Bill Text: NY S02060 | 2021-2022 | General Assembly | Introduced


Bill Title: Provides for vesting of development rights for residential properties.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2021-01-19 - REFERRED TO LOCAL GOVERNMENT [S02060 Detail]

Download: New_York-2021-S02060-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          2060

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 19, 2021
                                       ___________

        Introduced  by  Sen.  JORDAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Local Government

        AN ACT to amend the general municipal law, in relation to providing  for
          vesting of development rights for residential properties

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The general municipal law is amended by adding a new  arti-
     2  cle 7-B to read as follows:
     3                                 ARTICLE 7-B
     4         VESTED RIGHTS RELATING TO RESIDENTIAL PROPERTY DEVELOPMENT
     5  Section 150. Legislative findings and intent.
     6          151. Definitions.
     7          152. Governing regulations.
     8          153. Establishment of vested property right.
     9          154. Notice of vested property rights.
    10          155. Duration and termination of vested property right.
    11          156. Subsequent regulation prohibited; exceptions.
    12          157. Application.
    13    §  150. Legislative findings and intent. 1. There is a continuing need
    14  for the development of  housing  in  New  York  state.  Landowners  make
    15  significant  investments  to  acquire  real  property  and to obtain the
    16  required state and municipal permits and approvals to construct residen-
    17  tial housing. To obtain financing for residential housing  projects,  it
    18  is  necessary  to  have  certainty  regarding development rights. Vested
    19  property rights ensure reasonable certainty, stability and  fairness  in
    20  the land use planning process.
    21    2.  It  is  necessary  and desirable, as a matter of public policy, to
    22  provide for the establishment of vested  property  rights  in  order  to
    23  ensure  reasonable  certainty,  stability,  and fairness in the land use
    24  planning process and in order to stimulate economic growth,  secure  the
    25  reasonable  investment-backed  expectations  of  landowners,  and foster

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00837-01-1

        S. 2060                             2

     1  cooperation between the public and private sectors in the area  of  land
     2  use planning.
     3    3.  The ability of a landowner to obtain a vested property right after
     4  municipal government approval of a site specific development  plan  will
     5  preserve  the  prerogatives  and  authority of municipal government with
     6  respect to land use matters, while promoting those  areas  of  statewide
     7  concern described in subdivision two of this section.
     8    4.  The establishment of vested property rights will promote the goals
     9  specified in  this  section  and  protect  property,  and  is  therefore
    10  declared to be a matter of statewide concern.
    11    §  151.  Definitions. As used in this article, unless context requires
    12  otherwise:
    13    1. "Landowner" means the owner of a legal  or  equitable  interest  in
    14  real  property,  including  a  developer, and the heirs, successors, and
    15  assigns of such ownership interests.
    16    2. "Municipality" or "municipal government" means any county, city and
    17  county, city, town or village, acting through its governing body, or any
    18  board, commission or agency thereof having final approval authority over
    19  a site specific  development  plan,  including  without  limitation  any
    20  legally empowered urban renewal authority.
    21    3. "Notice of vested property right" means a written document filed by
    22  the  landowner in the office of the clerk of the municipality in accord-
    23  ance with the provisions of section one hundred fifty-four of this arti-
    24  cle.
    25    4. "Overlay zoning" means a set of land use and  development  require-
    26  ments  designed  to be applied over, or in addition to, the requirements
    27  of the underlying zone for a specific purpose without removing or  modi-
    28  fying the underlying zone.
    29    5.  "Property"  means all real property subject to land use regulation
    30  by a municipality and zoned and  used  for  residential  development  or
    31  mixed use development that includes residential use.
    32    6.  "Residential  development"  means construction or redevelopment of
    33  one-, two- or three-family housing, including single  family  homes  and
    34  duplexes, and townhomes, condominiums, multiple dwelling units, assisted
    35  living  facilities, manufactured or modular homes and mixed use residen-
    36  tial units.
    37    7. (a) "Site specific development plan" means a  plan  that  has  been
    38  submitted to a municipality by a landowner or such landowner's represen-
    39  tative  describing  with  reasonable certainty the type and intensity of
    40  use for a specific parcel or parcels of property. Such plan  may  be  in
    41  the  form  of, but need not be limited to, any of the following plans or
    42  approvals: a planned  unit  development  plan,  a  subdivision  plat,  a
    43  specially  planned  area, a planned building group, a general submission
    44  plan, a general development plan, a conditional or special use  plan,  a
    45  development agreement, or any other land use approval designation as may
    46  be utilized by a municipality. What constitutes a site specific develop-
    47  ment  plan under this article that would trigger a vested property right
    48  shall be finally determined by the municipality either pursuant to ordi-
    49  nance or regulation or upon an agreement entered  into  by  the  munici-
    50  pality  and  the  landowner, and the document that triggers such vesting
    51  shall be so identified at the time of its approval.
    52    (b) "Site specific development plan" shall not include a  variance,  a
    53  preliminary  plan,  a  sketch  plan,  a final architectural plan, public
    54  utility filings or final construction drawings and/or related  documents
    55  specifying materials and methods for construction of improvements.

        S. 2060                             3

     1    8.  "Vested  property right" means the right to undertake and complete
     2  the development and use of property under the terms and conditions of  a
     3  site specific development plan.
     4    §  152.  Governing  regulations.  1.  Except  as otherwise provided in
     5  subdivision two of this section, development of a property in accordance
     6  with a site specific development plan shall be governed only by the duly
     7  adopted laws and regulations in effect at the time the landowner's prop-
     8  erty right vests as provided in section one hundred fifty-three of  this
     9  article.  For  purposes of this section, "laws and regulations" includes
    10  any zoning law of general applicability adopted  by  a  municipality  as
    11  well  as any zoning or development regulations that have previously been
    12  adopted for the particular parcel described in the plan and that  remain
    13  in effect at the time of vesting of the landowner's property right.
    14    2.  Notwithstanding  the  limitations  contained in subdivision one of
    15  this section, a municipality may adopt a new or  amended  law  or  regu-
    16  lation  when  necessary  for the immediate preservation of public health
    17  and safety and may enforce such law or regulation in relation to proper-
    18  ties for which a building permit has not been issued at  the  time  such
    19  law or regulation is adopted.
    20    §  153.  Establishment  of vested property right. 1. A vested property
    21  right shall be deemed established with respect to a property upon:
    22    (a) the issuance of all  required  state  and  municipal  permits  and
    23  approvals  for  residential development of the property, with the excep-
    24  tion of a building  permit,  following  or  contemporaneously  with  the
    25  approval,  or  conditional approval, of a site specific development plan
    26  relating to the property; and
    27    (b) the filing by the landowner with the clerk of the municipality  of
    28  a  notice  of  vested property rights in a form as prescribed in section
    29  one hundred fifty-four of this article.
    30    2. A vested property right shall attach to and run with the applicable
    31  property and shall confer upon the landowner the right to undertake  and
    32  complete  the  development  and use of said property under the terms and
    33  conditions of the site specific development plan  including  any  amend-
    34  ments  thereto.  A  municipality may approve a site specific development
    35  plan upon such terms and conditions as may reasonably  be  necessary  to
    36  protect  the  public  health,  safety,  and  welfare.  Such  conditional
    37  approval shall result in a vested property right,  although  failure  to
    38  abide by such terms and conditions will result in a forfeiture of vested
    39  property  rights.  A  site  specific  development  plan  shall be deemed
    40  approved upon the effective date of  the  municipality's  legal  action,
    41  resolution,  or  ordinance  relating thereto and issuance of all permits
    42  and approvals relating thereto, with the exception of a building permit.
    43  Such approval shall be subject to all rights of referendum and  judicial
    44  review; except that the period of time permitted by law for the exercise
    45  of  such rights shall not begin to run until the date of publication, in
    46  a newspaper of general circulation within the jurisdiction of the  muni-
    47  cipality  granting the approval, of a notice advising the general public
    48  of the site specific development plan approval and creation of a  vested
    49  property right pursuant to this article. Such publication shall occur no
    50  later than fourteen days following approval.
    51    3.  Zoning  that is not part of a site specific development plan shall
    52  not result in the creation of vested property rights.
    53    § 154. Notice of vested property  rights.  1.  Upon  issuance  of  all
    54  required permits and approvals as specified in paragraph (a) of subdivi-
    55  sion one of section one hundred fifty-three of this article, a landowner

        S. 2060                             4

     1  shall  file  a written notice of vested property rights in the office of
     2  the clerk of the municipality stating:
     3    (a)  the  identity  and  address  of the landowner claiming the vested
     4  right or rights;
     5    (b) the full address of the property as to which the vested  right  is
     6  claimed  or  sufficient information to reasonably identify the parcel of
     7  land as to which the vested right is claimed;
     8    (c) a listing of and  the  identifying  numbers  of  all  permits  and
     9  approvals issued relating to the property;
    10    (d)  information  sufficient to identify the site specific development
    11  plan;
    12    (e) a statement of the landowner's declaration of vested rights in the
    13  property; and
    14    (f) the date upon which the landowner's rights in the property  vested
    15  as provided in this article.
    16    2. A municipality, through a law or resolution passed by its governing
    17  body,  may adopt a standard form for a notice of vested property rights,
    18  provided that such standard form shall include all  of  the  information
    19  set  forth in subdivision one of this section; provided, however, that a
    20  landowner's failure to utilize such standard form shall  not  be  deemed
    21  fatal  to the vesting of the landowner's property right if the landowner
    22  has filed a notice in accordance with subdivision one of this section.
    23    § 155. Duration and termination of vested property right. 1. A proper-
    24  ty right which has been vested as provided for  in  this  article  shall
    25  remain vested for a period of five years. If substantial construction is
    26  not commenced on the property or, in the case of a multi-unit parcel, on
    27  each  parcel,  within  such  five year period, the vested property right
    28  shall expire. This vesting period shall not be extended  by  any  amend-
    29  ments to a site specific development plan unless expressly authorized by
    30  the municipality.
    31    2.  Notwithstanding the provisions of subdivision one of this section,
    32  municipalities are hereby authorized to enter  into  development  agree-
    33  ments with landowners providing that property rights shall be vested for
    34  a  period  exceeding five years where warranted in light of all relevant
    35  circumstances, including, but not limited to, the size and phasing of  a
    36  development,  economic  cycles,  and market conditions. Such development
    37  agreements shall be adopted as legislative acts of the governing body of
    38  the municipality subject to referendum.
    39    3. Nothing in this article shall exempt a  site  specific  development
    40  plan from subsequent reviews and approvals by the municipality to ensure
    41  compliance  with  the  terms  and  conditions  of the original approval,
    42  provided such reviews and  approvals  are  not  inconsistent  with  said
    43  original approval.
    44    § 156. Subsequent regulation prohibited; exceptions. 1. A vested prop-
    45  erty  right, once established as provided in this article, precludes any
    46  zoning or land use action by a municipality or pursuant to an  initiated
    47  measure which would alter, impair, prevent, diminish, impose a moratori-
    48  um  on  development,  or  otherwise  delay the development or use of the
    49  property as set forth in a site specific development plan, except:
    50    (a) with the consent of the affected landowner;
    51    (b) upon the discovery of natural or man-made hazards  on  or  in  the
    52  immediate  vicinity  of  the  subject  property, which hazards could not
    53  reasonably have been discovered at the time of or before the vesting  of
    54  the property right as provided in subdivision one of section one hundred
    55  fifty-three  of  this  article, and which hazards, if uncorrected, would
    56  pose a serious threat to the public health, safety, and welfare; or

        S. 2060                             5

     1    (c) to the extent that the affected landowner  receives  just  compen-
     2  sation for all costs, expenses, and liabilities incurred by the landown-
     3  er  after  approval  by the municipality, including, but not limited to,
     4  costs incurred in preparing the site for development consistent with the
     5  site  specific  development  plan,  all  fees  paid  in consideration of
     6  financing, and all architectural, planning, marketing, legal, and  other
     7  consultants'  fees,  together  with  interest  thereon at the legal rate
     8  until paid. Just compensation shall not include any  diminution  in  the
     9  value of the property which is caused by such action.
    10    2. The establishment of a vested property right shall not preclude:
    11    (a)  the application of ordinances or regulations which are general in
    12  nature and are applicable to all property subject to land use regulation
    13  by a municipality, including, but not limited to, building, fire, plumb-
    14  ing, electrical and mechanical codes; or
    15    (b) the application to the property of overlay zoning which  does  not
    16  impact the allowable type or integrity of the use.
    17    §  157.  Application. 1. The provisions of this article shall apply to
    18  development rights for residential developments only.
    19    2. A vested property right arising  while  one  local  government  has
    20  jurisdiction  over  all  or  part of the property included within a site
    21  specific development plan shall be effective  against  any  other  local
    22  government  which  may  subsequently  obtain or assert jurisdiction over
    23  such property.
    24    3. Nothing in this  article  shall  preclude  judicial  determination,
    25  based on common law principles, that a vested property right exists in a
    26  particular case or that a compensable taking has occurred.
    27    4.  The  provisions  of this article shall apply only to site specific
    28  development plans approved on or after the effective date of this  arti-
    29  cle.
    30    §  2. This act shall take effect on the first of January next succeed-
    31  ing the date upon which it shall have become a law and  shall  apply  to
    32  applications for residential development filed with municipalities after
    33  such  date.  Effective immediately the addition, amendment and/or repeal
    34  of any rule or regulation necessary for the implementation of  this  act
    35  on  its  effective  date  are  authorized to be made and completed on or
    36  before such date.
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