STATE OF NEW YORK ________________________________________________________________________ 925--B 2023-2024 Regular Sessions IN SENATE January 9, 2023 ___________ Introduced by Sens. MAY, HARCKHAM, HOYLMAN-SIGAL, JACKSON -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation -- reported favorably from said commit- tee and committed to the Committee on Housing, Construction and Commu- nity Development -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Environmental Conservation in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the environmental conservation law and the public hous- ing law, in relation to enacting the "sustainable affordable housing and sprawl prevention act" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "sustaina- 2 ble affordable housing and sprawl prevention act". 3 § 2. The environmental conservation law is amended by adding a new 4 section 8-0119 to read as follows: 5 § 8-0119. Certain actions exempt or subject to limited review. 6 1. Exempt actions for construction of residential dwellings. (a) 7 Notwithstanding any law, rule or regulation to the contrary, qualifying 8 actions with respect to the construction of a new multiple dwelling or 9 more than one contiguous multiple dwellings that meet the following 10 thresholds shall be automatically determined not to have a significant 11 impact on the environment and shall be exempt from any environmental 12 review requirements under this article or any rules or regulations 13 promulgated pursuant hereto: 14 (i) fewer than ten total residential units in municipalities that have 15 not adopted zoning or subdivision regulations; 16 (ii) fewer than fifty total residential units in a building in which 17 no more than twenty percent of the floor area consists of commercial or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03398-12-4S. 925--B 2 1 community facility uses not to be connected at the commencement of habi- 2 tation to existing community or public water and sewerage systems 3 including sewage treatment works; 4 (iii) in a city, town, or village having a population of ninety thou- 5 sand persons or less, fewer than two hundred total residential units in 6 a building in which no more than twenty percent of the floor area 7 consists of commercial or community facility uses to be connected at the 8 commencement of habitation to existing community or public water and 9 sewerage systems including sewage treatment works; 10 (iv) in a city, town, or village having a population of greater than 11 ninety thousand but less than one million, fewer than five hundred total 12 residential units in a building in which no more than twenty percent of 13 the floor area consists of commercial or community facility uses to be 14 connected at the commencement of habitation to existing community or 15 public water and sewerage systems including sewage treatment works; or 16 (v) in a city having a population of one million or more persons, 17 fewer than one thousand total residential units in a building in which 18 no more than twenty percent of the floor area consists of commercial or 19 community facility uses to be connected at the commencement of habita- 20 tion to existing community or public water and sewerage systems includ- 21 ing sewage treatment works. 22 (b) To be determined as a "qualifying action" under paragraph (a) of 23 this subdivision, such multiple dwelling shall: 24 (i) be located in a census tract defined as an urbanized area or an 25 urban cluster by the federal Census Bureau; 26 (ii) be located on previously disturbed land; 27 (iii) qualify as affordable housing, as shall be determined by the 28 division of housing and community renewal, relative to the municipality 29 or county, as shall be determined by the division of housing and commu- 30 nity renewal, in which it is located; 31 (iv) not be located in an area: 32 (1) projected to experience flooding in the event of sea level rise 33 greater than or equal to the high-medium projection by year twenty-one 34 hundred as set forth in regulations promulgated pursuant to section 35 3-0319 of this chapter, or any other science-based projection of future 36 sea level conditions deemed satisfactory by the commissioner; 37 (2) designated as a special flood hazard area by the federal emergency 38 management agency, provided that this provision shall not apply to muni- 39 cipalities that have adopted a building code that mitigates flood hazard 40 risk by requiring new construction to be elevated above the base flood 41 elevation as defined by the federal emergency management agency; or 42 (3) designated as a critical environmental area by the department; 43 (v) complete a Phase I Environmental Site Assessment pursuant to the 44 federal Comprehensive Environmental Response, Compensation and Liabil- 45 ity Act (42 U.S.C. Chapter 103), and complete testing for lead water 46 and paint, asbestos, and radon, the results of which shall be submitted 47 by the proposed developer of such multiple dwelling to the local agency 48 responsible for approving or denying the application for such multiple 49 dwelling. If the Phase I Environmental Site Assessment finds contam- 50 ination that exceeds acceptable levels of contaminants for residential 51 use as set forth in regulations promulgated pursuant to titles thirteen 52 and fourteen of article twenty-seven and title five of article fifty-six 53 of this chapter and related regulations governing environmental remedi- 54 ation, the local agency responsible for approving or denying the appli- 55 cation may require remediation of the site to applicable standards forS. 925--B 3 1 residential use prior to the issuing of a construction permit for 2 construction of a multiple dwelling; 3 (vi) receive a written certification from a qualified environmental 4 professional, as such term shall be defined by the department in regu- 5 lation, that the construction of such multiple dwelling will not violate 6 any state wetland laws under articles twenty-four and twenty-five of 7 this chapter, or any rules or regulations promulgated thereto; 8 (vii) receive a written certification from a qualified environmental 9 professional, as such term shall be defined by the department in regu- 10 lation, that construction of such multiple dwelling, as proposed, will 11 not violate any drinking water laws under article eleven of the public 12 health law, or any rules or regulations promulgated thereto; and 13 (viii) receive certification by an architect licensed by the state 14 that the building has been designed to meet one or more of the following 15 building standards: 16 (1) the Leadership in Energy and Environmental Design Building Rating 17 System (LEED) published by the United States Green Building Council for 18 the category of certified gold, at minimum, as determined by a LEED 19 accredited professional; 20 (2) Enterprise green communities review and certification; or 21 (3) Passive House Institute Passive House certification. 22 2. Actions with respect to construction of multiple dwellings subject 23 to limited review. (a) Notwithstanding any law, rule or regulation to 24 the contrary, actions with respect to the construction of new multiple 25 dwellings that are not exempt from environmental review under subdivi- 26 sion one of this section, and that are qualifying actions, shall not be 27 subject to any environmental review standards under this article, or 28 rules or regulations promulgated thereto, that do not consist of core 29 environmental concerns, as such term shall be defined by the department 30 in regulation. Topics of review that shall be exempt under this subdivi- 31 sion as failing to meet the standard of core environmental concerns 32 shall include, but not be limited to, traffic impacts, casting of shad- 33 ing or shadows, impacts on views from neighboring buildings, consistency 34 with community character, impacts on neighborhood character, and the 35 resources of local school systems; except that, in the case of a disad- 36 vantaged community, such topics of concern may include traffic impacts 37 and the resources of local school systems. 38 (b) To be determined as a "qualifying action" under paragraph (a) of 39 this subdivision, the proposed multiple dwelling shall: 40 (i) be located in a census tract defined as an urbanized area or an 41 urban cluster by the federal Census Bureau; 42 (ii) be located on previously disturbed land; 43 (iii) qualify as affordable housing, as shall be determined by the 44 division of housing and community renewal, relative to the municipality 45 or county, as shall be determined by the division of housing and commu- 46 nity renewal, in which it is located; and 47 (iv) not be located in an area: 48 (1) projected to experience flooding in the event of sea level rise 49 greater than or equal to the high-medium projection by year twenty-one 50 hundred as set forth in regulations promulgated pursuant to section 51 3-0319 of this chapter, or any other science-based projection of future 52 sea level conditions deemed satisfactory by the commissioner; 53 (2) designated as a special flood hazard area by the federal emergency 54 management agency, provided that this provision shall not apply to muni- 55 cipalities that have adopted a building code that mitigates flood hazardS. 925--B 4 1 risk by requiring new construction to be elevated above the base flood 2 elevation as defined by the federal emergency management agency ; or 3 (3) designated as a critical environmental area by the department. 4 3. Mandatory review. Every action that is a qualifying action under 5 subdivision one or two of this section shall be subjected to a determi- 6 nation by the local permitting authority of whether such action is 7 exempt under subdivision one of this section, and if such action is not 8 exempt under subdivision one of this section, whether such action is 9 exempt under subdivision two of this section. If, after sixty days, the 10 local agency responsible for approving or denying the application for 11 such multiple dwelling has failed to return such a determination, the 12 applicant may appeal to the division of housing and community renewal 13 for a determination, and in such case the division shall render a deter- 14 mination within sixty days of receipt of the application. 15 4. Historic sites. An action otherwise exempt from environmental 16 review requirements under subdivision one of this section may be 17 required to undergo environmental review pursuant to this article or the 18 rules or regulations promulgated pursuant hereto on the basis that the 19 multiple dwelling would be constructed wholly or partially within a 20 historic site, provided, however that such action affects a contributing 21 property within such historic site, and provided further that such envi- 22 ronmental review is limited in its scope to such contributing property. 23 An action shall not be required to undergo an environmental review under 24 this subdivision solely on the basis that such the proposed multiple 25 dwelling would be substantially contiguous to a historic site, or 26 located in a neighborhood containing historic sites. 27 5. Wastewater treatment and stormwater management. (a) An action 28 exempt from environmental review requirements under subdivision one or 29 two of this section may provide concept plans to either the appropriate 30 local governmental entity or the department that demonstrate that the 31 multiple dwelling will have adequate wastewater treatment to accommodate 32 the completed multiple dwelling for no less than thirty years. The 33 department shall establish a method by which developers of proposed 34 multiple dwellings may submit such concept plans pursuant to this para- 35 graph. Upon submission of such concept plans, the local governmental 36 entity or the department, as applicable, shall approve or deny such 37 concept wastewater treatment plans no later than thirty days after 38 submission of such plans. 39 (b) An action exempt from environmental review requirements under 40 subdivision one or two of this section shall be required to maintain 41 compliance with all applicable stormwater regulations. 42 6. Disadvantaged communities. The department shall require, by rule or 43 regulation, that qualifying actions with respect to the construction of 44 new multiple dwellings that are not exempt from environmental review 45 under subdivision one of this section shall not: 46 (a) contribute more than a de minimis amount of pollution or any 47 disproportionate pollution burden after the completion of construction; 48 or 49 (b) directly displace low-income households by reducing, in aggre- 50 gate, their residential housing opportunities in a disadvantaged commu- 51 nity. 52 7. Authority of the commissioner. The commissioner shall be authorized 53 to consult with any other state or local agency and to promulgate and/or 54 amend any rules and/or regulations such commissioner shall deem neces- 55 sary for the implementation of the provisions of this section; provided, 56 however, that the department and the division of housing and communityS. 925--B 5 1 renewal shall jointly promulgate such rules and regulations as they 2 shall deem necessary for the implementation of subdivision six of this 3 section. 4 § 3. Section 8-0105 of the environmental conservation law is amended 5 by adding six new subdivisions 11, 12, 13, 14, 15 and 16 to read as 6 follows: 7 11. "Historic site" means a historic building, structure, facility, 8 site or district, or prehistoric site that is listed on the National 9 Register of Historic Places (36 CFR Parts 60 and 63), or that is listed 10 on the state register of historic places or that has been determined by 11 the commissioner of parks, recreation and historic preservation to be 12 eligible for listing on the state register of historic places pursuant 13 to section 14.07 or 14.09 of the parks, recreation and historic preser- 14 vation law, or historic buildings listed as landmarks by the New York 15 city landmarks preservation commission. 16 12. "Contributing property" means a building, structure, facility, or 17 site located within a historic site or district that wholly or partially 18 contributes to such designation as a historic site. 19 13. "Dwelling" means any building or structure or portion thereof 20 which is occupied or intended to be occupied in whole or in part as the 21 home, residence, or sleeping place of one or more human beings. 22 14. "Multiple dwelling" means a dwelling that is either rented, 23 leased, let or hired out, or sold, to be occupied, or is occupied as the 24 residence or home of four or more separate individuals or groups of 25 individuals living independently of each other, including, but not 26 limited to, apartments, condominiums, and townhouses. A "multiple dwell- 27 ing" shall not be deemed to include a class B multiple dwelling as 28 defined by section four of the multiple dwelling law, or a hospital, 29 convent, monastery, residential care facility, or a building used wholly 30 for commercial purposes. 31 15. "Residential unit" means a room or group of rooms within a multi- 32 ple dwelling that is designated as the living quarters for an individual 33 or group of individuals living independently from other individuals 34 occupying such multiple dwelling. 35 16. "Previously disturbed land" shall mean a parcel or lot of land 36 that was occupied or formerly occupied by a building or otherwise 37 improved or utilized one year prior to the effective date of this subdi- 38 vision, and was not most recently used for commercial agricultural 39 purposes. 40 § 4. Section 600 of the public housing law is amended by adding a new 41 subdivision 6 to read as follows: 42 6. A covered housing agency in this state shall be subject, as appli- 43 cable, to the provisions of article eight of the environmental conserva- 44 tion law and any rules and/or regulations promulgated thereto. 45 § 5. This act shall take effect on the one hundred eightieth day after 46 it shall have become a law. Effective immediately, the addition, amend- 47 ment and/or repeal of any rule or regulation necessary for the implemen- 48 tation of this act on its effective date are authorized to be made and 49 completed on or before such effective date.