Amd SS1-0303, 9-0101, 9-0105, 9-0303, add S9-0817, En Con L; amd S96-b, add Art 12-B S239-n-1, Gen Muni L;
amd S263, Town L
Makes numerous provisions relating to conduct constituting violations of article 9, relating to lands and forests of the state, to enhance the department's enforcement authority, including clarifying authority to issue permits for temporary use of the forest preserve and prohibitions against cutting timber; authorizes the attorney general to seek restraining orders; provides for facilitation of the practice of forestry through oversight of local laws by the commissioner of environmental conservation; directs the department of environmental conservation to cooperate with local governments and landowners; provides for review of proposed local laws by the commissioner upon petition of a landowner and referral by a town or county; requires extraordinary votes in certain cases.
STATE OF NEW YORK
________________________________________________________________________
5853
2009-2010 Regular Sessions
IN ASSEMBLY
February 20, 2009
___________
Introduced by M. of A. BRODSKY, PARMENT, HOYT, DINOWITZ -- Multi-Spon-
sored by -- M. of A. COLTON -- read once and referred to the Commit-
tee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
conduct constituting violations of and penalties for violations of
article 9 of such law; and to amend the environmental conservation
law, the general municipal law and the town law, in relation to the
practice of forestry
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 18 of section 1-0303 of the environmental
2 conservation law, as amended by chapter 448 of the laws of 2005, is
3 amended to read as follows:
4 18. "Person" shall mean any individual, public or private corporation,
5 limited liability company, political subdivision, government agency,
6 department or bureau of the state, municipality, industry, co-partner-
7 ship, association, firm, trust, estate or any other legal entity whatso-
8 ever[. Provided]; provided, however, that for purposes of sections
9 3-0109 through 3-0115 inclusive, and sections 3-0305 and 3-0307 of arti-
10 cle 3; articles [9,] 11, 13 and 15; titles 7, 9, 11 and 13 of article
11 21; article 23; articles 43, 45 and 47; sections 57-0121 and 57-0123 of
12 article 57; and titles 1 through 13 inclusive and title 33 of article 71
13 applicable to these provisions, "person" means any individual, firm,
14 co-partnership, limited liability company, association or corporation
15 other than the state [and] or a "public corporation".
16 § 2. Subdivision 7 of section 9-0101 of the environmental conservation
17 law is amended to read as follows:
18 7. "Person" means any individual, [firm, co-partnership, association
19 or corporation, other than the state or a public corporation, as the
20 latter is defined in subdivision 1 of section 3 of the General Corpo-
21 ration Law] public or private corporation, limited liability company,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08675-01-9
A. 5853 2
1 political subdivision, government agency, department or bureau of the
2 state, municipality, industry, co-partnership, association, firm, trust,
3 estate, or any other legal entity whatsoever; except that "person" shall
4 not include any person who acts pursuant to lawful authorization of the
5 department, as defined in subdivision eleven of this section, or any
6 political subdivision, government agency, department or bureau of the
7 state, municipality, or agent of such governmental entities who acts in
8 response to a bona fide emergency; nor shall "person" include, for the
9 purposes of section 9-0305 of this article, the state or any public
10 corporation. For purposes of this subdivision, "bona fide emergency"
11 shall mean an event which presents an immediate threat to life, health,
12 property, or natural resources.
13 § 3. Section 9-0101 of the environmental conservation law is amended
14 by adding three new subdivisions 10, 11 and 12 to read as follows:
15 10. "State land" means any land owned by the state, under the juris-
16 diction of the department, and described in this article.
17 11. "Lawful authorization" when applied to activities conducted on
18 state land governed by this article, shall mean a written permit or
19 approval from the department specifying the activity permitted, the site
20 on which such activity may be conducted, and the reason for permitting
21 the activity.
22 12. "Structure" means any object constructed, installed, erected, or
23 placed on, above, or below the surface of land or water to facilitate
24 land use, including but not limited to bridges, roadways, buildings,
25 cabins, mobile homes, campers, towers, poles, fences, telephone, elec-
26 trical and gas lines, signs, and fixtures, additions, and alterations
27 thereto.
28 § 4. Subdivision 15 of section 9-0105 of the environmental conserva-
29 tion law is amended to read as follows:
30 15. Make rules and regulations and issue revocable permits for the
31 temporary use of the forest preserve.
32 § 5. Subdivisions 2 and 4 of section 9-0303 of the environmental
33 conservation law are amended to read as follows:
34 2. Structures. No [building] structure shall be constructed,
35 erected, installed, placed, or used or maintained upon state lands
36 except under permits from the department; provided, however, that any
37 permit for the use of forest preserve lands shall be issued only in
38 conformance with rules and regulations promulgated pursuant to subdivi-
39 sion 15 of section 9-0105 of this article.
40 4. Deposit rubbish. No person shall deposit or leave on state lands
41 any rubbish or other waste material, or enter upon any state lands with
42 the intent to do so. It shall be a rebuttable presumption that any
43 person found on state lands, other than while in actual operation of a
44 motor vehicle on a highway, as defined in section one hundred eighteen
45 of the vehicle and traffic law, on state lands, who is in possession of
46 fifty pounds or more of solid waste, or five or more waste tires, or ten
47 gallons or more of regulated waste or hazardous waste, as each such term
48 is defined in article twenty-seven of this chapter, is on state land for
49 the purpose of illegal dumping.
50 § 6. Legislative findings and purposes. The forest resources of this
51 state have increased in size and quality in every decade since the turn
52 of the 20th century. Today, nearly two-thirds of the state's land cover,
53 18.5 million acres, is forestland, and the quality and quantity of
54 forests found today continues to improve. At the same time, this remark-
55 able resource has provided clean water, a diversity of habitat for wild-
A. 5853 3
1 life, abundant outdoor recreational activities, and a wide-range of wood
2 and paper products.
3 The forest-based economy in New York provides employment for over
4 122,000 people, 40% of which jobs are tied to wood product manufactur-
5 ing. The practice of forestry, including the manufacture of wood and
6 paper products and nurturing, harvesting, and management of these
7 forests, is an important way of life that has been sustained for gener-
8 ations in many areas of the state. It also provides for the range of
9 goods and forest conditions that are desired by all residents of the
10 state.
11 It is then the general purpose of sections eleven through fourteen of
12 this act (1) to maintain the pursuit of forestry practices and to permit
13 the continuation of forestry within the state, (2) to protect the exist-
14 ence and operation of existing forest activities, (3) to encourage the
15 initiation and expansion of additional forestry businesses, (4) to
16 discourage inadvertent impediments to the practice of forestry that may
17 result from well meaning but poorly constructed local ordinances
18 concerning forestry activities, and (5) to improve understanding of the
19 economic and environmental contributions that well managed forests bring
20 to the state.
21 § 7. The environmental conservation law is amended by adding a new
22 section 9-0817 to read as follows:
23 § 9-0817. Cooperation with local governments and landowners.
24 To ensure the continued viability of the state's forest resources and
25 the environmental benefits that they provide, the department shall coop-
26 erate with landowners whose forest stewardship has fostered the general
27 purposes of the chapter of the laws of two thousand nine that added this
28 section and with local governments in their efforts to promote the pres-
29 ervation of such resources through local regulation of forestry prac-
30 tices. Such cooperative efforts shall include:
31 1. An owner of forest land who is a "qualifying owner" pursuant to the
32 provisions of section two hundred thirty-nine-n-1 of article twelve-B of
33 the general municipal law may request the commissioner to review an
34 existing or proposed law or ordinance which such landowner alleges has
35 unreasonably restricted or will unreasonably restrict the practice of
36 forestry.
37 2. The commissioner shall review the proposal as it would affect the
38 present and former forestry management practices in the town or county,
39 as such proposal would affect the long term viability of forestry and
40 its contributions to the economic and general well-being of the area and
41 as such proposal and any modifications thereof would impact the attain-
42 ment of any other recognized purposes for which a municipality may
43 undertake such action, and shall recommend approval, modification, or
44 disapproval thereof to promote the long term viability of forestry in
45 such county or town.
46 3. Upon the completion of the review by the commissioner, the county
47 or town shall act in accordance with the provisions of section two
48 hundred thirty-nine-n-1 of article twelve-B of the general municipal law
49 in the enactment of such law or ordinance.
50 4. The commissioner may without petition undertake a review of any
51 laws or ordinances in effect on the effective date of this section and
52 make recommendations consistent with the provisions of this section.
53 § 8. Subdivision 2 of section 96-b of the general municipal law, as
54 added by chapter 686 of the laws of 1978, is amended to read as follows:
55 2. In addition to any power or authority of a municipal corporation to
56 regulate by planning or zoning laws or regulations or by local laws and
A. 5853 4
1 regulations, the local legislative body of any county, city, town, or
2 village is hereby empowered to provide for the protection and conserva-
3 tion of trees and related vegetation. Such legislative body may require
4 appropriate conditions applicable to any activity involving the removal
5 or destruction of trees or the substantial alteration of grade level
6 around trees may include, where appropriate, requirements that the
7 activity be done as specified in an approved landscape plan and that the
8 removed trees be replaced by the planting of the same or alternate
9 species of trees, and may provide, in connection therewith, required
10 plantings for screening purposes. Such regulations, special conditions,
11 and restrictions, adopted in the exercise of the police power, shall be
12 reasonable and appropriate to the purpose. Nothing contained in this
13 subdivision shall be deemed to impair any rights that a landowner may
14 have to seek review of the proposed municipal action pursuant to the
15 provisions of section two hundred thirty-nine-n-1 of article twelve-B of
16 this chapter. The municipality may require the posting of a performance
17 bond to [assure] ensure compliance with this section. All charges and
18 expenses incurred under this section by a town shall be a charge upon
19 the taxable property of that part of the town outside any incorporated
20 village.
21 § 9. Article 12-B of the general municipal law is amended by adding a
22 new section 239-n-1 to read as follows:
23 § 239-n-1. Referral of certain proposed laws and ordinances to the
24 commissioner of environmental conservation; report thereon; final
25 action. 1. Any qualifying owner of forestland or the agent of such
26 person shall have the right hereby granted to petition the commissioner
27 of environmental conservation regarding the application of any local
28 law, ordinance, rule, or regulation that impairs a landowner in the
29 practice of forestry.
30 2. Definitions. As used in this section, the following terms shall
31 have the following meanings:
32 (a) The term "proposed" shall be deemed to include only those local
33 laws or ordinances proposed by a county or town which restrict the prac-
34 tice of forestry or the engaging in generally accepted forest practices.
35 (b) The term "referring body" shall mean the town or county body
36 responsible for final action on proposed actions subject to this
37 section.
38 (c) The term "full statement of such proposed action" shall mean all
39 materials required by and submitted to the referring body as are
40 required to enact the proposed action, including a completed environ-
41 mental assessment form and all other materials required by such refer-
42 ring body in order to make its determination of significance pursuant to
43 the state environmental quality review act under article eight of the
44 environmental conservation law and its implementing regulations. When
45 the proposed action referred is the adoption or amendment of a zoning
46 ordinance or local law, "full statement of such proposed action" shall
47 also include the complete text of the proposed ordinance or local law as
48 well as all existing provisions to be affected thereby. Notwithstanding
49 the foregoing provisions of this paragraph, any referring body may agree
50 with the commissioner as to what shall constitute a "full statement" for
51 any or all of those proposed actions which such referring body is
52 authorized to act upon.
53 (d) The term "receipt" shall mean delivery of a full statement of such
54 proposed action, as defined in this section, in accordance with the
55 rules and regulations of the commissioner of environmental conservation
56 with respect to person, place, and period of time for submission.
A. 5853 5
1 (e) The term "extraordinary vote" shall mean, in the case of a town, a
2 vote of a majority of the members of the board of such town plus one,
3 and in the case of a county, a vote of two-thirds of the members of the
4 governing body of such county.
5 (f) The term "qualifying owner" shall mean the owner of forestland
6 that is in compliance with the best management practices for forestland,
7 as may be established from time to time by the commissioner of environ-
8 mental conservation, and who accommodates endangered and threatened
9 animals and plants, and who is in compliance with the environmental
10 conservation law and the rules, regulations, and administrative direc-
11 tives established thereunder, including but not limited to articles
12 nine, eleven, fifteen, twenty-three and twenty-four of the environmental
13 conservation law, and who demonstrates sound management to ensure the
14 continuing production of a merchantable forest crop.
15 (g) The term "forestland" shall mean land that has been exclusively
16 devoted to forest crop production through natural regeneration or
17 through forestation, contains no dwellings, and is stocked with a stand
18 of greater than fifty percent forest trees sufficient to produce a
19 merchantable crop.
20 (h) The term "dwelling" shall mean any building or structure or
21 portion thereof which is occupied in whole or in part as the home, resi-
22 dence, or sleeping place for one or more persons.
23 (i) The term "merchantable forest crop" shall mean timber or pulpwood,
24 including veneer bolts, sawlogs, poles, posts, and fuel wood that is
25 produced on forestland and has value in the marketplace and may be sold.
26 3. Referral of proposed actions. Any town or county shall, before
27 taking final action on proposed actions that have been the subject of a
28 petition pursuant to subdivision one of this section, defer action pend-
29 ing the review of the commissioner of environmental conservation.
30 4. Commissioner's review of proposed actions; recommendation, report.
31 (a) The commissioner of environmental conservation shall review any
32 proposed law or ordinance and shall recommend approval, modification, or
33 disapproval of the proposed law or ordinance. In making the determi-
34 nation provided for in this section, the commissioner of environmental
35 conservation shall examine the language of the local law, ordinance,
36 rule, or regulation, the burden that it would impose on the continuation
37 of sound forest practices in the municipality, the legitimate objective
38 that the law, ordinance, rule, or regulation was designed to achieve,
39 and other, less intrusive means available to achieve such objective, and
40 make the determination required by this section.
41 (b) The commissioner of environmental conservation or his or her
42 designee shall have thirty days after receipt of a full statement of
43 such proposed action, or such longer period as may have been agreed upon
44 by the commissioner and the referring body, to report his or her recom-
45 mendations to the referring body, accompanied by a statement of the
46 reasons for such recommendations. If the commissioner of environmental
47 conservation fails to report within such period, the referring body may
48 take final action on the proposed action without such report. Any
49 commissioner's report timely received by the referring body shall be
50 subject to the provisions of subdivision five of this section.
51 5. Extraordinary vote upon recommendation of modification or disap-
52 proval. If the commissioner of environmental conservation recommends
53 modification or disapproval of a proposed action, the referring body
54 shall not act contrary to such recommendation except by an extraordinary
55 vote.
A. 5853 6
1 6. Report of final action. Within thirty days after final action, the
2 referring body shall file a report of the final action it has taken with
3 the commissioner of environmental conservation. A referring body which
4 acts contrary to a recommendation of modification or disapproval of a
5 proposed action shall set forth the reasons for the contrary action in
6 such report.
7 § 10. Section 263 of the town law, as amended by chapter 602 of the
8 laws of 2003, is amended to read as follows:
9 § 263. Purposes in view. Such regulations shall be made in accordance
10 with a comprehensive plan and designed to lessen congestion in the
11 streets; to secure safety from fire, flood, panic and other dangers; to
12 promote health and general welfare; to provide adequate light and air;
13 to prevent the overcrowding of land; to avoid undue concentration of
14 population; to make provision for, so far as conditions may permit, the
15 accommodation of solar and wind energy systems and equipment and access
16 to sunlight necessary therefor; to facilitate the practice of forestry;
17 to facilitate the adequate provision of transportation, water, sewerage,
18 schools, parks and other public requirements. Such regulations shall be
19 made with reasonable consideration, among other things, as to the char-
20 acter of the district and its peculiar suitability for particular uses,
21 and with a view to conserving the value of buildings and encouraging the
22 most appropriate use of land throughout such municipality.
23 § 11. This act shall take effect on the first of November next
24 succeeding the date on which it shall have become a law.
