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

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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

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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.

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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;

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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.

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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.