During the pandemic, New York State has been presented with a variety of issues and has implemented creative, well thought out solutions. The recent enactment of Chapter 111 of the Laws of 2020 authorizing local governments to extend building permits, zoning board approvals and planning board approvals for 120 days is not one of them and will likely create confusion.
Building permits, site plans, subdivision plats and other municipal land use approvals have a limited shelf life by which the work authorized thereunder must be completed. However, for a time pursuant to the Governor’s Executive Order, non-essential construction was prohibited, County recording offices were not open to receive subdivision maps for filing, building departments were not open to receive applications to extend building permits and chairpersons were not able to sign site plans. These challenges represent some examples of the pandemic’s impact on land use approvals. While this issue can be addressed at the local level by obtaining individual extensions, the State enacted legislation to provide for a uniform solution to assist applicants and local governments (or so they thought).
Chapter 111 authorizes local governments to adopt a single resolution to extend the expiration of building permits and the active approvals of local zoning boards and local planning boards issued before March 7, 2020, for up to 120 days from the original expiration date without the need to make individual determinations. While at first glance, the legislation seems reasonable, we discuss below the quandary it creates and the issues not addressed, and propose a solution for land use applicants, consultants and boards to consider.
The Text of Chapter 111
Chapter 111 is brief and is set forth in its entirety:
Section 1. For the duration of the state disaster emergency declared pursuant to executive order 202 of 2020, local governments may, acting pursuant to a single resolution, extend for a period of up to 120 days beyond the stated expiration date:
- building permits issued before March 7, 2020; and
- local zoning boards of appeals and local planning boards active approvals issued before March 7, 2020.
§ 2. This action shall take effect immediately and shall expire and be deemed repealed December 31, 2021.
Why did the State adopt this legislation?
The State believes this legislation is necessary to help local governments and any applicants who have outstanding building permits and active approvals where work may have been delayed as a result of the business shutdowns which occurred because of the COVID-19 pandemic. The extension will provide applicants with more time to complete projects before such building permit or approval expires and becomes null and void. Non-essential construction was first prohibited on March 27, 2020 and was permitted to re-open region by region starting on May 15, 2020, as certain regions in New York entered Phase 1. Non-essential construction was finally permitted in New York City, the last region to enter Phase 1, as of June 8, 2020. So, at its greatest length, the State prohibited construction for 73 days. Of course, there may be other reasons work does not immediately commence such as workers not returning to the job site, unavailability of supplies, financial hardships, etc.
What is an active approval?
The law provides “the local government may extend the active approvals of local zoning boards and local planning boards issued before March 7, 2020.” An active approval is not defined, but can reasonably be assumed to be an approval that has not yet expired. The local government can only adopt a resolution to extend those approvals which are valid as of the date of the resolution granting such extension. The local government cannot extend approvals that have already expired and are deemed null and void.
Can the local government extend building permits that arenot considered active?
The State legislation does not use the same term for building permits and a municipality may, in its discretion, adopt a resolution that extends building permits issued before March 7, 2020 which have expired prior to the date of the resolution, but note such extension is still only valid for 120 days from its original expiration date.
Can approvals issued by the City Council, Town Board,Village Board of Trustees or non ZBA or Planning Board land use board be extended under the law?
One would think so, but the answer is “no” as the legislation is limited to approvals issued by local zoning boards and planning boards. The law does not refer to or include approvals issued by local governing bodies, nor does it apply to land use approvals issued by other boards such as an Architectural Review Board, Wetlands Board or Conservation Board.
How long can the local government extend the expiration date for building permits or active zoning board and planning board approvals?
Local governments may issue blanket orders extending the expiration date of all building permits and active zoning board and planning board approvals for a period of up to, but not exceeding, 120 days beyond the expiration date stated in the permit or approval resolution.
If the local governing body adopts a blanket resolution on June 30, 2020 extending all building permits and active zoning board and planning board approvals for 120 days, the expiration date of each such permit or approval will vary. For example, if a zoning board granted a variance on January 14, 2020 and such variance approval is set to initially expire on July 14, 2020 (six months from the date of the resolution, pursuant to the provisions of the municipal zoning code), the 120 day extension would extend the variance approval to November 11, 2020. The applicant in such case would not need to obtain an extension from the zoning board until November 11, 2020. If the zoning board also granted a variance on February 11, 2020 and such variance approval is set to initially expire on August 11, 2020, the 120-day extension would extend the variance to December 9, 2020. (Both variance approvals are active as of June 30, 2020 because they have not yet expired.)
How soon does the local government have to adopt aresolution?
There is no date by which the municipality must adopt the resolution, but as a practical matter, the longer a local government waits to adopt a resolution extending building permits and active zoning board and planning board approvals, the fewer active approvals there will be to benefit from the extension. Land use approvals that have expired may not be extended by the local government’s adoption of a general resolution pursuant to Chapter 111. A local government contemplating such a resolution should keep this in mind and act in a timely manner.
Considerations and Best Practices
The issue of expired land use approvals and building permits is not a new issue and has been addressed administratively and regulated by a municipality’s local code before the adoption of Chapter 111. Local governments are used to processing requests on a case by case basis to extend a permit or approval that has expired, even if the request is made after the expiration date. The benefit to a local government in adopting a single resolution to extend building permits and active planning board and zoning board approvals, as envisioned by the State, is that it offers “one stop shopping” and may prevent multiple calls from concerned applicants. Automatically granting an extension allows local governments to be proactive and business friendly and eliminates the applicant’s obligation to request an extension and pay a fee. It also makes it easy to determine the new expiration date as one only needs to add 120 days to the expiration date.
However, local governments must consider the impacts of adopting a single resolution to extend building permits and active local zoning board and local planning board approvals. If applicants are not required to request an extension on a case by case basis, the local government will have to consider how it will track and monitor each extended permit or approval.
Any resolution adopted pursuant to the State legislation should specify that only approvals issued prior to March 7, 2020 which have not expired as of the date of the local government’s resolution may be extended. The resolution should also specify how long such extension period will be. The State legislation limits the extension period to not more than 120 days and the local governing body may choose a shorter period of time.
The local government may also adopt a resolution extending building permits and approvals to a date certain. Such date shall not extend any building permit or approval for a period of more than 120 days.
If the local government is considering extending building permits that have expired as of the date of the resolution, the local government should specify in the resolution what building permits qualify for an extension. For example, the resolution may provide that all building permits issued between September 1, 2020 and March 7, 2020 shall be extended for 120 days.
There is also nothing in the State law to prevent municipalities from relying on their existing code language or prior practice regarding extensions or from modifying their existing code regarding extensions of permits and various land use approvals. A municipality could also consider adopting a Resolution to waive extension fees. The key for any municipality is to make sure there is a clear record for each and every application and each particular permit or approval as to when it expires.
Applicants should be mindful that adoption of a resolution pursuant to Chapter 111 may not be sufficient if a) the land use approval expired; b) the land use approval was issued after Mach 7, 2020, c) the approval was issued by a board other than the planning or zoning board; d) an extension longer than 120 days is required; or e) a lender will want a project specific extension. So, even if a Chapter 111 Resolution is adopted, applicants should protect their approval rights and evaluate whether a project specific extension is still required.
Consult Counsel Regarding Specific Questions If you have any questions or concerns regarding this legislation or this legal alert or require further assistance with this topic, please feel free to contact Nicholas Ward-Willis or Drew Victoria Gamils, or any other attorney in our Land Use and Zoning Law Practice.