HomeMy WebLinkAboutThe Short Course-Basic Guide for Planning Boards & Zoning Boards of Appeals 1996
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THE SHORT COURSE
A BASIC GUIDE
FOR PlANNING BOARDS
AND ZONING BOARDS OF APPEALS
IN NEW YORK STATE
by Harry J. Willis, David Church & James W. Hotaling
Published by 111e New York Planning Federation
1996
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Acknowledgements
Nearly a year a9) the authors meet in Manhattan during a lunch break at the Association of Towns annual meeting
ani agreed to collaborate on this 9'~ Since then many people haw provided important advice ani comment,
notably Mildred Whalen, J. Donald Fasa, Bruce Beneke, Joseph Catalano, Scott Chatfiekl, William Sharp, Robert
Freeman, Angelo Muccigrosso, Betsy Minehan. Donald Kelly, John Banta, Barbara RinakI, ani Jack Nasca.
Planning Federation staff Cynthia Blue ani Cori Traub also provided the essential SJpport needed to lIXlve this
project from Ilea to reality. Sarny Willis, Liana Hoodes, ani Mary Hotaling gave erICOIlIageInen and advice when
lIXlst needed.
About the New York Planning Federation . . .
The New York Planning Federation is a non-profit Organi2ation established in 1937. Our mission is to promote
SJUDj planning, zoning anilalli use practice throughout New York State. Programs include education and training
for planning and zoning offidals, technical assistance, publications ani ad1Iocacy. The Federation also provides
direct, small grant iurxling through the Rural New York Planning Grant Program.
Membership is open and welcomed to anyone who supports our mission. Membership currently includes nearly
11,000 individuals. Most rnembets are lIlllIlicipa! planning and zoning offic:als and staff. Membership categories
include lllLII1icipaJit and couru:ies, non-goverrunental organizations, priwte businesses, individuals and libraries.
For more information conract The New York Planning Federation
488 Broadway
Albany, New York 12207
(518) 432-4094 I (518) 427-8625 (fax)
Other Publications from the New York Planning Federation include:
Planning News - the newsletter of the New York Planning Federation
All You Ever Wanted to Know About Zoning...second edition
by James A. Coon & Sheldon W. Damsky, 1993.
Rural Deuelopment Guidelines, Hamler Design Guidelines, & Building Form GUidelines
3 ,.,hmle set wi Dutchess Wunty Oepartmem of Planning & Development
b\.' Joel S. RusseR. Anne Tate & Jennifer Shakespeare, 1994
All You .Eller Wanted to Know About Zoning...Annual Supplement
by Sheklon W. Damsky & Joseph Catalano, forthcoming, September 1996.
The Practical Guide to Comprehensive Planning
by Cori Traub & David Church, forthcoming, Spring 19%
c
copyright 19% by the New York Planning Federation
All Rights Resetved
ISBN Q-8113-Q002-1
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The Short Course...
New York Plcnning Federation
THE SHORT COURSE
A Basic Guide for Planning Boards and Zoning Boards of Appeals
TABLE OF CONTENTS
About the New York Planning Federation ........... . . . . . . . . . . . . . . . . . . . . . . . .
Acknowledgements ........................... . . . . . . . . . . . . . . . . . . . . . . . .
Introduction ....................................................... iv
1. Municipal Planning and Zoning Boards in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Creation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Appointment and Removal ...................................... 2
C. Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
D. Qualifications ................................................ 5
E. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
F. Basic Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. Records .............................................. 14
4. Referrals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. Decisions ............................................. 18
II. Duties of Boards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Planning Boards & Commissions ................................. 19
1. The Comprehensive Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2. Advisory Roles ......................................... 23
3. Subdivision Plat Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4. Site Plan Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5. Special Use Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. Zoning Boards of Appeals .............. . . . . . . . . . . . . . . . . . . . . . . . . 31
1. The Board of Appeals as Quasi-Judicial Body ................... 31
2. Interpretations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3. Tne Appeal for a Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
a. The .A.rea Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
b. The Use Variance ..................................36
c. Additional F3.ctors .................................. 40
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New York Planning Federation
m. State EnvirorunentaJ Quality Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
A. When Does SEQR Apply? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
B. Basic Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. Complete Application and Initial Review '" . . . . . . . . . . . . . . . . . . . . 43
2. Lead Agency and Determination of Significance . . . . . . . . . . . . . . . . . . 43
C. The Envirorunental Impact Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
N. Essential Skills ...................................................47
A. Looking at the Land and Community. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 .'
B. Reading Maps, Plats and Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
C. Dealing with the Public ........................................ 57
1.~gmg~eetings ..................................... .57
2. Tips on Negotiation and Conflict ~anagement . . . . . . . . . . . . . . . . . . .59
D. Identifying and As.~ssing Development Impacts . . . . . . . . . . . . . . . . . . . . . . . 62
1. Identifying Envirorunental Impacts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2. Assessing EnvirorunentaJ Impacts ............................ 64
V. The Five Steps to Success as a Board ~ember ............................ 67
A. Be A Community Leader . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
B. Know Your Community. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
- Its Geography & Character ...................................
C. Know Your Local Regulations and All Required Procedures .............. 69
D. Know Your Partners " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
E. Treat Everyone With Courtesy and Respect. . . . . . . . . . . . . . . . . . . . . . . . . . 7I
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Appendix A: Glossary ofTerms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Appendix B: Key Organizations & Contacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Appendix C: Publications of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Index ............................................................ 83
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New Yorl< Planning Federation
Introduction
This is a guidebook for members of municipal planning boards and zoning boards of
appeals in the State of New York. Others, such as elected officials and the staff or consultants
that work with these boards as wen as lawyers, architects, engineers, professional planners,
builders, or even citizen activists, should also find the information useful. But this book is
intended primarily for board members who shoulder most of the responsibility for making land
use decisions. Some of you are paid a yearly stipend, some receive e.xpenses, but most of you.
are unpaid volunteers. You serve on these boards because you have a civic interest in the
development of your community. The vast majority of you are not e.xpected to have
professional c.uaJifications for membership. !n the best tradition of American government, your
service reflec'"..s the notion that the soundest growth and planning decisions are made by a
cross-section of community representatives, donating their time and effolLS in the public interest.
Often the task is a thankless one. A good board member will log countless hours of
time, studying plans and proposals, and applying local, county and state regulations and
comprehensive plans to them. Teo often, political considerations inaude. T:'1.e general public
often fails to understand the basts ot your dedsions. This guide cannot address pelities; only you
can decide how best to approach that issue. But it is hoped that reading this will at least help
you become familiar with the strt:cturaI bastes of your functions under law, especially if you're
a new appointee. It is also hoped that the time you spend honing the skil1s presented in this
guide will save many more hours and dollars spent on court appeals-to say nothing of the
community benefits of wen-planned projec..s.
Tne information in this book is supported by practical experience and case law, but, as
it is intended primarily for lay people, it does not contain e.xhaustive case citations, scientific
analysis or detailed advise for specific situations. It is also not intended as a substitute for the
detailed axpm iniormarion and analysis provided by planners, attorneys, engineers. architects,
landscape arc.1itects and building officials. We hope your board has access to these invaluable
people. Our hope is that this guide will provide what is most critically needed for the new or
inexperienced board member: a quick study in basic information, presented in plain language,
so that you as a member can confidently address your duties on the board.
Geod luck!
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Chapter 1. Municipal Planning and Zoning
Boards in General
A. Creation
The state's counties, cities and towns, as well as several of its villages, were all
either recognized in New York Slate's first constitution or were later created directly by
act of the Slate legislature. The Legislature has also established procedures by which
new towns and villages may be created by local action. Many of the slate's villages and
some of its towns have been created in this way. The legislature has granted to towns,
villages and cities the power both to perform mllIlidpa! planning activities and adopt land
use regulations. While certain planning powers have been granted to counties, those
powers are largely limited to the exercise of jurisdiction where a countywide or
intermllIlidpa! interest is present 1 In New York, counties do not have the general power
to adopt zoning regulations.
Now, with few exceptions, there is
uniformity in the slate slatutes governing the
operation of planning boards and zoning boards of
appeals owing to the very recent efforts of the
Legislative Commission on Rural Resources. The
Commission has redrafted, simplified and
modernized New York's planning and zoning laws,
in the process eliminating most of the obsolete
inconsistendes which had persisted until just a few
years ago.
Town planning boards and zoning boards of appeals are governed by Article 16
of the Town Law. In villages. these boards are governed by Article 7 of the Village Law.
In dties, planning boards are governed by Article 3 of the General City Law, whereas
1 2<cepl in Ncsscu COllnly wI1ich is 9'C'Iled poINeI> of !lJl:c:ivisicn q:~rcvcI ct the C::unIy levEll.
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zoning boards of appeals take their basic rules from Article 5-A of the same statute.2
County planning boards are governed by Article 12 of the General Municipal Law, but
since a county planning board's functions are fundamentally different from those of a
town, village or city planning board, they are discussed in this guide only in terms of the
referral of local actions for cotmty recommendation (see "Referrals" I Chapter I, Section
F-4).
A word should also be said about charters. All cities in New York are governed
by charters, as are some of its COtmties. Individual city and county charters may
legitimately contain provisions affecting planning and zoning actions whic..>t are not
consistent with the rules set forth in the general staMes which govern cities and counties.
If you are located either in a city or in a charter county, you should become familiar with
any such provisions set out in the charter.
All power and authority in a local government begins with the governing board.
It is the town board, village board of trustees or city cotm.ci1 which has the power to adopt
comprehensive plans, zoning and other land use regulations. The governing board also
has the power to create or abolish the boards which exercise planning and regulatory
review functions. If a municipality adopts a set of zoning regulations, it mus;: create a
zoning board of appeals (ZEA). The ZBA lasts as long as there are zoning functions in
a community. By contrast, a municipal governing board may create or abolish a
planning board at almost any time - regardless of whether the municipality has adopted
any land use regulations. We say almost because courts have held that a planning board
may not be abolished and then shortly thereafter re-estabUshed with new members,
simply in order to remove all of the former members.
B. Appointment and Removal
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Current State enabling law provides that members of planning and zoning boards
are appointed by the governing board, or in some cases by a mayor, for a term of years
equal to the number of members of the board. Your term should begin at the start of
your municipality's official year, and end at the end of a future official year. .'\t the end
of your term, you may be replaced for any reason or no reason. During your term you
may be removed by the appointing authority only "for cause," and only after sufficient
,
- For simpliCly. further reference to these steMes wit be os 'municipd staMas', Ano1her interesting
statute, Article 12-A of the GenercI Munic.oci Low. oIIows cities <n:I viIIcges to ctecle plcmirQ comr.is:sions. not
beards. This low, which sliQhlIv contuses the ~ issue. is dscussed lete<.
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notice, a statement of charges, and a hearing at which you are accorded an opportunity
to defend yourself. You may also be removed during your term by the Appellate Division
of State Supreme Court, upon application by any citizen of your munidpality. or by the
county district attorney. If this latter procedure is used, it must be shown that you are
guilty of misconduct in office.
What kinds of actions constitute grounds for removal? Repeated ethical
transgressions, such as conspiring to conceal substantial private interests in applications
before the board, should qualify. So wouIcI a aiminaI conviction in\K)lving activity bearing
on a member's public integrity. A substantial number of absences could constitute neglect .
of duty, as would continual failure to perform duties established by local regulation, or
reasonably assigned to you by vote of the board or by the chairperson. Your governing
board may already have established standards of conduct for board members. Check
them out-and abide by them!
Pmally, as an appointed official, any member of a planning board or zoning board
of appeals can resign for any reason, at any time, by simply filing such resignation with
the munidpal clerk.
C. Ethics
As a member of a planning or zoning board, you are a "public officer." All public
officers must act and perform in an ethical fashion. What are the standards which
govern ethical conduct under the enabling statutes? General Munidpal Law, Article 18,
establishes severa! requirements.
First, it prohibits a public officer from having any interest in a private contract with
his or her munidpa!ity, if he or she has the power or duty to "(a) negotiate, prepare,
authorize or approve the contract or authonze or approve payment thereunder (b) audit
bills or claims under the contract, or (c) appoint an officer or employee who has (any of
those powers or du!ies).',J An '''lI1terest'' means "a direct or indirect pecuniary or material
benefit accruing to a munidpal officer or employee as the result of a contract with the
munidpality which such officer or employee serves."
For purposes of the law, any' "interest" held by the officer's "spouse, minor
children and dE!1=endents" is deemed to be an interest held by the officer himself. If you
3 Genera MlJl1iCpcl Low. Sedfon 801.
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- or a member of your immediate family - have such a financial interest in a private
contract with the municipality, and if you exercise any of the above powers or duties over
the contract on behalf of the munidpality, then you have a prohibited conflict of interest.
This means that you must take steps to eliminate the conflict as soon as you become
aware of it, and certainly before you exercise any of the aforementioned powers or duties
over the contract and before you realize any financial gain from it. If you don't, you may
be found guilty of a misdemeanor and be subject to criminal prosecution.
The prohibition described above is important. Board members may be called
upon to approve a contractor providing services to the board, such as an engineering
firm or even a hearing stenographer. Direct contractual conflicts of interests must be
avoided.
Second, Article 18 prohibits munidpai officers from directly or indirectly solidting,
accepting or receiving, any gift having a value of $75.00 or more when it could
reasonably be inferred that the gift was intended to influence him or her, or could
reasonably be expected to influence him or her in the performance of duties. This last
phrase is significant: an inference of intent to exert influence over a public officer is ::ot
ne-::essary. All that is necessary is that the gift could reasonably be expected to exert
influence. The wise board member avoids even the hint of a possibly influential gift.
Third, Article 18, Section 809 of the General Munid;Jai Law provides that
whenever an applicant appears before a planning or zoning board in a matter requiring
the board's approval, the application must disclose the name, address and extent of any
interest in the application possessed by any officer or employee of the munidpality.
riere, a munidpal officer is deemed to have an interest in the application whenever "he,
his spouse, or their brothers, sisters, parents, children, grandchildren, or the spouse of
anv of them" (a) is the applicant, or (b) is an officer, director, partner or employee of the
applicant, or (c) owns or controls corporate stock of the applicant or is a member of a
parmership or assodation applicant, or (ei) has made an express or implied agreement
to receive any benefit that is dependent on the application being approved. Of course,
this provision would include any interest of the above kind possessed by a board member.
Interestingly, the law does not require that a board member who has such an
interest in an application must disqualify himself or herself from taking part in the
discussions or dedsion concerning it; it only requires that his or her interest be disclosed.
The burden of making that disclosure is on the applicant, not the munidpal officer.
While the state statute does not require disqualification of a board member in such a
situation, there are cases and some opinions oi the Attorney General, which have
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indicated that disqualification is nonetheless the preferred route. Do yourself and your
board a service: if you have any interest at all in an application-even if the applicant
is a personal friend or neighbor of yours-remove yourself from the board during a/1
discussions and ootes on the application, and take absolutely no part in the
procedure conceming it.
Article 18 requires every municipality to adopt its own code of ethics. Your
municipal code of ethics may be more sllingent than Article 18 itself, may prohibit
conduct which Article 18 doesn't mention, and may set up standards of "cause" for
removal, as that term is used in the statutes governing your appointment and removal.
Please consult your local code of ethics for further guidance regarding the limitations on ..
your conduct.
Lastly, Article 18 authorizes your municipality to require you to file an annual
financ'.a1 disclosure statement. If this requirement is in effect in your city, town or village,
please be sure to abide by it.
D. Qualifications
Being a public officer means you are held to a number of legal requiremen:s: You
must be at least 18 years old, you must be a United States citizen, and a resident of the
municipality on whose board you serve. What constitutes residence? Legally, it's where
you're "domiciled," which is to say it's where you actually live, at least most of the lime.
Sometimes this isn't easy to document, but two factors weigh more heavily than any
others: where you are registered to vote, and where you are licensed to drive.
Generally, a person has only one address for those purposes, and if someone wants to
make an issue of your residence qualifications, he would start by ascertaining those facts.
While these basic qualifications suffice to cover the legal threshold for
appointment, the selection of you by the local legislature is usually also based on your
interest in the seat, political considerations in some cases, the technical or other skills you
have and the needs of the community. You will soon ftncI that, after the community-wide
celebrations and hoopla over your appointment has died down Oust kidding), you may
need some technical training to 'round out' your qy ",Hfi,.,.tions. Section E below identifies
some resources in this area.
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# OF MEMBERS FOR VARIOUS BOARDS (see footnctefa aceptlcns)
TOWN VTI.lAGE CITY
GOVERNING 5 (lsr: class tcwnsl 5 varia
SOARD 3 (2m class tcwnsl
l'LANNING SOARD 5or7 5ar7 Sari
ZBA 3ar5 3 as 3ar5
You must also take an oath of office within 30 days after you begin each of your tenns
on the board. The oath is prescribed verbatim by the State Constitution, and reads as
follows:
"I do solemnly swear (or affirm) that I will support the Constitution
of the United States, and the Constitution of the State of New York,
and that I will faithfully discharge the duties of the office of..............
according to the best of my ability."
You may fulfill this obligation either by having the municipal clerk orally administer
the oath to you, or by signing the written oath in the presence of the municipal clerk.
Either way, the clerk must file the oath in his or her office, and the oath must remain on
file throughout your term. The oath need not be administered by the municipal clerk.
It may be administered by a judicial officer, but the common practice is that the municipal
clerk performs this function.
What happens if you neglect to take and file your oath of office? After the 30-day
period elapses, the governing board may replace you by appointing someone else at any
time. filing late doesn't save you. The governing board may still replace you, even after
you file late. But until and unless you are replaced, you continue to serve lawfully, even
if you haven't yet taken and filed your oath of office. A word to the wise: If for some
reason you have neglected to take and file your oath on time simply ask the governing
board to reappoint you. Then, be sure to take and file your oath within 30 days
thereafter, and you'll be secure in your position.
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· VoricliON ccn exist in some c:rc.rnstcoce~ Unde< Section 10 of tre Murucipol Home Rule Low 0
municipoiity could modify tre numoer of ."TlElmbeIs end 1hetr'Ien;th of tllfmS 1hrougn 0 propefty coopted Ioccl
iow. In towns. one of tre five or seven positions on the pIomino;; board or ZBA may be specificolly oe5iQned fer 0
represenlative from ;he ferm community. MnoIIy. tre Attorney Ganercl has ~ en opinion the: c rnurOciPclity
may ocool 0 loccJ low ol"O\llding for cIIemare membe<> of either oIcrving boards or ZBAs to be coooinled
where oOsences or conflic!! of inleraS! melee il impossible 10 gon 0 quorum ar meeli~ 1he StOle LegioIature IS
elso now looking of encoUng iocd prolll.on tor cIIemcre men'lOeI1.
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E. Training
Every member of a planning or zoning appeals board should be trained in the
knowledge and skills required to review development proposals. These range from a
grounding in legal procedure to the technical elements of map-reading and the review
of enviromnental data. As a result of recent /egislation, your governing board may now
require you to become trained as a condition of continued service. Basic training is
available from a number of sources. The New York Planning Federation, often in
partnership with county and regional planning organizations, offers basic and advanced..
courses in planning and zoning throughout the State. The New York State Department
of State will provide basic training courses on request. County planning departments as
well as regional boards and commissions also may offer courses. You will probably be
notified as to the availability of these courses. If you are new to a board or if you have
been on a board for a while and haven't heard about any courses, you should contact one
of the organizations below for more information.
Some Statewide Training Providers in New York State
(add others from your region at the bottom of this table)
NY PIaming Ftderali:m iNYPF) Various Basic/Advanctd. eour... 518-427.a625
Annal FaIIlNlllure / Spc1ng ilepoml eour...
NYS Dopartmcnl: of 5ta.. (DOS) ba.x: _ ocheduled an:! on _ 518-486-9888
various c:cunly plallrIlng bcaltls &: x:he:luitd _ . oirzn In ~ wtIh NYP!'. <2Il yoJr c:cunly
c:cunly plallrIlng fodemlcns DOS an:! ad>m "Iamlng dept.
...~.._....., of Towns of NYS F<CnaIy ArnaI ~/ mis:. ~ I 518-465-7933
NY C:xIi--. of Mayor. reglonaI ~ AmaI Maln sa- C:xIi. 518-463-1185
NYS DEe SEQR IRining 518457-2224
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F. Basic Procedures
1. Meetings
The chair should preside according to the established rules of procedure. That
means that he or she should call items to the floor as necessary, and should call for
motions, seconds, dL"" """on and votes when apprOpriate. The chair is in general charge
of procedural regularity, and should rule motions in or out of order, as well as control
public input. Quite often, there is a fine line to be walked here. What may seem like fair
conduct of a meeting to one observer may seem like dictatorial c~ntrol to another. All
board members should gather at least a nodding acquaintance with the rules of order, so
as to lessen this Lmcertainty and help insure fair and proper conduct of meetings. See
Chapter IV, Essential Skills, for some additional tips on conducting meetings.
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A municipal board may establish its own procedure for meetings by adopting
bylaws or rules. AIterna1iveIy, the governing board may impose procedural rules by local
law. Robert's Rules of OrderS do not necessarily govern board procedure. As one,
rather common option, a board is certainly free to adopt Robert's Rules of Order as its
operating rules of procedure, but other rules can be adopted.
However regulated, a board's procedural practice must adhere to certain statutory
mandates. A board cannot officially convene or meet unless a quorum is present. A
quorum is a majortty of the full membership of the board, coLmting absentees and
vacancies. The same number, a majortty of the whole, is needed in order to take any
action. This gets a bit tricky. If the question to be acted on is an application before the .
boarc:kay, for a site plan, subdivision or special use permit-the state statutes prescribe
the types of actions the board may take: approval, modified approval, or disapproval.
,.;n.y of these must receive an absolute majortty to be effectively accomplished. Thus, if
there is a motion to approve a subdivision on a five-member planning board, and the
':ote is two in favor, three opposed. the motion fails. Such a failed motion to approve
does not, however, constitute a disapproual. It is simply a "no action", If the board
wishes to then issue a disapproval, it must introduce and vote on a new motion to
disapprove. Presumably, that motion will receive three favorable votes, and will pass.
It should go without saying that. on applications, because there is a statutory time
limit running, the board needs to make an actual, effective, majority decision if at all
l Curren11y publisnec ':1v!he Poor H0\.38 ;>...... Tancroc:. Ronce.
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possible. If the first, or even second motion fails, analyze the situation and find a way to
gain a majority approval, approval with conditions or denial of the application. On
some, rare occasions this is not possible. If the statutory time limit passes without a
decision having been made, the board has taken "no action". In all cases other than
subdivision approval, "no action" gives the parties the right to appeal to the State
Supreme Court. That right exists whether or not the lack of an action was intended. In
most cases, if board members are close to an agreement or the applicant is making some
revisions to the application, a mutuaHy-agreed time extension is forged. In the case of
subdivision plat applications, if the time limit passes without a decision by the planning
board, the applicant has the right to a default (automatic) approval from the municipal
clerk. Even in these cases a board and an applicant may agree to extend the time'
period.
If the question does not involve an application, but is instead on a
recommendation, or on a matter of internal beard business, a majority vote is still
necessary. However, since there is no time limit running on these latter kinds of votes,
there is less of an urgency for a decision. A motion that fails may well cause the
membership to consider alternatives, but will not mandate the formulation of another
actual decision.
How necessary or binding is an agenda? Agendas are valuable tools to the
preparation and conduct of a meeting-but they're not binding in the least. Many boards
prepare agendas for meetings. Even with a printed agenda in hand, a board may take
up matters as it chooses and in whatever order it chooses. The appearance of a
particular item on a printed agenda does not guarantee its discussion, nor should an
item's absence from an agenda prevent it from being brought up. One must remember
that many, if not most, board matters involve time limits for decision. So at some of its
meetings a board will have to deal with certain matters or face legal challenge. But the
agenda itself is nothing more than a procedural tooL In order to promote flexibility, your
board might prepare an agenda with a "new business" category at the end - to facilitate
the addition of specific items not under consideration when the agenda was printed. The
bottom line is that an agenda will help you get through the meeting and assist the board
in staying organized.
Any board member, including the chairperson, may make or second motions, may
take part in Iii", I~On, and may, of course, vote. Contrary to a popular misconception,
the chair is net required to abstain from voting except to break a tie. Tne chair may vote
on any motion, at any time.
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oagelO
Planning boards and zoning boards of appeals are public bodies, and are
therefore subject to the state's Open Meetings Law (OML). Basically, that statute
provides as follows: Whenever a quorum (a maprity of the whole) are present to discuss
the public business of the board, the open-meetings rules apply. That means that if the
meeting is scheduled more than a week in advance, at least three days' notice of the
meeting must be given to the news media as well as posted in a conspicuous place. If
the meeting is scheduled one week or less in advance, then the board must give notice
to the media "to the extent practicable", and must post notice in a conspicuous place as
soon as possible. Remember, however, that if a hearing is scheduled on a land use
matter, then five days' advance notice must be given, regardless of how far in advance
the hearing is scheduled. Also, the hearing notice must actuaJIy appear in the newspaper
at least five days in advance, whereas for a meeting the law only requires that the media
be notified, not that the notice actually appear.
The Open Meetings Law also requires that the public be allowed to be present at
the meeting. In practical terms, this means that everyone must be able to hear and
follow the official proceedings. If an audience is too large for the facility, and an audio
system cannot accommodate the overflow in an adjacent room, then the board must
adjourn to a site that will accommodate the audience. The media must also be
reasonably accommodated. That is, audio and video equipment must be allowed, so long
as it does not unduly interfere with or disrupt the proceedings of the board or impair the
public's free access to the meeting. Must you allow non-media persons to tape record
or video the proceedings if they so desire ? Yes, you must.
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New York Pfenning Federctfon
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New York State's Open Meetings Law allows a board to hold
a closed meeting, or executive session, to discuss:
1. Matters which Will imperil the public saiety if ni<closed.
2. Any matter which may disclose the identity of a law enforcement agent or
intonner.
3. Wormation relating to current or future investigation or prosecution of a
criminal offense which would imperil effectlve law enforcement if
n;<rl"sed.
4. Discussions regan:ting proposed, pending or aarertt IilIgatIon. . ..
5. Collective negodalions pursuant to Article 14 of the Civil Service Law.
6. The rmdlcal, flnanciaI, credit or employment hisl:ory of a particular person or
corporation, or matters leading to the appointment, employment,
promotion. demotion. discipline, suspension. dismissal or removal of a
particular person or corporation.
7. The preparation. grading or administration of examinations.
8. The proposed acquisition. sale or lease of real property or the proposed
acqUisition of securities, or sale or exchange of seaJrities held by the
board, but only when publicity would substantially aifea their lIil!ue.
. Means aaualfiled legal action. not the mere threat of a lawsuit.
Unless one or more of the circumstances listed above is present, an executive
session cannot be held. Further, an executive session can only be held as part of a
duly-noticed open meeting. In other words, the board must first convene in open
session, then decide by majority vote to enter into executive session, stating on the
record the general area of subjects to be discussed. To hold the e.xecutive session, the
board could go to a private meeting room. If this is not possible, then the meeting hall
itself may be cleared until the executive session has ended. After the e.xecutive session
has been dosed, the board must reconvene in open session immediately I and must place
on the record a brief general statement of the subjec+.s considered and actions taken in
the executive session. Only after" the board has reconvened in open session, may it
adjourn. Once again, an executive session may only be convened within a duly-noticed
':Jpen meeting, may be held only for certain purposes enumerated in state law, and must
be summarized on the record as the board reconvenes in open session.
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While the board may exclude any non-board member from an executive session,
it may also include anyone it desires to be present. The question of whom to allow into
an executive session is solely within the discretion of the board.
Work sessions can be an invaluable way of informally meeting with prospective
permit applicants or other interests on specific matters prior to a submittal of a fonnal
application or prior to specific decisions being made. Applicants in particular may
appreciate this oPPOrtunity to infonnally discuss their options before cOmmitting to a
specific proposal. Yet often the question is asked, "Must our board's 'work
sessions'-where no votes are taken and no public or applicant input is heard-be open
to the public?' The answer is, So long as a quorum of members are present and the
board's bUSiness is being discussed, the session must be held in strict accord with the
Open Meetings Law. It does not matter whether the meeting is called a "work session,"
or an "agenda meeting," or whether any votes will be taken. But it has been held that
a "casual encounter" of board members, even if a quorum is present, is not subject to the
OMI-. The important distinction seems to be whether or not the meeting is planned and
how mar.y members are present, not how formal or informal the procedure is.
On a busy board. it may be useful to assign subcOmmittees to analyze particular
matters and to report their findings back to the full board. However, if you officially
establish a subcommittee of two or more members, that subcommittee must also compiy
with the Open Meetings Law.
2. Hearings
Although public hearings almost always are held in conjunction with meetings of
the board, they carry procedural requirements of their own which are somewhat distinct
from those that govern meetings alone. A public hearing is a session conducted by the
board at which any and all persons are given an oPPOrtunity to be heard on a matter
before the board. Public hearings are required by state law on all subdivision and special
use permit appiications, on all appeals to a ZBA, and on all new or reVised
comprehensive plans. Even where state law does not require a hearing - such as in the
case of site plan review - the local zoning regulations may. If no hearing is required
either by state or local law, a board always has the option of holding a hearing or. any
matter.
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Several points must be borne in mind concerning public hearings. First, for
hearings required by the municipal statutes, a uniform five-day newspaper notice period
is set. For State Environmental Quality Review (SEQR) hearings, 14 days' notice,
published in a newspaper of general circulation in the area of the action, must be given.
For hearings not required by state law, the ordinance or local law should govern the
notice period. Second, there is case law which has held that, when a statute, ordinance
or local law requires "the board" to hold a hearing, then at least a quorum of the board
must be present. INbile most public hearings are conducted by the Presiding officer of
the board, nothing prevents the board from delegating the duty of Presiding over the
public hearing to another board member, or, in fact, to some other person specifically..
retained for the purpose.
At a public hearing, everyone who wishes to be heard must be allowed to speak.
This right cannot be limited to residents of the municipality, or only to those who live
near the project which is under consideration, or only to property owners, taxpayers,
those of a certain age, or, in fact, to any other category of persons. Everyone means
everyone. Not only should each person be allowed to speak, but no one should be
prevented or discouraged from displaying graphics, or from using physical objects or aids
in his or her presentation. Tnere is also case law that says the board may not place a
time limit on anyone's remarks or presentation. With all of that said, it is nonetheless
true that the purpose of a public hearing is that a ftill, fair opportunity be offered to the
public to air its views on the matter at hand. Comments which are not germane to the
issue do not have to be allowed. Abusive comments or unruly behavior does not have
to be tolerated. Tne presiding officer is in charge of the proceedings. He or she should
wield the gavel with authOrity, and should be prepared to summon municipal police
protection if necessary.
Rve suggestions acme to mind as being in the "~rds to the wise" category. Frrst,
if a public hearing is to be held on a large, controversial project, make sure the fac'.!ity
is large enough to acacmmodate the crowd. It doesn't hurt to ensure the audience, as
weJl as the board, an opportunity to hear each speaker. Second, meetings and hearings
must be ~r""'~ble to individuals with disabilities.6 Third. if it is a large hearing, arrange
to have microphones available for the speakers. Fourth, use a sign-in list for the
speakers, then call on them in the order that they signed in. That way, those who arrive
early and wish to leave early may do so. Lastly (and only if this seems feasible),
· M....oCpclities wilt1 buildings not CCC8SSIble to individucls wilt1 dscbilities must. cy lew. have c CUiy
ccccted pla1 tcrfurure. fuiI oc:cesoibility. However. this plen oPllon does not:sHeve me murllC:;:diIy frcm
C"-"'8I'I11y <::suIn(; 1hct cny pcclic IMenno i. oc:cassoble in "'me mcmer.
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New York Planning Federation
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announce that after everyone has had an opportunity to speak, anyone who wishes to
speak a second time will be given an opportunity to do so. This may seem like bending
over backwards, but it will aIlow some of the more thoughtful attendees to respond to the
comments of others, and it may help shed more light on the subject for the board
members as well.
It may be necessary to adjourn a public hearing, and continue it at a future date.
The reasons are limitless, but the most common are the lateness of the hour, the fac: that
certain speakers whom the board wants to hear are not present, or where the board
decides that certain facts or materials will only be available at a later time. Whatever the
reason, due process and fairness must surround all later sessions, ~ as the first. If the
board adjourns the hearing to an unspecified time and place, then newspaper notice
must be given regarding the later session, in the same manner as the original notice. If,
however, prior to adjourning, the board announces the time and place of the contint:ing
session, then public notice need not be given.
3. Records
The board has the authority to employ a secretary at municipal expense. The job
of the secretary should be to maintain and preserve the records of the board. Records
include the minutes of meetings, as wen as files of all applications before the board.
These should include not only material required of applicants, such as maps, statistics and
environmental studies, but aiso aU documents received from third-party sources such as
consulting engineers. Board records should also include all reports and recommendations
produced by the board relating to community business, and any matter referred to the
board for recommendation.
Meeting minutes should be kept by the secretary, and should include as much
material as possible relating to the proceedings. The Open Meetings Law only requires
minutes which record all motions, proposals and actions (i.e., votes) of the board, but
good minutes should include much more material than that They should contain the gist
of all discussions, presentations by applicants, and the contributions of other municipal
officials as well as consultants. A tape recorder is an exceUent tool for recording
word-for-word proceedings, but the secretary should transcribe the tapes into written
minutes as soon after the meeting as possible. In fact, the Open Meetings Law requires
that written minutes be available within two weeks after the close of the meeting.
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pagelS
4. Referrals
Development projects which are subject to local approval will often require review,
recommendation or approval by other units of government as well. In the following
subsection, we will discuss a few of the most commonly-required instances of these
reviews.
As a member of a local planning board or zoning board of appeals, you will be
communicating with your county planning board and/or your county planning agency.,
In New York, state law allows for county review of certain projects before they can be
approved by a local planning board or ZBA, and requires more than a simple majority
(Le. "supermajority" equal to at least a majority-plus-Qne) to override the county's
recommendation. If there is no county planning agency having jurisdiction, then this
review must be performed by the metropolitan or regional planning agency which has
jurisdiction.
PIA'OONG AND ZONING REFERRALs
TO THE COUNTY PLAJ.'OONG AGENCY
Required county referral proceeds according to section 23 9-m of the
General Municipal Law. That section requires referral to the county
planning agency (or metropolitan or regional planning agency if there is
no county agency) of certain of the following actions before they are
acted upon at the local level:
(1) Adoption or amendment of a comprehensive plan by a local
governing board (new as of 1995).
(2) Adoption or amendment of a zoning ordinance or local law
by a local governing board.
(3) Issuance of special use permits.
(4) Approval of site plans.
. (5) Granting ofuse or area variances.
(6) Any other authorizations which a local board is empowered
to issue under any local zoning ordinance or local law.
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Since most counties have Planning agencies, for simplicity's sake we'U refer to the
review in terms of the county, although the requirements and procedures are the same
if the reView is performed by a metropolitan or regional Planning agency.
We said "certain" actions must be referred to the county. Those which must be
referred are those which affect property within 500 feet of any of the foUoWing features:
(1) A city, town or ViUage boundary.
(2) The boundary of any existing or proposed county or state park or
recreation area.
(3) The right-of-way of any existing or proposed county or state
parkway, thruway, expressway, road or highway.
(4) The existing or proposed right-of-way of any stream or drainage
channel owned by the county or for which the county has
established channel lines.
(5) The existing or proposed boundary of any county or state-owned
land on which a public building or institution is situated.
(6) The boundary of a farm operation located in an agricultural district
established under the Agriculture and Markets Law. (But this
prOVision does not apply to the granting of area !X1riances.)
Where referral of an action is required, the local board must forward what is
termed a "fuU statement" of the action to the county at least ten days before any local
hearing is held. If no hearing is to be held, then the referral may be made any time prior
to the local board's final decision. In practical terms, however, the referral must be made
as early as POssible, due to the fact that there are timetables in effect which set deadlines
for local action.
A "full statement" consists of all paperwork required by the local regulations as
constituting a complete application, plus a completed enVironmental assessment form
' lEAF) and any other material required by the local board to make its determination of
significance under the State EllVironmental Quality ReView Act (SEQRAj. Note that
SEQRA itself requires no EAF for Type II actions, but that the General Municipal Law
does require the EAF, even for Type II actions, if they must be referred to the county.
Within 30 days after its receipt of the fuU statement, the county planning agency
must make one of four possible recommendations on the proposed project: approval,
modification, disapproval, or "no county-wide or inrercommunity impact." If, within this
30 days, the county reper..; a recommendation of either modification or disapproval, the
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local decision making board may approve the project only with a majority-plus~ne of its
total membership. "Total membership" includes vacancies, absences, abstentions, and
those out having coffee.
Within 30 days after its own final action, the local board must file a report of that
final action with the county. If the local board has acted contrary to a recommendation
of modification or disapproval, its report must state the reasons for such action.
What happens if the county fails to report its recommendation within its required
30 days? First, let's be clear that the local board must wait until the county has reported
its recommendation or until the thirty days expires, whichever occurs first. If the 30 days
expires and the county has not made a recommendation, the local board is free to take
action and is not bound by the "supermajority" rule in any way. But what happens if the
county reports a recommendation of modification or disapproval after the 30 days has
expired, bur before the local board has made its decision? In that case, the
supermajority rule still applies, if the county's recommendation is received at least two
days prior to the local board's decision.
Lastly, the county planning agency and the local referring board may enter into
an agreement to modify certain of the otherwise strict requirements of the General
Municipal Law. Such an agreement may do one or both of the following:
-It may define a "full statement" in terms other than the state-law definition.
-It may categorize certain types of projects which state law would otherwise
make referable, as instead being of purely local rather than of
countywide or intercommunity importance, and thus not referable.
Section 239-n of the General Municipal Law is similar to section 239-m, and
affects county review of subdivision plat applications before a town, village or city
planning board. But whereas the matters referable under section 239-m are mandatory
by State law, section 239-n is pennissive only, and must be activated by the county
legislative body. If that body authorizes its county planning board to review and make
recommendations on local subdivision applications, then local planning boards within that
county must comply. The review procedures and supermajority requirements will then
be the same as those that apply under section 239-m.
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The local planning board or ZBA should bear in mind that county, metropolitan
or regional referrals required under the General Municipal Law are the responsibility of
the local decision making board itself, not the applicant. If this referral is not properly
made, any local decision has been held to be void. By contrast, there may be other
reviews and approvals which are the applicant's responsibility to secure, and which are
beyond the scope of this Guide. For more information regarding other reviews and
approvals you may wish to consult the Guide to Land Develooment available from the
New York State Department of State (see Appendix C)
5. Decisions
Once a review of a matter before a board has been completed, a decision must,
of course, be made. Decisions of planning boards and zoning boards of appeals must be
made within the time limits set by the state staMes. A decision is not only an action of
the board made via resolution at a meeting, it is also a legal document in its own right,
and should be distinguished from meeting minutes. While the Open Meetings Law
requires the preparation of minutes, the municipal staMes require a decision to be filed
in the municipal clerk's office, with a copy mailed to the applicant. The form of the
decision is not prescribed by the staMes and is, therefore, up to the municipality to
devise. A decision should be legally sufficient if it documents the matter at issue and the
action taken. It is the filing of the decision in the clerks office that begins the staMory
timetable for appeal to the courts.
It should also be remembered that all records of a planning board or zoning board
of appeals, once filed in either the board's office or in the municipal clerk's office,
become official records of the municipality, and are accessible under the state's Freedom
of Information Law.
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New York Planning Federcriion
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Chapter II. The Duties of Planning Boards and
Zoning Boards of Appeals
A. Planning Boards & Commissions
A planning board has no mandatory functions under New York law. Its functions
are determined by the munidpal governing board. The governing board may assign
various review-and-approval functions to its planning board, or it may give the planning
beard an advisory role only, or both. The duties which. may be assigned to a planning
board are theoretically limitless, but certain quite common powers are provided for in the
state statutes. These are: comprehensive plan preparation, subdivision plat approval,
site plan review, and the granting of speo.a! use permits. The exercise of any or all of
these powers by a planning board will require the board to adhere to strict procedural
rules set by the statutes.
Subdivision plat approval, if it is to be performed according to the enabling
st;lhJtes, must be assigned to the planning board, not to any other board. By contrast,
compreherisive plan preparation, site pian review and the granting of spedal use permits
are typicaJly assigned to the planning board, but they may be assigned instead to another
board, or retained by the governing board itself. The procedural and substantive rules
governing subdivision, site plan, and spedal use permit approvals are all discussed later
in this G-tJide.
While planning boards have no mandatory powers, dty and village planning
commissions, created under Article 12-A of the General Munidpal Law, do. In addition
to hailing all the permissive powers possessed by planning boards under the General City
Law or the Village Law, planning Commissions have the direct statutory duty to make
recommendations on the adoption or change of offida/ maps, drainage or ..vater system
plans, waterfront plans, and certain activities related to waterfront plans, the proposed .
location of all public buildings, bridges, statues or monuments, highways, parks,
parkways, squares, playgrounds, recreation areas or public open spaces. The planning
Commission must render a recommendation on each of these matters before any other
board or offidal of the dty or village may make any final dedsion.
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New York Plcnninc Federation
page 20
L The Comprehensive Plan
By far the most common function of any kind assigned to a planning board is that
of preparing a comprehensive plan for the community. A municipal comprehensive
plan is not law, in and of itself. Its provisions cannot actually be enforced against a
landowner or anyone else. But important new language in the municipal statutes
requires any land use regulations or amendments adopted after August 2, 1995 to be
in accordance with a written comprehensive plan adopted pursuant to the new statute.7
Prior to that date, only zoning had to be in accordance with a comprehensive plan, and
the plan itself did not have to be a written document. Land use regulations may be
challenged in court by someone (usually a landowner) seeking a declaratory ruling that
a regulation is 'not in accordance with a comprehensive plan.' If the municipal planning
board has prepared a good, logical comprehensive plan, and has updated it as
appropriate, the plan should be given great weight by the court. The true legal
significance of a comprehensive plan is, therefore, found in its relationship with the
community's land use regulations.
The municipal statutes authorize the governing board to adopt a comprehensive
plan, but allow the governing beard to delegate the job of actually preparing the plan,
either to the planning board or to a special board, so long as that board has planning
board representation. The statutes set forth rather detailed substantive guidelines
covering the development of comprehensive plans. They may consist of written or
graphic materials which identify and define the goals and poUcies of a community as they
r';!late to planning and development, and may outline the standards by which the
community should implement those goals and policies. Tne comprehensive plan should
serve as a basis for land use regulations, infrastructure development and "public and
private investment".
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The permissible content of a community's comprehensive plan is limitless, but the
statutes offer some strong suggestions for what might be included.
7 Chooler4180f1tl&L::wsof lQQ5cmencecGenerdCltyLow. 528-c. iownLow. 92n-o. Village Low.
j7-722 ana Generci Munc:Ocl Lcw. 511'kl '" relclicn 10 the pI8OCfction. cClopiion end """_ of
-=omprehensive pions.
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ELEMENTS OF A COMPREHENSIVE PLAN
A Plan may include:
.
general statements of goals, objectives, principles, policies and stamards
consideration oi:
regional needs
agricuIturaIu.<es
historic an:! CJIlural resources
coastal and natural resources
sensitive envirolllIll!llla! areas
population trams & future projects
transportation IaciIIlies
utilities and infrastructure
housing resources and needs
educalional, cuI1uraI, and historic IaciIIlies
health al'.d emergency r..rilili....
park ar.d recreational fadities
commerc;;.a! and industrial facilities
plans of other agencies and COmmunities
strategies for improving the local economy
proposals and programs to implement the community's policies
any an:! an other relevant issues
Sound like a fonnidable task? It can be; yet with good preparation it doesn't have
to be. The development of a well-considered and well-prepared comprehensive plan can
be expected to take at least a year, many Iate-night meetings, a great deal of contribution
from a great many people in the community, and the finn support of munidpal offidals.
It should start with research leading to an inventory and mapping of data relative to the
e:<isting character of the municipality's geography and community, as well as the state of
e:dsting infrastructure (transportation routes and utilities, for example). See Chapter N,
Section 8 on reading maps, plats and plans to see how maps are used. An analysis
should be made 'Jr regional demographic and economic trends and environmental needs
affecting the community including a review of the plans of adjoining communities and
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other agencies. A set of community goals or objectives should be established, often
developed with the help of a public opinion survey supplementing direct public input
through meetings and interviews. The plan should progress toward a picture or vision
for future growth and development judged most appropriate and reasonable by a
consensus of the commtmity and its officials. For more information as well as practical
advice on how to complete, adopt, implement and update plans, The Practical Guide to
Comorehensive Plannina will be available from the New York Planning Federation (see
Appendix C).
After a comprehensive plan has been adopted, it should, of course, be followed.
All land use actions taken by the governing board should be "in accord" with the plan.
That doesn't mean that the governing board needs to immediately rezone all propeny
exactly as the plan might say. But it does mean that rezoning decisions should be made
with the ultimate goais of the plan in mind. As an example, let's say the plan envisions
a portion of town in proximity to an existing hamlet. becoming commercially developed
within the next 25 years. The governing board may well decide to maintain an
agriculturaIlresidential classification for the land until such time as the marketplace
indicates a need to rezone the land. This should help stabilize tax a<:sessments in the
interim, while s;alling off pressures for inappropriate, haphazard or patchwork
development.
Some additional points need mentioning.
Any plan should be in a written format that is
publicly available, either for review, copying or
purchase. Sometimes plans are not single
volumes but an assemblage of mater'.aIs including
maps and meeting minutes. That's okay, but
every planning board member should have access
to the plan and be familiar with its contents. All
plans through time do become outdated and
should be updated. State statutes now require
that at the time of adoption the governing board
must set such periodic review (we suggest at least
every 5 to 10 years). Lastly, remember that
while plans come in all shapes, sizes and styles
reflecting the unique aspects of each community,
t.hey should be understandable and practical so
that the reader can appreciate how their interests
relate to the plan's vision.
KEY BENEFITS IN ADOPTING
A COMPREHENSIVE PlAN:
(1) DEFINES COMMUNITY vrSION
WITH SHAHED GOAl...S &
5TRA1EGlES
(2) PRlORITlZES DECISIONS &
IN\lESTI.1ENrS
(3) PROVIDES LEGAL DEFENSE FOR
L'\ND USE REGULA nONS &
PROGRAMS
(4) IMPROVES OPPOR1UNITlES FOR
GRANT' & LOAN PROGRAMS
(5) REQUIRES CONSIDERA nON BY
OTHER PUBUC AGENCIES
ACTIVE IN MUNlClP.4J.1IY
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New York Planning Federation
pege 23
2. Advisory Roles
A common advisory function assigned to planning boards is that of issuing
recommendations or advice to other decision-making boards-such as to the governing
board on proposed zoning changes, and to the board of appeals on variance
applications. Certain governing board decisions including proposed zoning changes and
comprehensive plan adoption must be referred to the planning board. Other matters
may be referred at the discretion of other municipal officials and boards. Once
established, any planning board has relatively broad authority to conduct studies on its
own initiative, and it is common for such boards to offer advice on issues ranging from
affordable housing needs or aquifer protection to zoning amendments. Whether or not
advice is directly requested, planning boards should work to develop a trust and rapport
with the governing board and with other appointed officials and staff.
No state staMe governs such roles or referrals; the municipality is free to set its
own procedural and substantive guidelines or requirements for the planning board to
fotlow. It should, however, be remembered that aU applications for site plan or special
use permit approval, or for a variance, are governed by state time limits, while other
decisions may at least be politicaily time-sensitive. So, if the planning board is to issue
a recommendation on any of these to another decision-making board, the
recommendation must be made before that other board is required to make its final
decision.
3. Subdivision Plat Approval
The most common review-and-approval function assigned to planning boards is
that of the review and approval of subdivision plats. Subdivision plats are plans which
show the division of a single parcel of land into a number of individual lots, usually for the
purpose of selling those lots to individual purchasers for residential, commercial, or other
development. The power to approve subdivision plats must be vested in the planning
board by resolution or local law adopted by the governing board. Unless the governing
board exercises superseding home rule power it cannot retain the power to approve
subdivision plats itself, nor can it vest any other board with subdivision-approval power.
Subdivision power is vested in the planning board because the staMes envision the
control of land subdivision to be, fundamentaUy, an e.xercise in planning the growth of
the community. A.i approved subdivision plat, once filed, must also become part of the
official map of the municipality, if such map exists.
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New York Planning Federation
cace 24
Before a planning board is given the power to approve subdivisions, the governing
board needs to adopt a set of subdivision regulations which have been recommended to
it by the Planning board. These regulations should address the technical aspects of the
development of land, and should set forth quantitative standards relating to layout and
required improvements. SUbdivision control is not zoning. It does not address the
question of uses on a single parcel of property. It addresses only the "connecting tissue"
that binds those parcels: appropriate lot layout, roads, sidewalks, utilities, water and
sewer facilities, drainage designs, park and recreational facilities, open space, and any
other aspects of land development the community believes to be important.
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When authOrizing its planning board to undertake subdivision reviews, the local
governing board should determine which kinds of divisions of land are to be subject to
review, and which are not, and which levels of review are to be required. The
determination as to which kinds of divisions of land are to be subject to review is usually
accomplished in the way in which the board decides to define the term "subdivision."
State law sets forth only a very general definition and leaves it to the localities to define
the term in detail. Often, a locality will define "subdivision" in terms of the number of
new lots created when a single parcel is divided. Below a certain threshold number, no
review is required, while at or above it, the Planning board must approve the division.
But the distinction need not be made in terms of numbers of lots. Other parameters,
such as topography or the creation of new roads, may be used. A community does not
have to make this distinction at all; it could decide that all divisions of land are to be
reviewed and approved by the planning board.
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The state stall.ltes also provide two alternative levels of procedure: (1) preliminary
plat approval followed by final approval, or (2) final approval only. It is up to the local
government as to which of these alternatives to adopt. Again, much flexibility is
accorded the locality. If it so desires, it may require some kinds of subdivisions to
undergo single-stage review only, while requiring others to undergo two-stage review.
Some communities employ the terms "major" and "minor" subdivision to distinguish one
review category from the other. Often, municipalities will key this distinction to the
threshold found in current state law related to review standards for water supply and
septic systems on "realty subdivisions", where subdivisions of five (5) lots or more of less
:han five acres in size require county health department approval. Again, the
determination as to what is meant by "major" and "minor" is up to the local governing
body. In any case, all subdivision appUcations are subject to a public hearing; in the case
of the tw<rIevel preliminary and final approach, a hearing is mandatory at the preliminary
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page 25
The planning board must review and approve certain elements before a
subcfu,ision may be developed. It must require that the land be safely usable for building
purposes. It must require any new roads to be sufficiently wide, suitably graded and
paved, and located so as to provide adequate "'"~, not only for regular vehicular traffic,
but aJso for emergency vehicles, and that the roads be consistent with any existing
comprehensive highway plan. It must require monuments to be placed at block comers.
It must require that any street signs, sidewalks, street lighting standards, curbs, gutters,
street trees, water mains, fire alanns, and sanitary and storm sewers all be instaJIed
according to the standards, specificanons and procedures acceptable to the appropriate
municipal departments. It must make sure that the lots shown on the plat comply witll
all zoning regulations of the municipality. Lastly, the planning board may, in
appropriate cases, require the developer to set aside land on the plat suitable for park or
recreational use-or, if certain criteria are met, to instead pay a sum of money into the
municipal recreation trust fund. While the statutes therefore confer some direct
authority, all of the above elements should be fleshed out in further detail in the
community's own subdivision regulations.
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New York Planninc r:ederation
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The key aspect of having good standards is the concept of consumer protection;
the municipality is assuring provision of a decent lot with safe access to a future buyer,
while protecting conununity resources and ensuring a more stable, long-term tax base.
What might be adequate for a small, rural conununity, or for a conununity with few
development pressures, might be inadequate for another municipality which is
experiencing rapid growth and demand for infrastructure. Here is where the
comprehensive plan can be useful. As the conununity grows, the plan should be
updated, and should look ever further into the future. It should serve as a basis for
continued updating of the municipal subdivision regulations. H you bring special
expertise to the planning board in a field such as engineering, real estate development,
geology, or landscape architecture, you may wish to study the board's subdivision
regulations with an eye toward determining whether any additions or revisions might be
necessary. . Check with other local officials at least annually to be sure they are still
comfortable with key aspec-.5 of your regulations. (For example, do the highway
superintendent and fire chief agree with your road and access standards?)
Even a sparsely-developed conununity may someday be presented with a
substantial subdivision development proposal, only to find that its regulations do not
contain the necessary specifications lor infrastructure which will adequately protect its
taxpaying citizenry. H development proceeds according to inadequate standards, the
chances of eventual design failures increase. Who then will bear the cost burden of
repairing those failures? The municipality, most likely, and that means its laxpayers.
An extremely useful device in subdivision approvals is the performance bond.
Under ordinary circumstances, the applicant must install all required improvements (e.g.
streets, sidewalks, water and sewer lines) before the plat qualifies to be signed by a
municipal official and filed in the county clerk's office, before any offers for sale of lots,
and before any individual lots may be developed. The performance bond, posted by the
applicant in an amount deter.nined by the planning board, instead allows the plat to be
signed and filed, and allows lot development to take place, prior to the installation of
improvements. In that ease, the municipality is guaranteed that infrastructure
development will occur, even if it has to "call the bond" itself and get the work done. Tne
maximum term of a subdivision performance bond is three years.
In addition to an appropriate set of subdivision regulations, the municipality,
somewhere in its local laws or ordinances, or in the subdivision regulations themselves,
should set out the application requirements for submission of a subdivision plat for
approval. The state statutes set forth the timetables for action once the plat application
The Shert Course...
New York Pfenning Federation
ooge 27
is submitted, but only the municipality itself can detetmine what should be required in a
complete appUcation. At a minimum, this should include a plat map With contour lines,
showing all boundaries of the property to be subdivided, all lots to be created, all
proposed new streets, water and sewage facilities, and drainage plans, and, of course the
Environmental Assessment Form (the EAF-more about this form later). Either on the
plat, or in separate documentation, the design specifications for all improvements should
be set forth. Tn addition to these basics, any other information required by the
municipality should be given. There should be Uttle room left for doubt as to what
documents are necessary to constitute a "paper complete" application.
Many municipalities encourage appUcants to attend a work session of the board
to more informally assist in a pre-appUcation review towards developing a complete
subdivision application. Often appUcants are given the option of bringing a "sketch" plan
to such a work session. Such sessions can be invaluable as both the applicant and the
board members can informally discuss options, gain insight into each party's needs, and
potentially avoid wasting time and money if and when a formal application is reviewed.
Once the necessazv SEQRA determinations have been made (see Chapter llI), the
appUcation is considered "legally complete" for review (including a draft environmental
impact statement if required), and the appUcable statutory time periods begin. As noted
above, in tne case of subdivisions these time periods will always require a pubUc hearing.
It is important to note that preliminary SUbdivision approval does not authorize the
applicant to begin any development of the land. It only allows him to submit a final plat
for review within six months thereafter. If he fails to do so, the planning board may
revoke its preliminary approval.
4. Site Plan Review
Although we discuss site plan review in this section on planning boards, the
function may also be delegated to a board of appeals or retained by the governing board
itself. Whichever board performs site plan review, the procedures are the same.
Site pian 1"e\fiew involves the review of any of a number of specified elements related to
the development of a parcel of property. These elements are set out in the state statute
and are listed in the follOwing box. They must also be set forth in the local law or
ordinance fer the reviewing board to have authority to address them. Care should be
2ken to ret"iew only those elements speCifically authorized to be addressed by the local
regulations.
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New York Planning Federation
page 28
There is often a concern as to
how specific your standards are. If the
regulation simply states "parkins" or
"adequacy of parking", then the
reviewing board must use its best
judgment in reviewing a site plan to
determine whether adequate parking is
provided (or needs to be provided). In
the case of such skimpy guidance from
the ordinance, the reviewing board
must be extra careful to make
consistent, fair and well-supported
decisions-otherwise it leaves itself
open to charges of arbitrariness. It
may be possible to adopt detailed
regulations for some elements spelling
out and specifying how each of those
broadly-stated elements must be
applied. Site plan regulations could, for example, specify a formula for determining the
:lumber of off-street parking spaces an applicant must provide in the case, say, of a
restaurant as related to tora! seating capacity. Tne regulations could then also allow the
board to waive those standards in appropriate cases where, in our restaurant example,
there is ample public parking nearby.
aEMENTS OF SITE PLAN REVIEW
AS DEFINED BY STATE ST ATlITE
.
PARKING
MEANS OF ACCESS
SCREENING & UNOSCAPING
SIGNS
ARCI-nTECTURAL FE.-'\TIJRES
LOCATION/DIMENSiON OF
BlJ!U)1NGS
ADJACENT UNO USES AND
PHYSICAL FEA TIJRES
MEANT TO PROTEcr
TriOSE USES
ANY ADDmONAL EEMENTs
TI-lE GOVERNlNG
BODY MAY SPECIFY
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Just as a municipality must
determine ahead of time what kinds
of subdivisions it wishes to subject to
review, it should also decide ahead
of time what types of uses it desires
to subject to site plan review, and! or
in which zoning districts such review
is to apply. This generally will
involve an analysis, using the
comprehensive plan, of which types
of uses in what locations require
scrutiny by a reviewing board before
a permit is issued.
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New York P1cnning Federction
pcge 29
Unlike subdivision approval, site plan review consists of only' one stage by state
law, and a hearing is optional. As with subdivision approval, submission requirements
should be spelled out locally. And, as with subdivision approval, the local procedure may
require either an administrative official, or the reviewing board, to determine
"completeness" of an appUcation. And, of course, the same distinction between paper
and legal completeness should be appreciated.
5. Special Use Permits
The power to grant special use permits, like the power to perform site plan
review, is usually given to the planning board, but may also be delegated to the board of
appeals or retained by the governing board. Spedal use permits (also known as
conditional use permits) are a technique which combines some of the features of site plan
review with elements of the analysis a governin~ board must use when writing a zoning
ordinance, i.e., Is a particular location suitable for a certain use? Like subdivision and sire
plan review, it is a discretionary approval process whose basis is set in the community's
land use regulations. The regulations must spell out the allowed use, but instead of
simply presenting his plans to an enfordng official for a permit, the owner must submit
an appUcation to a reviewing board, receive approval from the board, and then
subsequently apply for the building permit with his more spedfic building plans. A public
hearing is required by state law, regardless of which board is empowered to review
spedal use permit applications.
The statutes say that a special use permit is "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 conditions are met.,,8 In such cases, the governing board has
determined that a certain use should be generally allowed in a particular zoning district;
yet the dedsion as to whether and under what conditions it may actually be allowed on
a particular parcel of property, is left to a reviewing board in each individual case.
Certain requirements may be stated in the ordinance or in the regulations relating to each
particular use allowed by spedal use permit (off-street parking, for example), but state law
also allows the ordinance to provide for a waiver of those pre~t requirements in
appropriate instances.
I G.onerd c:ty Lcw. Seciion 27-0: Town Lcw. Seciion 274-0: '/iRq;e Lcw Seciion 7-725-0.
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oage 30
TypicaIIy, the device of the special use permit is applied to religious uses, home
occupations, professional offices, and a variety of what might be termed "light" retail
uses-Le., the neighborhood convenience store, the pharmacy or the hairdresser. These,
and others, are uses historicaIIy considered desirable in some proximity to residential
neighborhoods. At the same time, however, they generally present issues such as
adequate off-street parking, buffering, and sign control. It is generally felt that it is best
if a board reviews the application for the use in each particular case, determining
adequacy of the site for the use, and perhaps placing appropriate conditions on the grant
of the permit, rather than for the regulations simply to allow the use by right.
Special use permit review is sometimes confused with site plan review; many
municipal regulations and municipal board practices tend to blur the distinction between
the two. This blurring is particularly troubling when development applicants are asked
to gain' both special use and site plan approval for the same proposal, which has been
common practice for certain ty'peS of commercia! uses. Sometimes this can even involve
going first to a zoning board of appeals for special use approval and then to a planning
board for site plan approval. This two-step process may appear redundant to an
applicant. The boards involved should, therefore, take care to assure that special use
reviews complement, not complicate, other review processes.
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New York Plenning Federation
cac;e 31
B. Zoning Boards of Appeals (ZEA)
If a community has adopted a set of zoning regulations, whether by ordinance or
by local law, it must appoint a board of appeals. And, to answer an oft-asked question,
the board of appeals must be separate from the governing board, i.e., the governing
board cannot, itself, act as the board of appeals. The basic function of the board of
appeals is to hear appeals and grant relief from the strict application of the zoning
regulations. That's not the only function a ZBA can have, but it is the one it must have.
1. The Board of Appeals as Quasi-Judicial Body
.'
The courts call the ZBA a "quasi-~ body", which is a fancy way of saying that
it's basically a layman's court, hearing evidence on appeal and deciding in favor of one
party or the other. It bears emphasizing that all appeals to a ZBA are aduersarial
proceedings, which means, in theory, there are always two necessary "parties": the
"aggrieved party" and the municipality. Each has full rights as a party, which means that
each has the right to present witnesses and testimony, and to cross-examine the
witnesses of the other. The Ceard has authority which resembles that of a court as well:
it may subpoena and swear in witnesses, ask its own questions, and may issue orders so
that its decisions are carried out.
In order to invoke the appellate jurisdiction of the ZBA, there must be a decision
issued by an enforcement official. Otherwise there's nothing to appeal. Further, that
decision must be one which the enforcing official is authorized or required to make
under the municipality's zoning regulations. Except in certain instances, a ZBA should
not hear appeals, whether for interpretations or for variances, where there has been no
formal decision in writing by the enforcement official and no proper appeal filed. The
exceptions are where an applicant has a subdivision, site plan or special use permit
application pending, and desires an area variance in connection with such application.
In such cases, no dec.sion of an enforcement official is necessary to give the applicant
standing to appeal to the ZBA. Rather, the applicant in such circumstances may go
directly before the ZBA pursuant to authority provided in subdivision, site plan, and
spec.a! use permit statutes.
An application for relief may be filed by anyone "aggrieved" by the decision of the
enforcement official. An "aggrieved" party is one who stands to be harmed by that
decision. Generally, t~t collid be a permit applicant, a neighbor, or one who has been
issued some sort of enforcement action. Any officer, board or commission of the
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New York Planning Federation
page 32
municipality also has automatic standing to make an appeal from a decision of the
enforcement official, whether or not he, or it, is "aggrieved".
An appeal is begun by the appel1ant's filing a Notice of Appeal with both the
enforcement official and the ZBA There is no particular prescribed form for the Notice
of Appeal, so each ZBA is free to devise its own form. After the Notice of Appeal has
been filed, the ZBA then must schedule a hearing. At the hearing, both sides (the
aggrieved party and the municipality) have the right to present their cases and argt:e
against the other's case, just as in court. For instance, the municipality is sometimes
represented by the enforcing official, the person who made the decision which is the
subject of appeal. The enforcing official may explain the basis for his or her decision
and provide any relevant facts to the ZBA. The municipality may also, if it desires, make
an argument against the merits of the aggrieved party's case. At the close of both the
aggrieved party's and the municipality.s cases ( if the municipality presents one), the board
must hear the comments of the public. After all public comment has been heard, the
board has a statutory time period within which to render its decision, in which the board
may affinn, reverse, or modify the enforcing officer's decision.
2. Interpretations
There are two types of appeal: interpretive and variance. (Note: a single appeal
could request an interpretation, or alternately, a variance if the interpretation is not
granted. However, most appeals are for one and not the other.) In the interpretive
appeal t'1e appealing party claims that the enforcement officer's decision was wrong -
that he or she incorrec+Jy applied the zoning regulations to the matter at hand. T.-.e
appellant seeks a reversal of the officer's decision - in effect, an interpretation of ,he
regulations in his favor. Irs that simple. Often, an interpretive appeal will depend on t.1e
definition of a term of the zoning regulations, or the methodology by which a certain
dimensional restriction should be calculated. Whatever the narure of the interpretation,
the board's primary objectives in an interpretive appeal should be (1) to determine as
nearly as possible the origina! intent of the governing board in enacting the regulation in
question, and (2) to arrive at the most practical solution.
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New York Planninq Federation
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3. The Appeal for a Variance
The appeal for a variance can only be made by one who has been denied a
permit, or who has been SetVed With some sort of enforcement action. In the appeal for
a variance, the appellant does not claim that the enforcement officer's decision was
incorrect. He admits that the denial (or order or citation) was correctly issued, but he
claims to make a case that the strict terms of the regulations should be varied in his favor,
to allow him to do what the enforcing officer has detennined he cannot do.
There are two types of variances, depending on the particular restriction the
applicant seeks to have varied. [f he desires a variance from the regu/atjons prescribing
the types of uses allowable in his district, he applies for a use variance. [f his use is
allowed, but he wishes to have a dimensional restriction varied, then he applies for an
area variance. [f the applicant wishes to have both use and area restrictions varied on
the same parcel of property, then he must apply for both. Each type of variance requires
its own particular test, or proof, as prescribed by state law.
a. Tne Area Variance
The area variance deals not with use, but with dimensional and bulk, or density
restrictions. Typical dimensional restrictions include: minimum lot size, required front,
side or rear yards, maximum height restrictions, percentage of lot area which may be
covered by structures or impermeable surfaces, and off-street parking requirements. For
the most part, area restrictions define the "building envelope," that is the portion of the
lot Within which building may be done, or Within which certain activities may occur.
The rules governing area variances have tmdergone radicallegi.slative treatment
over recent years. Prior to 1992, the courts had interpreted the enabling laws to require
the owner to show "practical difficulty" in order to be granted an area variance. Just
what constituted "practical difficulty" was, however, never clearly established by the
courts. So, in 1992 the State Legislature amended the enabling statutes to remove the
term "practical difficulty", replacing it With a standard based instead on a weighing or the
benefit to the applicant against the detriment to the health, safety and welfare of the
neighborhood or community if the variance is granted.
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REVIEWING AREA. V ARlANCES - A Balancing Test
The standard to be used is the weighing of the benefit to the
applicant against the detriment to the health, safety and welfare
of the neighborhood or community if the variance is granted. In
making this determination, the ZBA must take into account the
following factors:
(1) Whether an undesirable change will be produced in the
character of the neighborhood, or a detriment to
nearby properties will be created;
(2) Whether the applicant can achieve his goals via a
reasonable alternative which does not involve the
necessity of an area variance;
(3) Whether the variance is substantial;
(4) Whether the variance will have an adverse impact on
physical or environmental conditions in the
neighborhood or district;
(5) Whether there has been any self-created difficulty.
Using the above list, the primary interest that weighs more heavily in the board's
view (benefit to the applicant or detriment to the neighborhood) should govern its
dedsion. So far as the factors for consideration are concerned, as a procedural matter
it :s worth noting that the statute doesn't explicitly require a showing of any kind by the
applicant - although certainly nothing should rule out an applicant from presenting
e" idence relating to the factors. The statute merely requires the board to take the factors
into consideration. In practical terms, this will require the board to investigate the facts
itself, if the applicant is less than forthcOming on such points.
Regarding the factors themselves, we believe they provide fairly clear guidance to
the ZBA. The first requires the board to consider such things as the potential impact on
neighboring property values - and you can rest assured that if property values are at all
significant in the case, you'll have no shortage of neighbors who will want to be heard.
T;-,e second factor basically charges the board to investigate whether there is a reasonable
construction alternative to the proposal the applicant has made. For example, can the
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New York Plenning Federction
ocqe 35
addition be placed onto the rear rather than onto the side of the building, where the
existing zoning regulations would allow such construction without the need for a
variance? Tne third factor requires the board to consider how substantial is the variance
in physical tenns-i.e., how much construction will the variance allow, in relation to what
would otherwise be alIowed-as well as the degree to which the regulations will be varied.
ObviotSy, the more substantial the variance request, the less willing the board should be
to grant it without taking a hard look at the potential detriment to health, safety and
welfare.
The fourth factor - possible adverse effect on physical or environmental
neighborhood conditions - requires the ZBA to look closely at the purely physical nature
of the proposal. IncI1.Xled here should be questions relating to such elements as drainage,
runoff, noise, traffic patterns, access for emergency vehicles, impact on utility services,
and effect on any sensitive environmental concerns. The fifth factor requires the board
to assess whether the request for the variance has been triggered by a situation or
difficulty which the owner has created himself. If so, the board must weigh that fact
against the owner, but need not (as in the case of the use variance) deny relief altogether.
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b. The Use Variance
The use variance is an authorization by the ZBA for the owner to use his property
in a manner not allowed by the use regulations applicable to that property. For example,
if his property is zoned only for residential use, and he desires to open a gasoline station,
the owner would need a use variance.
USE VARIANCES - Pruving UIIIIPCessary Hardship
In order to be granted a use variance, the applicant must
prove unnP('t'SSaTy hardship by demonstrating that for each
and every pennitted use in the district;
(1) The applicant is substantially unable to make a
reasonable return from the property, as
shown by competent financial evidence;
(2) The hardship is somewhat unique, or at least not
shared by a majority of parcels in the same
zoning district;
(3) The hardship has not been self-created; and
(4) The relief asked for - Le., the requested variance
- will not alter the essential character of the
neighborhood.
If you read the state statute, youlI notice that we've stated the last two elements
in the box above in the reverse order as they appear there. We've done this because it
seems more logical that the board should deal with the entire question of
hardship-inc!uding whether it has been seIf-created-before proceeding to a consideration
of me requested relief. If the applicant cannot adequately prove each element of
hardship, his variance request should be denied regardless of whether his requested use
would be compatible with the character of the neighborhood.
Let's consider each of the above elements in a bit more detail, keeping in mind
:hat each involves the application of discretion and good judgment. There is simply no
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mathematical fonnuJa available for the board to apply in order that it might arrive at the
conclusion that a variance should either be granted or denied.
The first element requires the applicant to show, by competent financial evidence,
that he is unable to realize a reasonable return on his initial investment by complying with
the established zoning regulations.
The courts have required that this be shown in "dollars and cents" fashion, which
means that the owner must put forth actuaI dollar figures relating to the value of the
property, advertised attempts to sen, offers received, actuaI income realized, and so on.
It's important to bear in mind both (1) that the applicant must demonstrate such
inability for each and every use allowed In the district-not merely for the use to which
the property is currently being put-and (2) that this inability must be substantial. In a
district in which only one use is aUowed (such as, typicaUy, single-famiIy residences) this
may be relatively simple: the owner may offer evidence of his initial purchase price
compared with current offers or appraisals of his property (which is best) or data from
recent saIes of similar properties in the district (which is good, but not quite as relevant).
He may also show that he has attempted to sen the property, but has received no
reasonable offers. If the property is a rental property, the owner is entitled to show
evidence as to the renta! rate necessary for him to realize a reasonable return, as wen as
evidence showing he has been unable to rent the property at that rate. If the property
is zoned for commercIal or industrial use, the owner must demonstrate an inability to
realize a reasonable return with respect to any of the uses aUowed by the regulations.
TypicaUy, this means it must be shown that the applicant is unable to make a financial
"going" with any of the allowable uses on the property or has advertised the property for
sale at a going rate, stating in the advertisement the zoning classification or the uses
aUowed on the site and has not had any bona fide buyers.
There's no handy fonnula for the board of appeals to use. The board must use
its best judgment as to what would constitute a reasonable return in the particular
circtlIllStance, as wen as whether there is a substantial inability to realize that return.
As this can involve financIal or real estate expertise, ZBAs can hire such experts to
review an application or to do an independent estimate. Whatever the board's decisions
regarding these terms are, the board should take care to be consistent in its decisions
from one case to the next. If the ZBA has found hardship based on a particular set of
facts in the past, the courts have held that it should make the same finding if faced with
simiiar facts in a future case.
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A failure to meet the reasonable-retum standard in dollars-an<kents terms should
result in a denial. Assuming, however, that the owner has shown an inability to realize
a reasonable return, then the board must require him to show that this inability is due to
somewhat unique drcumstances, Le., circumstances that are not shared by more than
a small minority of properties in the same zoning district. Unique circumstances could
be geographic, such as the presence of a steep slope, a cliff, a rock outcropping or a
wetland preventing reasonable economic use of the parcel. They could also be
environmental, such as a pattern of land use or traffic changes which have occurred in
the surrounding area making the property uneconomical for uses allowed in the district.
In concept, there's almost no limit as to what might qualify as a unique circumstance, but
the board must require the applicant to show that it does exist.
The third requirement is that the hardship-in other words, the combination of the
inability to realize a reasonable reitJm and the unique circumstances-must not have been
self~reated. This seems fairly obvious: the owner must not have created his hardship
himself. If he has made a physical change to the land (such as digging a ravine), he
should not be heard to claim that this physical circumstance now prevents him from using
the property economically. Physical changes rarely, however, show up in court cases
involving selkreated hardship. Most commonly, the facts involve the owner having paid
too high a price for the parcel in the belief (or hope) that he could get a variance and thus
recoup his investment. Sorry, that's seIf~ hardship too, and me board should deny
the variance. True hardship is due to facts beyond the control of the owner.
Before we leave the strict issue of hardship, it should be mentioned that the
hardship we are talking about relates to the land, not to the owner's personal financial
c'.rcumstances. The hardship must be one that would be experienced by any owner of
the property. 'T'he fact that the applicant himself has made some bad business decisions,
and has suffered personal financial setbacks as a result, has absolutely no bearing on the
qualifications of the parcel of property for a use variance.
Once the ZBA has determined that unique, non-self-created hardship exists, a case
has been made for relief of some kind. Of course, the applicant must request particular
relief, in the form of permission to install a particular type of use on the property (e.g.,
a multifamily dwelling, a gas station, a professional office, or perhaps a steel miI!). It is
now up to the applicant to show that this requested relief will not alter the essential
character of the neighborhood. Once more, the board of appeals must apply judgment
in as.""ssing whether there will, in fact, be an intolerable alteration. Factors such as size
of the site, traffic increases, noise and other physical attributes can and should be
sonsidered. Again, there's no formula-or, more to the point, there's no established
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New Y 0IIc Planning Federation
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schedule of particular uses which would definitely alter the character of certain types of
neighborhoods. The board must apply its own special knowledge of its corrununity's
character, but, again, its decisions should be consistent in similar fact situations over time.
Use variances, no matter how well jJstified, are serious transgressions against the
community's plan for development as expressed through its regulations. They should
always be given careful and thorough analysis by a board of appeals. For the moment,
let's return to the issue we mentioned at the beginning of this discussion: that of
determining hardship in all its facets, before proceeding to the issue of alteration of the
character of the neighborhood. The ZBA really should concentrate on requiring proof
of hardship first. For if hardship does not exist-or if it exists but is totally
self-created-then the board should deny the requested variance regardless of whether the
proposal will alter the neighborhood. Too often, boards of appeals are willing to allow
the applicant to begin by presenting his proposed project, replete with representations
about its good features, it's compatibility with the surrounding neighborhood, and
perhaps even with positive testimonials from neighbors-but without first presenting
good, solid proof of hardship with respect to the allowed uses. Faced with such a
presentation, the board of appeals should politely, but firmly, inform the applicant that
he also needs to present proof of hardship. Only if the applicant presents proof of
hardship satisfactory to the board should the board even consider granting a use
variance.
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OOQe 40
c. Additional Factors
The state staMes empower the board of appeals to impose reasonable conditions
and restrictions on the grant of a variance, so long as those conditions and restrictions
are directly related to the use of the property, are consistent with the spirit and intent of
the zoning regulations, and are intended to minimize any potential adverse impact of the
variance on the neighborhood or the community. This power is quite significant. It can
and should be used in cases where relief is appropriate, but where there may be adverse
impacts caused by the variance as proposed. The abilily to impose reasonable conditions
on a variance often results in an appropriate result where the only alternative (if
conditions were not possible) would be a denial.
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The statutes also charge the board to grant "the minimum variance that it shall
deem necessary and adequate and at the same time preserve and protect the charac".er
or the neighborhood and the health, safety and welfare or the community".9 Seems
pretty simple-the board's task is to provide relief from the rigors of strict application in
appropriate cases, no more, no less, and should not be in the business of "giving away
the store".
Lastly, in case anyone is wondering, a variance runs with the land. It represents
a determination that the parcel of property qualifies ror relief from the strict application
or the zoning regulations, regardless of who owns it. So, one condition a board of
appeals may not place on a variance is a limitation related to the duration of ownership
by the current owner. Once granted, any subsequent owner also has the right to use the
property according to the board's decision.
(3)(e).
9. Genera Cily Law. SSl-o (3Xe). (4Xe); Town Law. S267-o axe). (3Xe); V~oge Law. S7-712-oaJ(e).
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Chapter m. State Environmental Quality Review
(SEQR)
State Environmental Quality Review, or SEQR rseeker") for short, is a procedure
which applies to almost all decisions of a Planning board or ZBA The basic purpose of
SEQR is built on a recognition that we are all stewards of our environment and,. as such,
we must include environmental COnsiderations in our decision-making. SEQR's
provisions provide the legal framework for assuring that such COnsiderations are included
in a board's decisions. Typically SEQR procedures must be directly activated by the
board, because in almost all cases involving the application of local Planning, zoning and
land use regulations, the local board will be the lead agency. So, if you desire to avoid
all contact With SEQR, it's simple. Just don't bother joining a board.
The SEQR process is required by SEQRA, the State Environmental Quality
Review Act, (Article 8 of the State Environmental Conservation Law) and is generally
governed by the State SEQRA Regu/ations-19 NYCRR Part 617, better lmown simply
as Part 617 -which are promulgated by the COmmissioner of the New York State
Department of Environmental Conservation (DEq. Those regulations list types of
projects, and categorize them according to their probable effect on the environment.
Projects are divided into 'Type r Actions"-those which have the potential for significant
environmental impact, and 'Type II Actions"-those which probably will not have a
significant impact. These lists are not aII-inclUSive, so there is a large unlisted category
of actions lmown as, you guessed it, "Unlisted Actions". We will describe below how
these lists of actions relate to local board action.
W"hat we will set out here is an outline of how the SEQR procedures apply to the
local review process. Some basic advice on how to approach the task of identifying and
"'--"Sing potential impacts is also offered in Chapter 4. For a more in-<fepth discussion
of the environmental review of projects there are a number of excellent publications
available &om the DEC, as well as from other sources. See Appendix C for references.
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A. When Does SEQR Apply?
SEQR procedures apply to all "actions" as defined in Article 8 of Slate
Environmental Conservation Law. Tnese include all projects directly undertaken or
funded by a governmental tmit, as well as all private projects requiring a '1ease, permit,
license, certificate or other entitlement for use or permission" from a governmental Lmit.
Certain "actions" are"excluied" from the requirements of the SEQR law. These are: (lJ
actions undertaken, funded or approved prior to the effective date of SEQRA in 1976;
(2) large-scale utility projects sub~ to approval by the Slate Public Service Commission;
and (3) "regional projects" under the jurisdiction of the Adirondack Park Agency (or by
a local government administering an Agency approved land use program outside of the
Lake George Park). Certain other "actions" are "exempt" from its provisions. These are:
(1) civU or criminal enforcement proceedings; (2) ministerial acts involving no exercise of
discretion; (3) maintenance or repair to an existing structure; (4) emergency actions
necessary to preserve life, health, property or natural resources; and (5) actions of the
Slate Legislature or the courts.
All of the above exclusions and e.xemptions are fairly self-explanatory, except
perhaps "ministerial ac+.s". "Ministerial acts" are those taken by a government official
which involve the simple application of a clear set of rules, where the correct application
of those rules gives the applicant an absolute right to approval, and where no exerci.se
of "discretion" is involved. The clearest example, in terms. of planning and zoning law,
is the issuance of a building or zoning permit by the zoning enforcement officer, where
the officer's act alone allows the action to proceed. Construction of a single-family home
is handled this way in most communities. But any action which cannot proceed without
the permission or decision of a board or commission of the municipality, instead
involves an exercise of discretion, and is therefore subject to SEQRA. There is one
important exception to the above rule, and that involves appeals made to a zoning board
of appeals for an interpretation of the zoning regulations. The courts have held that
appeals for interpretation, even though they involve board deci.sion-making, are not
"actions" sub~ to SEQR. (Keep in mind that variance applications to a ZBA are subject
to SEQRA).
Although defined as "actions" under SEQR, the activities listed in the Type II list
in Part 617 will not require further SEQR review, because they have been determined
by the Commissioner as not having a significant adverse environmental impact. You
should, however, be mindful of the fact that any project, no matter how categorized
lnder the Slate regulations, may nonetheless be fully analyzed by the reviewing board
under applicable local regulations.
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B. Basic Procedures
1. Tne "Complete Application" and Initial Review
The first thing a board must do when it receives an application for approval of a
project is to determine whether or not it is subject to SEQR. If the action is a Type II
Action, then no further SEQR review is necessary. If, on the other hand, an action is
Type lor is Unlisted, then further SEQR review must be performed. A prerequisite to
making this determination must, of course, be that the application contains all submisSion
materials required by local regulations. If it does not, it should be returned to the
applicant with instru::tions to render it complete. If the submission is complete under the
local regulations, and if the board determines that the project is a Type II Action, then
neither the board nor the applicant has any further SEQR responsibilities.
If the action is a Type I Action, the board must require the applicant to complete
. a Full Enllironmenta1 Assessment Form (EAF), a model of which is made available by the .
State Department of Environmental Conservation through its regional offices. If the
project is an Unlisted Action, the board may require either a Full or Short-E.AF. The
board must also determine whether the project involves either a Federal agency or one
or more other Slate, county or local agencies.
2. The Lead Agency and Determination of Significance
If the board determines the project to be a Type I or an Unlisted Action, then a
lead agency must be estabIished. If no other agency of any kind is involved in permitting
or approving the project, then the board receiving the application will of course be the
lead agency. But if other agencies are involved, then a "coordinated review" should
occur, and the various irndved agencies must agree as to which of them will be the lead
agency.
The lead agenCy must then make a determination of significance within 20 days
after receiving the complete application, the EAF, or any additional information it has
required and which is reasonably necessary to enable it to make a determination of
significance. The determination of significance essentially means that the lead agency .
must deCode whether or not to require preparation of an Environmental Impact
Statement (EIS). If it desires to require an ElS, then the lead agency makes a positive
dee/aration, Le., a determination that the project may have a significant effect on the
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environment If an as is not warranted, the lead agency makes a negative declaration,
i.e., a detellIlination that the project will not have a significant effect on the environment.
It is useful here to note two requirements of Part 617 regarding the lead agency's
determination of significance:
-If the lead agency is going to require an as for the project, it must detennine
that the action may include the potential ror at least one significant
environmental effect
-If the lead agency is not going to require an as, then it must detennine that
there will be no environmental effect, or that the identified enVirorimenta1
effects will not be significant.
There is also a rather hybrid determination possible for Unlisted Actions only: the
conditioned negative declaration. In this case, the lead agency detennines that there
may be significant environmental effects, but that they can be eliminated or mitigated
by the imposition of appropriate conditions. Essentially, the conditioned negative
declaration allows the applicant to avoid the time and expense of preparing an as, so
long as he agrees ahead of time to abide by a set of conditions which probably would
have been imposed on his project after preparation and review of an as anyway.
Certain other procedural requisites apply to the conditioned "neg-dec", for which you
should refer to Part 617 or to DECs SEQR handbooks.
DEC has adopted some useful criteria for the lead agency in making a
determination of significance. The agency must:
(1) consider the aspects of an "action" as they are set forth in Part 617;
(2) review the EAF, the detailed guidelines for determining significance contained
in Part 617, and any other supporting information available;
(3) thoroughly analyze the relevant areas of enVironmental concern; and
(4) set forth a deterrnination of significance in Written form, containing a
reasoned elaboration and providing reference to any supporting
documentation.
Taken together, these criteria can help assure that a municipal board has taken the "hard
. look" at environmental impacts which courts in New York State have required.
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New York Planning Federctlon
Dege 45
C. The Environmental Impact Statement
Once a lead agency has made a positive declaration, the wheels are set in motion
for preparation of an as. An EIS is usually prepared by the applicant, but the applicant
may exercise the option to have the lead agency prepare the as. At the lead agency's
or applicant's option a seoping session may be held among all interested or involved
governmental agencies and offidals, as weU as the applicant and/or his consultants.
Such scoping session must also include public participation. An inuolued agency is one
which has a pennitting or approval function over the project. An interested agency is
one which merely desires to participate in the review process because of its specifie
expertise or concern about the project The purpose of the seoping session is to identify
the potential, significant environmental impacts which must be addressed in the EIS.
Whether or not a scoping session is held, the lead agency must provide to the applicant
a written seope of issues foUowing the filing of the positive declaration. As soon as the
issues have been "seoped", preparation of the draft as may begin.
There is no time limit for preparation of a draft as, but, when it has been
completed by the applicant, the lead agency must determine whether it is adequate for
public review. If it is inadequate, the lead agency must inform the applicant in writing
of the aspec+.s of the inadequacy. Once the draft EIS has been completed to the lead
agency's satisfaction, the lead agency must aUow a public comment period and may
conduct a public hearing on the issues addressed in the draffEIS. A final as, which
should address the comments and suggestions made on the draft as, must then be
prepared within a certain time period foUowing the filing of the draft EIS or the
conc!usion of the hearing, as the case may be. No final EIS need be prepared if the lead
agency has decided to issue a negative declaration on the basis of information brought
out in the draft EIS.
The completion and acceptance of a draft as by the lead agency triggers the
beginning of the timetable for review of the application as set forth in the municipal
enabling statute-which is now universally set at 62 days until either a hearing must be
held or a decision must be made.
Remember, as a board member you should review at least one of the several
exceUent publications on SEQR put out by DEC and others. You should also become
thoroughly familiar with Part 617 and the various timetables provided within it.
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New Vori< Pfenning Federctfon
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Chapter IV. Essential Skills
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You know or will quickly learn that making land use decisions involves a healthy
mix of planning, engineering, surveying, legal and management skills as well as educated
guesses. Indeed, it can certainly seem overwhelming to think that each individual
member should have aJI these skills. Are you on top of the latest legal case law? Do you
know how to identify soil types and measure for adequate percolation? Do you know
when a road intersection needs a traffic light or not? Do you know how to handle a
hostile public meeting?
We don't expect you to become a virtual Renaissance person with an expert's
grasp of all the skills needed to make land use decisions. Indeed, for many technical
questions you should have some access to a professional advisor (Le. the municipal
attorney, engineer, or planner) or at least a county, regional, state or even nationally
based organization which can offer assessment skills and advice. To contact those
organizations, see the List of Organizations in Appendix B. Yet in fOrming your own
decisions, all of you should be familiar with some key principles associated with a
particular short list of essential skills that, time and time again, will prove of value.
A. Looking at the Land and Community
Anyone involved in planning and zoning t1.>ri'Sions needs some appreciation of the
land and community. You also need some basic field skills to look at the land and find
key features which might affect someone's ability to preserve, enhance or change how
land is used. Academically, these skills are found in geography - the study of place.
Practically, you may first encounter the need for these skilJs when you consider such
issues as community or neighborhood character, site planning, enviromnental impact
assessment, or permit approval conditions.
With background information on what to look for and how to look, you should
always try to go into the field to view a site or property in question. The truth is often
in seeing not,\lst the paper map in the meeting room but the actual site or property. For
area-wide planning or larger development projects you may need to look at a larger
neighborhood or community. Here are some ideas on how to improve your ability to
look at land.
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1. Review Some Basic Guidebooks.
You're never too old to do a liitIe homework. Reviewing one or more of the many
wonderful introductory texts available can not only give you a broader perspective on the
way land works, but also can be fun reading. For example, consider starting with the
Geoaraohv of New York State by John H. Thompson (Syracuse University Press:
1966), published several years ago but still an excellent review of the natural and cultural
forces that have shaped the way various regions of New York look and work. rmd the
best community or county history text available and review the chapters on your home
community to appreciate how your place has changed through time. Usually your
county has had a soil survey completed in partnership with the United States Department
of Agriculture (USDA). If you can't find a copy at your municipal hall or local library , call
the regional office of the USDA to get a copy. Soil types define a record of the natural
torces shaping a location and are in,;aluable indicators of the inherent capacity or limits
of land to carry development. Look over the soil survey, particularly the maps and
introductory chapters. They often give marvelous summaries of everything from local
climate trends to reviews of the geologic and human settlement patterns that have
shaped your county. If you need more spedfic information, review Appendix B and find
other texts that better meet your interests.
2. Have A Good Map and Resource Inventory
- Look At the Applicant's Plan
For any site, neighborhooe, or community analysis you need some basic
documentation before you go in lr.e field. First, you need a good map to provide
orientation. The map will help identify key ground features as well as position the
property or area in relationship to adjoining property. The map should also clearly
identify the locations of proposed development which you should confirm in the field.
Second, you need to have some listing or inventory of the resources or features that are
on, or might be found on, the land. Using listings from your municipal comprehensive
plan or from the checklist later in this Chapter; find a way to make an inventory of
possible features out there on the land. When reviewing a development application,
bring the applicant's map onto the property and see for yourself if the proposed layout
and design is rational, avoids valuable :!atural features and utilizes the more developable
lands.
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3. Remember that the Environment is Dynamic
There is an old saying that "you can't step into the same river twice," or to
paraphrase for our purposes, "you can't step on the same property twice." Remember
that a property may be quite different in different circtunstances under which you look
at it. The season's climate or even the day's weather can be very influential. The
presence or lack of foliage, seasonal high water, or snow cover can an reveal or obscure
key features. The vantage point, say a view of the property from the nearest road versus
from a neighbor's backyard, can make a difference. Did you walk a certain direction
along a proposed road or driveway and miss the perspective the other direction offered;
in revealing an important view?
If a project is to be built at a later date, or is to be phased, remember that time
can bring important changes in the neighborhood or region as other lands are more or
less intensively used. Always note the conditions under which you visit or analyze a
property, including the weather, the time of the day and year, and your movement
through the property . You may never have the benefit of looking at a piece of land in
an seasons or from an directions, but you will at least be more aware of what you did see.
You can then ask an applicant or a professional advisor to comment on the effect of
other conditions likely to occur.
4. The Value of First Impressions
Never underestimate the value of your first imprP..ssion of the property. W1ten
looking at property, are you pleasantly or unpleasantly surprised by anything? Is it a lot
wetter or drier than you thought? Was the nearest public road intersection easy or hard
to get through? Is a neighboring building surprisingly close or far away; or surprisingly
attractive or unattractive? Did you smell or hear something unusual? As you gain
experience in your work, you should become trained to relate these first impressions in
the field to potential planning or zoning issues. Don't rely purely on your first
impressions, but use those to pique your curiosity to further explore certain issues.
Compare these impressions to the details of the applicant's proposed development as
shown on a map or plan. Do the proposed locations of new structures, roads or drives
make sense?
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5. Walk Around With Someone Knowledgeable
Whether you have never visited a certain property or neighborhood or have real
first-hand knowledge, one's ability to gain the sense of any place can be greatly enhanced
when accompanied by another observer. You can inevitably miss something which
someone else might pick up. You also might benefit from the insights someone else has
because he or she knows the property, or has experience looking for particular elements,
be they archeological sites or road engineering considerations. One word of caution;.
if you are visiting a site with a quorum of any municipal board or on a scheduled visit with
a quorum of a designated municipal committee or subcommittee, then the Open
Meetings Law applies.
6. Identify What Makes a Place Unique
Every place is unique. As part of your fieldwork, consider making a list of its
unique assets and liabilities. Note a great view or an area of poor drainage. Look for
the assets that make a place desirable for cer'"..ain activities as weU as the liabilities that
might make a place less desirable. Take this list back to the next meeting and ask for
clarification on certain issues if you need it. Also, at some point in your analysis take a
step back from the specific property you're looking at and note any patterns of activity
in the larger neighborhood or region. Are particular types of street trees common? Are
the trees healthy? Are cars parked in odd places? Are adults or children congregating
at unusual or predictable places? Is there an abundance of for-sale signs? Patterns like
this can help highlight those assets and liabilities you are looking for to define the unique
features of a place.
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New York Planning Federction
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B. Reading Maps, Plats and Plans
Below is a brtef discussion of the "hardware" of your board work, the maps, plats,
plans and other drawings you are asked to review and make decisions about. Because
there is broad agreement on how such maps are made and on the meanings of most
map symbols, some familiarity with the basic format of these drawings will enable you
to read nearly any map or plan. Never be afraid to ask the applicant to explain
something presented in map form, and certainly always ask for help if needed from
professiOnals or staff if your board has such help available. A glossary of common map
symbols you may encounter is included later in this section.
A map is a physical illustration of existing features, r~urces or uses on the
ground surface. Maps generally presented to municipal boards are "m plan' format (e.g.
looking straight down from above). Such "planimetric" maps are useful for shOwing
public and private development, and useful for adding information such as land use, soils,
ground cover and vegetation, or existing and new buildings. These maps can also be
greatly enhanced with the addition of "contour lines" showing topography, the lay of the
land. These are often called "topographic" or "topa" maps.
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A PLAN is a form of a map viewing an area or building from above, sometimes
showing existing features, but often illustrating proposed patterns of use or development.
Of course, a "plan" is also the document containing policies and maps defining the future
direction of a community or region.
Every map or plan should include at a minimum the foUowing features: title block,
legend, scale and orientation arrow. Indeed, many municipalities have regulations which
require that these features be presented in a particular way prior to accepting a map,
plan or plat as complete and ready for review. The complete application with plans is
the "ticket of admission" to your board review. Your clerk, secretary or administrator
should not aUow the applicant to appear for official review without the complete
application.
Title Block - a boxed area on a map that should include a title of the map
explaining the map's purpose (e.g. "site SUIVeY of property X", etc.), who prepared
the map, the date, and, depending on the purpose of the map, any other
information. Maps showing proposed development or subdivisions should include
owners/developers names and addresses. a description of the location, and the
name of the project with any reference numbers. Maps submitted for municipal
approval may typicaUy require a description of who prepared the map
accompanied by the seal and signature of the professional preparer (a licensed
surveyor, engineer or architect).
Legend - provides symbols used to define certain features shown on a map.
Scale - used to make measurements to translate
sizes and distances on the map to sizes and
distances in the field. Depicted in one of three
ways: as an equation defining what value on the
map equals what value in the field (e.g., 1 inch
- 50 feet), as a graph to be used as a ruler, or
as a proportion (e.g., 1:24,000) in which one
unit of measurement on the map (usuaUy
interpreted as an inch) equals 24,000 of the
same \.:nit in the field. In the above example,
one inch on the map would equal 24,000
inches (or 2,000 feet) of actual ground distance.
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The Short Course...
New York Plenning FedercHon
cage 53
Orientation - shOwing the compass direction as a method of positioning the map
to its surroundings, usually as a "north arrow" pointing in the direction of
magnetic north.
Details & Notes - Often, additional infonnation is needed to clarify or expand on what
is drawn on the map, particularly on maps shOWing proposed development. Details of
physical improvements can be Presented either on the map or plat sheet or on additional
sheets. Details often include a typical aJ/vert installation, prototype septic systems, catch..
basins, and drive or street profiles and curbing.
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Profiles & Cross-Sections
Profiles and sections cut through an object or area, exposing interior details and vertical
relationships. A profile (or longitudinal section), cutting lengthWise can help identify
architectural deiails and eievations, visual impacts, and soil or groundwater resources, to
name but a few. A cross-section, cutting through the short way can be excellent for
shOWing road and utility specifications, and drair.age design.
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New York Planning Federation
page 54
1. How Maps Are Used
Maps can come in a wide variety of formats. Municipal planning and zoning
boards tend, however, to see only a few common types of maps. Tney include:
community-wide maps (also called resource maps or planning maps), subdivision plats,
and site plans (see earlier description of "plans".
Commlmity wide Maps. You will be using maps .
which illustrate various community characteristics such as
existing land use, zoning districts, natural reatures, public
facilities, soils, historic sites and other information which
you use as part of an existing comprehensive plan or as
background for the drafting of a new plan. These should
be safely stored and accessible because they are also
useful for later reference.
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Often, background maps are 'combined' by
overlying one on top or another to produce one or two
'composites' - maps which summarize a pattern of
development suitability or constraints - which are helpful
in deciding how future plans will look.
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different oatterns of suitabilitu. Take
the time to understand how it was
develooed.
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Composite maps and policies are brought
together to develop a plan or to plan options for
the future.
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New York Plenning Federation
Doge 55
SUBDMSION PLATS are drawings prepared in a manner prescribed by local
regulation showing the layout of a proposed division of any parcel of land into a number
of lots, blocks or sites. State staMes also note that the plat can indude: road and lot
layouts and approximate dimensions, a key plan showing where in the larger area the
sulxlivision is proposed, topography and drainage, all proposed utilities, and all proposed
facilities unsized and induding any preliminary plans or profiles. The graphic below
shows how maps are used to prepare a plat.
PROPOSED PlAT
. lors to be soldllmi to be retained
. proposed roadsI'1IIl!lfO\IeIlle
. existing/proposed topOgraphy
. exist!ng/proposed vegetation
. typical housetCuilding envelope
. sepllc area & well sites
. any special corxiillons (phasing, etc.)
. setbacl<s / . other details
BASE SURVEY MAP
What's there today.
. property boundaIy/acreage
. ut!IlIles
. easements
. water/wedan:ls
. topographic lines
. roads
. vegetation/trees. etc.
. SlIUdllres & other features
. e:dsling :oiling
-,
RESOURCE MAPS
Look to these as a resource
in defining areas which may
be l!Xlre or less desirable for
the proposed development.
These maps might show
areas to avoid due to
problerns ind.uding: high
erosion potenrial, possible
traffic hazards. proximity of
important views. or other
feal!lreS.
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The Short Course...
New York Planning Federation
page 56
2. Commonly Used Map Symbols
Below are presented some of the more commonly used symbols found on maps, plans
and plats. These symbols are broadly, but not universally, accepted. With the advent of
computer mapping and computer"generated drawings, information is changing and
bringing new symbols. Generally, though, you can use the fonowing references.
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The Short Course...
New York P1enning Federation
ocge 57
C. Dealing With the Public
f1.s a board member, you have quickly found out that a big part of your pb is
dealing With people. You will have to go to a lot of meetings, and most, if not all, of
these meetings must be conducted in a public setting. Some of those meetings will have
an audience, and attendees will have something to say. Youll hear from people who
profoundly disagree, and who may have sound reasons SUPPOrting their disagreements.
Pennit applicants, SOme of whom you may personally know, will want your approval
and have sound reasons SUPPOrting their interests. Property neighbors and community
advocates may argue about an application. You will deal With E!Xpelts offering advice and
opinions. This advice can often be conflicting. Once in a while, the press might show
up looking to report on a situation that may be newsworthy.
Cer1ain/y you will make many decisions that attract little or no attention from the
public. bevitably, you will have to make decisions that do attract attention, even
controversy. WIth a basic undersranding of how meetings work and how you as a public
official can use certain skills to help them Work, dealing With the public can become a
valuable experience. Yet, always remember that ine"itably your community will benefit
when you practice With high standards of honesty and openness and when you
encourage citizens to Participate early on in the process.
1. Managing Public Meetings
In Chapter 1 we reviewed meeting procedures, Particu!arly in light of the
imPOrtant aspects of the Open Meetings Law. Here, we want to go a little beyond the
basic procedural rules of meetings and explore how meetings might be Organized to
make public Participation a POsitive expetience and how some of the more cOvious
pitfalls of a mismanaged meeting can be avoided. Above all else, try to view active
involvement of the public not as a pain to be avoided, but as something to be encouraged
as a true sign that there are citizens beyond your board who care about the future of your
community. Technically, your regular meetings are meetings of your board in public,
not With the public, so you have the option of deciding the amount and methods of
public input. Your role is to help focus this Participation and weigh its conttibUtion to
your decisions.
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New York Planning Federation
Deae 58
FIrst, understand the clear purpose of the meeting and assure that the meeting is
structured toward achieving the purpose. Indeed, a typical board meeting may be
composed of a series of smaller sessions with differing purposes. Before the meeting,
try to categorize the agenda items of the meeting. You can come up with ~'Our own
categories or consider these as a start:
informational sessions - Held merely to gather information or facts (Le., fact-
finding) without a commitment to making a decision. This meeting or
agenda item, sometimes called a IAIOrk session, may be quite informal with
ample freedom for anyone and everyone to participate in an open
discussion on a broad topic (e.g., the goals and priorities or a new
comprehensive plan) or a more narrow topic (e.g., the possible alternative
uses of a piece of land).
public hearing - Held to meet a legal requirement to afford the public a formal
opportunity to respond to a proposal and to help decision-makers learn
about relevant issues.
decision item - This refers to a meeting or agenda item where you need to or
expect to make a decision. You may be required by law to approve,
approve with condi1ions, or deny an action or permit within a certain time
frame. Whatever compels you, the outcome of the meeting will be a
decision.
problem-solving item - Here there may be a specific problem that needs to be
addressed that mayor may not involve an actual permit application. You
may make a specific request to certain individuals or groups to attend, to
help deal with the planning or zoning problem. Public participation may
be allowed or even encouraged, but focus needs to be maintaIDed on the
problem at hand.
With the meeting purpose defined, make sure to establish a clear set of
. procedures for how the meeting or individual agenda items will be handled. Let everyone
know those rules at the beginning of the meeting. Issues to consider include: (1)
Opening Remarks & Logistics: Make sure everyone knows who is convening the
meeting and why. Explain the nature of the meeting and the rules for public
participation. Let attendees know about basic needs such as where the exits, bathrooms,
me Short Course...
New York Plenning Federaffon
page 59
and water fountains are. Will there be a break if needed? (2) Registration: Will people
be asked to sign-in to attend or to speak, may they merely identify themselves when they
speak, or do you want to encourage a free discussion without SlCh registration? (3) Time
Umits: Will limits be defined for the agenda item as well as for individual speakers? (4)
Format: Will the agenda include any opening and closing statements or presentations?
Will public officials or board members respond to comments and direct questions? (5)
Experts and fnterested Parties: What is the role of experts or particular interests at the
meeting? Have they been invited? If so, identify them and explain whether they will
make presentations and/or answer questions.
2. Tips on Negotiation and Conflict Management
Your negotiation and conflict management skills will oc...",<irlna1!y be put to the test
as you deal with the wide range of individual and group perspectives that appear at
municipal board meetings. Be aware that these skills come under particular pressure in
four general settings.
The first setting is that of inter-board neaotiation. Here you need to understand
your role as one member of a larger board. When looking to make a decision, does the
board try to find consensus - the decision that everyone, or at least a solid majotity can
agree on - and do you try to actively find that consensus? Or is your board more of a
collection of individuals, seme with strong advocacy positions, within which you take a
firm position and work to convince others that you are right?
The second setting is neaotiation with aoolicants. often leading to positional
bargaining where the applicant takes the position that is in his or her best interest while
the board takes a position believed to be in the public interest. These positions mayor
may not be compatible, but you still need to make a decision that is legal and practical.
The third setting is public controversv, the classic situation is where a ptivate
property owner proposes something the neighbors won't tolerate. You and your board
may have to wade through a wide array of conflicting information and take a stand in the
public interest. Or you may be a mediating force, working to find the common ground
between opposing views, recognizing that these people may need to live together.
The fourth setting relates to your work as ~dvisors to uour elected officials.
Occasionally, you may be asked to assess the need for new or amended plans or
.~'."'~''''.''':._. --.._.
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New York Planning Federaiion
caae 60
regulations, or you may even be asked to prepare draft plans and regulations. You may
need to take the lead in soliciting public opinion by inviting broad participation.
Use the following principles to guide you in tl}ese settings:
(1) Alwavs Have Meetina Rules of Condyg. Once in a meeting, the procedures
under which you are going to run the meeting, including the rules for public participation,
must be clear at the beginning. Make sure they are stated and repeated if need be. Print
copies of meeting rules of conduct and hand them out.
(2) Pav Attention to Meetina Loaistics. H you want people to participate, make
it as comfortable as possible. Is the meeting time convenient for key individuals and
interest groups? H it isn't, reschedule or hold a special meeting. Is the meeting room
accessible and comfortable, with capacity for the expected attendance? Does the seating
and table arrangement suit the purpose of the meeting?
(3) Be Aware of Non-Verbal Commlll1ication. E.ffective negotiarors and
mediators learn to read \;anous signs of communication beyond the spoken word. Pay
attention to "body language," or other signs that people might be bored, frustrated, angry
or interested. For instance, if the fifth item on your agenda is the reason why most of
the audience is in the room, you might observe signs of frustration as your first four
agenda items drag on. Maybe that later item of interest could be moved up on the
agenda. Pay attention also to your own non-verballa'1guage, since any attendee might
be natu..aIly focused on your actions as one of a group of decision-makers sitting up
front.
(4) Assess the Situation. Mentally step back from the case at hand and make
some notes on key issues in ~$ing a situation. What is the extent of your powers or
responsibilities as a board member in this case? Who are the other parties of interest,
and are their positions clear? List the parties and see if you can describe their positions.
Are there any identifiable points of agreement to build from? Write them down as
explicitly as possible. What additio11al information do you need to reach a decision? Are
any points of view missing or over-emphasized? List these.
(5) Prod Aareernent on Criteria. Disagreements can arise because the criterIa for
making a decision are lll1c1ear. Make sure everyone agrees on what it takes to ger an
approval or denial. Getting everyone to understand what is actually required to make a
decision may be a key sticking point. Disagreements can also revolve arolll1d points of
The Shott Course...
New York Planning Federation
ocge 61
fact. Can you work to find agreement on the criteria used to measure points of fact
which can then be isolated and resolved. Perhaps evetyone will agree that a certain
"expert" opinion can be trusted or that certain measurable thresholds can be defined.
(6)~. When public participation is allowed, everyone deserves
a fair chance to make a comment or ask a question. Some people are simply more bold
or shy than others in public settings. Assure that every individual gets to say what he or
she needs to say. Then as time allows, return to "lMitional comments or questions from
prior speakers. If you haw to, continue the meeting to afford additional opportunity for
comment, but also be practical and clear when comments or questions are addressing
irrelevant or repeated issues.
(7) Listen. Then Be Resoonsive. Make sure you are listening to any and all
speakers, as it is your job to assess all the infonnation and make a decision. Be
responsive to any direct questions that call for response. Remember how frustrated you
might get if people ignore your comments or questions.
(8) t{elo Your Chairoerson. Particularly in busy meetings, cooperate with the
chairperson to provide help before, during and after a meeting when needed.
(9) Remember You Are a Decision-Maker. Inevitably, your work as a board
member will come down to making a decision for or against a proposal. Before you
make a decision, think through the possible outcomes and make sure you have a
definable rationale for the decision you ultimately make.
(10) ~wavs Remember. You Are a Public O~. Ultimately, you are on a
local board to Yol:lrk toward the ~ health, safety and welfare of your community. Put
aside your private interests and biases as best you can, and remember that you are a
representative of a larger public interest.
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New York Planning Federation
pace 62
D. Identifying and Assessing Development hnpacts
In Chapter ill, we reviewed procedures of the State Envirorunental Quality Review
Act (SEQRA). SEQR rules and regulations provide a procedural framework for
identifying, measuring and responding to envirorunental issues as part of pianning and
zoning decisions. Yet, often overlooked are the skills to actually identify and assess the
impacts. Within the SEQR framework these assessment skills are called on at two
specific times:
(1) in the initial "determination of significance" of an action or decision , and
(2) if a "positive declaration" is made that the action or decision may have a
significant impact on the envirorunent, then more analysis is needed through the
envirorunental impact statement process.
Impact assessment can be very technical. No one expec'..s you to be an expert in
traffic engineering, hydiology, air pollution or archeology, to name but a few
environmental issues you may encounter. Indeed, when the going gets too technical,
remember there are supportive organizations that can help (see Appendix q. You can
also hire professional help. But it is important that you familiarize yourself with the base
environmental resources which together make up the character of your community or
a project site. Effective envirorunental assessment follows from comparing this
environmental base, what a community or property is today, against predictable changes
resulting from a new proposal.
1. Identifying Environmental hnpacts
Thanks to the previous work done over many years by other beards and
cormnissions, we now can develop a fairly reliable checklist of possible envirorunental
impacts from which you can compare specific proposals on your agendas. Below is a
list of the more common impac-..s.
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New York Pfenning Federation
Dece 63
PRELIMINARY CHECKLIsT
OF RESOURCES OR ISSUES FOR
ENVIRONMENTAL IMPACT IDENTIFICATION
AESTHETIcs &: VIEWs
ARCHEOLOGICAL SITES
COMMUNITY CHARACTER
EmlANGERED SPECIES &:
HABITAT
FLOODPLAINS &:
FLOODING
GROUNDWATER
-quality &: quantity
HAZARDOUS WASTES
HISTORIC BUILDINo,s &
SITES
!)j"FRASTRUCTURE
CAPACITY:
Parks, Roads,
Schools, Sewer, Solid
Waste, Water Supply
NOISE & ODORS
OPENSPACE&:
RECREATION
POLLUTION DISCHARGES
PRIME AGRICULTURAL
LANDs
STEEP SLOPES & EROSION
SEPTIC &:SEWAGE
TREATMENT
STORM RUNOFF
SURFACE WATERS
-quality & quantity
TRAFFIC
WETLA..'IDS
Starting with this checklist, try the follOwing steps:
1. Identify possible impacts from the checklist as a first cut. The list may at first
be useful to just eliminate a few of the non-issues (e.g., noise on a small
residential project).
2. Check existing documentation in your local plan. Has a municipal, county,
state or federal agency or other organization (see Appendix C) completed
an inventory of resources? Has a neighboring municipality or county
completed a plan which identifies issues of concern?
3. Find any local residents or experts with important knowledge about the
project, the stte, or the type of impact under discussion. Has anyone
studied or completed a project on or nearby the site which might provide
some documentation? Get their input and documentation. Meet With
them on-site or in..ite them to a public work session of your board.
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The Short Course...
New York Planning Federation
page 64
4. Visit the site, preferably at different times, to reinforce your sense of the
existing base condition.
5. Hold a public \\IOrk session to solicit comments and ideas on possible impacts.
Because most of your decisions involve smaller projects, chances are there may be a very
short list of possible environmental issues, if any at all. Smaller projects and thoughtful
projects of any scale by design often have little or no environmental impact. But don't
assume anything. Plenty of small projects and many larger projects offer the possibility'
of a full array of environmental impacts. What is important is that you nm through an
impact identification process and dOC'JInent your findings within the framework of the
SEQR rules and regulations.
2. Assessing Environmental hnpacts
Let's assume you have identified a list of possible impacts for an application your
board is reviewing. The nexr step is to assess those possibilities to discover their relative
scale and importance. Under SEQR this assessment can be a multiple-step process. You
first have the task of "determining significance", making either a positive (there is the
potential for at least one adverse impact) declaration or a negative (there is not the
potential) declaration. SEQR regulations (NYCRR 617. 7(c)), list a series of criteria for
determining significance. They include issues such as:
. air quality
. ground or surface
water quality and quantity
. traffic levels
. noise levels
. solid wastg production
. erosion
. flooding
. drainage
. removal or destruction of vegetation
or fauna
. damage to existing
"Critical Environmental Areas"
. interference with resident or
migratory animals and their
habitats, endangered or
threatened species and their
habitats
. conflicts with community plans or
goals
. major changes in the use of energy
. creation of human hazards
. change in use or intensity of use of
land
. capacity of land to support existing
uses attracting new large
rn.nnbers of people to a place
. the cumulative effect of more than
one impact.
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New York Planning Federation
page 65
Going the next step, let's assume that you have (1) identified the existing
environmental resources or base, (2) identified any possible impact or change from the
new proposal and ( 3) detennined one or more of these changes to be potentially
significant. Next, you need to develop a more detailed assessment of that short list of
potentially significant impacts. This more detailed aCCDssment is referred to as the
environmental impact statement (EJS). Now may be the time for Professional help if you
don't have it already. Two general approaches are possible. You can either rely on the
applicant to supply additional documentation on the importance of the identified impac'"..s
and then hire someone to review the applicant's work for you, or you can independently
retain professional help to assess the impacts and let the applicant respond. SEQR
allows the board to charge the applicant for reasonable costs associated with that
il<;."'€ssment in the range of 0.5% to 2% of the total project costs, depending on the type
of project. You may need professional help to answer these key assessment questions
for each identified possible impact:
1. How likely is it that the impact will occur?
2. How large will the impact be?
3. How important will the impact be?
4. What is the time frame in which the impact is likely?
5. INbat range of alternatives is available to reduce the impact?
Let's assume you are reviewIng a proposed subdivision or a special use pennit.
You need to look at the site and its setting to do a fair and thorough evaluation of any
environmental impacts. Some basic "rules" may help you:
Rule !Fl. You should be looking at ngf impact on the site and to the
community - not merely at how good or bad the proposal is. In order to see or
measure net impact, you need to: (1) have a sense of current. ore-existing conditions in
the area, considering such aspects as traffic, noise, and water quality, and (2) attempt
to get a feeling for whether and how much the new proposal is going to change these
Pre-existing conditions - e.g., how much more traffic, what new noise, or what increased
run-off? Neighbors and others who complain that "we don't need another gas station"
are not addressing your CIiteria; if the use is allowed under zoning, the saturation of
business in a market place is not a net environmental impact issue. The neighbors'
concerns might best be translated to specific impact concerns such as traffic, noise, or
harsh lighting. In some cases, you might also sense that a new proposal is ,art of a
trend which appears to be overloading a neighborhood or community. In basic terms,
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The Short Course...
New York Planning Federation
oage 66
this is a cumulative imood, which is often difficult to address, but needs to be recognized
especially if area-wide trends are evident.
Rule #2. The more you can separate or break down the uarious types of
impacts or change, the easier it will be to assess or judge a project. This is when
citizens who are skeptical or hostile about a project might propose that you, as a
decision-maker, leap ahead to the bottom line and deny a project because there are
simply too many possible impacts. But, don't assume anything until you isolate and
consider each issue and then return to the sum total of all the issues relevant to your
decision. We will always have the "apples and oranges" problem: impacts of different
types cannot be directly compared or mathematically summed. Tnat's where a board
consensus comes in by agreeing on which impacts are more important.
Rule #3. You won't always be happy with the final product. Why? FIrst, your
regulations are typically minimum standards, not necessarily the best standards, and
many boards feel they can't go beyond the minimum required (you can!). Also, the
surrounding, existing neighborhood may be familiar or attractive, and anything you add
may seem to be an intrusion. Finally, the product is the result of the board's
considerations, not just yours. Although consensus on a final product is ideal, remember
that in your work the majority decides. Rare is the case when everyone walks away
happy.
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New Yor!< Pfenning Federoffon
oage 67
Chapter V. The Five Steps to Success
as a Board Member
What you've read in the foregOing pages has been styled as a primer in the basic
requisites of being a member of a local Planning board or zoning board of appeals. As
we stated in the Introduction, it is neither a comprehensive nor detailed analysis of the
issues you will face as a board member. There are many other resources for such study,
and the Appendix lists a few of them. We recommend that the serious board member
become familiar with these works, for they will help, and they will reward you in the form
of better decisions.
We'd like to dose by listing what we've called the Ave Steps to Success as a Board
Member. Perhaps there are more, but these five seem critical:
A. Be A Community Leader
As a member of a planning or zonL'1g board, you are a public official and a
community leader. Enjoy this spedal opportunity to playa direct role in helping shape
the future of your munidpality. Cultivate this opportunity by actively contributing your
unique experiences and knowledge when you can. Appredate how your elected offidais
have put trust in you as part of a team of elected and appointed offidals and munidpal
staff by always working in the public interest. Being a dmen leader does not mean you
are an amateur; it means you have been entrusted With the type of role that is a
fundamental part of decision-making in America. Understand the prospects and limits
of being an appointed member of a dlizen board, and work to get the advice and training
you need to be effective.
Remember, too, that your actions as a community leader have public
consequences, good or bad, marginal or profoWld. Because planning and zoning
dedsions go directly to how land is used, and because people's land often is a critical
individual or family asset, your work is acutely important to property owners. Sometimes
those owners indude peers, neighbors, fnends, or even your family. Your board is an
advocate for the public interest (as hopefully defined in a plan With complementary
programs or regulations) which sometimes conforms or dashes IAlith private interes-..s.
Be sensitive to all these interes-.s, yet make sure your leadership contributes toward a
dear articulation of the public interest.
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New York Ptannina Federation
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B. Know Your Community, Its Geography and Character
Perhaps you're a longtime resident of your town, village or city, and you're familiar
with every hill and grove and each turn of every road within it. Great. Your knowledge
is invaluable to the board. But if you're not as familiar with your community as you might
be, do yourself and your board a favor: as soon as possible after you finish this book (or
even before you finish it, we won't mind), go out and take a tour of the community.
Take the community's plan along with you. Look at the landscape, take note of
the lot sizes, and the ages and architecture of the homes. Note where the major and
minor transportation routes are, where major railroad and utility rights~f-way are
located. Where are all the public buildings, parks, reservoirs and highway garages?
Where are the major industries, and mining sites? Where are the major commercial and
industrial traffic flows?
Learn where the municipality's significant natural features are: its streams,
waterbodies and drainage channels, its wetlands, rock outcroppings and steep slopes.
Try to discover soil types and note which areas are appropriate for agricultural
production and which are not. v"'hich areas are ideal for recreational pursuits?
The environment is not static. Not only snould the conscientious board member
learn as much about what is ioeated where, but he or she should also take note of what
is occurring. Is the community growing? M businesses moving in, or are they finding
it difficult to SUIVive? Is traffic becoming more of a problem? If so, where, and why? Is
the average age of the population increasing or decreasing?
Discover what is happening in the natural environment also. M there waterways
where erosion or flooding are problems? Is a wetland or significant wildlife habitat being
threatened by POUl.ltion? Are mere old landfills leaching toxic materials into the soil or
into waterbodies?
A thorough knowledge of your community and a firm grasp d its dynamics are
essential to a truly knowledgeable approach to community planning issues.
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New York Planning Federation
page 69
C. Know Your Local Regulations
and All Required Procedures
There's simply no substitute for thorough Preparation, and preparation starts With
a mastery of the local Planning and zoning regulations which affect your board's
.iurisdiction. As soon as you become a member, sit down With them, and With the zoning
map. Scan them from start to finish to get an overall sense of the scope and structure
of the documents. Then read them again, more slowly, trying to develop a feel for the
general intent of the drafters, and for the way in which various Provisions interrelate. "
Ask yourself why certain uses are grouped With certain others. Look for patterns. If your
Community has a comprehensive plan, be sure. you are thoroughly familiar With it.
Identify the areas where the zoning regulations are in accordance With the plan, and
where they might not be. Focus on this POint if the regulations are at least five years
old; an updating effort may be due.
Gain at least a nodding aCquaintance With other regulations of your COmmunity
which affect planning and development, such as public highway standards, plumbing,
electJical and water/sewer codes, property-maintenance and unsafe-building laws. Take
a look through the Uniform Fire Prevention and Building Code and the
Factory-Manufac:ured Home Code. Become familiar With any licensing Jaws or
ordinances in your municipality regarding certain bUSinesses, or which regulate other
actiVities such as mass gatherings and places of amusement. Keep copies, or at least
SUIIUnaries, of these for handy reference. A little homework With the regulations will go
a long way. Don't be afraid to ask questions of applicants, consultants, interested
parties, and your fellow board members. You will need to gather aU relevant facts in
order to create a record of your decisions consistent With the regulations and procedures.
Also, become thoroughly familiar With the procedures required for the decisions
you must make. Here, we're SPeaking not only of procedures required by local laws,
ordinances and regu/atjons, but also of the procedures required by state law. Make sure
your municipality ProVides you With copies of the Guide to Plannina and Zonina Laws
of New York State. published by the Secretary of State. This booklet reprints, at a
modest cost, aU of the state enabling laws pertaining to planning and zoning, complete
With aU the applicable time limits regarding applications before planning boards and
zoning boards of appeals.
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D. Know Your Partners
You are not alone. County planning officials and staff, as well as regional
planning staff in many regions, are among the most dedicated and hard-working
professiOnals to be found anywhere. Their expertise in land use, and their sensitivity to
concerns which reach beyond municipal boundaries, makes them a truly invaluable
resource. Look for opportunities to meet your county or regional planning director and
staff. Attend their seminars. Let them know what your concerns are. Knowing yow:
community pl.::nning and land use concerns better will help the county to make better
recommendations on particular matters before your board. And your better knowledge
regarding county concerns will assist you when you are faced with a decision whether or
not to override a county recommendation.
There are other entities whose assistance will prove invaluable as well. The New
York State Department of State provides training and assistance in all aspects of
municipal administration, including planning and zoning, through its Local Government
Division. The New York Planning Federation, located in Albany, serves as a voice for
planning and zOning officials and prOvides training, technical assistance, and funding
through a small grants program. Legal advice for members can be gained from the
Association of Towns of New York State and from the New York Conference of Mayors.
Both the State Attorney General's Office and the Office of the State Comptroller will
issue informal written opinions to local officials on matters of municipal law and
administration. The various state agencies whose responsibilities often affect locailand
use planning, such as Environmental Conservation, Transportation, Parks, Recreation
and Historic Preservation, and Agriculture and Markets, will also provide assistance in
their particular areas of jurisdiction. Also, non-govemmental organizations such as
chambers of commerce, land trusts, or community and neighborhood development
corporations can offer invaluable advice and assistance.
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New York Planning FedercrHon
page 71
E. Treat Everyone With Cotutesy and Respect
Sounds like good advice in general, doesn't it? Too often, nowadays, civic affairs
seem cluttered With acrimony, mistrust, selfishness and greed. We're not speaking of
public officials alone. All sides of the local decisional process-public, private, and
citizens' group alike-have, at times, displayed their less-Battering attributes.
It's beyond the SCOpe of this book to delve into prescriptions for better
government. Assuming you are an honest, unbiased, reasonable and COnscientious board
member, there will inevitably be times when your patience will wear thin or your credulity
will be strained. Perhaps your motives and wisdom will be unfairly judged. At these
times, the temptation to venture beneath one's own dignity might be strong. It must be
avoided. A policy of courtesy and respect is essential to the board member. Our
experience tells us that it eventually pays off. The great majority of people, no matter
what their opinions on a particular matter, will respect a decision they believe is arrived
at honestly. Board members who conduct themselves not only with integrity, but also
with basic decency toward others involved in the process, can only help ensure that
respect is maintained.
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page 72
Conclusion
Service on a municipal planning board or zoning board of appeals is often its own
reward. The satisfaction you derive may often consist simply of observing for yourself
the positive effects of your work. We tend to be a contentious society, no less in
municipal planning and zoning than in any other arena, and sometimes more so.
Debates will occur. Once in a while a lawsuit may result. Sometimes elections will swing
on planning or zoning issues.
Debate and conflict are perhaps inevitable in your work. Indeed, neither are
necessarily bad. But the competent, conscientious board member needn't be unduly
distracted by this. Keep in mind that your primary responsibility is to help assure the
public health, safety and welfare of the greater community. If you are confident that your
actions have answered that responsibility, you'll be able to put controversy in perspective.
More importantly, you will have done a job to be proud of.
.
Planning or zoning board service truly demands the best that we as citizens can
offer our government. We sincerely hope that this Guide will help you to approach that
lofty standard.
As we said in the beginning, Good Luck!
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pcge 73
Appendix A: Glossary of T enns
The tenns lI.sted below, when used in the context of this manual, have the fOllowing meanings:
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Absentee: A beam member who is not in attendance at a meeting.
Abstain: r 0 refrain from casting a ~te.
AdJourn: r 0 suspend a meeting or a Proceeding to a future time; to dose a PlI11lcuIar session.
Agenda; A schedule of items intended to be taken up at a meeting.
Appeal; A request seeking relief from a decision already made by a board or offIdaL
Buffering: Cushioning, sbield!ng, or protection, such as Yegetatjon between uses.
Bylaws: Rules adopted by a beam which severn its Procedure.
Cease and Desist Order: An order to cease, or stop, an illegal actlvity, issJed by an enforcement
officer.
Chair: The Presidlng officer of a board or of a meeting or P=eding. .
Charter: The soveming doaJment of a IllUI1icipalliy partjcu/arly, that of a city or coUnty in New York.
City: A form of lllIIr1icipal sovemment; also, the territory lying Within the boundaries of such
govemment. In New York, one of the 62 cMl divisions created as a city by the State L.esislature
am governed by a city charter
Cift; Council; The legisfatjve or goveming board in rmst cities. Also sometimes termed Common
Counc'J.
Code of Ethics: A set of regulations goveming the ethical conduct of government offlcets and
employees.
COmmercial Use: A use of land devoted to COITllIlerc:al or business PtJI'POses, such as retail sales,
servic2s, or business offices.
Common Counci1: See cay Council.
Comprehensive Plan: A written dOCJment, which mall include or be aCCOlIl1lanied by graphics,
representing the ph\lSical struc:ure of a colIllllUni1y as well as projections for its intended future
develoPment.
County: A form of regionallllllr1icipal govelTllIlenr; also, the telTitory lying Within the boundaries of slIch
govel'lllIlent. .rn New York, one of the 62 cMl divisions created as a coUnty by the State
L.esiSature.
Critical Environmental Area: A speci6c geographic area desisnated by a local or state ilgellcy which
has exceptional or UllXtue characteristics.
DEclaratory Judsrnent; A form of Iegai action which asks that a statute or local law be declared invalid
or unenforceable.
DEveloPment Proposal; An apPlicat!on submitted by an owner or owner's representative. seeking
approual for the develoPment of land.
Drainage: The outflow of water or other tIuid from a site, whether by natural or artlflda1 means.
Environmental 1\ """-llent Form: A document submitted With a developmenr applicat!on. which sets
forth a lllIIllber of fundamenrat facts intended to provije a reviewing board With the means for
making a determination of environmental ~.
F'tnanci.aI Dl.scIosure Statement: A document which details the income am financ;.al assets of a public
officer or employee, submitted in accordance With the Public Offlcets Law or With the
requirements of a local coda of ethics.
F'mdings; Facts determined by a reviewing board in reierence to its dec:sion, either on an apPJicatlon or
on a partlaJJar phase of an application.
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Freedom of lnionnation Law: Public Officers Law, Article 6. the stale s<alute which sets forth
requirelIll2tl%l: governing the public acc~..;biIily and rt;...lnsure of government records.
Horne Rule: Tne principle under which local governments are broadly authorized by the State
Legislature 10 enact laWs, rules and regulations relating to their own property, affairs and
government.
In Order: Term which refers to the fact that a question, motion, or item of business may properly be
raised by a member at a meeting of a public body.
Industrial Use: A use of lard devoted to manufacturing or induslrial p=~"".
Infrastructure: Physical improvements. stIUctUres or irisr:-n~tinllS which provr:le common services to a
communil:y or geographic area, e.g., water, sewer or gas mains, or eIed:ric power 1ines.
Legislature: A Slate or c:oun1y governing body.
Local Government: A c:oun1y, d1y, town or village.
Local Law: A written piece of legislation, enacted by a local govemrnertt. pursuant to authority gran1ed
by Article IX of the Slate Consli1ution and the Municipal Home Rule Law.
Majority: More than half. On a public body. any rwmber of members amounting to more than the
remaining number.
Master Plan: Common use term for "comprehensive plan".
Mayor: In most New York cities and villages, the chief eleaed officiaL
Minutes: The c:u-onoiogical record of the proceedings of a public body.
Motion: An overtUre by a member vf a public body, by which the member attempts to bling a matter of
business before the body. Also. a request for a partiolIar ruling by a party before an
ad~tory body.
Municipality: See Local Government.
Notice: Published infolU'.ation regarding an impending meeting. proceeding or hearing giving at ieas<
time. dale, place and purpose.
Open Meetings Law: Public Officers Law. Article 7. The state statute which sets forth requirementS
governing the public accessihility of meetings of public bodies.
Ordinance: .... wr'.tten piece of legislation. enacted by a lawn pursuant to authority gran1ed in the Town
Law. or by a city pursuam either to its charter or to the General City Law.
Out of Order: Term which refers to the fact that a question. motion or item of business may not
properiy be raised at a meeting of a public body.
Performance Bond: A document issued by a surety, in return for a fee or premium, guaranteeing :he
periormance of the terms and conditions of a development approvaL
Planning Board: A public body of a local govemrnertt. appointed pursuant to state statutes relating :0
planning boards. having the powers and duties set forth in those "",n ,,""
Plat: A map or graphic showing a plan for the subdivision of land.
Plat. f'mal: A plat (plan) showing a subdivision of land, submitted to a planning board in application for
final approval.
Plat. Preliminary: A plat (plan) showing a subdivision of land, subroilted to a planning board in
application for preliminary approval.
Procedural: Of or pertaining to procedure.
Public Heating: A public proceeding at which the public is given the right and opponunity to speak
regarding a partic:Iiar matter or issue.
Quorum: Tne number of members of a body who. by law or rule, must be present in order that a
meeting be convened.
Record: A doc..:ment kepr in the ordinary course of business by a govemrnentai unit. Also. the written
expression of the ?roceedings of a public body. Meeting minutes are one form of record.
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New Vori< Planning Federation
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Resolution: The recorded expression of the Will of a public body.
Robert's Rules of Order: A publication containing rules of procedure COl1llOOnIy accepted by
P&ilamerttazy bodies, including pubijc bodies.
Rule: An enactment which gollllms action or a c:ouzse of conduct.
Runoff: Precipitation leaving a site due to the force of graVity.
Secocd: A required expression of support, made by a member of a public body, for the consideration of
a motion made by another member.
Site Plan: A IlJilp, plan or set of graphics, and accompanYing 1lJiltelial, showing the proposed
deveJoPment of a single parcel of IaIXi.
Site Plan Review/Approval: The procedure SO\IIlmed by state statutes and by a Iocai law or ordlnance,..
for the review of, and decision on, a site plan.
SpeclaJ Use Permit; The Qlallt of pennjssjon by a body of a Iocai golllllIllllent, after review by that body
of an application, for the use of land for a P<UticuIar purpose.
Special Use Pennit Revtew/ Approval: The procedure SO\IIlmed by state statutes and by a Iocai law or
ordlnance, for the review of, and decision on, a specjaJ use pennit.
State Environmental Quality Revtew: The Procedure engaged in P\llSUant to Environmental
Conservation Law, Artlc!e vm and the rules adopted under it, by which a Iocai body reviews and
."""<ses the potential environmental impacts of a proposed project
Statute: An act of either the United States Congress or the State ~.
Stop-Work Order: A. written documeru: issued by an enforcement offidaJ, which requires the cessation
of an activily, usuaJIy COllStlUction.
Subcommittee: A body comprising a POrtion of the membership of a public body, usually constituted or
appointed for a P<UticuIar purpose. .
Subdivision; The divtsion of a parcel of land into smaller parcels. Also, a Proposed deveJoPlIlerlt shown
on a subdivtsion plat.
Subdivision, Major: Where the subdivtsion of land is regulated by a Iocai SOIIIllIlIllent a tenn COl1llOOnly
used to denote subdivtsions which are subslanti.ai in scope based on one or more criteria, such as
ph\<'5ica! size, the number of lors, or the Proposed COnstruction of new roads.
Subdivision, Minor: Where the subdivtsion of land is regulated by a Iocai government, a tenn COl1llOOnIy
used to denote subdivtsions which are Jess substantial in scope based on one or more C;iteria,
such as physicaj size, the number of Iors, or the proposed construction of new roads.
Subdivision Plat: The IlJilp or plan of a Proposed subdivision of land. Also, the application to a Iocai
Planning board for the review and apJll'Oliill of a subdivtsion.
Subdivision RevIew/Approval: The Procedure SO\IIlmed by state statutes and by a set of Iocai
regu/atIons for the review of, and decision on, a subdivtsion plat application.
Subpoena: An order issued by a .iJdidai or QUaSio.iJdidai body (such as a board of appeals), which
requires either the ap~ of a pel30n before that body or the Production of books or
records for review by the body.
Substantive: Of or JleItaining to the !IlI!rtts of a matter, as opposed to its Procedure.
ToWn; A fonn of illIlllicipaI govetnment. Also, the territory lying within the boundaries of such
govemrnenr. In New York, one of the civil divtsions of a county governed principally by the
Town Law.
Town Board: The legislative or gollllming body of a town.
Utility: The Provider of electric, gas, warer, sewer or electronic collll1lW1icatlons selVlce: also, the
service itself.
Vacancy: An unfilled position in the Illel!lbership of a body.
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Vartance: permission granted by a board of appeals for a use of land. or for constIudion to particular
dimensions. conxrary to the reslriclions contained in a set of zoning regulations.
Village: A form of ltllJl1icipai government Also. the terntolY lying within the boundaries of &lch
government. In New York. OM of the civil divisions formed within a town or towns. either by
the Stale 1.egisIature or under the incorporation procedures of the Village Law.
Village Board of Trustees: The \egisIative or governing body of a village.
Zoning: The regulation of the density a1Xllocalion of SlI\ldIlI'e5 a1Xl uses of land.
Zoning Board of Appeals: A body of a 10caI gouemment charged with the duty of hearing appeals a1Xl
gran1ing rellef from the stria application of its zoning regulations. a1Xl with other duties to whicll
it may be assigned under the terms of SJCh regulations.
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Appendix B: Key Organizations and Contacts
County Planning DePartments
Nearly every county in New York State has a county planning ~ with professional staff.
Setvices offered vary greatly from county to county but seneraJly indude access to technical infOllllatlon
and advice. training PfOgIams, grant writing service, mapping services and adminisaation of certain
planning and zoning reviews l.Illder sections 239m & n of General MUI1idpaI Law. ArxI your county
planning ~ in l!le phone !istings for your county administration. Also note that County
EnVironmental Management Councils have professional staff in many COUl1lIes who can
proVide advice and infollllatlon on envirollllleIlla! Planning mattm.
Regional Planning Councils
The primary ftn:tlon of regional Planning colll1dJ.s is to study the needs and conditions of an entire region
and to deIIeIop strategies which enhance the region's communities. They provide comprehensive Planning
for the coordinated growth and developmenr of their regions and, as such. can proVide infOllllatlon and
advic2. Other setvices vary by region. Tne New York Stare /II ....".;~tit1n of Regional Councils consists of
the 9 regional Planning boards in New York State, and represents 45 of the State's 62 counties.
Capital Disrria Regional ?.anning Commissicn
214 Canal Square. Schenectady, NY 12305
518-393-1715
Central New York Regional Planning and
DevelOPment Board
90 Presidential Plaza, S!/l1laISe, NY 13202
315-422-8276
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Erie . Niagara Regional Planning Board
clo Erie Co. Dept of E'1vircllllleIlla! f'I.anning
95 Franklin St.. Buffalo. NY 14202
716-858-6926
GeneseeIF1I1ger Lakes Regional f'I.anning Couru:il
1427 Monroe Ave., Rochester. NY 14618
716-442-3770
Herkimer-Oneida Counties Comprehensive
Planning Board
Oneida County Office Buikling. 800 Park Ave.
Utica. NY 13501 / 315-798-5710
Hudson Valley Regional Couru:il
280 Broadway, ;'iewburgh, NY 12550
914-565-4921
Lake Champlain-Lake George Regional Planning
Board
Lower Amherst St., Lake George, NY 12845
518-668-5773
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Long !slan:t Regional f'I.anning Board
Dennison Office Bldg., Veterans Mern. Highway
Hauppage, NY 11788
516-853-4099
Southern TIer CerttIal Regional Planning and
DeveloPment Board
145 VUJage Square, Painted Post NY 14870
607-962-5092
Sxnhem TIer :='S[ Regional P'.anning Development
Board
46 S. Washington St, Bin9hamron. NY 13903
607-724-1327
Southern llllr West Regional Planning and
Development 3oan:l
465 Broad St. Salamanca. NY 14779
716-545-5301
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New York State Agencies and Organizations
Adirondack Park Agenc.;
PO Box 99, Ray Brook. NY 12977
518-8914050
This agenc.; is responsible for revieWing large
development projects on enviromnentally sensiIiVe
prillate land within the park. Ageoo; staff can
provile assislarX:2 wlIh project ll!IIiew, site planning,
Geographic InfOIlIllltion Sysrems, engineering,
hydrology, etc. Limited assisO.anCe is available to
municipal boards.
American Farmland Trust
77 Van Dam Sl ;:8, Saratoga Springs, NY 12866
518-581-D078
Tnis organization works to stop the loss of
productive farmiand and to promote fanning
practices that lead to a healthy environment. They
pubUsh a quarterly roagaz!ne titled, American
Farmland and infonnaIive brochures about
protection options for agrtculturalland.
Association of Towns of the State of New York
146 State Street, Albany, New York 12207
(518) 465-7933 / (518)465-0724 (fax)
Toe primlIy 9.IpPOlt oIgarlization for Town officials.
this non-sovemroentallIltou.;...."hip group provides
a IIllriety of services covering the full range of
municipal aclivilies affecting Towns. The
As9:;>ri..non staff iodudes attorneys who can provide
telephone and written responses to inquirtes about
the land use deCsion making process.
Hudson River Valley Greenway Council and
Hudson River Valley Greenway Conservancy
Capitol Building, Room 254, Albany, NY 12224
518-473-3835
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The Council and ConsefllanCY assist cormnunities in
forming voiunIary partnerships between local
govemmenlS and the state to encourage economic
development while preserving the beauty and
natural wealth of the Hudson Valley.
Land Trust Alliance of New York
RR 2 Box 13, Millbrook. New York 12545
(914) 677-D084
This fiekI ofllce of a natiooal support group for
the land trust collJl1JJOity is a central source of
infonnation and assistance on land
conservation issues.
New York Conference of Mayors
and Municipal Officials
119 Washingron Ave., Albany, New York
12210
(518)463-1185/ (518) 463-119C (fax)
The priIIlary support organization for Village
and City officials. this 1llUrlicipal association
provides a IIllriety of services covering the full
range of issueS affecting villages and cities .
Municipal members only are encouraged to
seek assistance.
New York Main Street Alliance
35 West Main Street, Mt Kisco, New York
10549
(914) 242-5950 / (914)242-5729 (fax)
NYMSA is a statewide not-for-profit
organization dedicated to downiown
revitalization and economic development.
Information. workshops, training and technical
assistance is provided.
New York Planning Federation
488 Broadway, Albany, New York 12207
(518) 432-4094 / (518) 427-8625 (fax)
The Federation is a service organization to
rwnicipal planning and zoning officials in New
York State as well as the priIIlary state-wide
advocate for sound planning and land use
practice. Services indude trainings and
conferences, praciical publications. planning
and legal consJitation. research, and funding
for local planning projectS.
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NYS 0epar1ment of Envirorunental Consetvatlon
50 Wolf Road, Albany, NY 12233
518-457-5400 (general infonnationl
Division of Regu/atory Setvices
518-457-2224
This Division is responsible for oversight of all
0epar1ment major regulatory functfons,
eI1IIirorlm!rlI analysis, project review management
am cooldloallon. coordination wilh other state am
federal agencies, aDd compliaru:a wilh the State
EnvirolllDelltal Quality Review Act ar.d Unifonn
Procedures I'd. lts functfons are carried out in
cooperatlon with staff in the regional offices.
Division of Lands and Forests
518-457-2475
This Division provkies infonnation about forest
rl!SOUrC2 maoagemenr. Regional foresters can be
coruaaed to proVi:ie sugge&lons on forest
management techniques and oplicns.
The DEe has nice (9) regional offices through which
staff can offer infollllat!on on issues ranging from
SEQR to water resourca proteaion.
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Region 1 . Stony Brook. NY
516-444-0270
Region 2 - Long Island C:ty, NY
718-482-4851
Region 3 . New Paltz. NY
914-256-3000
Region 4 - Schenectady, NY 12306
518-357-2234
Region 5 - Ray Brook. NY 12977
518-897-1200
Region 6 - Warenown, NY 13601
315-785-2239
Region 7 - Syracuse, NY 13204-2400
315-426-7400
Region 8 . Avon. NY 14414
716-226-2466
Region 9 - 8uifaIo, NY 14203
716-851-7000
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NYS 0epar1ment of Agriculture and Markets
Agricultural Protection and Development
Setvices
1 WInners CIIcle, Albany, NY 12233
518-457-2713
This agencg provides information about the
AgriculIural Districts Law and Agricultural and
FannlaIxI Protection grants.
NYS Department of Slate
162 Washington Ave., Albany, NY 12210
518-474-0050
Division of Co"<:taI Resources and
Waterfront RevitalIzation
518-474-6000
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This Oivisiln assisls in administering the State's
coastal management program pursuant to the
Federal CoaslaI Zone Management Act of
1972 and provides information and guidance
to ensure the State's efforts concerning the
coastal zone are useful to the planning,
deuekJpment. am regulatory activities of State,
regiona1, and local agencies. The office
mai1ltains a relationship wilh State and federal
agencies, local gotIelII!Ile1lt and other public
am private partles hailing an ini:emt affecting
the State's coastal resources.
Office of Local Government and
Commrmity Servtces
518-486-9888
This Office provides training and technical
as5islaIlce !Xl local gOVlouUU<lb and collllDllnity
organizatlons throughout the state and helps
local officials solve problems involving basic
powers ar.d duIIes. public works, IIlUI1icipaJ
orgaoizaljon. plaming, land use and regu1arory
coIllIOls and collllDllnity development.
7he Short Course...
New York Planning Federation
pooe 80
NYS Deparllllent of Transportation
1220 Washingron Ave., State Campus Building 5
Albany, NY 12232 518 45Hl195 (general info)
Map lnformal:lon Unit
518-457-3555
The map information unit is responsible for
producing and 1IllIinlaining the state's severa1 base
map series which they offer for sale to the public.
Some of their resources include planimetric and
topographic base maps, geological and soil maps,
aeronautical charts, tax maps, hydrographic charts,
satellite imagery, and aerial photography.
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NYS Office of Parks, Recreation, and Historic
Preservation
Empire Slate Plaza, Albany, NY 12238
518474-Q456 (general info)
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Field Services Bureau
Peebles Island. PO Box 189
Wateriord. NY 12188-0189
518-237-8643
This bureau prouides technical assistance and public
education. Staff can assist cormmmilies with
idefltifi,."tinn of historic !alxIst:apes and other
historic sites and features. They also administer the
State and Federnl programs concerned with historic
preservation and oversee the state's parkland
system.
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PresetVation League of New York State
307 Hamilton Street, Albany, New York
12210
(518) 462-5658
The Preservation League is a private, not-for-
. profit organi2alion whose primary purpose is
to stimJIate and erx:ourage public partidp"oon
in historic preservation. l.egal, technical and
linanciaI assistance is awiIabIe.
Tug Hill Comrm<.<in1J.
317 WashingronSt, Watertown, NY 13601-
3782
315-785-2380
tughill Oimcrlet.net
r"rom Iarxl use to rural economic development.
the commission's primary partners are the
councils of govemmems of the region.
Working with economic development
organizations of the North Coumry, the
commission supports technical assislance to
the business communily to encourage 'borne
grown" job retention. Toe commission's
tec:hnical assislllnce service answers about
1,000 requests a year inchIding questions
about IarxI use law, budgeting, and recent
legisiative actions and court tulings.
The Short Course...
New York Pfenning Federation
page 81
Appendix C: Publications of Interest
Anderson. Robert M. New York Zoning Law and Practice. Rochester, New York: The Lawyers Co-
0peratiIIe Publishing Co., 1984 (2 'A:llumesl (thini edition / SUPPlemented annually).
Comprehensive treatise on the Iega! aspects of zolling arxi planning under New York law.
./ Coon. James A. & Sheldon W. Damsky, ~ All You Ever Wanted to K1IOUI About Zoning. . .
AIbacy, New York: New York Planning Federation, 1993 (secorxl edition).
A """"I".!!lellSi\le lI!IIiew of the Iega! frmlework for planning arxi zoning practice in New York
State. Beginning in 1996 this Will be updated annually With a supplement reviewing recent
legislation arxl case law.
Fort Drum Larxl Use Team. Guide to Land Development: Permits, Procedures, Community
Planning and /Je:;ign. WarertownarxlAJbany, New York: n.d., The Tug l-nll Collllllission arxi
the NYS Clepartmern of State.
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An item Cy item lI!IIiew of the various permiIs arxl procedures assoc:ated With land development
in New York State. Indudes the award winning 'ColIlllllJlli1y Design Guidelines Manual"
Preseming design c:iteria to encou.rage quality development.
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Gerrald, Michaei B., Daniel A. Ruzow arxi Philip Weinberg. Enuironmental Impact Reuiew in New
York. New York: Matthew Bender & Co., 1991 (supplemented annually).
A treatise on the law arxl practice of envirollllleIllal impact review in New York State.
Godsc.1alk, David R.. et.aL Pulling Together: A pranning and Development Consensus-Building
Manual. WasilingIOll, D.C.: Urban Larxllnstitute, Program for ColIlllllJlli1y ?roblem Solving,
1994
A practical guide to the benefits arxl techniques for building consensus in planning arxi land
deveIoprmm cases. Indudes advice on resolving disputes, managing meetings, arxi imllroving
citizen part!cipalion.
Lehman & p.<<:nr'~r'l~ The Zoning Dictionary. Barrie, Ontario: Lehman & Associates.
An ~ listing of hmxln1ds of de6nilions gathered from sources in the United States arxi
Canada. Often inciudes muitiple deiinitions as options. ColIlpallion 'A:lWmes are The Zoning
Prouisions Enqlcopedia reviewing rncde.l regulation language arxi The Zoning Diagrams
Compendium, a gazetteer of diagrams useful to inlrepreting land use issues.
,
Lynch, Kevin & Gary Hack. Site Planning. Cambridge, Massachusetts: MIT Press, 1984.
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An u;xJara:i ediIion of :he c!assic ~ textbook reviewing the tools needed for 'O,r-.ssfuj
site planning in its broadesl: sense.
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The Short Course...
New York Planning Federation
page 82
Mantell. Michael A.,Stephen F. Harper & Luther Propst. Creating Successful Communities & The
Resource Guide for Creating Successful Communities. Washington, D.C.: IsIaDi Press,
1990.
A twcxdmle p,hI!r"lVvlll!llieWing actual sttalegies being used by colIllIllJllltles throughout the
Unite:! Slates to foster CleaIiw dewIopment while protecling sensiliw environmental resources.
Inciudes a review of specific t~ organizations to contact and sample Ian:! use
regulations.
. New York State [)epartmenl of StaIe. Guide to Planning and Zoning Laws of New York State.
Albany, New Yotk: 1993 wi annual updates.
A inexpeDsiw, ga2I!lleer of planning and zoning laws affecting municipal offic:iaJs in New York
State.
New York State Department of E:wironmenlal Conservation. The SEQR Handbook. Albany, New
York: NYS DEC, Dillision of Regulatory Ser\Iices, 1992 (updated edilion forthcoming).
.
A primer to unders:anding and implemenling the State Enllironmental Quality Review Acr..
.
Olsen, Geraii W. Soils and the Environment: A Guide to soil surveys and their applications. New
York: Chapman and Hall. 1981
A prac:ical review of soils information and how 9Jch information can be used for a variety of
land use decisions.
Russell, Joel S., Anne Tale, Jennifer Shakespeare & Chester E. Chellman In. Rural Deu..lopment
Guidelines, Building Form Guidelines, & Hamlet Design Guidelines. Albany, New Yotk:
New York Aaoning Federalion & [)m;hess County [)epariment of Planning and Development,
1994.
A three-volume set of bookiets providing practical, illustrated arMce on how to incorporate
better design prindples in Ian:I development and redevelopment.
Thompson, John H. The Geo~. aphy of New Yark State. Syracuse, New Y otk: Syracuse University
Press, 1%6.
Still the definitive text on the geography of all the various, and ~e regions of New York
Stale. lndudes excellent oveI1Iiews with dear iJhJstrations on the State's climate, bedrock
geology, soils, and rtver S!l5terns to name but some of the issJes covered.
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Traub, Corl & David Church. A Practical Guide to Comprehensive Planning. Albany, New York:
New York Planning Federation, 19%.
.
Forthcoming in the Spring, 1996, a review of practical steps for completing, updating and
implementing comprehensive plans, written to assist municipal offic:iaJs and volunteer citizens
with this lDOS! impornmt effort.
The Short Course...
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New Vorl< Planning Federation
page 83
INDEX
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access for disabled .................. 13
ageo:la ........................... 9
comprehensive plan . .. . . .. .. .. . .. ... 20
elements of .. . .. . .. . . . . .. . . . . . . .. 21
benefits of ....................... 22
conflict of interest .................... 4
conflict IllaIIilgernent .............. 59-61
COUIl1y planning ............... 2, 15-16
collllty refeml .. . .. . .. . . .. .. .. .. . 15-17
CI'OSS-SedIons .. .. .. .. .. .. .. . .. .. '" 53
default approllal .. .. . .. .. .. . .. . .. .... 9
deflnillons ...................... 73-75
envirollIIlental im:paa assessment .. . . . 62~6
ch~ ........................ 63
erbics .. .. .. .. . . .. . . . . . . .. . . . . . . . . 3-5
exeCUtive~n ................... 11
giossaxy . . . . . . . . . . . . . . . . . . . . . . . . 73-75
leadership ........................ 67
legislative Commission on RuzaI Resources. 1
aunnbe~.... .................... 6
maps. . . . . . . . . . . . . . . . . . . . . . . 48,51-56
composite .. .. .. .. .. .. .. .. . .. . '" 54
details .. . . .. . .. . . . .. . . . . . . . . . . 52-53
;ymbols ........................ 56
negotiations. . . . . . . . . . . . . . . . . . . . . 59-61
New York pI.anning Federation. . . . " 7, 78
New York Slate Oepartmem of Slate .. 7, 79
OpenMeetlngsLaw ............10-11,14
o~ns........ .............. 70
performance bonds ................. 26
plans . .. . . . .. .. . . . . .. . . . .. . . .. . 52-53
planning boards . . . . . . . . . . . . . . . . . . 19-23
planning commissions. . . . . . . . . . . . . . 19-23
profiles .......................... 53
public officer ....................... 3
public hearings . . . . . . . . . . . . . . . .. . . 12-14
public meetings .................. 57-58
qll"IiA....'jons .......................5
quorum ........................... 8
records ........................ 14-15
resuJations . . . .. . .. . . . . . . . . . . . . . . " 69
resource 'nverttory .................. 48
remollal. .. . .. . .. .. .. .. .. .. .. . .. '" 3
RobertsRulesofOtder................ 8
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site plan reuiew .................. 27-29
elements of ...................... 28
soil suruey ........................ 48
special use permits . . .. .. .. .. . .. .. . 29-30
Slate EnuIrormmtal Quality ReuIew (SEQR)
. . . . . . . . . . . . . . . . . . . . . 16,4145
completeappllcation . . . . . . . . . . . . . .. 43
determination of ~ ......... 44
2Xemptactlons ........... ........ 42
EAf ...........................43
ElS ..........................4546
lead agency. .. .. . . .. .. . .. . .... 41,43
TypelActions ...... ...... ....... 41
Type II Actions .. . .. .. .. . .. .. .. '" 41
Unlisted Actions .................. 41
Slate Constilutlon .. . .. .. .. .. . .. . .. '" 1
su~ns ............. ........23-27
mapr/nnnor..................... 24
parkland set-aside ................. 25
plats ........................... 55
preliminary/final .. . . .. . . .. . . . .. . .. 24
technical assistance ............... 70-72
terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
topographic maps .................. 51
training .......................... 5-8
trainingprOlliders.................... 7
variances . . .. .. .. .. . .. . .. .. . .. . . 33-39
area variances .. . . .. .. .. . .. . .. .. 33-35
area uariance tests .. .. .. .. . .. .. .... 34
usevariances ..................36-38
use uariance tests ................. 36
work session ...................... 12
ZBA ........................ 2, 3140
aggrteued party .. .. .. .. .. .. .. .. ... 31
notice of appeal .................. 32
interpretatlons .. . .. . .. . .. .. .. .. ... 32
variances ..................... 33-39
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About the Authors . . .
Harry J. Willis is a member of the Town of Glenville Planning an:! Zoning Commission an:! a fonner
chairman of the Village of Scotia Zoning Board of Appeals. Hany is also an Associate Attorney with the New
York State Department of State specializing in numicipa! an:! land use law. A graduate of Union College, SUNY
at Albany and Franklin Pierce Law Center, he has served as a Facilities Planner with the New York State Office
of General Services.
David Church is a member of the Town of Shawangunk. Planning Board an:! is a fonner chairman of the
Town of Warwick Conservation Board. Currently ExeaJtive Director of the New York Planning Fedetation, he
previously direaed oommmity assistance programs for The CaISIill Center arxI for The Conservation
Foundation. A trained geologist, planner an:! mediaIor, David is a graduate of Hamilton College and a member
of the American Institute of Certified Planners.
.
James W. Hotaling is a member of the Saranac Lake School Board and is a fonner member of the Village
of Saranac !..ai<e Planning Board. Jim is also Chief of Local Government Services for the Adirondack Park
Agency an:! Vice President of the New York Planning Fedetation's boa!d of directors. A regislered architect and
professional planner with a backgroUIld in city and university planning an:! architectUrai design, Jim is a graduate
of Hudson Valley Commmity College, the U!U\lersily of illinois and the University of Pennsylvania.
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The New York plllnning Federation
488 Broadway
Albany, New York 12207
(518) 432-4094/ (518 427-8625 (fax)
$-
c
oopyright 1996 by the New Y orlt Planning Federation
All R!gbts Rese%ved
ISBN (}8113-OOOZ-1
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