The example below is taken from the Town of Rhinebeck Zoning Chapter. New York Municipal Insurance Reciprocal
Land Use Training Program
for Local Officials
Tutorial IV - Site Plan Approvals and Conditions
New York Municipal Insurance Reciprocal
Land Use Law Center - Pace University School of Law
New York Planning Federation
TABLE OF CONTENTS
ORANGETOWN'S IMPROPER PERMIT REVOCATION TO COST TOWN $5.1 MILLION IN DAMAGES *SITE PLAN REGULATION
*AUTHORITY AND SCOPE
*APPLICABILITY
*REVIEW OF PLAN ELEMENTS
*Legislative Role
*LIMITATIONS ON REVIEW AUTHORITY
*DECISIONS AND HEARINGS
*Public Hearings
*CONDITIONS
*Parkland Reservation
*LIMITATIONS ON CONDITIONS
*COORDINATION WITH OTHER LAWS
*Environmental Review
*County/Regional Planning Agency
*SUMMARY
*REFERENCES
*QUIZ
*
The town brought an action to compel a developer to remove a temporary building, after developer's building permit to construct industrial building was revoked by town's building inspector.
Bradley Industrial Park, Inc., owner of 34 acres of land located in the Town of Orangetown, acquired the property to construct a 184,000 square foot industrial building. Their site plan was approved and the Building Inspector issued a permit in 1980. They began developing the site shortly thereafter and spent over four million dollars before the town halted the work. Soon after it began, the community began to voice its strong and intense opposition to the construction. Ultimately, the Town Supervisor directed the Building Inspector to revoke the defendants' permit. In addition, the Town amended its Zoning code to preclude construction of commercial buildings on defendants' land. The court found that the inspector's revocation of permit was arbitrary and capricious because it was without legal justification and motivated entirely by political concerns. The court awarded $5,137,126 for costs and attorney's fees to the developer.
Local governments must be sure to provide property owners with the proper process for addressing concerns associated with their project. The proper time to address community concerns about design, effect on surrounding community and infrastructure, and other aspects of site development specifically identified in the local site plan law, was during the site plan approval process.
SITE PLAN REGULATION
The regulation of development on individual parcels of land is controlled through site plan review. A "site plan" is defined by state law as a drawing, prepared in accordance with local specifications, that shows the "arrangement, layout and design of the proposed use of a single parcel of land." This is distinguished from subdivision regulation, which governs the division of land into multiple parcels. Site plan regulations are adopted by the local legislature as part of the zoning ordinance or as a separate set of regulations and contain the specifications that the site plan drawing must include and the standards it must meet. For example, site plan applications may be required to show infrastructure, like electricity and sewer lines, on the diagram of the proposal. Site plan regulation can be adopted with or without zoning. When it accompanies zoning, the development of individual parcels must conform to the provisions of local zoning law, which will contain use and dimensional requirements for site development. If in a residential zone, only residential properties may be constructed; site plan approval cannot change the use requirements of the zoning. Zoning laws, however, do not contain specifications regulating the details of a site's development that protect, like the design of vehicular access to the site, the provision of needed landscape features, the location of parking areas, and the architectural features of buildings. Site plan specifications may go beyond the particular parcel and protect adjacent areas and the community's residents from flooding and erosion, traffic congestion and accidents, unsightly design, noise pollution, and the erosion of neighborhood character. This is its distinct purpose. By reviewing and requiring drainage, architectural design, and placement of buildings to minimize impact on surrounding neighborhood, the community as a whole is benefited. Parcels subject to site plan review are normally owned by a single individual or entity, such as a condominium association, homeowners association, corporation, or partnership. Since such parcels are not to be subdivided, their development would escape local review if it were not for the locality's site plan regulations. When site plan regulations have been adopted, individual parcels subject to their terms may not be developed until a site plan has been submitted, reviewed, and approved. Site plan regulations require that certain elements be shown on the site plan drawing that is to be included in the owner's application for approval. The drawing may be required to include access, parking, landscaping and buffering, drainage, utilities, roads, curbs, lighting, the location and dimensions of the principal and accessory buildings, and any other intended improvements. Some communities require site plans, particularly those of larger projects, to show adjacent land uses and to provide a narrative statement of how the site's development will avoid or mitigate adverse impacts on them.Since 1976, villages, towns, and cities in New York have been expressly authorized by state statute to adopt and implement site plan regulations. The adoption of site plan regulations by a particular local government is permitted but not required, by state law. These statutes authorize localities to impose conditions on site plan approval; waive requirements where they are not needed to protect the public; require the reservation of parkland on the site if it is to be developed residentially, or require the payment of a sum of money in lieu thereof; require the posting of a performance bond to secure the development of improvements on the site; and require compliance with environmental review provisions when approving site plans.
Village Law § 7-725-a, Town Law § 274-a, and
General City Law § 27-a authorize local governments to adopt and administer site plan regulations.
Local site plan regulations may be limited in their application to the development of single parcels of land in specifically designated areas such flood hazard zones, historic districts, coastal zones, or along commercial corridors. Some communities limit the application of site plan regulations to particular zoning districts. Another approach is to require all single parcel development to comply with site plan regulations with certain exceptions, such as one and two family residential projects, accessory buildings, or specified low impact uses. Routinely, the development of an individual lot contained in an approved subdivision is exempt from site plan review.
Local site plan regulations require the developer of an individual parcel of land to file a drawing of that parcel's planned development for review and approval by a local board.
The example below is taken from the Town of Rhinebeck Zoning Chapter.
The local legislature has the authority to adopt site plan regulations, to decide what standards and site plan elements must be included, to determine what sites are subject to approval, and to appoint a local site plan review body. The local legislature may retain the authority to review and approve applications or delegate that authority to the local planning board or other administrative agency, such as the zoning board of appeals.
The local legislature adopts site plan regulations. The legislature retains review and approval authority or delegates the authority to a local administrative body.
When delegating site plan authority to the planning board or other administrative agency, the reviewing board must be guided by some specific standards so that its decisions are not wholly discretionary. If adequate standards are not provided to guide the planning board or other board, their actions taken pursuant to deficient regulations could be invalidated if too much discretion is involved. This is avoided by providing clear and adequate standards.
Site plan regulations must contain standards to guide the determinations of the reviewing board and the specific elements that are to be included on the drawings submitted by the applicant. Site plan regulations typically contain a series of "elements" that must be included on the drawing and explained in a narrative submission by the applicant. The state statutes contain a number of site plan elements that may be required by the local legislature including those related to parking, means of access, screening, signs, landscaping, architectural features, location and dimensions of buildings, and adjacent land uses and physical features. Additional elements may be included in the site plan regulations if desired by the local legislature.
Village Law § 7-725-a(2)(a), Town Law § 274-a(2)(a), and General City Law § 27-a(2)(a) contain the specific elements that the local legislature may require to be included in site plan submissions. The local legislature can require that site plans include the arrangement, layout, and design of the proposed use and "any additional elements specified by the legislature."
Site plan review criteria generally contain both qualitative and quantitative measures. For example, they may authorize the responsible agency to preserve certain natural features "insofar as is possible," or to review the adequacy of the arrangement of trees, shrubs, and other landscaping. These are qualitative standards. They may require that no septic tank be located within 50 feet of any shoreline - a quantitative specification that supplements the requirements of the zoning ordinance. These standards and elements provide guidance to both the reviewing agency and the applicant.
The legislature may regulate many aspects of design and layout on a site. The legislature in the Town of Rhinebeck delegated site plan review authority to the Planning Board. Some of the requirements that must be met before the Planning Board is authorized to approve are listed below.
As mentioned above, the regulations also provide standards for each site plan element. The Town of Rhinebeck's site plan regulations provide the following criteria for the "Relationship of building to site" elements listed above:
In addition to these specific criteria, the Town of Rhinebeck includes general standards for consideration by the Planning Board in all cases. These considerations include:
Decisions of the reviewing board must be based on the elements contained in the site plan law and regulations. To be entitled to an approval, the applicant must demonstrate that it has responded to all required elements and met all stipulated standards contained in the regulations.
LIMITATIONS ON REVIEW AUTHORITY
The reviewing board or authority has three options after reviewing a site plan. It may approve the application, approve it subject to conditions or modifications, or it may deny the application. If an applicant for site plan approval demonstrates that the application meets local site plan standards, the application must be approved. If that burden is not met, the application must be denied. If the standards can be met with modifications, the application may be approved, upon conditions.
A town board may reject a site plan where substantial evidence shows that the proposed project would have an adverse impact on public health, safety, and welfare. Pittsford Plaza Associates v. Spiegel (1985). The landowner submitted a site plan for the construction of a seven-screen movie theatre to the Town Board for its approval. The Town Board found that the additional traffic would have an adverse impact on public health, safety and welfare, notwithstanding the Zoning Board of Appeals' conditional approval of a special use permit for the same project. The court held that the Town Board did not exceed its powers in overruling the Zoning Board of Appeals since it denied the application "under its independent powers expressly provided in the local ordinance, namely the 'adequacy and arrangement of vehicular traffic access and circulation.'"
If an applicant meets all the standards in the regulations, the board must approve the application. If an application that meets the criteria in the ordinance is denied, that decision is subject to reversal.
The case of North Shore Equities, Inc. v. Fritts (1981) held that when an applicant for site plan approval demonstrates that the application meets local site plan standards, the application must be approved. If that burden is not met, the application must be denied. At the public hearing, three experts testified. They explained that the buildings met setback and lot restrictions, that the development was in harmony with neighboring properties, and that traffic patterns would not be significantly affected. The development met all standards set out in the ordinance. The board, however, denied the application stating that traffic was a problem, the value of adjoining properties would be affected, and the development was not in harmony with the neighborhood. The board had no facts to support their position and their determination was annulled by the court.
The board may not base its denial of a site plan on matters that are beyond its authority. For example, a denial based on the failure of the proposed land use to comply with the zoning ordinance is beyond the reviewing board's authority; that determination must be made by the local building inspector and the zoning board of appeals. A denial cannot be based on the board's determination that a use is not permitted by zoning provisions; that function is within the authority of the official charged with the zoning enforcement officer and the zoning board of appeals.
In Gershowitz v. Planning Board of the Town of Brookhaven (1980), the Court of Appeals held that site plan denial cannot be based on the planning board's determination that a use is not permitted by zoning provisions since that function (zoning enforcement) is within the authority of the official charged with the enforcement of the zoning code and the zoning board of appeals. The Brookhaven Zoning Board of Appeals issued the plaintiff a special use permit to operate an automobile shredder plant after determining that the proposed use was in compliance with the Brookhaven Town Code. The plaintiff then submitted a site plan to the Brookhaven Planning Board, which subsequently denied the application on the ground that the proposed use violated the Brookhaven Town Code. The court held that since the Zoning Board had approved the use, the Planning Board was without power to disapprove the site plan on the ground that the use violated the town code.
DECISIONS AND HEARINGS
In making decisions on site plan applications, the reviewing board must keep a detailed record of its deliberations. These records can be in narrative form rather than verbatim transcript form. The findings of the board and its decision must be based on reliable evidence contained in the record. The record may be the minutes of the board, if prepared in enough detail to satisfy these requirements. The record may include any records, documents, or studies submitted for the board's review.
The planning board or other reviewing board may either approve the site plan application, deny it, or approve it subject to conditions or modifications. If denied, the applicant can resubmit a new application with a different site plan for the parcel.
The reviewing board's decision must be filed in the office of the municipal clerk within five business days of the decision and a copy mailed to the applicant.
Under state law, the local legislature may require the board with site plan authority to hold public hearings on site plan applications before taking final action on them. Where a public hearing is not required, the board has the discretion to conduct a public hearing on particular site plan submissions. Where public hearings are held, they must be conducted within 62 days from the date of application, public notice must be published at least five days before the hearing, and the applicant must be mailed notice of the hearing ten days in advance. The agency's final decision on the application must be made within 62 days of the close of the public hearing, but this deadline can be extended by mutual consent. If the deadline is not extended and the reviewing agency fails to make a decision by the end of the 62 day period, the application is deemed approved by operation of law.
Village Law § 7-725-a(7), Town Law § 274-a(8), and General City Law § 27-a(8) grant to local legislatures the authority to require public hearings be held before action is taken on site plan applications.
If required, hearings must be held within 62 days after a site plan application is received. Notice by mail must be given to the applicant 10 days in advance and public notice must be given 5 days in advance.
State statutes limit the reviewing board to imposing conditions on site plan approval when such conditions are "directly related to and incidental to" the impact of the proposed plan on the community. Conditions on land use approvals add an element of flexibility in decision-making for the purpose of responding to the concerns of applicants as well as those affected by the decisions of local land use agencies. The use of conditions balances the benefit to the owner of the approval against the potential adverse impact of that development on the surrounding area. The applicant must show that these conditions have been met before the local building inspector can issue a building permit or certificate of occupancy. Conditions imposed must bear a reasonable relationship with the impact of the proposed project on the community to meet standards contained in the local site plan regulations.
The statutory provisions that authorize conditions to be imposed on local site plan approvals are found at Village Law § 7-725-a(4), Town Law § 274-a(4), and Gen. City Law § 27-a(4): "The authorized board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to a proposed site plan."
The standards governing the granting of approval of site plan applications are contained in the zoning ordinance or other regulations adopted by the local legislature. Before granting its approval of the application, the reviewing board must insure that the standards contained in the ordinance or other regulations are complied with by the proposed development. Frequently, approval is conditioned on the developer agreeing to modify the design of the development or adding site features to meet the underlying standards adopted by the legislature. Once a condition is imposed on a local land use approval, it must be complied with before a building permit can be issued by the local building inspector or department. If the condition is one that is to be met during construction, then its terms must be complied with before the construction is complete. Then local authorities grant a certificate of occupancy. Among the types of conditions that have been sustained by the courts are requirements for fences, safety devices, landscaping, screening, access roads, soil erosion prevention, drainage facilities, outdoor lighting, the enclosure of buildings, restrictive covenants preventing development of land in a floodplain, an archeological site or a viewshed, and a variety of measures to contain the emission of odors, dust, smoke, noise, and vibrations.Where the residential development of a site will contribute to the need for future recreational facilities and parks in the community, the reviewing board may require the development to contain a park, suitably located on the site. Where one cannot be accommodated, the board may require the applicant to pay a sum of money into a trust fund administered exclusively for recreational purposes.
Although the imposition of conditions is clearly within the authority of local governments, the conditions must comply with several standards or they can be declared invalid. Courts may invalidate a condition when there is no rational basis in the record for its imposition, when the condition is unreasonable, or when it is not related to the impacts of the proposed development.
Rational Basis: Courts invalidate conditions which are not supported by evidence on the record of the proceedings that justifies their imposition. Such evidence shows that the reviewing board carefully deliberated the matter, complied with basic due process requirements, and obtained specific evidence of the need for the condition. In several instances, courts have invalidated conditions which were justified only by the neighbors' opposition to the project. Some courts have stated that the administrative agency has a "burden of proving" the need for the condition; this burden requires, at least, that the agency consider evidence that justifies the imposition of the condition.
Reasonableness: The statutes and cases authorizing the imposition of conditions state that they must be "reasonable." Conditions may be invalidated when, under the circumstances, they impose an undue burden on the landowner. In these instances, it may be that the cost, inconvenience, or other impact on the landowner is too onerous, given the benefit to the public of the condition. This is particularly so when there is a less burdensome alternative to the condition or no indication that the agency considered less burdensome conditions that are adequate to protect the public.
Relatedness: The authority to impose most conditions makes it clear that they must be "directly related to and incidental to the proposed land use." This is sometimes described as requiring a close relationship between the condition imposed and the impacts of the proposed development. When the condition does not relate to, or lessen, the particular impacts of the development, it is not related or incidental to the proposed land use as required by law.
Vagueness: Conditions can be struck for vagueness. Agencies imposing conditions must take care to articulate them clearly and definitely so they can be implemented without confusion by the landowner and local building official. The property owner should not be left in any doubt as to the extent of use that is permitted.
Conditions must be:
The provisions of the State Environmental Quality Review Act (SEQRA) require public agencies to consider the impacts of their land use decisions on the environment. These provisions must be complied with by the board reviewing any site plan application. Where the approval of a site plan may have a significant adverse impact on the environment, the extensive procedural requirements and the extended timetable of SEQRA must be followed and coordinated with other requirements for site plan approval.
Regulations adopted under the State Environmental Quality Review Act (SEQRA) make it clear that site plan approvals are "actions" by a local agency that are subject to environmental review. The law states that a site plan submission is not deemed complete until the planning board has determined that the subdivision will not have a negative impact on the environment or, if it may have such an impact, until the reviewing board has completed preparation of a draft environmental impact statement. The time periods contained in the site plan statutes do not begin to run until one of these two events has occurred. Further changes in the subdivision process may be required to comply with SEQRA depending on how the environmental review process is handled and whether the planning board is the lead agency responsible for that process.
County/Regional Planning Agency
In certain instances, site plans must be submitted by the reviewing board to a county or regional planning agency. If there is no county agency, referral is made to the regional or metropolitan agency. Such referral must be sent at least ten days before the public hearing on the site plan, accompanied by a full statement of the matter under consideration.
General Municipal Law § 239-m requires certain site plans to be submitted to the county or regional planning agency for review and comment. Failure to provide the notice and referral required by General Municipal Law § 239-m amounts to a jurisdictional defect in the responsible agency's ultimate action on the permit application. Old Dock Associates v. Sullivan (1989).
Referral to the county or regional planning agency must be made 10 days before the public hearing is held.
The county must make a recommendation within 30 days. If the county board recommends modification or disapproval, the board may accept and implement the recommendation, or it may hold a vote to override the county. In order to override the county recommendation, the board must vote by a majority plus one, or an "extraordinary vote," to do so.
Some local laws and regulations require a preliminary site plan procedure to coordinate the process with local authorities as soon as possible, making the final approval more of a formality. In some instances, however, the final approval takes place many months after the preliminary approval and the project may go through significant modifications. If this is so, additional hearings and other procedures may be necessary before final approval may be granted.
In Ferrari v. Town of Penfield Planning Board (1992), neighboring landowners successfully challenged the decision of a planning board. The court agreed to nullify the board's decision. State law requires that certain approvals must be submitted to the county or regional planning agency. The Penfield Planning Board made this referral and sought the agency's input when it received the preliminary site plan from the developer. When the project got to the final stage, it had changed substantially. In fact, the board even held a second hearing for final plan approval. The board, however, did not make the recommendation to the county agency. The court held that "where...the revisions are so substantially different from the original proposal, the county or regional board should have the opportunity to review and make recommendations on the new and revised plans."
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