81-d. Incentive zoning; definitions, purposes, conditions, procedures. 1. Definitions. As used in this section:
(a) "Incentives or bonuses" shall mean adjustments to the permissible population density, area, height, open space, use, or other provisions of a zoning ordinance, local law, or regulation for a specific purpose authorized by the legislative body of a city.
(b) "Community benefits or amenities" shall mean open space, housing for persons of low or moderate income, parks, elder care, day care, or other specific physical, social, or cultural amenities, or cash in lieu thereof, of benefit to the residents of the community authorized by the legislative body of a city.
(c) "Incentive zoning" shall mean the system by which specific incentives or bonuses are granted, pursuant to this section, on condition that specific physical, social, or cultural benefits or amenities would inure to the community.
2. Authority and purposes. In addition to existing powers and authorities to regulate by planning or zoning, including authorization to provide for the granting of incentives, or bonuses pursuant to other enabling law, a legislative body of a city is hereby empowered, as part of a zoning ordinance, local law or regulation, to provide for a system of zoning incentives, or bonuses, as the legislative body deems necessary and appropriate, consistent with the purposes and conditions set forth in this section. The purpose of the system of incentive or bonus zoning shall be to advance the city's specific physical, cultural and social policies in accordance with the city's comprehensive plan and in coordination with other community planning mechanisms or land use techniques. The system of zoning incentives or bonuses shall be in accordance with a locally-adopted comprehensive plan.
3. Implementation. A system of zoning incentives or bonuses may be provided subject to the conditions hereinafter set forth. (a) The legislative body of a city shall provide for the system of zoning incentives or bonuses pursuant to this section as part of the zoning ordinance, local law, or regulations. In providing for such system, the legislative body shall follow the procedure for adopting and amending its zoning ordinance, local law, or regulations, including all provisions for notice and public hearing applicable for changes or amendments to such ordinances, laws, or regulations.
(b) Each zoning district in which incentives or bonuses may be awarded under this section shall be designated in the city zoning ordinance, local law or regulations, or amendment thereto.
(c) Each zoning district in which incentives or bonuses may be authorized shall have been found by the legislative body of a city, after evaluating the effects of any potential incentives which are possible by virtue of the provision of community amenities, to contain adequate resources, environmental quality and public facilities, including adequate transportation, water supply, waste disposal and fire protection. Further, the legislative body of a city shall, in designating such districts, determine that there will be no significant environmentally damaging consequences and that such incentives or bonuses are compatible with the development otherwise permitted.
(d) A generic environmental impact statement pursuant to article eight of the environmental conservation law and regulations adopted by the department of environmental conservation shall be prepared by the legislative body of a city for any zoning district in which the granting of incentives or bonuses have a significant effect on the environment before any such district is designated, and such statement shall be supplemented from time to time by the legislative body of a city if there are material changes in circumstances that may result in significant adverse impacts. Any zoning ordinance, local law, or regulation enacted pursuant to this section shall provide that any applicant for incentives or bonuses shall pay a proportionate share of the cost of preparing such environmental impact statement, and that such charge shall be added to any site-specific charge made pursuant to the provisions of section 8-0109 of the environmental conservation law.
(e) The legislative body of a city shall set forth the procedure by which incentives may be provided to specific lands. Such procedure shall describe:
(i) the incentives, or bonuses, which may be granted by the city to the applicant;
(ii) the community benefits or amenities which may be accepted from the applicant by the city;
(iii) criteria for approval, including methods required for determining the adequacy of community amenities to be accepted from the applicant in exchange for the particular bonus or incentive to be granted to the applicant by the city;
(iv) the procedure for obtaining bonuses, including applications and the review process, and the imposition of terms and conditions attached to any approval; and
(v) provision for a public hearing, if such public hearing is required as part of a zoning ordinance, local law, or regulation adopted pursuant to this section, and give public notice thereof by the publication in the official newspaper of such hearing at least five days prior to the date thereof.
(f) All other requirements of article eight of the environmental conservation law shall be complied with by project sponsors for actions in areas for which a generic environmental impact statement has been prepared, including preparation of an environmental assessment form and a supplemental environmental impact statement, if necessary.
(g) Prior to the adoption or amendment of the zoning ordinance, local law, or regulation, pursuant to this section to establish a system of zoning incentives or bonuses, the legislative body of a city shall evaluate the impact of the provision of such system of zoning incentives or bonuses upon the potential development of affordable housing gained by the provision of any such incentive or bonus afforded to an applicant or lost in the provision by an applicant of any community amenity to the city. Further, the legislative body of a city shall determine that there is approximate equivalence between potential affordable housing lost or gained or that the city has or will take reasonable action to compensate for any negative impact upon the availability or potential development of affordable housing caused by the provisions of this section.
(h) If the legislative body of a city determines that a suitable community benefit or amenity is not immediately feasible, or otherwise not practical, the legislative body may require, in lieu thereof, a payment to the city of a sum determined by the legislative body. If cash is accepted in lieu of other community benefit or amenity, provision shall be made for such sum to be deposited in a trust fund to be used by the legislative body of the city exclusively for specific community benefits authorized by such legislative body.
4. Invalidations. Nothing in this section shall be construed to invalidate any provision for incentives or bonuses heretofore adopted by any city legislative body.
Last modified: February 3, 2019