Amd 3-c, Gen Muni L; amd 2023-a, Ed L; add 94-e, Exec L
Relates to excluding renewable energy pilot projects and certain energy system-related payments in lieu of taxes from tax cap calculations, and to the establishment of a distributed generation energy development program that provides a single forum for state-level appeals for proposed distributed generation energy facilities.
STATE OF NEW YORK
________________________________________________________________________
3579--B
2023-2024 Regular Sessions
IN ASSEMBLY
February 3, 2023
___________
Introduced by M. of A. FAHY, BURDICK, SEAWRIGHT, LUNSFORD -- read once
and referred to the Committee on Local Governments -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Local Governments
in accordance with Assembly Rule 3, sec. 2 -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the general municipal law and the education law, in
relation to excluding renewable energy pilot projects and certain
energy system-related payments in lieu of taxes from tax cap calcu-
lations; and to amend the executive law, in relation to establishing a
distributed generation energy development program
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subparagraph (iv) of paragraph (g) of subdivision 2 of
2 section 3-c of the general municipal law, as added by section 1 of part
3 A of chapter 97 of the laws of 2011, is amended and a new subparagraph
4 (v) is added to read as follows:
5 (iv) in years in which the normal contribution rate of the New York
6 state teachers' retirement system, as defined by paragraph a of subdivi-
7 sion two of section five hundred seventeen of the education law,
8 increases by more than two percentage points from the previous year, a
9 tax levy necessary for expenditures for the coming fiscal year for local
10 government employer contributions to the New York state teachers'
11 retirement system caused by growth in the normal contribution rate minus
12 two percentage points[.];
13 (v) a tax levy necessary for expenditures for renewable energy pilot
14 programs.
15 § 2. Subparagraphs (iii) and (vi) of paragraph (c) of subdivision 3 of
16 section 3-c of the general municipal law, as added by section 1 of part
17 A of chapter 97 of the laws of 2011, are amended to read as follows:
18 (iii) Add any payments in lieu of taxes that were receivable in the
19 prior fiscal year, other than payments in lieu of taxes receivable in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03487-05-4
A. 3579--B 2
1 connection with energy systems defined in section four hundred eighty-
2 seven of the real property tax law.
3 (vi) Subtract any payments in lieu of taxes receivable in the coming
4 fiscal year, other than payments in lieu of taxes receivable in
5 connection with energy systems defined in section four hundred eighty-
6 seven of the real property tax law.
7 § 3. Subparagraphs 3 and 6 of paragraph a of subdivision 3 of section
8 2023-a of the education law, as added by section 2 of part A of chapter
9 97 of the laws of 2011, are amended to read as follows:
10 (3) Add any payments in lieu of taxes that were receivable in the
11 prior school year, other than payments in lieu of taxes receivable in
12 connection with energy systems defined in section four hundred eighty-
13 seven of the real property tax law.
14 (6) Subtract any payments in lieu of taxes receivable in the coming
15 fiscal year, other than payments in lieu of taxes receivable in
16 connection with energy systems defined in section four hundred eighty-
17 seven of the real property tax law.
18 § 4. The executive law is amended by adding a new section 94-e to read
19 as follows:
20 § 94-e. Distributed generation energy development program. 1. Purpose.
21 It is the purpose of this section to advance the development of distrib-
22 uted generation energy facilities in this state by providing a single
23 forum for a state-level appeals process in which the office of renewable
24 energy siting may undertake a coordinated and timely review of proposed
25 distributed generation energy facilities to meet the state's renewable
26 energy goals while ensuring the protection of the environment and
27 consideration of all pertinent social, economic and environmental
28 factors in the decision to advance approvals of such facilities as more
29 specifically provided in this section.
30 2. Definitions. For the purposes of this section, the following terms
31 shall have the following meanings:
32 (a) "Executive director" or "director" means the executive director of
33 the office of renewable energy siting.
34 (b) "Office" shall mean the office of renewable energy siting created
35 pursuant to section ninety-four-c of this article.
36 (c) "CLCPA targets" means the public policies established in the
37 climate leadership and community protection act enacted by chapter one
38 hundred six of the laws of two thousand nineteen, as amended, including
39 the requirement that a minimum of seventy percent of the statewide elec-
40 tric generation be produced by renewable energy systems by two thousand
41 thirty, that by the year two thousand forty the statewide electrical
42 demand system will generate zero emissions and the procurement of at
43 least ten gigawatts of photovoltaic solar generation by two thousand
44 thirty and to support six gigawatts of statewide energy storage capacity
45 by two thousand thirty.
46 (d) "State agency account" or "account" means the account established
47 by the office pursuant to subdivision eight of this section.
48 (e) "Local agency" means any local agency, board, district, commission
49 or governing body, including any city, county, and other political
50 subdivision of the state or any state agency, or other governmental unit
51 or agency.
52 (f) "Municipality" means a county, city, town, or village in the
53 state.
54 (g) "Department" means the department of state.
55 (h) "Distributed generation energy facility" means any renewable ener-
56 gy system, as such term is defined by section sixty-six-p of the public
A. 3579--B 3
1 service law, with a nameplate generating capacity of twenty thousand
2 kilowatts AC or less. The term "distributed generation energy facility"
3 shall include any distributed energy resource with a nameplate capacity
4 of twenty thousand kilowatts AC or less, provided that the resource does
5 not utilize fossil fuels.
6 (i) "Affected party" means a permit applicant, landowner, a lease,
7 easement or option holder, including but not limited to an individual
8 who has an identifiable and substantial legal interest in the property,
9 who has received a permit denial, variance denial, a positive declara-
10 tion under the state environmental quality review act, a local agency
11 has imposed arbitrary and capricious requests for system modifications,
12 has imposed multiple moratoriums, has failed to approve a hardship waiv-
13 er, or a local agency has failed to act to approve or deny the permit
14 application for more than three hundred five days.
15 (j) "Agent" or "agents" means an affected party's business partner,
16 attorney, consultant, engineer, planner, or any individual with legal
17 authority to represent an appellant's interests.
18 (k) "Appealable action" means a permit denial, site plan denial, vari-
19 ance denial, a positive declaration under the state environmental quali-
20 ty review act, municipal action that results in a denial and creates a
21 prohibition or effective prohibition within the municipality of the
22 services provided by any eligible project as specified under subdivision
23 three of this section, the imposition of arbitrary or capricious
24 requests for system modifications by a local agency, the imposition of
25 multiple moratoriums, failure of a local agency to approve a hardship
26 waiver, or a local agency's failure to act upon a permit application for
27 more than three hundred five days.
28 (l) "Appellant" means an affected party who has filed an appeal of a
29 permit denial, site plan denial, variance denial, a positive declaration
30 under the state environmental quality review act, the imposition of
31 arbitrary or capricious requests for system modifications by a local
32 agency, the imposition of multiple moratoriums, as these terms are
33 defined in this section, or a local agency's failure to act upon a
34 permit application for more than three hundred five days.
35 (m) "Area variance denial" means a local agency's denial of an appli-
36 cation for an area variance or denial of an application to amend such
37 area variance.
38 (n) "Permit denial" means a local agency's denial of an application
39 for a special use permit, a conditional use permit, or a special excep-
40 tion, or denial of an application to renew or amend such permit.
41 (o) "Site plan denial" means a local agency's denial of an application
42 for site plan approval or denial of an application to renew or amend
43 such site plan denial.
44 (p) "Use variance denial" means a local agency's denial of an applica-
45 tion for a use variance or denial of an application to amend such use
46 variance.
47 (q) "Positive declaration" means a positive declaration under the
48 state environmental quality review act.
49 (r) "Denial determination" means the adoption of a resolution or other
50 such action by a local agency, or the content of a local agency's meet-
51 ing minutes, which may include any other communication from the local
52 agency.
53 (s) "Notification letter" means a form letter from the office website
54 that can be downloaded, populated and sent to the local agency via
55 certified mail by the affected party, notifying the local agency of the
56 request for a declaratory ruling.
A. 3579--B 4
1 (t) "Permit appeal notification letter" means a letter sent by the
2 office via certified mail to the affected party and the local agency
3 notifying such affected party and local agency of the dates of the
4 permit appeal conference.
5 (u) "Permit appeal conference" means a virtual conference, chaired by
6 the local agency, including the local agency and the affected party. The
7 purpose of the appeal conference is to allow the local agency an oppor-
8 tunity to ask questions about, and the affected party to respond to, the
9 request for a declaratory ruling and the denial determination.
10 (v) "Request for declaratory ruling" means the affected party's offi-
11 cial request to initiate the appeal process. The request for declaratory
12 ruling shall include the name of the affected party, appealable action,
13 the reason or reasons for the appeal, and any previously submitted
14 supporting data and information. A grant of right of entry for the
15 office to the project site is a condition of the request for declaratory
16 ruling to allow the office to clarify elements of the record or to
17 conduct field tests or visual assessments for purposes directly related
18 to the appeal. A standard request for declaratory ruling form shall be
19 provided to the affected party. The affected party initiates the admin-
20 istrative appeal process by providing an acceptable request for declara-
21 tory ruling to the office, which includes a notification letter deliv-
22 ered to the local agency via certified mail notifying the local agency
23 of the affected party's request for declaratory ruling.
24 (w) "State environmental quality review act" means article eight of
25 the environmental conservation law.
26 3. Project eligibility. The permitting state-level appeals process
27 under this section shall only be available to projects that meet the
28 following criteria:
29 (a) A project with a nameplate capacity of twenty thousand kilowatts
30 AC or less;
31 (b) A project not sited on land belonging to a native tribe; and
32 (c) A project experiencing unreasonable local permitting hardship,
33 including but not limited to:
34 (i) A municipality or local agency has codified local laws regarding
35 distributed energy resources that are exclusionary or impossible to
36 comply with, including but not limited to infeasible recycling require-
37 ments, tree removal limitations, setback requirements, or ground cover-
38 age ratio restrictions;
39 (ii) A municipality or local agency has enacted repeated moratoriums
40 on solar or other distributed energy resources;
41 (iii) A municipality or local agency has made arbitrary and capricious
42 requests for system modifications;
43 (iv) A developer has made a good-faith effort to secure municipal
44 approval by utilizing the municipality's variance, site plan and/or
45 special use permit process and has received a denial from a local agen-
46 cy, or the local agency has failed to act;
47 (v) A local agency has failed to approve a hardship waiver; or
48 (vi) A local agency has failed to act to approve or deny the permit
49 application for more than three hundred five days.
50 4. Process and timeline. The streamlined state-level appeals process
51 for distributed generation energy facilities under this section shall
52 not exceed sixty calendar days, provided the appellant's application is
53 complete, and shall comply with the following:
54 (a) The filing of an appeal shall occur when a copy of the application
55 for appeal to the office of renewable energy siting is filed with the
56 town clerk or their equivalent;
A. 3579--B 5
1 (b) Notwithstanding any law, rule, or regulation to the contrary, the
2 office shall, within thirty days of its receipt of an application for a
3 declaratory ruling, determine whether such application is complete and
4 notify the applicant of such determination. If the office does not deem
5 such application complete, the office shall set forth in writing to be
6 delivered to such applicant the reasons why it has determined such
7 application to be incomplete. If the office fails to make a determi-
8 nation within such thirty-day time period required under this paragraph,
9 such application shall be deemed complete; provided, however, that such
10 applicant may consent to an extension of the sixty-day time period for
11 determining application completeness provided under the opening para-
12 graph of this subdivision.
13 (c) For applications deemed complete, following consultation with any
14 relevant state agency or authority, a final declaratory ruling shall be
15 issued. In making such determination, the office may elect not to
16 apply, in whole or in part, any local law or ordinance which would
17 otherwise be applicable if the office finds that, as applied to the
18 proposed distributed generation energy facility, such local law or ordi-
19 nance is unreasonably burdensome in view of the CLCPA targets and the
20 environmental benefits of the proposed distributed generation energy
21 facility.
22 (d) Notwithstanding any other deadline made applicable by this
23 section, the office shall make a final decision on an appeal for any
24 distributed generation energy project within sixty days of receiving a
25 complete application. Unless the office and the applicant have agreed to
26 an extension, with such extension limited to thirty days, and if a final
27 declaratory ruling decision has not been made by the office within such
28 time period, then such declaratory ruling shall be deemed to have been
29 automatically granted for all purposes set forth in this section.
30 5. Office of renewable energy siting; responsibilities. (a) The office
31 of renewable energy siting is hereby charged with the review of requests
32 for declaratory rulings on distributed generation energy facilities. The
33 office shall exercise its authority by and through the executive direc-
34 tor.
35 (b) The office shall, within one hundred eighty calendar days of the
36 effective date of this section, promulgate the necessary rules and regu-
37 lations to implement the appeals process established by this section,
38 including the establishment of a set of uniform standards and conditions
39 for the process for such declaratory rulings relevant to issues that are
40 common for distributed generation energy facilities, in consultation
41 with the New York state energy research and development authority, the
42 department of environmental conservation, the department of public
43 service, the department of agriculture and markets, and any other rele-
44 vant state agencies and authorities with subject matter expertise,
45 provided that the office shall promulgate regulations requiring the
46 service of appeals on affected municipalities and political subdivisions
47 simultaneously with submission of an appeal to the office.
48 (c) The office, by and through the executive director, shall be
49 authorized to conduct hearings and dispute resolution proceedings, issue
50 declaratory rulings, and adopt such rules, regulations, and procedures
51 as may be necessary, convenient, or desirable to effectuate the purposes
52 of this section.
53 (d) At the request of the office, all other state agencies and author-
54 ities are hereby authorized to provide support and render services to
55 the office within their respective functions.
A. 3579--B 6
1 6. Applicability. (a) Beginning upon the effective date of this
2 section, a permit resulting from an appeal issued by the office may be
3 transferred or assigned to a person that agrees to comply with the
4 terms, limitations and conditions contained in such permit, and shall
5 apply to any renewal of such permit.
6 (b) The office or a permittee may initiate an amendment to an appeal
7 under this section. An amendment initiated by the office or permittee
8 that is likely to result in any material increase in any environmental
9 impact or involves a substantial change to the terms or conditions of a
10 declaratory ruling shall comply with the public notice and hearing
11 requirements of this section.
12 (c) Any hearings or dispute resolution proceedings initiated under
13 this section or pursuant to rules or regulations promulgated pursuant to
14 this section may be conducted by the executive director or any person to
15 whom the executive director shall delegate the power and authority to
16 conduct such hearings or proceedings in the name of the office at any
17 time and place.
18 7. Powers of municipalities and state agencies and authorities; scope
19 of section. (a) Notwithstanding any other provision of law, including
20 without limitation article eight of the environmental conservation law
21 and article seven of the public service law, no other state agency,
22 department or authority, or any municipality or political subdivision or
23 any agency thereof may, except as expressly authorized under this
24 section or the rules and regulations promulgated under this section,
25 require any approval, consent, permit, certificate, contract, agreement,
26 or other condition for the development, design, construction, operation,
27 or decommissioning of a distributed generation energy facility with
28 respect to which an application for a declaratory ruling has been filed,
29 provided in the case of a municipality, political subdivision or an
30 agency thereof, such entity has received notice of the filing of the
31 application therefor. Notwithstanding the provisions of this paragraph,
32 the department of environmental conservation shall be the permitting
33 agency for permits issued pursuant to federally delegated or federally
34 approved programs.
35 (b) This section shall not impair or abrogate any federal, state or
36 local labor laws or any otherwise applicable state law for the
37 protection of employees engaged in the construction and operation of a
38 distributed generation energy facility.
39 (c) The department of public service or the public service commission
40 shall monitor, enforce, and administer compliance with any terms and
41 conditions set forth in a permit issued pursuant to this section and in
42 doing so may use and rely on authority otherwise available under the
43 public service law.
44 8. Fees; state agency account. Each application for a declaratory
45 ruling shall be accompanied by a fee in an amount equal to one thousand
46 dollars for each thousand kilowatts alternating current of capacity of
47 the proposed distributed generation energy facility, with the total
48 amount of such fee to be not less than one thousand dollars, to be
49 deposited in an account to be known as the state agency account estab-
50 lished for the purpose of recovering costs incurred by the office during
51 the proceeding. Additionally, funds shall be permitted for suballocation
52 to the New York state energy research and development authority for the
53 services and expenses of the clean energy project siting team. The
54 office may update such fee periodically solely to account for inflation.
55 § 5. This act shall take effect immediately.
