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Planning Boards: Introductory Training David Nelson, AICP John Zepko, CPESC Cayuga County Department of Planning and Economic Development 15 March 2017 ---PAGE BREAK--- Purpose To introduce the basic requisites of being a member of a local Planning Board. ---PAGE BREAK--- 1.Introduction 2.Basic Procedures 3.Powers and Duties 4.Ethics 5.Case Law 6.Quiz ---PAGE BREAK--- The New York State Legislature has granted to towns, villages, and cities the power both to perform municipal planning activities and adopt land use regulations. Introduction Statutes: • Town Law Article 16 • Village Law Article 7 • General City Law Articles 3 & 5A 1 ---PAGE BREAK--- Other Key Government Players • Local Legislative Body • Zoning Board of Appeals • Building Inspector / Code Enforcement Officer • Other Special Committees (Architectural Review Boards, Landmark Commissions, Business Improvement Districts, etc.) • Professional and Support Staff • County / Regional / State Support 1 ---PAGE BREAK--- Who may serve on a Planning Board? • Age 18 or older • U.S. Citizen • Resident of the Municipality in which they serve. Not Eligible: • Member of the Governing Board from same Municipality 1 ---PAGE BREAK--- Oath • Public Officers must take and file an oath of office. • If not filed within 30 days of taking office, term is not guaranteed. 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 I will faithfully discharge the duties of the office of Planning Board member according to the best of my ability. 1 ---PAGE BREAK--- Planning Boards by the Numbers • Size: 5 or 7 members allowed by State Law • Term of Office = Size of Board • 5 members = 5 year term • 7 members = 7 year term or 1 ---PAGE BREAK--- Alternates • Municipality may appoint alternates • Must adopt enabling local law • Length of terms is flexible (2 years is typical) • When do they serve? • Issues with a conflict of interest (State Law) • If there is an absence (Enabling Local Law) 1 ---PAGE BREAK--- Removal • Must have cause. • Not meeting attendance standards • Not meeting training requirements • Ethics violation • Public Hearing required. 1 ---PAGE BREAK--- Basic Procedures • Meetings • Hearings • Records • Decisions • Referrals 2 ---PAGE BREAK--- Meetings • Rules of Procedure: • Bylaws • Rules • “Robert’s Rules” • Quorum • Agenda • Open Meetings Law Major Henry M. Robert 2 ---PAGE BREAK--- Records • Minutes • All Applications: • Required Materials • SEQRA Documentation • Third Party Information • Written Resolutions 2 ---PAGE BREAK--- Decisions • Must be filed with the municipal Clerk. • Must be sent to the applicant. • May need to be sent to the County Planning Dept. 2 ---PAGE BREAK--- County Referral • Required by General Municipal Law Sections 239‐m, n • Purpose: To provide review of countywide or inter‐municipal impacts of certain projects. 2 ---PAGE BREAK--- County Referral (cont.) Certain actions require County / Regional Planning Agency Review: • Adoption or amendment of a Comprehensive Plan. • Adoption or amendment of a local land use law. • Issuance of Special Use Permits. • Approval of Site Plans. • Granting of Area or Use Variances. • Other authorizations the local board is empowered to issue under local zoning ordinance or local law. 2 ---PAGE BREAK--- County Referral (cont.) • Those actions which must be referred to the County are those which affect property within 500 feet of any of the following features: • A City, Town, or Village boundary • The boundary of any existing or proposed County or State Park or Recreation Area • The Right‐of‐Way of any existing or proposed County or State Parkway, Thruway, Expressway, Road, or Highway • 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 2 ---PAGE BREAK--- County Referral (cont.) • Those actions which must be referred to the County are those which affect property within 500 feet of any of the following features (cont.): • The existing or proposed boundary of any County or State‐Owned Land on which a public building or institution is situated. • The boundary of a Farm Operation located in an Agricultural District (does not apply to area variances) 2 ---PAGE BREAK--- Powers & Duties 2 Types of Powers • Advisory (State Statute or Local Governing Board) • Regulatory 3 ---PAGE BREAK--- Advisory Powers • Comprehensive Plans and Plan Amendments • Land Use Regulations • Land Use Studies, Maps, & Reports • Recommendation on matter before the Governing Board (by Gov. Board request) • Area Variances (by ZBA request) 3 ---PAGE BREAK--- Regulatory Powers Granted by Statute: • Subdivision Plat Approval Granted by Governing Board (by resolution): • Site Plan Review • Special Use Permits • Sign Permits • Certificate of Historic Appropriateness • Architectural Review of Towns, Villages, and Cities in NYS assign Site Plan Review to the Planning Board. 70% 3 ---PAGE BREAK--- What is a Comprehensive Plan? • The expression of a municipality’s goals and recommended action to achieve those goals. • A document which focuses on immediate and long‐term protection, enhancement, growth, and development of the municipality. • An outline for orderly growth, providing continued guidance for decision‐making on matters such as zoning or capital improvements. • Zoning must be in accordance with the Comprehensive Plan. Statutes: • Town Law §272-a • Village Law §7-722 • General City Law §28-a 3 ---PAGE BREAK--- What is a Comprehensive Plan? Benefits: • Defines community vision with shared goals & strategies; • Prioritizes decisions and investments; • Provides legal defense for land use regulations and programs and protects against spot zoning challenges; • Improves opportunities for grant & loan programs; • Requires consideration by other public agencies. 3 ---PAGE BREAK--- Creating & Amending the Comprehensive Plan The Governing Board must adopt the plan, but may delegate the job of preparing it to the Planning Board or another special board. 3 ---PAGE BREAK--- Creating & Amending the Comprehensive Plan: Roles • Determines who will prepare the plan • May prepare plan themselves or assign to Planning Board • Must adopt plan by resolution Governing Board • Prepares draft plan if asked by Gov. Board • Some members may serve on special board • Makes recommendations on proposed plan Planning Board • Participates in surveys, charrettes, and meetings that shape plan • Testify at public hearings Public 3 ---PAGE BREAK--- Implementing the Plan • Plan should be reflected in: • Amendments to Land Use Regulations • Development of Design Standards of Guidelines And don’t forget about updating the Comprehensive Plan! 3 ---PAGE BREAK--- Subdivision Plat Approval A subdivision is the division of a parcel of land into a number of lots, blocks, or sites, with or without streets, for the purpose of sale, transfer of ownership, or development. Statutes: • Town Law §276 and §277 • Village Law §7-728 and §7-730 • General City Law §32 and §33 3 ---PAGE BREAK--- Subdivision Plat Approval Purpose: • Proper Mapping and Recording • Consistency with Plans • Relationship to Surroundings • Provision of Essential Services • Construction of Infrastructure 3 ---PAGE BREAK--- Subdivision Plat Approval Subdivision Review does not: • Establish minimum lot sizes • Change or affect dimensional requirements • Control uses on the property • Regulate style or design or buildings • Substitute for Health Department approval of sewer and water 3 ---PAGE BREAK--- Subdivision Plat Approval • May be defined locally as MAJOR or MINOR subdivisions. Common thresholds include: • Number of lots. • Construction of a new street (MAJOR). • Extension of municipal infrastructure (MAJOR). • Adjustment of a lot line between two adjacent parcels (MINOR). 3 ---PAGE BREAK--- Subdivision Plat Approval: Process • Can be either 1‐step or 2‐step process: • 1‐step: Final Plat Review Only • 2‐step: Preliminary and Final Plat Review • Public Hearing required for each step of Subdivision Plat Review. • Timeframe: 62 days to execute next step. 3 Receive Prelim. Plat Application Public Hearing on Prelim. Plat & Draft EIS Public Hearing on Final Plat Decision on Final Plat ---PAGE BREAK--- Subdivision Plat: What to Review? • Compliance with Zoning • Lot Configuration • Landscaping • Drainage • Street Pattern • Service Access • Utility Installation • Sidewalks & Curbs • Ensure all elements work together & with external features 3 ---PAGE BREAK--- Subdivision Plat: What to Review? • Sufficient width and suitable grade • Suitably paved • Located to accommodate traffic 3 • Compliance with Zoning • Lot Configuration • Landscaping • Drainage • Street Pattern • Service Access • Utility Installation • Sidewalks & Curbs • Ensure all elements work together & with external features ---PAGE BREAK--- Subdivision Plat: What to Review? 3 • Water Lines • Sanitary Sewers • Storm Drains • Street Signs • Street Lighting • Street Trees • Compliance with Zoning • Lot Configuration • Landscaping • Drainage • Street Pattern • Service Access • Utility Installation • Sidewalks & Curbs • Ensure all elements work together & with external features ---PAGE BREAK--- 3 ---PAGE BREAK--- 3 ---PAGE BREAK--- 3 ---PAGE BREAK--- 3 ---PAGE BREAK--- 3 ---PAGE BREAK--- Special Use Permits 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 ensure 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. 3 Statutes: • Town Law §274-b • Village Law §7-725-b • General City Law §27-b ---PAGE BREAK--- Special Use Permits • The permitted use requires certain additional requirements to protect the surrounding area from potential impacts of the use. • The additional requirements are stated in the local ordinance or regulations. • If all the requirements are met, approval must be given. • Typical Uses: Wind Energy, Cell Towers, Industrial Uses. • May be delegated to either board or retained by the Governing Board. 3 ---PAGE BREAK--- Site Plan Review What is a Site Plan? • A rendering, drawing, or sketch that contains specific elements and meets specifications established by the local Governing Board in a Zoning Ordinance or Local Law. • A plan showing the arrangement, layout, and design of the proposed use of a single parcel of land. Statutes: • Town Law §274-a • Village Law §7-725-a • General City Law §27-a 3 ---PAGE BREAK--- Site Plan Review Purpose: • To ensure that the development of individual parcels of land do not have an adverse impact on adjacent properties or the surrounding neighborhood. • To ensure that development fits properly into the community and conforms to planning objectives. 3 ---PAGE BREAK--- Site Plan Review: Parameters 1. Which uses and/or districts are subject to Site Plan Review. 2. Which Board will review Site Plan applications. 3. Development considerations included in Site Plan Review (specific elements). 4. The local procedures and enforcement. • Public Hearing (not required) • Submission Requirements • Fees • Enforcement of conditions of approval 3 ---PAGE BREAK--- Site Plan Review: Uses • Certain uses community‐wide • Specific Intense Commercial Uses: Shopping Center • Multi‐family Housing • Certain uses within specific zoning districts or overlay districts • Hamlet District, Downtown District • Historic Overlay District • Combination of uses / districts 3 ---PAGE BREAK--- Site Plan Review: Elements • Parking • Means of Access • Screening • Signs • Landscaping • Architectural Features • Locations and Dimensions of Buildings • Adjacent Land Uses and Physical Features meant to protect Adjacent Land Uses • Any additional specified elements 3 ---PAGE BREAK--- Don’t forget SEQRA! • All discretionary actions require SEQRA review. • The Board charged with the decision should act as Lead Agency. • SEQRA should be completed (including a Draft EIS if necessary) prior to rendering decision. 3 ---PAGE BREAK--- Ethics • Conflict of Interest • Gifts • Ex Parte Contacts • Final Note on Ethics 4 ---PAGE BREAK--- Conflict of Interest To avoid conflict of interest and even the appearance of impropriety, the public planning official who may receive some private benefit from a public planning decision must not participate in that decision. The private benefit may be either direct or indirect, creating a material personal gain, or providing an advantage to relations, friends, groups, or associations that hold a significant share of the official’s loyalty… American Planning Association Statement of Ethical Principles 4 Statutes: • General Municipal Law §801 ---PAGE BREAK--- Conflict of Interest 4 Statutes: • GML §801: What constitutes a Conflict of Interest. • GML §802: Exceptions to the Rule. • GML §803: Disclosure of Interest. • GML §804: Conflict of Interest = Nullification. • GML §805: Willful violation = Misdemeanor. ---PAGE BREAK--- Ways to Avoid Conflict of Interest 1. Define “personal interest” broadly to include any potential benefits or advantages that you, a spouse, or family member might directly or indirectly obtain from a planning decision. Err on the side of caution; 2. Make public disclosure of all “personal interests” you may have regarding any decision to be made in the planning process; 3. Abstain completely from any direct or indirect participation in matters in which you have a “personal interest.” 4 ---PAGE BREAK--- Gifts • Per GML = Soliciting, accepting, or receiving any gift valued over $75 is illegal. • Gift = Money, services, loans, travel, entertainment, hospitality, thing or promise. • Avoid even the hint of a possibly influential gift. 4 Ex Parte Communication • Do not discuss cases with any party involved, or potentially involved in a matter, outside of the public process. ---PAGE BREAK--- Final Note on Ethics • GML, and any local law, sets forth the minimum standards for behavior. • Transparency and neutrality of government are paramount for the perception of fairness and democracy. • Err on the side of caution. 4 ---PAGE BREAK--- Case Law 1. Tuxedo Conservation v. Town Board of Tuxedo 2. Saratoga Springs Preservation Foundation v. Boff. 3. Frigault v. Town of Richfield Planning Board. 4. Gunthner v. Borough of Bay Head Planning Board. 5 ---PAGE BREAK--- Tuxedo Conservation v. Town Board of Tuxedo • Large residential development project was approved 3‐2. • One of the board members voting in favor disclosed that he was a VP of an advertising firm on retainer by the developer but did not recuse himself. • Court established that disclosure is not sufficient when conflict on interest is apparent. 5 ---PAGE BREAK--- Saratoga Springs Preservation Foundation v. Boff • Developer purchased a building in the historic Franklin Square District of the city and soon determined that the building was inhabitable. • Design Review Commission (DRC) granted a demolition permit. • SSPF charged a conflict of interest existed on the board. 5 ---PAGE BREAK--- Saratoga Springs Preservation Foundation v. Boff • SSPF claimed Board Member Martin had a conflict of interest due to a previous business relationship with the applicant. • Martin disclosed the prior relationship at the beginning of the review process and the Board determined he did not have to recuse himself. • Court denied SSPF’s claim, citing the relationship had ended prior to this project and, inasmuch, Martin did not stand to gain from favorable treatment of the applicant. 5 ---PAGE BREAK--- Frigault v. Town of Richfield PB • Project consisting of 6 wind turbines sought Special Use Permit. • Public Hearing was so heavily attended that Planning Board moved it from Town Hall to a nearby church. 5 ---PAGE BREAK--- Frigault v. Town of Richfield PB • Planning Board issued “neg dec” on SEQRA and granted Special Use Permit. • Petitioner sited numerous complaints: • Failure to comply with SEQRA • Violation of the Open Meetings Law by changing venue • Violation of law §274‐b[7] • Did not meet Special Use Permit conditions 5 ---PAGE BREAK--- Frigault v. Town of Richfield PB • Appellate Court found: PB “issued a thorough and reasoned analysis” in regard to SEQRA; Open Meetings Law states that PB had to “make reasonable effort to ensure meetings are held in an appropriate facility.” Project was not submitted to County for 239 Referral. 8 enumerated conditions stated in Ordinance not met. 5 ---PAGE BREAK--- Gunthner v. Borough of Bay Head Planning Board • Property owner sought to create 8 residential lots within a marina. • Adjacent yacht club was notified of application, whereupon a member of the club expressed interest in acquiring a defaulted note and mortgage on the applicant’s property so as to develop additional parking for the club. • 6 of the 9 members of the review board were also club members. 5 ---PAGE BREAK--- Gunthner v. Borough of Bay Head Planning Board • Court determined these members indeed had a conflict of interest in this project as defined: “a matter in which he, a member of his family, or a business organization in which he has an interest, has a direct or indirect involvement.” • This finding resulted in an inability to establish a quorum. • “Doctrine of Necessity” dictated that they must hear and rule on the case anyway, otherwise it would be “depriving the board of an opportunity to ensure that the public interest is adequately protected by a thorough review of the application.” 5 ---PAGE BREAK--- Questions State law allows for municipalities to authorize the use of alternate members in the event: A. That a regular member is absent. B. An alternate has a strong opinion about the application at hand. C. That a regular member has a conflict of interest. D. That they would otherwise not meet quorum requirements. 6 ---PAGE BREAK--- Questions 6 A Comprehensive Plan is: A. Meant to serve as the foundation for all zoning regulations. B. A document or culmination of materials that provide an outline for orderly growth. C. A land use plan. D. All of the above. ---PAGE BREAK--- Questions 6 Site Plan Review does all of the following except: A. Pertain to a single piece of property. B. Relate to all sizes of parcels of land. C. Review design and layout of the site. D. Require an issuance of a certificate of appropriateness. ---PAGE BREAK--- Questions 6 Subdivision regulations may: A. Establish minimum lot sizes. B. Authorize approval of lot configuration and layout. C. Affect dimensional requirements of setbacks. D. All of the above. ---PAGE BREAK--- Questions 6 In order to comply with the Open Meetings Law, you must: A. Provide notice and access to the public and media. B. Provide background material on applications to all of the public. C. Both A and B. ---PAGE BREAK--- Questions 6 The requirements for referral to the County Planning Agency (239 Referral) are meant to: A. Ensure that the local planning boards don’t make mistakes in the planning process. B. Ensure alignment with the goals of the county legislatures. C. Ensure that notice of the application is given to all municipalities in the county. D. Take projects into consideration on a regional level and use the county planning agency’s expertise and knowledge of past and proposed development in nearby communities.