Barclay Damon
Barclay Damon

Legal Alert

Smart Growth Environmental Review of Public Infrastructure Projects Now In Effect

The Smart Growth Infrastructure Policy Act is effective September 29, 2010. The Act requires the public authorities named in the Act, certain of their subsidiaries and all other New York authorities review and make specific findings prior to authorizing, approving, undertaking, supporting or financing any public infrastructure project. A public infrastructure project is broadly defined to include “transportation, sewer and waste water treatment, water, education, housing and other publicly supported infrastructure.” The Act also applies to the approval of state aid for these projects.

The Act is intended to augment the State’s environmental policy by “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.”

The Act specifically enumerates ten smart growth criteria to be considered in connection with a covered public infrastructure project. Concepts promoted in the ten criteria include: the use or improvement of existing infrastructure, development in areas that are already developed or in areas that are designated for concentrated infill development in local land use plans, mixed land uses and compact development, preservation of open space, improved public transport and reduced automobile dependency, and collaboration among state agencies and localities to promote intermunicipal and regional planning.

Smart Growth Advisory Committee. The Act requires each affected authority to appoint a “smart growth advisory committee,” from its staff. The committee is charged with “solicit[ing] input from and consult[ing] with various representatives of affected communities and organizations within those communities.” Prior to an affected authority approving a covered project, the advisory committee must conduct an investigation of the proposed project and state in writing whether the project is consistent with the ten specified “smart growth” criteria. Under the Act, the chief executive officer of the affected authority must “attest in a written smart growth impact statement that the project, to the extent practicable, meets relevant [ten smart growth] criteria…, unless in any respect the project does not meet such criteria or compliance is considered to be impracticable, which shall be detailed in a statement of justification.” The smart growth impact statement must be based on an investigation performed by the advisory committee.

Smart Growth Criteria. The Act identifies the smart growth criteria to be considered in connection with a covered project. Projects need not meet all ten criteria, but only those which are “relevant.” The Act states that its requirements are “[i]n addition to meeting other criteria and requirements of law governing approval, development, financing and state aid” for public infrastructure projects. In the event that other applicable laws make it impracticable to satisfy certain smart growth criteria, this quoted provision of the Act may serve to authorize a partial exception from the overall consistency requirement.

Covered State Agencies. The following State agencies and authorities are identified, as covered by the Act:

  • Department of Environmental Conservation;
  • Department of Transportation;
  • Department of Education;
  • Department of Health;
  • Department of State;
  • New York State Environmental Facilities Corporation;
  • New York State Housing Finance Agency;
  • Housing Trust Fund Corporation;
  • Dormitory Authority;
  • Thruway Authority;
  • Port Authority of New York and New Jersey;
  • Empire State Development Corporation;
  • New York State Urban Development Corporation;
  • “all other New York authorities;” and
  • any subsidiary of, or corporation with the same members or directors as, a public benefit corporation that is included on the above list.

Notably, while certain State authorities are expressly identified, the Act also refers to “all other New York authorities,” and to “any subsidiary of, or corporation with the same members or directors as, a public benefit corporation” of the listed authorities. Presently, it is unclear whether the Act applies to industrial development agencies or local development corporations.

Breadth of Covered Projects. The Act covers an affected authority’s decision to “approve, undertake, support or finance a public infrastructure project, including providing grants, awards, loans or assistance programs.” Clearly, the coverage is quite broad, with no exceptions. Coverage arguably extends to many infrastructure projects which are either entirely exempt from environmental impact review requirements under the State Environmental Quality Review Act (“SEQRA”), or which are exempted from the SEQRA’s environmental impact statement review process after a cursory review by means of an agency’s written “negative declaration” finding that the project poses no potential significant adverse impacts on the environment.

Under the Act, public infrastructure is also not limited to State-owned or State constructed facilities. The phrase, “publicly supported infrastructure,” could arguably apply to roads, water supplies, sewers, water treatment plants, public housing, public schools and colleges owned or operated by local municipalities, school districts, or improvement districts in instances where the construction, expansion or redevelopment of the infrastructure requires authorization or subsidies from an affected authority.

No Private Cause of Action. The Act bars any private individual, corporation or group from suing the State or any SIA for any cause of action arising from compliance or non-compliance with the Act. The Act, however, does not bar a municipality or some other government entity from commencing such a lawsuit on behalf of its citizenry.

Please feel free to contact the attorneys in the Municipal & Land Use Practice Area to discuss compliance with the State Smart Growth Infrastructure Policy Act.