The site plan review process is one of several means that a town has for land development controls. Town Law Section 274-a covers the site plan review process in New York State, but it is a flexible statute that allows towns to tailor the procedure to their needs. Projects needing site plan review can range from small, simple structures to multi-million-dollar developments. Any municipal board may be designated by the town board to review and approve site plans. However, these tips will only refer to planning boards, as they are most often the board to hold this power.
The following five suggestions will help allow for a smoother process of site plan review:
1. Review Your Town Code against New York State Law: Members of planning boards are required by state law to obtain a minimum of four hours of training per year. Training sessions held by New York State on the site plan review process will cover the process as it is laid out by Town Law Section 274-a. However, state law only provides the initial guideline, as each town has a separate code as well. Towns have flexibility in the site plan review process, and it is important for board members to be aware of the process as it is written in their town code.
For example, under Town Law Section 274-a, site plan review is meant to take up to 62 days from when an application is accepted by the planning board. However, a town can include a shorter timeframe in their code. If the town’s code includes a 45-day timeframe for review, for example, this is the timeline that the planning board is required to follow. While the state law only provides for one phase of review, a town code might provide for a multi-step process, with a sketch plan and preliminary review phase. Board members should review their town code against the state law, and, if necessary, work with their town attorney to amend the code to allow the board as much time and flexibility as possible.
2. Decide What Level of Review is Best: Town Law Section 274-a only provides for one level of review. Under this law, the planning board accepts an application, reviews it, and makes their decision within 62 days (unless a public hearing is held). However, many towns have added additional preliminary review steps to their site plan review process. These additional steps are not provided for under Town Law Section 274-a, but they can be formalized if a town chooses to adopt a local law that outlines a multi-phase site plan review process.
Not every town would benefit from a multi-phase review process. Planning boards and town boards should work together to consider what process would be most beneficial for their town and discuss adopting the appropriate local laws with their town attorney. If a town does choose to adopt a multi-phase review process, we would suggest incorporating a provision that allows for the preliminary review process to be waived at the planning board’s discretion, as some smaller projects do not require as much scrutiny.
3. (Almost) Always Have a Public Hearing: Under Town Law Section 274-a, a public hearing is not required during the site plan review process (though it may be required under your town code). A public hearing is always beneficial for a planning board as it allows the public an opportunity to provide input on the proposed project. This is a great way for the planning board to hear from residents about the project and to provide residents with more information.
Additionally, when a public hearing is held, it lengthens the timeframe for the planning board to render their decision. Without a public hearing, New York State requires a decision to be rendered within 62 days of accepting a site plan application. When a board chooses to hold a hearing, the hearing must be held within 62 days of receipt of the accepted application, and then a decision must be rendered within 62 days of the hearing. This is not to suggest that a planning board should hold a public hearing simply to unnecessarily extend the review process. As many boards only meet once a month, however, a 62-day review timeline can be tight and without an extended timeline there is very little room for error, such as a meeting that is held without a quorum. Holding a public hearing allows for a more thorough review process by allowing public input and giving the planning board enough time to carry out its responsibilities.
We would recommend incorporating a provision within the section of the town’s code on site plan review procedure that mimics Town Law Section 274-a by allowing for the extra time when a public hearing is held. Within that section, the code should also allow for the planning board to have the option to waive the public hearing for situations when they do not feel one would be beneficial. It is also important to note: a public hearing is always required in the subdivision review process and can be conducted simultaneously with the site plan review hearing.
4. Have an Escrow Agreement: Developers are required to pay for the town’s fees on experts brought in during the review process, such as the town attorney and the engineer. Once a project is complete, it can be difficult for a town to collect those fees from a developer – even more so if the project ends up not moving forward.
Towns should require an upfront deposit to cover these fees. That deposit should be held in an escrow account that the town would use to pay bills from the experts that they have hired. This process should be governed by an escrow agreement that should be drafted by the town attorney.
5. Work Well with Developers: Today, projects that require site plan review and approval are widely varying. They can be small structures, such as a barn or a shed that is brought to the planning board by a neighbor. Alternatively, they can be large solar farm projects, brought in by multi-million-dollar development companies.
The projects are wide-ranging, which means the level of sophistication of the developers will be as well. Some will need a little more guidance from the board, while more sophisticated developers will understand the process, and in either case might take issue with how the board is handling the procedure. Regardless, it is important to be professional and courteous with developers. The town should lead by example by doing its best to guide the developer in this process, such as by clearly outlining deadlines and explaining changes the board would like to the site plan. This support will ideally lead to cooperation on the developer’s part.
Site plan review is an important town function as it helps to shape the character of the community. Town boards, planning boards, and town attorneys should cooperate to implement these suggestions to ensure the most efficient and smooth process possible.
Reprinted with permission from the September/October issue of Association of Towns’ bimonthly magazine, Talk of the Towns & Topics, and available as a PDF file here.
Veronica A. Devries is an associate attorney in Underberg & Kessler LLP’s Municipal Law and Corporate & Business Practice Groups. She can be reached at vdevries@underbergkessler.com or 585.258.2805.
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