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Smart Growth Public Infrastructure Policy Act Takes Effect on September 29, 2010

By: Jennifer Coghlan

On August 31, 2010, Governor David Paterson signed into law the New York State Smart Growth Public Infrastructure Policy Act, which is intended to address sprawl by requiring certain state agencies to approve, undertake and fund infrastructure projects in a manner that is consistent with smart growth principles.  The new legislation will affect a variety of projects throughout the state.  The Act is codified as new Article 6 of the Environmental Conservation Law (“ECL”) and will become effective on September 29, 2010.

As explained in Act itself:

It is the purpose of this article to augment the state’s environmental policy by declaring a fiscally prudent state policy of maximizing the social, economic and environmental benefits from public infrastructure development through minimizing unnecessary costs of sprawl development including environmental degradation, disinvestment in urban and suburban communities and loss of open space induced by sprawl facilitated by the funding or development of new or expanded transportation, sewer and waste water treatment, water, education, housing and other publicly supported infrastructure inconsistent with smart growth public infrastructure criteria.

ECL § 6-0105.

“State infrastructure agency” is defined to include a variety of state agencies and authorities, including the Departments of Environmental Conservation, Transportation, Education, Health, and State, the New York State Environmental Facilities Corporation, the New York State Housing Finance Agency, the Housing Trust Fund Corporation, the Dormitory Authority, the Thruway Authority, the Port Authority of New York and New Jersey, the Empire State Development Corporation, the New York State Urban Development Corporation, and “all other New York authorities”.  ECL § 6-0103(2)

These agencies must ensure that any public infrastructure they “approve, undertake, support or finance” is, to the extent practicable, consistent with specified criteria, which include, inter alia;

  • to advance projects located in municipal centers;
  • to foster mixed land uses and compact  development, downtown revitalization, brownfield redevelopment, the enhancement of  beauty in  public spaces,  the diversity and affordability of housing in proximity to places of employment, recreation and commercial development  and  the  integration of all income and age groups; and
  • to promote sustainability by strengthening existing and creating new communities which  reduce greenhouse gas emissions and do not compromise the needs of future generations,

ECL §§ 6-0107(1), (2)(b), (2)(e), (2)(j).  The CEO of a state infrastructure agency must attest to the proposed project’s conformance to the relevance criteria in a smart growth impact statement.  ECL § 6-0107(3).  If the project does not meet the relevant criteria or “compliance is considered to be impracticable”, the agency shall prepare a statement of justification of such noncompliance.  Id.  Although not addressed in the legislation, it appears that such statements could be incorporated into an environmental impact statement (“EIS”) prepared under the New York State Environmental Quality Review Act (“SEQRA”).  For projects for which no EIS is required, however, the agency will need to prepare a separate statement to satisfy the requirements of the Smart Growth Act.

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