Growing Smart Legislative Guidebook

Chapter 5 (part 3): State Land-Use Control

5-303 Statewide Standards, Criteria, and Thresholds

(1) The [state planning agency] shall promulgate by rule thresholds that shall be used to determine which land uses (and at what size, scale, nature, characteristics, etc.) shall be designated a development of regional impact (DRI) and undergo DRI review. Such rules shall be based on goals, policies, and guidelines established in the state land development plan [and state biodiversity conservation plan].

(2) In adopting thresholds under this Act, the [state planning agency] shall include in its consideration:

(a) the impact of a proposed development on the environment and natural resources of the state or region, including, but not limited to, air, ground, surface water supply and quality, coastal areas, air quality, endangered or threatened species habitats, open space, scenic resources, agriculture, and aquaculture;

(b) the impact of a proposed development on the built environment of the state or region, including but not limited to, historical, cultural, architectural, archaeological, and recreational resources;

(c) the impact of a proposed development on the existing capital facilities of affected local governments and special districts and the extent to which new capital facilities will be required to serve the proposed development;

(d) the amount of vehicular and pedestrian traffic likely to be generated;

(e) the number of persons likely to be residents, employees, or otherwise present on site;

(f) the size of a proposed development site;

(g) the size of structure(s) to be constructed on site;

(h) the likelihood that a proposed development will stimulate additional development in the surrounding area;

(i) the unique qualities of a site;

(j) the likelihood that a proposed development will be affected by or will affect natural hazards;

(k) the extent to which a proposed development would create an additional demand for energy; and/or

(l) other factors of state, regional, and/or local concern.

  • Using the thresholds, a state planning agency may wish to develop a list of development activities that will be presumed to be DRIs, and a second list of development activities that will be presumed not to be DRIs. For example, the Cape Cod Commission's enabling regulations for DRIs state that repairs and alterations of single-family dwellings or accessory structures do not have significant impacts outside the municipality in which they are located and, therefore, are presumptively not DRIs. A project that is presumed not to be a DRI (according to the list) may nonetheless be subject to DRI approval if the host local government, in its analysis of the proposed development, determines that the proposed development will have regional impacts. For those projects that are not included on either list, the host local government will have to make an independent determination of DRI status.

5-304 Variations in Thresholds

(1) In its rule making, the [state planning agency] may vary the thresholds by locality, taking into account factors that include population and development characteristics (e.g., urban, suburban, or rural).

(2) A [regional planning agency or local government] may petition the [state planning agency] to increase or decrease a numerical threshold as applied to a given locality.

5-305 Determination of DRI Status

Using the thresholds established by the [state planning agency] pursuant to Sections [5-303 and 5-304] above, the host local government shall determine whether a proposed development is a development of regional impact (DRI) and will be subject to DRI review.

— Some jurisdictions may prefer that the [state planning agency] make the determination of DRI status rather than the host local government. This may impart a greater perception of impartiality.

5-306 Submittal of DRI Application (Two Alternatives)

Alternative 1 — Host Local Government as Primary Reviewing Agency

(1) After the host local government has determined that a proposed development is a development of regional impact (DRI) pursuant to Section [5-305] above, the developer shall file an application with the host local government for development approval as a DRI.[99] The DRI application shall be in addition to any other applications for development approval required by the host local government's own land development regulations.

— DRI application requirements will vary by state and will include forms, notifications, determination of completeness, checklists, etc.

(2) Upon receipt of an application for a proposed DRI, the host local government shall determine whether additional information is necessary to assess the impact of the proposed development and may request such information from the developer.

(3) When a DRI application is filed with a host local government, the host local government shall also send copies of the application to the [regional planning agency], the [state planning agency], and other interested agencies and entities.

(4) The host local government may request the assistance of the [regional planning agency and/or state planning agency] in its review of a DRI application.

— Host local governments with limited staff and resources may find it helpful or necessary to seek the technical assistance of larger agencies while not relinquishing authority or control over the DRI application review procedure.

[(5) A developer who is required to file for a permit under [the state environmental protection act] may elect to undergo a joint application and review procedure with the host local government and the [state department of environmental protection].[100]

Alternative 2 — Regional Planning Agency as Primary Reviewing Agency

(1) After the host local government has determined that a proposed development is a development of regional impact (DRI) pursuant to Section [5-305] above, the developer shall file an application with the host local government for development approval as a DRI. The host local government shall then refer the application to the [regional planning agency] for its review.[101] The [regional planning agency] review of the proposed DRI shall not excuse the proposed development from review and compliance with the host local government's own land development regulations.

(2) When a DRI application is filed with a [regional planning agency], the [regional planning agency] shall also send copies of the application to the [state planning agency] and other interested agencies and entities.

(3) The [regional planning agency] may request the assistance of the [state planning agency] and the host local government in its review of a DRI application.

[(4) A developer who is required to file for a permit under [the state environmental protection act] may elect to undergo a joint application and review procedure with the [regional planning agency] and the [state department of environmental protection].]

(5) Within [14] days of receiving a referral of a proposed DRI, the [regional planning agency] shall notify the developer of its intent to review the proposed project as a DRI.

— Regardless of which entity (i.e., the host local government or the regional planning agency) is charged with making the final decision to approve or deny a proposed DRI, the entity should focus its review on the multijurisdictional impacts of the proposed DRI and the conformance of the project to any state, regional, and local plans. Furthermore, the extent to which a primary reviewing agency is required to formally address the concerns of other interested persons, agencies, or entities or simply take them under advisement must be made clear.

5-307 Review and Recommendations of Interested Agencies and Entities

Any interested agency or entity may review the application for a proposed DRI using the same standards and criteria established in Sections [5-303 and 5-304] above and may submit a written report to the primary reviewing agency containing its concerns and recommendations. Although this report shall be advisory only, it must be considered by the primary reviewing agency in its review of the DRI application and acknowledged in its final decision issued pursuant to Section [5-309] below.

5-308 Notice and Public Hearings

(1) The primary reviewing agency shall hold a public hearing on the application for a DRI approval. Such hearing shall be held at a public facility located within the boundaries of the host local government.

(2) At least [30] days before the date of the public hearing, the primary reviewing agency shall provide written notice of the proposed DRI by publication in a newspaper that circulates in the area proposed for development and may also give notice, which may include a copy of the proposal and supporting documents, by publication on a computer-accessible information network or other appropriate means to all interested agencies or entities, and to any interested person who, in writing, requests to be provided notice of proposed DRIs.

(3) The notice of each public hearing shall:

(a) contain a description of the total area and boundaries of the proposed DRI, and a general statement of foreseeable impacts on environmental or natural resources, scenic resources, historic and archaeological resources, and/or major public facilities or public investments;

(b) specify the officer(s) or employee(s) of the primary reviewing agency from whom additional information may be obtained and to whom written comments may be directed;

(c) specify a time and place where a copy of the DRI application may be inspected before the public hearing; and

(d) specify the date, time, place, and method for presentation of views by interested persons at the public hearing.

(4) The primary reviewing agency shall afford any interested person, agency, or entity the opportunity to submit written recommendations and comments on the proposed DRI, copies of which shall be kept on file and made available for public inspection.

(5) Public hearings shall be conducted in the following manner:

(a) The hearings shall be chaired by the chief executive officer of the primary reviewing agency or his or her designated representative.

— This assumes that the chief executive officer has such authority.

(b) The hearing shall be on the record and a transcribed record shall be kept of all comments made at the hearing. A transcribed copy of all comments shall be made available to all interested persons upon request and at actual cost.

(c) The form of the hearing(s) may be set by the primary reviewing agency, except that representatives of all opinions regarding the DRI application shall be given an opportunity to make spoken comments.

(d) Written comments on the DRI application shall also be received at the hearings, and shall become part of the record.

(6) To the extent that it is practicable to do so, the chief executive officer of the primary reviewing agency may attempt to reconcile persons, agencies, or entities with opposing viewpoints through informal conflict resolution procedures.

5-309 Review of DRI Application

(1) The primary reviewing agency shall review proposed DRIs in accordance with the following criteria:

(a) Whether the proposed DRI is consistent with this Act and with the state land development plan, [state biodiversity conservation plan,] regional comprehensive plan, plans of any interested agencies or entities, and comprehensive plan and land development regulations of the host local government;

(b) Whether the proposed DRI will have a favorable or adverse impact on:

1. the environmental, agricultural, historical, scenic, and/or cultural resources of the region and local government;

2. air quality, water quality, erosion, flooding, and safety issues related to natural hazards;

3. the regional and local economy;

4. existing public facilities, including, but not limited to, roads, sewers, sewage treatment plants, stormwater management facilities, water supply and treatment plants, and educational facilities, as well as those facilities that are planned for construction in the succeeding [5] years;

5. the ability of people to find adequate housing that is reasonably accessible to places of employment;

6. the supply and distribution of low- and moderate-income housing for the region and local government;

7. historical settlement patterns of the region and locality, including population, density, and development characteristics (e.g., urban, suburban, or rural); and

8. any area of critical state concern, designated pursuant to Section [5-207].

(c) Whether the natural environment, including the potential for natural hazards, would have an adverse effect on the proposed DRI.

(2) The primary reviewing agency shall also review and consider any report submitted to it by any other interested person, agency, or entity that contains concerns and recommendations on the impacts of the proposed development.

5-310 Issuance of Decision

(1) Within [60] days after the public hearing, the primary reviewing agency shall render a written decision containing findings and approving, approving with conditions, or denying the development permit for the proposed DRI. Such [60]-day period may be extended by mutual agreement of the primary reviewing agency and the developer.

(2) In its decision to approve a development permit for a proposed DRI, the primary reviewing agency may specify conditions to be met by the developer for the purpose of minimizing any negative economic, social, and/or environmental impacts and may also require the developer to modify a project to specifically address the concerns and recommendations contained in reports received from other interested agencies and entities pursuant to Section [5-307] above.

(3) The decision of the primary reviewing agency shall also acknowledge any concerns and recommendations contained in reports received from any interested agency or entity that were not incorporated in the primary reviewing agency's final decision.

(4) The primary reviewing agency shall not approve a DRI application that does not make adequate and timely provision for those public facilities needed to accommodate the impacts of the proposed development.

(5) The primary reviewing agency shall file its written decisions with the [clerk of the host local government or secretary of the regional planning agency] and shall provide copies to the developer,[102] [list other parties who should receive copies].

(6) Within [14] days of rendering its decision, the primary reviewing agency shall publish a notice containing a summary of its decision in a newspaper that circulates in the area affected by the decision and may publish a notice, which may include a copy of the decision and supporting documents, on a computer-accessible information network or by other appropriate means.

5-311 Amendments

Any proposed change to a previously approved DRI that, in the opinion of the primary reviewing agency creates, or has a likelihood of creating, an additional regional impact or a type of regional impact not previously considered and reviewed by the primary reviewing agency shall constitute a substantial deviation from the approved DRI and shall subject the development to repeat the entire DRI approval process.

5-312 Enforcement

The primary reviewing agency may enforce any decision, condition, and/or restriction it may impose upon a DRI by recording a certificate of noncompliance with the recorder of deeds of the county or counties in which the development is located. The primary reviewing agency shall commence such other actions or proceedings as it may deem necessary to enforce its decisions, conditions, and/or restrictions.

5-313 Exemptions

The [state planning agency] shall establish procedures for standard and hardship exemptions from this Act:

(a) Standard Exemption. A developer may apply to the primary reviewing agency for an exemption from DRI review if he or she believes that the location, character, and/or environmental effects of the proposed development will prevent it from having any significant negative impacts on areas located outside the host local government.

(b) Hardship Exemption. The primary reviewing agency may grant an exemption from the terms and provisions of this Act where it finds that a literal enforcement of the provisions of this Act would cause substantial hardship, financial or otherwise, to the developer and that desirable relief may be granted without substantial detriment to the public good and without nullifying or significantly derogating the intent or purpose of this Act.

5-314 Development Agreements

The primary reviewing agency may enter into a development agreement regarding the DRI with a DRI developer pursuant to Section [8-701 or cite to another Section authorizing development agreements for regional planning agencies].[103] A [regional planning agency] that is a primary reviewing agency is a "local government" for purposes of Section [8-701].

— Section 8-701 of the Legislative Guidebook authorizes local governments to enter into binding development agreements regarding development and land use.

5-315 Appeals

Appeals of decisions by the primary reviewing agency to designate a proposed development as a DRI or to approve, reject, or approve with conditions a development that has been designated as a DRI shall proceed according to the provisions of the [cite to state administrative appeals act].

— The issue of who has standing to appeal a decision regarding a DRI should be resolved by the individual states, in accordance with each state's appeals legislation. Interested parties would likely include the following: the developer, the host local government, the regional planning agency, the state planning agency, transportation agencies, environmental protection and management agencies, land owners, adjacent units of government, and neighboring land owners. The issue of standing is, by nature, very sensitive because of the potential for excluding legitimately interested parties.

Note 5 — A Note on New York City's "Fair-Share" Process

On December 3, 1990, the New York City Planning Commission adopted a new "fair-share" process for siting city facilities[104] that went into effect on July 1, 1991. The adoption of this process was mandated in the new City Charter approved by the voters in 1989.[105] The reason for the incorporation of the fair-share concept into the new charter was to redress the disparity of an overconcentration of undesirable facilities in certain neighborhoods.[106]

The process, devised by the city planning commission, sets forth the criteria that city agencies are to follow when siting a new facility or significantly expanding, significantly reducing, or closing an existing facility.[107] The process covers all types of city facilities, (i.e., both desired and contentious) but does not apply to the siting of facilities by private entities, state or federal agencies, or entities that have been established by state law.[108] The city, however, may consider the locations of these facilities when siting city facilities.[109]

When a city agency uses the criteria to site a facility, the agency must balance considerations that include service need, cost-effective delivery of services, effects on neighborhoods, and the broad geographic distribution of services.[110] These factors are applied in conjunction with other factors such as land use, zoning, and compatibility with nearby uses. All permit requirements continue to apply to the site.[111]

How the Fair-Share Process Works

The fair-share process was created to address the issue of site selection and takes place prior to any of the city's Uniform Land Use Review Procedures (ULURP).[112] The fair-share process incorporates two related elements, the Statement of Needs and the fair-share criteria. The Statement of Needs is a document that describes all of the city agencies' requests for new facilities, in addition to any closures or reductions of facilities. The Statement of Needs contains "...as much programmatic data as possible and information about the criteria by which a site is to be chosen. Agencies are encouraged to identify the borough, and, if possible, the community board(s) in which a site would be sought."[113] The Statement of Needs covers a two-year period and includes a map of the location of all city property, including any restrictions on the use of a given parcel of property. The main purpose of the Statement of Needs is to give communities warning that they may be targeted for a particular facility.

The fair-share criteria, created by the planning commission, require that each agency "...must make use of the fair share criteria, make a record of its consideration, and offer justification whenever its proposal or recommendation for a site is inconsistent with the criteria."[114] Different types of facilities must meet different criteria and follow separate procedures. The former General Counsel of the New York City Department of Planning, William Valletta, noted that, in general, consideration of the following factors is required when siting all city facilities, except offices and data processing centers:

  1. the compatibility of the facility with existing city and noncity facilities in the immediate area;
  2. the extent to which neighborhood character would be adversely affected by a concentration of city and noncity facilities;
  3. the suitability of the site to provide cost-effective delivery of intended services;
  4. the consistency with any specific criteria for the facility identified in the Statement of Needs; and
  5. the consistency with any existing neighborhood or borough plan.[115]

Difficulties with New York City's Fair-Share Plan

The fair-share process was implemented in 1991 and critiqued by the New York City Department of Planning four years later in Spring 1995.[116] Those concerns identified in the assessment that are applicable to the implementation of a state-level fair-share process are described below, as are some potential solutions to the difficulties identified:

1. The New York City fair-share process is limited to city sitings.[117] Unwanted facilities sited by federal and state agencies and private entities are not subject to the fair-share criteria and therefore weaken the impacts of the city's fair-share process. This problem may be resolved by including an analysis of other facilities in the area, whether or not they are operated by the state, in fair-share criteria promulgated by the state planning agency.

2. The process is difficult to administer because of the short time frame. The assessment recommended that the fair-share process become a two-year, rather than a one-year, process.[118] This would be administratively easier and provide all participants of the process with a respite from siting decisions. In addition, the budget process could be tied to the siting process, thus further simplifying the process for state agencies.

Unexpected Outcomes

Sometimes a fair-share approach can lead to unexpected outcomes due to the need to examine alternatives. In New York City, a plan was proposed to put sludge plants in more affluent boroughs, while avoiding communities that already had more than their fair share of such facilities. Although local opposition stalled the plan, during the process of siting, it was discovered that it would be cheaper for the city to ship dewatered sludge out-of-state for beneficial reuse.[119] This alternative benefitted the environment as well as the residents of the city. Siting unwanted land uses in more affluent communities might result in a more extensive effort to investigate and consider possible alternatives. Also, in the long run, siting processes and decisions may force technological solutions to some problems — if no one wants to deal with the community and health impacts of certain noxious uses, alternatives will have to be developed.

Because the fair-share process involves community involvement and often the "policing" of facilities put into "hostile" neighborhoods, residents' questions concerning the proposed facility should be carefully answered during the siting process. Concerns can then be dealt with by all parties. Occasionally, even after a facility is in use, residents may discover that their initial fears about their new neighbors were not quite so well-founded. After fighting the siting of a shelter for homeless families, for example, some New York City residents became involved in the design of the facility and its programs prior to the shelter's opening. According to a New York City Department of City Planning study, "seeking to peacefully integrate the shelter and its residents into the community, neighbors offered recommendations for social and educational programs and volunteered to staff them."[120] By reacting in a proactive manner, the neighbors were able to improve their position (by implementing their concerns in a constructive manner) as well as the situation of the residents of the facility (by providing for additional programs for the residents).

New York City's Fair-Share Criteria

Article 4: Criteria for Siting or Expanding Facilities

4.1 The sponsoring agency and, for actions subject to the Uniform Land Use Review Procedure (ULURP) or review pursuant to Section 195 of the Charter, the City Planning Commission, shall consider the following criteria:

4.1 (a) Compatibility of the facility with existing facilities and programs, both city and non-city, in the immediate vicinity of the site.

4.1 (b) Extent to which neighborhood character would be adversely affected by a concentration of city and/or non-city facilities.

4.1 (c) Suitability of the site to provide cost-effective delivery of the intended services. Consideration of sites shall include properties not under city ownership, unless the agency provides a written explanation of why it is not reasonable to do so in a particular instance.

4.1 (d) Consistency with the locational and other specific criteria for the facility identified in the Statement of Needs or, if the facility is not listed in the Statement, in a subsequent submission to a Borough President.

4.1 (e) Consistency with any plan adopted pursuant to Section 197-a of the Charter.

4.2 Procedures for Consultation

In formulating its facility proposals, the sponsoring agency shall:

4.2 (a) Consider the Mayor's and Borough President's strategic policy statements, the Community Board's Statement of District Needs and Budget priorities, and any published Department of City Planning land use plan for the area.

4.2 (b) Consider any comments received from the Community Boards or Borough Presidents and any alternative sites proposed by a Borough President pursuant to Section 204(f) of the Charter, as well as any comments or recommendations received in any meetings, consultations or communications with the Community Boards or Borough Presidents. If the Statement of Needs has identified the community districts where a proposed facility would be sited, then, upon the written request of the affected Community Board, the sponsoring agency should attend the Board's hearing on the Statement. If the community district is later identified, then the sponsoring agency shall at that point notify the Community Board and offer to meet with the board or its designee to discuss the proposed program.

Article 5: Criteria for Siting or Expanding Local/Neighborhood Facilities

5.1 The sponsoring agency and, for actions subject to ULURP or review pursuant to Section 195 of the Charter, the City Planning Commission, shall consider the following criteria:

5.1 (a) Need for the facility or expansion in the community or local service delivery district. The sponsoring agency should prepare an analysis which identifies the conditions or characteristics that indicate need within a local area (e.g., infant mortality rates, facility utilization rates, emergency response time, parkland/population ratios) and which assesses relative needs among the communities for the service provided by the facility. New or expanded facilities should, whenever possible, be located in areas with low ratios of service supply to service demand.

5.1 (b) Accessibility of the site to those it is intended to serve.

Article 6: Criteria for Siting or Expanding Regional/Citywide Facilities

6.1 The sponsoring agency and, for actions subject to ULURP or review pursuant to Section 195 of the Charter, the City Planning Commission, shall consider the following criteria:

6.1 (a) Need for the facility or expansion. Need shall be established in a citywide or borough-wide service plan or, as applicable, by inclusion in the city's ten-year capital strategy, four-year capital program, or other analysis of service needs.

6.1 (b) Distribution of similar facilities throughout the city. To promote the fair geographic distribution of facilities, the sponsoring agency should examine the distribution among the boroughs of existing and proposed facilities, both city and non-city, that provide similar services, in addition to the availability of appropriately zoned sites.

6.1 (c) Size of the facility. To lessen local impacts and increase broad distribution of facilities, the new facility or expansion should not exceed the minimum size necessary to achieve efficient and cost-effective delivery of services to meet existing and projected needs.

6.1 (d) Adequacy of the streets and transit to handle the volume and frequency of traffic generated by the facility.

6.4 Transportation and Waste Management Facilities

Transportation and waste management facilities...are subject to the following criteria in addition to those stated in Article 4 and Sections 6.1, 6.2 and 6.3.

6.41 The proposed site should be optimally located to promote effective service delivery in that any alternative site actively considered by the sponsoring agency or identified pursuant to Section 204(f) of the Charter would add significantly to the cost of construction or operating the facility or would significantly impair effective service delivery.

6.42 In order to avoid aggregate noise, odor, or air quality impacts on adjacent residential areas, the sponsoring agency and the City Planning Commission, in its review of the proposal, shall take into consideration the number and proximity of existing city and non-city facilities, situated within approximately a one-half mile radius of the proposed site, which have similar environmental impacts.

6.5 Residential Facilities

Regional or city-wide residential facilities...are subject to the following criteria in addition to those stated in Article 4 and Sections 6.1, 6.2 and 6.3.

6.51 Undue concentration or clustering of city and non-city facilities providing similar services or serving a similar population should be avoided in all residential areas.

6.52 Necessary support services for the facility and its residents should be available and provided.

6.53 In community districts with a high ratio of residential facility beds to population, the proposed siting shall be subject to the following additional consideration:

6.53 (a) Whether the facility, in combination with other similar city and non-city facilities within a defined area surrounding the site (approximately a half-mile radius, adjusted for significant physical boundaries), would have a significant cumulative negative impact on neighborhood character.

6.53 (b) Whether the site is well located for efficient service delivery.

6.53 (c) Whether any alternative sites actively considered by the sponsoring agency or identified pursuant to Section 204(f) of the Charter which are in community districts with lower ratios of residential facility beds to population than the citywide average would add significantly to the cost of constructing or operating the facility or would impair service delivery.

Article 7: Criteria for Siting or Expanding Administrative Offices and Data Processing Facilities

7.1 The sponsoring agency and the City Planning Commission shall consider the following criteria:

7.1 (a) Suitability of the site to provide cost-effective operations.

7.1 (b) Suitability of the site for operational efficiency, taking into consideration its accessibility to staff, the public and/or other sectors of city government.

7.1 (c) Consistency with the locational and other specific criteria for the facility stated in the Statement of Needs.

7.1 (d) Whether the facility can be located so as to support development and revitalization of the city's regional business districts without constraining operational efficiency.

Article 8: Criteria for Closing or Reducing Facilities

8.1 The sponsoring agency shall consider the following criteria:

8.1 (a) The extent to which the closing or reduction would create or significantly increase any existing imbalance among communities or service levels relative to need. Whenever possible, such actions should be proposed for areas with high ratios of service supply to service demand.

8.1 (b) Consistency with the specific criteria for selecting the facility for closure or reduction as identified in the Statement of Needs.

8.2 In proposing facility closings or reductions, the sponsoring agency shall consult with the affected Community Board(s) and Borough President about the alternatives within the district or borough, if any, for achieving the planned reduction and the measures to be taken to ensure adequate levels of service.[121]

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