this article shall govern. Whenever the provisions of
any other statute or local law, ordinance or regulation require a great-
er width or size of yards or courts, or require a lower height of build-
ing or a less number of stories, or require a greater percentage of lot
to be left unoccupied, or impose other higher standards, than are
required by the regulations made under authority of this article, the
provisions of such statute, or local law, ordinance or regulation shall
govern.
In towns where the town boards have already adopted a zoning ordinance
or local law, pursuant to the provisions of chapter three hundred twen-
ty-two of the laws of nineteen hundred twenty-two, or chapter seven
hundred fourteen or chapter seven hundred fifteen of the laws of nine-
teen hundred twenty-six, such boards shall not be required to adopt a
new ordinance or local law, and all actions taken and proceedings had by
such town boards and boards of appeal under the provisions of said chap-
ter, are hereby ratified and confirmed.
All necessary expenses incurred by any such board in connection with
the adoption and enforcement of the zoning ordinance or local law shall
be a town charge.
Sec. 270. Official map, establishment. The town board may
establish an official map of that part of the town outside the
limits of any incorporated city or village showing the streets,
highways and parks theretofore laid out, adopted and established
by law and drainage systems may also be shown on such map. Such
map shall be final and conclusive with respect to the location
and width of streets and highways, drainage systems and the
location of parks shown thereon. Such official map is hereby
declared to be established to conserve and protect the public
health, safety and general welfare. The clerk of every town
which has established such an official map shall immediately file
a certificate of that fact with the clerk or registrar of the
county in which said town is located.
S 271. Planning board, creation, appointment. 1. Authorization. The
town board of each town is hereby authorized by local law or ordinance,
to create a planning board consisting of five or seven members and
shall, by resolution, appoint the members of such board and designate
the chairperson thereof. In the absence of a chairperson the planning
board may designate a member to serve as chairperson. The town board
may, as part of the local law or ordinance creating said planning board,
provide for the compensation of planning board members. In making such
appointments, the town board may require planning board members to
complete training and continuing education courses in accordance with
any local requirements for the training of such members.
2. Appropriation for planning board. The town board is hereby author-
ized and empowered to make such appropriation as it may see fit for
planning board expenses. In a town containing one or more villages, or
parts thereof, such charges and expenses less fees, if any collected,
shall be a charge upon the taxable property of that part of the town
outside of said villages and shall be assessed, levied and collected
therefrom in the same manner as other town charges. The planning board
shall have the power and authority to employ experts, clerks and a
secretary and to pay for their services, and to provide for such other
expenses as may be necessary and proper, not exceeding in all the appro-
priation that may be made therefor by the town board for such planning
board.
3. Town board members ineligible. No person who is a member of the
town board shall be eligible for membership on such planning board.
4. Terms of members first appointed. The terms of members of the board
shall be for terms so fixed that the term of one member shall expire at
the end of the calendar year in which such members were initially
appointed. The terms of the remaining members shall be so fixed that one
term shall expire at the end of each calendar year thereafter. At the
expiration of the term of each member first appointed, his or her
successor shall be appointed for a term which shall be equal in years to
the number of members of the board.
5. Terms of members now in office. Members now holding office for
terms which do not expire at the end of a calendar year shall, upon the
expiration of their term, hold office until the end of the calendar year
and their successors shall then be appointed for terms which shall be
equal in years to the number of members of the board.
6. Increasing membership. Any town board may, by local law or ordi-
nance, increase a five member planning board to seven members. Addi-
tional members shall be first appointed for single terms as provided by
resolution of the town board in order that the terms of members shall
expire in each of seven successive years and their successors shall
thereafter be appointed for full terms of seven years. No such addi-
tional member shall take part in the consideration of any matter for
which an application was on file with the planning board at the time of
his or her appointment.
7. Decreasing membership. A town board which has seven members on the
planning board may by local law or ordinance, decrease the membership to
five, to take effect upon the next two expirations of terms. However,
no incumbent shall be removed from office except upon the expiration of
his or her term, except as hereinafter provided.
8. Vacancy in office. If a vacancy shall occur otherwise than by expi-
ration of term, the town board shall appoint the new member for the
unexpired term.
9. Removal of members. The town board shall have the power to remove,
after public hearing, any member of the planning board for cause. Any
planning board member may be removed for non-compliance with minimum
requirements relating to meeting attendance and training as established
by the town board by local law or ordinance.
10. Chairperson duties. All meetings of the planning board shall be
held at the call of the chairperson and at such other times as such
board may determine. Such chairperson, or in his or her absence, the
acting chairperson, may administer oaths and compel the attendance of
witnesses.
11. Appointment of agricultural member. Notwithstanding any provision
of this chapter or of any general, special or local law or ordinance, a
town board may, if an agricultural district created pursuant to section
three hundred three of article twenty-five-AA of the agriculture and
markets law exists wholly or partly within the boundaries of such town,
include on the planning board one or more members each of whom derives
ten thousand dollars or more annual gross income from agricultural
pursuits in said town. As used in this subdivision, the term "agricul-
tural pursuits" means the production of crops, livestock and livestock
products, aquacultural products, and woodland products as defined in
section three hundred one of the agriculture and markets law.
12. Service on other planning boards. No person shall be disqualified
from serving as a member of the town planning board by reason of serving
as a member of a village or county planning board.
13. Rules and regulations. The planning board may recommend to the
town board regulations relating to any subject matter over which the
planning board has jurisdiction under this article or any other statute,
or under any local law or ordinance of the town. Adoption of any such
recommendations by the town board shall be by local law or ordinance.
14. Report on referred matters; general reports. a. The town board may
by resolution provide for the reference of any matter or class of
matters, other than those referred to in subdivision thirteen of this
section, to the planning board before final action is taken thereon by
the town board or other office or officer of said town having final
authority over said matter. The town board may further stipulate that
final action thereon shall not be taken until the planning board has
submitted its report thereon, or has had a reasonable time, to be fixed
by the town board in said resolution, to submit the report.
b. The planning board may review and make recommendations on a
proposed town comprehensive plan or amendment thereto. In addition, the
planning board shall have full power and authority to make investi-
gations, maps, reports and recommendations in connection therewith
relating to the planning and development of the town as it seems desira-
ble, providing the total expenditures of said board shall not exceed the
appropriation provided therefor.
15. Alternate members. a. A town board may, by local law or ordinance,
or as part of the local law or ordinance creating the planning board,
establish alternate planning board member positions for purposes of
substituting for a member in the event such member is unable to partic-
ipate because of a conflict of interest. Alternate members of the plan-
ning board shall be appointed by resolution of the town board, for terms
established by the town board.
b. The chairperson of the planning board may designate an alternate
member to substitute for a member when such member is unable to partic-
ipate because of a conflict of interest on an application or matter
before the board. When so designated, the alternate member shall possess
all the powers and responsibilities of such member of the board. Such
designation shall be entered into the minutes of the initial planning
board meeting at which the substitution is made.
c. All provisions of this section relating to planning board member
training and continuing education, attendance, conflict of interest,
compensation, eligibility, vacancy in office, removal, and service on
other boards, shall also apply to alternate members.
S 272-a. Town comprehensive plan. 1. Legislative findings and intent.
The legislature hereby finds and determines that:
(a) Significant decisions and actions affecting the immediate and
long-range protection, enhancement, growth and development of the state
and its communities are made by local governments.
(b) Among the most important powers and duties granted by the legisla-
ture to a town government is the authority and responsibility to under-
take town comprehensive planning and to regulate land use for the
purpose of protecting the public health, safety and general welfare of
its citizens.
(c) The development and enactment by the town government of a town
comprehensive plan which can be readily identified, and is available for
use by the public, is in the best interest of the people of each town.
(d) The great diversity of resources and conditions that exist within
and among the towns of the state compels the consideration of such
diversity in the development of each town comprehensive plan.
(e) The participation of citizens in an open, responsible and flexible
planning process is essential to the designing of the optimum town
comprehensive plan.
(f) The town comprehensive plan is a means to promote the health,
safety and general welfare of the people of the town and to give due
consideration to the needs of the people of the region of which the town
is a part.
(g) The comprehensive plan fosters cooperation among governmental
agencies planning and implementing capital projects and municipalities
that may be directly affected thereby.
(h) It is the intent of the legislature to encourage, but not to
require, the preparation and adoption of a comprehensive plan pursuant
to this section. Nothing herein shall be deemed to affect the status or
validity of existing master plans, comprehensive plans, or land use
plans.
2. Definitions. As used in this section, the term:
(a) "town comprehensive plan" means the materials, written and/or
graphic, including but not limited to maps, charts, studies, resol-
utions, reports and other descriptive material that identify the goals,
objectives, principles, guidelines, policies, standards, devices and
instruments for the immediate and long-range protection, enhancement,
growth and development of the town located outside the limits of any
incorporated village or city.
(b) "land use regulation" means an ordinance or local law enacted by
the town for the regulation of any aspect of land use and community
resource protection and includes any zoning, subdivision, special use
permit or site plan regulation or any other regulation which prescribes
the appropriate use of property or the scale, location and intensity of
development.
(c) "special board" means a board consisting of one or more members of
the planning board and such other members as are appointed by the town
board to prepare a proposed comprehensive plan and/or an amendment ther-
eto.
3. Content of a town comprehensive plan. The town comprehensive plan
may include the following topics at the level of detail adapted to the
special requirements of the town:
(a) General statements of goals, objectives, principles, policies, and
standards upon which proposals for the immediate and long-range enhance-
ment, growth and development of the town are based.
(b) Consideration of regional needs and the official plans of other
government units and agencies within the region.
(c) The existing and proposed location and intensity of land uses.
(d) Consideration of agricultural uses, historic and cultural
resources, coastal and natural resources and sensitive environmental
areas.
(e) Consideration of population, demographic and socio-economic trends
and future projections.
(f) The location and types of transportation facilities.
(g) Existing and proposed general location of public and private util-
ities and infrastructure.
(h) Existing housing resources and future housing needs, including
affordable housing.
(i) The present and future general location of educational and
cultural facilities, historic sites, health facilities and facilities
for emergency services.
(j) Existing and proposed recreation facilities and parkland.
(k) The present and potential future general location of commercial
and industrial facilities.
(l) Specific policies and strategies for improving the local economy
in coordination with other plan topics.
(m) Proposed measures, programs, devices, and instruments to implement
the goals and objectives of the various topics within the comprehensive
plan.
(n) All or part of the plan of another public agency.
(o) Any and all other items which are consistent with the orderly
growth and development of the town.
4. Preparation. The town board, or by resolution of such town board,
the planning board or a special board, may prepare a proposed town
comprehensive plan and amendments thereto. In the event the planning
board or special board is directed to prepare a proposed comprehensive
plan or amendment thereto, such board shall, by resolution, recommend
such proposed plan or amendment to the town board.
5. Referrals. (a) Any proposed comprehensive plan or amendment thereto
that is prepared by the town board or a special board may be referred to
the town planning board for review and recommendation before action by
the town board.
(b) The town board shall, prior to adoption, refer the proposed
comprehensive plan or any amendment thereto to the county planning board
or agency or regional planning council for review and recommendation as
required by section two hundred thirty-nine-m of the general municipal
law. In the event the proposed plan or amendment thereto is prepared by
the town planning board or a special board, such board may request
comment on such proposed plan or amendment from the county planning
board or agency or regional planning council.
6. Public hearings; notice. (a) In the event the town board prepares a
proposed town comprehensive plan or amendment thereto, the town board
shall hold one or more public hearings and such other meetings as it
deems necessary to assure full opportunity for citizen participation in
the preparation of such proposed plan or amendment, and in addition, the
town board shall hold one or more public hearings prior to adoption of
such proposed plan or amendment. (b) In the event the town board has
directed the planning board or a special board to prepare a proposed
comprehensive plan or amendment thereto, the board preparing the plan
shall hold one or more public hearings and such other meetings as it
deems necessary to assure full opportunity for citizen participation in
the preparation of such proposed plan or amendment. The town board
shall, within ninety days of receiving the planning board or special
board`s recommendations on such proposed plan or amendment, and prior to
adoption of such proposed plan or amendment, hold a public hearing on
such proposed plan or amendment.
(c) Notice of a public hearing shall be published in a newspaper of
general circulation in the town at least ten calendar days in advance of
the hearing. The proposed comprehensive plan or amendment thereto shall
be made available for public review during said period at the office of
the town clerk and may be made available at any other place, including a
public library.
7. Adoption. The town board may adopt by resolution a town comprehen-
sive plan or any amendment thereto.
8. Environmental review. A town comprehensive plan, and any amendment
thereto, is subject to the provisions of the state environmental quality
review act under article eight of the environmental conservation law and
its implementing regulations. A town comprehensive plan may be designed
to also serve as, or be accompanied by, a generic environmental impact
statement pursuant to the state environmental quality review act statute
and regulations. No further compliance with such law is required for
subsequent site specific actions that are in conformance with the condi-
tions and thresholds established for such actions in the generic envi-
ronmental impact statement and its findings.
9. Agricultural review and coordination. A town comprehensive plan and
any amendments thereto, for a town containing all or part of an agricul-
tural district or lands receiving agricultural assessments within its
jurisdiction, shall continue to be subject to the provisions of article
twenty-five-AA of the agriculture and markets law relating to the enact-
ment and administration of local laws, ordinances, rules or regulations.
A newly adopted or amended town comprehensive plan shall take into
consideration applicable county agricultural and farmland protection
plans as created under article twenty-five-AAA of the agriculture and
markets law. 10. Periodic review. The town board shall provide, as a
component of such proposed comprehensive plan, the maximum intervals at
which the adopted plan shall be reviewed.
11. Effect of adoption of the town comprehensive plan. (a) All town
land use regulations must be in accordance with a comprehensive plan
adopted pursuant to this section.
(b) All plans for capital projects of another governmental agency on
land included in the town comprehensive plan adopted pursuant to this
section shall take such plan into consideration.
12. Filing of town comprehensive plan. The adopted town comprehensive
plan and any amendments thereto shall be filed in the office of the town
clerk and a copy thereof shall be filed in the office of the county
planning agency.
Sec. 273. Official map, changes. Such town board is
authorized and empowered, whenever and as often as it may deem it
for the public interest, to change or add to the official map of
the town so as to lay out new streets, highways, drainage systems
or parks, or to widen or close existing streets, highways,
drainage systems or parks within that part of the town outside
the limits of any incorporated city or village. At least ten
days` notice of a public hearing on any proposed action with
reference to any such change in the official map shall be
published in a newspaper of general circulation in such town.
Before making any such addition or change, the town board shall
refer the matter to the planning board for report thereon, but if
the planning board shall not make its report within thirty days
of such reference, it shall forfeit the right further to suspend
action. Such additions and changes, when adopted, shall become a
part of the official map of the town, and shall be deemed to be
final and conclusive with respect to the location of the streets,
highways, drainage systems and parks shown thereon. The layout,
widening or closing, or the approval of the layout, widening or
closing, of streets, highways, drainage systems or parks, by the
town board, or the town superintendent of highways, under
provisions of law other than those contained in this article,
shall be deemed to be an addition or change of the official map,
and shall be subject to all the provisions of this article with
regard to such additions or changes.
S 274-a. Site plan review. 1. Definition of site plan. As used in this
section the term "site plan" shall mean a rendering, drawing, or sketch
prepared to specifications and containing necessary elements, as set
forth in the applicable zoning ordinance or local law, which shows the
arrangement, layout and design of the proposed use of a single parcel of
land as shown on said plan. Plats showing lots, blocks or sites which
are subject to review pursuant to authority provided for the review of
subdivisions under section two hundred seventy-six of this article shall
continue to be subject to such review and shall not be subject to review
as site plans under this section.
2. Approval of site plans. (a) The town board may, as part of a zoning
ordinance or local law adopted pursuant to this article or other enabl-
ing law, authorize the planning board or such other administrative body
that it shall so designate, to review and approve, approve with modifi-
cations or disapprove site plans prepared to specifications set forth in
the ordinance or local law and/or in regulations of such authorized
board. Site plans shall show the arrangement, layout and design of the
proposed use of the land on said plan. The ordinance or local law shall
specify the land uses that require site plan approval and the elements
to be included on plans submitted for approval. The required site plan
elements which are included in the zoning ordinance or local law may
include, where appropriate, those related to parking, means of access,
screening, signs, landscaping, architectural features, location and
dimensions of buildings, adjacent land uses and physical features meant
to protect adjacent land uses as well as any additional elements speci-
fied by the town board in such zoning ordinance or local law.
(b) When an authorization to approve site plans is granted by the town
board pursuant to this section, the terms thereof may condition the
issuance of a building permit upon such approval.
3. Application for area variance. Notwithstanding any provision of law
to the contrary, where a proposed site plan contains one or more
features which do not comply with the zoning regulations, application
may be made to the zoning board of appeals for an area variance pursuant
to section two hundred sixty-seven-b of this article, without the neces-
sity of a decision or determination of an administrative official
charged with the enforcement of the zoning regulations.
4. Conditions attached to the approval of site plans. The authorized
board shall have the authority to impose such reasonable conditions and
restrictions as are directly related to and incidental to a proposed
site plan. Upon its approval of said site plan, any such conditions must
be met in connection with the issuance of permits by applicable enforce-
ment agents or officers of the town.
5. Waiver of requirements. The town board may further empower the
authorized board to, when reasonable, waive any requirements for the
approval, approval with modifications or disapproval of site plans
submitted for approval. Any such waiver, which shall be subject to
appropriate conditions set forth in the ordinance or local law adopted
pursuant to this section, may be exercised in the event any such
requirements are found not to be requisite in the interest of the public
health, safety or general welfare or inappropriate to a particular site
plan.
6. Reservation of parkland on site plans containing residential units.
(a) Before such authorized board may approve a site plan containing
residential units, such site plan shall also show, when required by such
board, a park or parks suitably located for playground or other recre-
ational purposes.
(b) Land for park, playground or other recreational purposes may not
be required until the authorized board has made a finding that a proper
case exists for requiring that a park or parks be suitably located for
playgrounds or other recreational purposes within the town. Such find-
ings shall include an evaluation of the present and anticipated future
needs for park and recreational facilities in the town based on project-
ed population growth to which the particular site plan will contribute.
(c) In the event the authorized board makes a finding pursuant to
paragraph (b) of this subdivision that the proposed site plan presents a
proper case for requiring a park or parks suitably located for play-
grounds or other recreational purposes, but that a suitable park or
parks of adequate size to meet the requirement cannot be properly
located on such site plan, the authorized board may require a sum of
money in lieu thereof to be established by the town board. In making
such determination of suitability, the board shall assess the size and
suitability of lands shown on the site plan which could be possible
locations for park or recreational facilities, as well as practical
factors including whether there is a need for additional facilities in
the immediate neighborhood. Any monies required by the authorized board
in lieu of land for park, playground or other recreational purposes,
pursuant to the provisions of this section, shall be deposited into a
trust fund to be used by the town exclusively for park, playground or
other recreational purposes, including the acquisition of property.
(d) Notwithstanding the foregoing provisions of this subdivision, if
the land included in a site plan under review is a portion of a subdivi-
sion plat which has been reviewed and approved pursuant to section two
hundred seventy-six of this article, the authorized board shall credit
the applicant for any land set aside or money donated in lieu thereof
under such subdivision plat approval. In the event of resubdivision of
such plat, nothing shall preclude the additional reservation of parkland
or money donated in lieu thereof.
7. Performance bond or other security. As an alternative to the
installation of required infrastructure and improvements, prior to
approval by the authorized board, a performance bond or other security
sufficient to cover the full cost of the same, as estimated by the
authorized board or a town department designated by the authorized board
to make such estimate, where such departmental estimate is deemed
acceptable by the authorized board, shall be furnished to the town by
the owner. Such security shall be provided to the town pursuant to the
provisions of subdivision nine of section two hundred seventy-seven of
this article.
8. Public hearing and decision on site plans. In the event a public
hearing is required by ordinance or local law adopted by the town board,
the authorized board shall conduct a public hearing within sixty-two
days from the day an application is received on any matter referred to
it under this section. The authorized board shall mail notice of said
hearing to the applicant at least ten days before said hearing and shall
give public notice of said hearing in a newspaper of general circulation
in the town at least five days prior to the date thereof and shall make
a decision on the application within sixty-two days after such hearing,
or after the day the application is received if no hearing has been
held. The time within which the authorized board must render its deci-
sion may be extended by mutual consent of the applicant and such board.
The decision of the authorized board shall be filed in the office of the
town clerk within five business days after such decision is rendered,
and a copy thereof mailed to the applicant. Nothing herein shall
preclude the holding of a public hearing on any matter on which a public
hearing is not so required.
9. Notice to county planning board or agency or regional planning
council. At least ten days before such hearing, the authorized board
shall mail notices thereof to the county planning board or agency or
regional planning council, as required by section two hundred thirty-
nine-m of the general municipal law, which notice shall be accompanied
by a full statement of such proposed action, as defined in subdivision
one of section two hundred thirty-nine-m of the general municipal law.
In the event a public hearing is not required, such proposed action
shall be referred before final action is taken thereon.
10. Compliance with state environmental quality review act. The
authorized board shall comply with the provisions of the state environ-
mental quality review act under article eight of the environmental
conservation law and its implementing regulations.
11. Court review. Any person aggrieved by a decision of the authorized
board or any officer, department, board or bureau of the town may apply
to the supreme court for review by a proceeding under article seventy-
eight of the civil practice law and rules. Such proceedings shall be
instituted within thirty days after the filing of a decision by such
board in the office of the town clerk. The court may take evidence or
appoint a referee to take such evidence as it may direct, and report the
same, with findings of fact and conclusions of law, if it shall appear
that testimony is necessary for the proper disposition of the matter.
The court shall itself dispose of the matter on the merits, determining
all questions which may be presented for determination.
12. Costs. Costs shall not be allowed against the authorized board
unless it shall appear to the court that it acted with gross negligence,
in bad faith, or with malice in making the decision appealed from.
13. Preference. All issues addressed by the court in any proceeding
under this section shall have preference over all civil actions and
proceedings.
S 274-b. Approval of special use permits. 1. Definition of special use
permit. As used in this section the term "special use permit" shall mean
an authorization of a particular land use which is permitted in a zoning
ordinance or local law, subject to requirements imposed by such zoning
ordinance or local law to assure that the proposed use is in harmony
with such zoning ordinance or local law and will not adversely affect
the neighborhood if such requirements are met.
2. Approval of special use permits. The town board may, as part of a
zoning ordinance or local law adopted pursuant to this article or other
enabling law, authorize the planning board or such other administrative
body that it shall designate to grant special use permits as set forth
in such zoning ordinance or local law.
3. Application for area variance. Notwithstanding any provision of law
to the contrary, where a proposed special use permit contains one or
more features which do not comply with the zoning regulations, applica-
tion may be made to the zoning board of appeals for an area variance
pursuant to section two hundred sixty-seven-b of this article, without
the necessity of a decision or determination of an administrative offi-
cial charged with the enforcement of the zoning regulations.
4. Conditions attached to the issuance of special use permits. The
authorized board shall have the authority to impose such reasonable
conditions and restrictions as are directly related to and incidental to
the proposed special use permit. Upon its granting of said special use
permit, any such conditions must be met in connection with the issuance
of permits by applicable enforcement agents or officers of the town.
5. Waiver of requirements. The town board may further empower the
authorized board to, when reasonable, waive any requirements for the
approval, approval with modifications or disapproval of special use
permits submitted for approval. Any such waiver, which shall be subject
to appropriate conditions set forth in the ordinance or local law
adopted pursuant to this section, may be exercised in the event any such
requirements are found not to be requisite in the interest of the public
health, safety or general welfare or inappropriate to a particular
special use permit.
6. Public hearing and decision on special use permits. The authorized
board shall conduct a public hearing within sixty-two days from the day
an application is received on any matter referred to it under this
section. Public notice of said hearing shall be printed in a newspaper
of general circulation in the town at least five days prior to the date
thereof. The authorized board shall decide upon the application within
sixty-two days after the hearing. The time within which the authorized
board must render its decision may be extended by mutual consent of the
applicant and the board. The decision of the authorized board on the
application after the holding of the public hearing shall be filed in
the office of the town clerk within five business days after such deci-
sion is rendered, and a copy thereof mailed to the applicant.
7. Notice to applicant and county planning board or agency or regional
planning council. At least ten days before such hearing, the authorized
board shall mail notices thereof to the applicant and to the county
planning board or agency or regional planning council, as required by
section two hundred thirty-nine-m of the general municipal law, which
notice shall be accompanied by a full statement of such proposed action,
as defined in subdivision one of section two hundred thirty-nine-m of
the general municipal law.
8. Compliance with state environmental quality review act. The author-
ized board shall comply with the provisions of the state environmental
quality review act under article eight of the environmental conservation
law and its implementing regulations.
9. Court review. Any person aggrieved by a decision of the planning
board or such other designated body or any officer, department, board or
bureau of the town may apply to the supreme court for review by a
proceeding under article seventy-eight of the civil practice law and
rules. Such proceedings shall be instituted within thirty days after the
filing of a decision by such board in the office of the town clerk. The
court may take evidence or appoint a referee to take such evidence as it
may direct, and report the same, with findings of fact and conclusions
of law, if it shall appear that testimony is necessary for the proper
disposition of the matter. The court shall itself dispose of the matter
on the merits, determining all questions which may be presented for
determination.
10. Costs. Costs shall not be allowed against the planning board or
other administrative body designated by the town board unless it shall
appear to the court that it acted with gross negligence, in bad faith,
or with malice in making the decision appealed from.
11. Preference. All issues addressed by the court in any proceeding
under this section shall have preference over all civil actions and
proceedings.
S 276. Subdivision review; approval of plats; development of filed
plats. 1. Purpose. For the purpose of providing for the future growth
and development of the town and affording adequate facilities for the
housing, transportation, distribution, comfort, convenience, safety,
health and welfare of its population, the town board may, by resolution,
authorize and empower the planning board to approve preliminary and
final plats of subdivisions showing lots, blocks or sites, with or with-
out streets or highways, within that part of the town outside the limits
of any incorporated village.
2. Authorization for review of previously filed plats. For the same
purposes and under the same conditions, the town board may, by resol-
ution, authorize and empower the planning board to approve the develop-
ment of plats, entirely or partially undeveloped, which were filed in
the office of the clerk of the county in which such plat is located
prior to the appointment of such planning board and grant to the board
the power to approve such plats. The term "undeveloped" shall mean those
plats where twenty percent or more of the lots within the plat are unim-
proved unless existing conditions, such as poor drainage, have prevented
their development.
3. Filing of certificate. The clerk of every town which has authorized
its planning board to approve plats as set forth herein shall immediate-
ly file a certificate of that fact with the clerk or register of the
county in which such town is located.
4. Definitions. When used in this article the following terms shall
have the respective meanings set forth herein except where the context
shows otherwise:
(a) "Subdivision" means the division of any parcel of land into a
number of lots, blocks or sites as specified in a local ordinance, law,
rule or regulation, with or without streets or highways, for the purpose
of sale, transfer of ownership, or development. The term "subdivision"
may include any alteration of lot lines or dimensions of any lots or
sites shown on a plat previously approved and filed in the office of the
county clerk or register of the county in which such plat is located.
Subdivisions may be defined and delineated by local regulation, as
either "major" or "minor", with the review procedures and criteria for
each set forth in such local regulations.
(b) "Preliminary plat" means a drawing prepared in a manner prescribed
by local regulation showing the layout of a proposed subdivision includ-
ing, but not restricted to, road and lot layout and approximate dimen-
sions, key plan, topography and drainage, all proposed facilities
unsized, including preliminary plans and profiles, at suitable scale and
in such detail as local regulation may require.
(c) "Preliminary plat approval" means the approval of the layout of a
proposed subdivision as set forth in a preliminary plat but subject to
the approval of the plat in final form in accordance with the provisions
of this section.
(d) "Final plat" means a drawing prepared in a manner prescribed by
local regulation, that shows a proposed subdivision, containing in such
additional detail as shall be provided by local regulation all informa-
tion required to be shown on a preliminary plat and the modifications,
if any, required by the planning board at the time of approval of the
preliminary plat if such preliminary plat has been so approved.
(e) "Conditional approval of a final plat" means approval by a plan-
ning board of a final plat subject to conditions set forth by the plan-
ning board in a resolution conditionally approving such plat. Such
conditional approval does not qualify a final plat for recording nor
authorize issuance of any building permits prior to the signing of the
plat by a duly authorized officer of the planning board and recording of
the plat in the office of the county clerk or register as herein
provided.
(f) "Final plat approval" means the signing of a plat in final form by
a duly authorized officer of a planning board pursuant to a planning
board resolution granting final approval to the plat or after conditions
specified in a resolution granting conditional approval of the plat are
completed. Such final approval qualifies the plat for recording in the
office of the county clerk or register in the county in which such plat
is located.
5. Approval of preliminary plats. (a) Submission of preliminary plats.
All plats shall be submitted to the planning board for approval in final
form provided, however, that where the planning board has been author-
ized to approve preliminary plats, the owner may submit or the planning
board may require that the owner submit a preliminary plat for consider-
ation. Such a preliminary plat shall be clearly marked "preliminary
plat" and shall conform to the definition provided in this section.
(b) Coordination with the state environmental quality review act. The
planning board shall comply with the provisions of the state environ-
mental quality review act under article eight of the environmental
conservation law and its implementing regulations.
(c) Receipt of a complete preliminary plat. A preliminary plat shall
not be considered complete until a negative declaration has been filed
or until a notice of completion of the draft environmental impact state-
ment has been filed in accordance with the provisions of the state envi-
ronmental quality review act. The time periods for review of a prelimi-
nary plat shall begin upon filing of such negative declaration or such
notice of completion.
(d) Planning board as lead agency under the state environmental quali-
ty review act; public hearing; notice; decision.
(i) Public hearing on preliminary plats. The time within which the
planning board shall hold a public hearing on the preliminary plat shall
be coordinated with any hearings the planning board may schedule pursu-
ant to the state environmental quality review act, as follows:
(1) If such board determines that the preparation of an environmental
impact statement on the preliminary plat is not required, the public
hearing on such plat shall be held within sixty-two days after the
receipt of a complete preliminary plat by the clerk of the planning
board; or
(2) If such board determines that an environmental impact statement is
required, and a public hearing on the draft environmental impact state-
ment is held, the public hearing on the preliminary plat and the draft
environmental impact statement shall be held jointly within sixty-two
days after the filing of the notice of completion of such draft environ-
mental impact statement in accordance with the provisions of the state
environmental quality review act. If no public hearing is held on the
draft environmental impact statement, the public hearing on the prelimi-
nary plat shall be held within sixty-two days of filing the notice of
completion.
(ii) Public hearing; notice, length. The hearing on the preliminary
plat shall be advertised at least once in a newspaper of general circu-
lation in the town at least five days before such hearing if no hearing
is held on the draft environmental impact statement, or fourteen days
before a hearing held jointly therewith. The planning board may provide
that the hearing be further advertised in such manner as it deems most
appropriate for full public consideration of such preliminary plat. The
hearing on the preliminary plat shall be closed upon motion of the plan-
ning board within one hundred twenty days after it has been opened.
(iii) Decision. The planning board shall approve, with or without
modification, or disapprove such preliminary plat as follows:
(1) If the planning board determines that the preparation of an envi-
ronmental impact statement on the preliminary plat is not required such
board shall make its decision within sixty-two days after the close of
the public hearing; or
(2) If the planning board determines that an environmental impact
statement is required, and a public hearing is held on the draft envi-
ronmental impact statement, the final environmental impact statement
shall be filed within forty-five days following the close of such public
hearing in accordance with the provisions of the state environmental
quality review act. If no public hearing is held on the draft environ-
mental impact statement, the final environmental impact statement shall
be filed within forty-five days following the close of the public hear-
ing on the preliminary plat. Within thirty days of the filing of such
final environmental impact statement, the planning board shall issue
findings on the final environmental impact statement and make its deci-
sion on the preliminary plat.
(iv) Grounds for decision. The grounds for a modification, if any, or
the grounds for disapproval shall be stated upon the records of the
planning board. When so approving a preliminary plat, the planning board
shall state in writing any modifications it deems necessary for
submission of the plat in final form.
(e) Planning board not as lead agency under the state environmental
quality review act; public hearing; notice; decision.
(i) Public hearing on preliminary plats. The planning board shall,
with the agreement of the lead agency, hold the public hearing on the
preliminary plat jointly with the lead agency`s hearing on the draft
environmental impact statement. Failing such agreement or if no public
hearing is held on the draft environmental impact statement, the plan-
ning board shall hold the public hearing on the preliminary plat within
sixty-two days after the receipt of a complete preliminary plat by the
clerk of the planning board.
(ii) Public hearing; notice, length. The hearing on the preliminary
plat shall be advertised at least once in a newspaper of general circu-
lation in the town at least five days before such hearing if held inde-
pendently of the hearing on the draft environmental impact statement, or
fourteen days before a hearing held jointly therewith. The planning
board may provide that the hearing be further advertised in such manner
as it deems most appropriate for full public consideration of such
preliminary plat. The hearing on the preliminary plat shall be closed
upon motion of the planning board within one hundred twenty days after
it has been opened.
(iii) Decision. The planning board shall by resolution approve with or
without modification or disapprove the preliminary plat as follows:
(1) If the preparation of an environmental impact statement on the
preliminary plat is not required, the planning board shall make its
decision within sixty-two days after the close of the public hearing on
the preliminary plat. (2) If an environmental impact statement is
required, the planning board shall make its own findings and its deci-
sion on the preliminary plat within sixty-two days after the close of
the public hearing on such preliminary plat or within thirty days of the
adoption of findings by the lead agency, whichever period is longer.
(iv) Grounds for decision. The grounds for a modification, if any, or
the grounds for disapproval shall be stated upon the records of the
planning board. When so approving a preliminary plat, the planning board
shall state in writing any modifications it deems necessary for
submission of the plat in final form.
(f) Certification and filing of preliminary plat. Within five business
days of the adoption of the resolution granting approval of such prelim-
inary plat, such plat shall be certified by the clerk of the planning
board as having been granted preliminary approval and a copy of the plat
and resolution shall be filed in such clerk`s office. A copy of the
resolution shall be mailed to the owner.
(g) Filing of decision on preliminary plat. Within five business days
from the date of the adoption of the resolution stating the decision of
the board on the preliminary plat, the chairman or other duly authorized
member of the planning board shall cause a copy of such resolution to be
filed in the office of the town clerk.
(h) Revocation of approval of preliminary plat. Within six months of
the approval of the preliminary plat the owner must submit the plat in
final form. If the final plat is not submitted within six months,
approval of the preliminary plat may be revoked by the planning board.
6. Approval of final plats. (a) Submission of final plats. Final plats
shall conform to the definition provided by this section.
(b) Final plats which are in substantial agreement with approved
preliminary plats. When a final plat is submitted which the planning
board deems to be in substantial agreement with a preliminary plat
approved pursuant to this section, the planning board shall by resol-
ution conditionally approve with or without modification, disapprove, or
grant final approval and authorize the signing of such plat, within
sixty-two days of its receipt by the clerk of the planning board.
(c) Final plats when no preliminary plat is required to be submitted;
receipt of complete final plat. When no preliminary plat is required to
be submitted, a final plat shall not be considered complete until a
negative declaration has been filed or until a notice of completion of
the draft environmental impact statement has been filed in accordance
with the provisions of the state environmental quality review act. The
time periods for review of such plat shall begin upon filing of such
negative declaration or such notice of completion.
(d) Final plats; not in substantial agreement with approved prelimi-
nary plats, or when no preliminary plat is required to be submitted.
When a final plat is submitted which the planning board deems not to be
in substantial agreement with a preliminary plat approved pursuant to
this section, or when no preliminary plat is required to be submitted
and a final plat clearly marked "final plat" is submitted conforming to
the definition provided by this section the following shall apply:
(i) Planning board as lead agency; public hearing; notice; decision.
(1) Public hearing on final plats. The time within which the planning
board shall hold a public hearing on such final plat shall be coordi-
nated with any hearings the planning board may schedule pursuant to the
state environmental quality review act, as follows:
(a) if such board determines that the preparation of an environmental
impact statement is not required, the public hearing on a final plat not
in substantial agreement with a preliminary plat, or on a final plat
when no preliminary plat is required to be submitted, shall be held
within sixty-two days after the receipt of a complete final plat by the
clerk of the planning board; or
(b) if such board determines that an environmental impact statement is
required, and a public hearing on the draft environmental impact state-
ment is held, the public hearing on the final plat and the draft envi-
ronmental impact statement shall be held jointly within sixty-two days
after the filing of the notice of completion of such draft environmental
impact statement in accordance with the provisions of the state environ-
mental quality review act. If no public hearing is held on the draft
environmental impact statement, the public hearing on the final plat
shall be held within sixty-two days following filing of the notice of
completion.
(2) Public hearing; notice, length. The hearing on the final plat
shall be advertised at least once in a newspaper of general circulation
in the town at least five days before such hearing if no hearing is held
on the draft environmental impact statement, or fourteen days before a
hearing held jointly therewith. The planning board may provide that the
hearing be further advertised in such manner as it deems most appropri-
ate for full public consideration of such final plat. The hearing on the
final plat shall be closed upon motion of the planning board within one
hundred twenty days after it has been opened.
(3) Decision. The planning board shall make its decision on the final
plat as follows:
(a) if such board determines that the preparation of an environmental
impact statement on the final plat is not required, the planning board
shall by resolution conditionally approve, with or without modification,
disapprove, or grant final approval and authorize the signing of such
plat, within sixty-two days after the date of the public hearing; or
(b) if such board determines that an environmental impact statement is
required, and a public hearing is held on the draft environmental impact
statement, the final environmental impact statement shall be filed with-
in forty-five days following the close of such public hearing in accord-
ance with the provisions of the state environmental quality review act.
If no public hearing is held on the draft environmental impact state-
ment, the final environmental impact statement shall be filed within
forty-five days following the close of the public hearing on the final
plat. Within thirty days of the filing of the final environmental impact
statement, the planning board shall issue findings on such final envi-
ronmental impact statement and shall by resolution conditionally
approve, with or without modification, disapprove, or grant final
approval and authorize the signing of such plat.
(4) Grounds for decision. The grounds for a modification, if any, or
the grounds for disapproval shall be stated upon the records of the
planning board.
(ii) Planning board not as lead agency; public hearing; notice; deci-
sion.
(1) Public hearing. The planning board shall, with the agreement of
the lead agency, hold the public hearing on the final plat jointly with
the lead agency`s hearing on the draft environmental impact statement.
Failing such agreement or if no public hearing is held on the draft
environmental impact statement, the planning board shall hold the public
hearing on the final plat within sixty-two days after the receipt of a
complete final plat by the clerk of the planning board.
(2) Public hearing; notice, length. The hearing on the final plat
shall be advertised at least once in a newspaper of general circulation
in the town at least five days before such hearing if held independently
of the hearing on the draft environmental impact statement, or fourteen
days before a hearing held jointly therewith. The planning board may
provide that the hearing be further advertised in such manner as it
deems most appropriate for full public consideration of such final plat.
The hearing on the final plat shall be closed upon motion of the plan-
ning board within one hundred twenty days after it has been opened.
(3) Decision. The planning board shall by resolution conditionally
approve, with or without modification, disapprove, or grant final
approval and authorize the signing of such plat as follows:
(a) If the preparation of an environmental impact statement on the
final plat is not required, the planning board shall make its decision
within sixty-two days after the close of the public hearing on the final
plat.
(b) If an environmental impact statement is required, the planning
board shall make its own findings and its decision on the final plat
within sixty-two days after the close of the public hearing on such
final plat or within thirty days of the adoption of findings by the lead
agency, whichever period is longer. The grounds for a modification, if
any, or the grounds for disapproval shall be stated upon the records of
the planning board.
7. Approval and certification of final plats. (a) Certification of
plat. Within five business days of the adoption of the resolution
granting conditional or final approval of the final plat, such plat
shall be certified by the clerk of the planning board as having been
granted conditional or final approval and a copy of such resolution and
plat shall be filed in such clerk`s office. A copy of the resolution
shall be mailed to the owner. In the case of a conditionally approved
plat, such resolution shall include a statement of the requirements
which when completed will authorize the signing thereof. Upon completion
of such requirements the plat shall be signed by said duly authorized
officer of the planning board and a copy of such signed plat shall be
filed in the office of the clerk of the planning board or filed with the
town clerk as determined by the town board.
(b) Approval of plat in sections. In granting conditional or final
approval of a plat in final form, the planning board may permit the plat
to be subdivided and developed in two or more sections and may in its
resolution granting conditional or final approval state that such
requirements as it deems necessary to insure the orderly development of
the plat be completed before said sections may be signed by the duly
authorized officer of the planning board. Conditional or final approval
of the sections of a final plat may be granted concurrently with condi-
tional or final approval of the entire plat, subject to any requirements
imposed by the planning board.
(c) Duration of conditional approval of final plat. Conditional
approval of the final plat shall expire within one hundred eighty days
after the resolution granting such approval unless all requirements
stated in such resolution have been certified as completed. The planning
board may extend by not more than two additional periods of ninety days
each, the time in which a conditionally approved plat must be submitted
for signature if, in the planning board`s opinion, such extension is
warranted by the particular circumstances.
8. Default approval of preliminary or final plat. The time periods
prescribed herein within which a planning board must take action on a
preliminary plat or a final plat are specifically intended to provide
the planning board and the public adequate time for review and to mini-
mize delays in the processing of subdivision applications. Such periods
may be extended only by mutual consent of the owner and the planning
board. In the event a planning board fails to take action on a prelimi-
nary plat or a final plat within the time prescribed therefor after
completion of all requirements under the state environmental quality
review act, or within such extended period as may have been established
by the mutual consent of the owner and the planning board, such prelimi-
nary or final plat shall be deemed granted approval. The certificate of
the town clerk as to the date of submission of the preliminary or final
plat and the failure of the planning board to take action within the
prescribed time shall be issued on demand and shall be sufficient in
lieu of written endorsement or other evidence of approval herein
required.
9. Filing of decision on final plat. Within five business days from
the date of the adoption of the resolution stating the decision of the
board on the final plat, the chairman or other duly authorized member of
the planning board shall cause a copy of such resolution to be filed in
the office of the town clerk.
10. Notice to county planning board or agency or regional planning
council. When a county planning board or agency or a regional planning
council has been authorized to review subdivision plats pursuant to
section two hundred thirty-nine-n of the general municipal law, the
clerk of the planning board shall refer all applicable preliminary and
final plats to such county planning board or agency or regional planning
council as provided in that section.
11. Filing of final plat; expiration of approval. The owner shall file
in the office of the county clerk or register such approved final plat
or a section of such plat within sixty-two days from the date of final
approval or such approval shall expire. The following shall constitute
final approval: the signature of the duly authorized officer of the
planning board constituting final approval by the planning board of a
plat as herein provided; or the approval by such board of the develop-
ment of a plat or plats already filed in the office of the county clerk
or register of the county in which such plat or plats are located if
such plats are entirely or partially undeveloped; or the certificate of
the town clerk as to the date of the submission of the final plat and
the failure of the planning board to take action within the time herein
provided. In the event the owner shall file only a section of such
approved plat in the office of the county clerk or register, the entire
approved plat shall be filed within thirty days of the filing of such
section with the town clerk in each town in which any portion of the
land described in the plat is situated. Such section shall encompass at
least ten percent of the total number of lots contained in the approved
plat and the approval of the remaining sections of the approved plat
shall expire unless said sections are filed before the expiration of the
exemption period to which such plat is entitled under the provisions of
subdivision two of section two hundred sixty-five-a of this article.
12. Subdivision abandonment. The owner of an approved subdivision may
abandon such subdivision pursuant to the provisions of section five
hundred sixty of the real property tax law.
S 277. Subdivision review; approval of plats; additional requisites.
1. Purpose. Before the approval by the planning board of a plat showing
lots, blocks or sites, with or without streets or highways, or the
approval of a plat already filed in the office of the clerk of the coun-
ty wherein such plat is situated if the plat is entirely or partially
undeveloped, the planning board shall require that the land shown on the
plat be of such character that it can be used safely for building
purposes without danger to health or peril from fire, flood, drainage or
other menace to neighboring properties or the public health, safety and
welfare.
2. Additional requirements. The planning board shall also require
that:
(a) the streets and highways be of sufficient width and suitable grade
and shall be suitably located to accommodate the prospective traffic, to
afford adequate light and air, to facilitate fire protection, and to
provide access of firefighting equipment to buildings. If there be an
official map, town comprehensive plan or functional/master plans, such
streets and highways shall be coordinated so as to compose a convenient
system conforming to the official map and properly related to the
proposals shown in the comprehensive plan of the town;
(b) suitable monuments be placed at block corners and other necessary
points as may be required by the board and the location thereof is shown
on the map of such plat;
(c) all streets or other public places shown on such plats be suitably
graded and paved; street signs, sidewalks, street lighting standards,
curbs, gutters, street trees, water mains, fire alarm signal devices
(including necessary ducts and cables or other connecting facilities),
sanitary sewers and storm drains be installed all in accordance with
standards, specifications and procedures acceptable to the appropriate
town departments except as hereinafter provided, or alternatively that a
performance bond or other security be furnished to the town, as herein-
after provided.
3. Compliance with zoning regulations. Where a zoning ordinance or
local law has been adopted by the town, the lots shown on said plat
shall at least comply with the requirements thereof subject, however, to
the provisions of section two hundred seventy-eight of this article.
4. Reservation of parkland on subdivision plats containing residential
units. (a) Before the planning board may approve a subdivision plat
containing residential units, such subdivision plat shall also show,
when required by such board, a park or parks suitably located for play-
ground or other recreational purposes.
(b) Land for park, playground or other recreational purposes may not
be required until the planning board has made a finding that a proper
case exists for requiring that a park or parks be suitably located for
playgrounds or other recreational purposes within the town. Such find-
ings shall include an evaluation of the present and anticipated future
needs for park and recreational facilities in the town based on project-
ed population growth to which the particular subdivision plat will
contribute.
(c) In the event the planning board makes a finding pursuant to para-
graph (b) of this subdivision that the proposed subdivision plat
presents a proper case for requiring a park or parks suitably located
for playgrounds or other recreational purposes, but that a suitable park
or parks of adequate size to meet the requirement cannot be properly
located on such subdivision plat, the planning board may require a sum
of money in lieu thereof, in an amount to be established by the town
board. In making such determination of suitability, the board shall
assess the size and suitability of lands shown on the subdivision plat
which could be possible locations for park or recreational facilities,
as well as practical factors including whether there is a need for addi-
tional facilities in the immediate neighborhood. Any monies required by
the planning board in lieu of land for park, playground or other recre-
ational purposes, pursuant to the provisions of this section, shall be
deposited into a trust fund to be used by the town exclusively for park,
playground or other recreational purposes, including the acquisition of
property.
5. Character of the development. In making such determination regard-
ing streets, highways, parks and required improvements, the planning
board shall take into consideration the prospective character of the
development, whether dense residence, open residence, business or indus-
trial.
6. Application for area variance. Notwithstanding any provision of law
to the contrary, where a plat contains one or more lots which do not
comply with the zoning regulations, application may be made to the
zoning board of appeals for an area variance pursuant to section two
hundred sixty-seven-b of this article, without the necessity of a deci-
sion or determination of an administrative official charged with the
enforcement of the zoning regulations. In reviewing such application the
zoning board of appeals shall request the planning board to provide a
written recommendation concerning the proposed variance.
7. Waiver of requirements. The planning board may waive, when reason-
able, any requirements or improvements for the approval, approval with
modifications or disapproval of subdivisions submitted for its approval.
Any such waiver, which shall be subject to appropriate conditions, may
be exercised in the event any such requirements or improvements are
found not to be requisite in the interest of the public health, safety,
and general welfare or inappropriate because of inadequacy or lack of
connecting facilities adjacent or in proximity to the subdivision.
8. Installation of fire alarm devices. The installation of fire alarm
signal devices including necessary connecting facilities shall be
required or waived pursuant to this section only with the approval of:
(a) the board of supervisors or legislative body of the county if the
installation is to be made in an area included in a central fire alarm
system established pursuant to paragraph (h) of subdivision one of
section two hundred twenty-five of the county law or (b) the town board
in any other case unless the installation is to be made in a fire
district in a town in which no central fire alarm system has been estab-
lished pursuant to subdivision eleven-c of section sixty-four of this
chapter, in which case only the approval of the board of fire commis-
sioners of such fire district shall be necessary. Required installa-
tions of fire alarm signal devices including necessary connecting facil-
ities shall be made in accordance with standards, specifications and
procedures acceptable to the appropriate board.
9. Performance bond or other security. (a) Furnishing of performance
bond or other security. As an alternative to the installation of infras-
tructure and improvements, as above provided, prior to planning board
approval, a performance bond or other security sufficient to cover the
full cost of the same, as estimated by the planning board or a town
department designated by the planning board to make such estimate, where
such departmental estimate is deemed acceptable by the planning board,
shall be furnished to the town by the owner.
(b) Security where plat approved in sections. In the event that the
owner shall be authorized to file the approved plat in sections, as
provided in subdivision ten of section two hundred seventy-six of this
article, approval of the plat may be granted upon the installation of
the required improvements in the section of the plat filed in the office
of the county clerk or register or the furnishing of security covering
the costs of such improvements. The owner shall not be permitted to
begin construction of buildings in any other section until such section
has been filed in the office of the county clerk or register and the
required improvements have been installed in such section or a security
covering the cost of such improvements is provided. (c) Form of securi-
ty. Any such security must be provided pursuant to a written security
agreement with the town, approved by the town board and also approved by
the town attorney as to form, sufficiency and manner of execution, and
shall be limited to: (i) a performance bond issued by a bonding or sure-
ty company; (ii) the deposit of funds in or a certificate of deposit
issued by a bank or trust company located and authorized to do business
in this state; (iii) an irrevocable letter of credit from a bank located
and authorized to do business in this state; (iv) obligations of the
United States of America; or (v) any obligations fully guaranteed as to
interest and principal by the United States of America, having a market
value at least equal to the full cost of such improvements. If not
delivered to the town, such security shall be held in a town account at
a bank or trust company.
(d) Term of security agreement. Any such performance bond or security
agreement shall run for a term to be fixed by the planning board, but in
no case for a longer term than three years, provided, however, that the
term of such performance bond or security agreement may be extended by
the planning board with consent of the parties thereto. If the planning
board shall decide at any time during the term of the performance bond
or security agreement that the extent of building development that has
taken place in the subdivision is not sufficient to warrant all the
improvements covered by such security, or that the required improvements
have been installed as provided in this section and by the planning
board in sufficient amount to warrant reduction in the amount of said
security, and upon approval by the town board, the planning board may
modify its requirements for any or all such improvements, and the amount
of such security shall thereupon be reduced by an appropriate amount so
that the new amount will cover the cost in full of the amended list of
improvements required by the planning board.
(e) Default of security agreement. In the event that any required
improvements have not been installed as provided in this section within
the term of such security agreement, the town board may thereupon
declare the said performance bond or security agreement to be in default
and collect the sum remaining payable thereunder; and upon the receipt
of the proceeds thereof, the town shall install such improvements as are
covered by such security and as commensurate with the extent of building
development that has taken place in the subdivision but not exceeding in
cost the amount of such proceeds.
10. Provision of improvements by town. (a) Adoption of resolution.
Notwithstanding the foregoing provisions of this section, with respect
to plats approved by the planning board, the town board may adopt a
resolution that sidewalks and/or water mains and/or sanitary sewers
and/or storm drains required by the planning board pursuant to this
section be constructed or installed at the expense of the town as
authorized by articles three-A and twelve-C of this chapter or at the
expense of an existing improvement district in which the plat is
located. Such improvements may also be acquired without consideration by
the town board on behalf of the town or an improvement district as
authorized by article three-A, twelve, twelve-A or twelve-C of this
chapter.
(b) Establishment of improvement district. If an improvement district
has not been created for the area in which the plat is located, the town
board may establish or extend an improvement district as provided in
this chapter or in any applicable special law for the purpose of
constructing or installing or acquiring without consideration such
improvements shown on the map of any plat as the town board may deter-
mine.
(i) Execution of contracts. The town board resolution shall require
that the owner or owners of real property execute such contracts with
the town as the town board may deem necessary for the purpose of ensur-
ing that the expense of such construction or installation, including the
cost of issuing obligations to raise moneys to pay the expense thereof
and interest on such obligations, shall not be an undue burden upon the
property deemed benefitted by the agreements or of such improvement
district or extension thereof as the case may be and may require a secu-
rity agreement, including the filing of a surety bond, letter of credit
or the deposit of cash or securities reasonably acceptable to the town
board as to assure the performance of such contracts.
(ii) Any such su