New Law Requires Notice Of Hearing To Adjacent Municipality

A recent amendment to the General Municipal Law requires notice to adjacent municipalities of certain hearings on applications for development. Although the new law took effect on July 1, 2006, it is not yet widely known and, therefore, the new notice requirements could catch both applicants and municipalities unaware.

Applications Subject to Notice
The new law, codified as General Municipal Law § 239-nn, requires that the "legislative body or other authorized body having jurisdiction" shall give notice to an adjacent municipality of any application involving (a) issuance of a special permit or use variance, (b) site plan review and approval, and (c) subdivision review and approval, where the subject property is situated within 500 feet of an adjacent municipality. "Municipality" includes any town or village, and any city having a population not in excess of one million. The required notice shall be given by regular mail or electronic transmission to the clerk of the adjacent municipality, at least 10 days prior to the hearing.

It is important to note that the obligation to serve the required notice rests in the "legislative body or other authorized body having jurisdiction," which would be the body holding the hearing. However, it is the applicant who is at risk should the notice not be properly given. Notice to the adjacent municipality is in addition to any existing notice requirements to adjacent property owners within a specified distance of the subject property.

The new notice requirement is also easy to overlook since it appears not in the portions of the state zoning laws that establish notice requirements for development applications, but instead in a new section of the existing statute that provides for referral of development applications to county planning agencies for review and recommendation. For this reason, and since the law took effect fairly recently, it would be wise for applicants to verify that the board clerk or other appropriate individual at the authorized body having jurisdiction is aware of the requirement and will comply with it in a timely manner.

Another notable observation concerning the notice requirement is that it applies only to subdivisions, site plans, special permits and use variances, but not area variances. Perhaps this is due to the fact that area variances typically have a lesser impact on the neighborhood in which they are located than the grant of a special permit or variance, or the approval of a site plan or subdivision. But the law also applies to all site plans and all subdivisions, so even an application for a "minor subdivision" or a site plan involving something as de minimis as a small addition to an existing building would be subject to the new notice requirement. The new law does not apply to petitions for rezoning.

Legislative Intent
The legislative intent of the notice requirement, as set forth in the law itself, is "to encourage the coordination of land use development and regulation among adjacent municipalities in order that each adjacent municipality may recognize the goals and objectives of neighboring municipalities, and as a result development occurs in a manner which is supportive of the goals and objectives of the general area."

The law authorizes the adjacent municipality to appear at the hearing and be heard, although it does not specify the implications of failing to provide notice or whether the adjacent municipality could waive a failure of notice after the fact. This and other questions concerning the administration of the notice requirement will no doubt be the subject of future Article 78 proceedings.