The Smart Growth Public Infrastructure Act went into effect in New York on September 29, 2010 and requires most state agencies and all state authorities, prior to approving or funding any public infrastructure project, to prepare and file a Smart Growth Impact Statement finding that the project is consistent with ten Smart Growth Criteria or justifying why it is not practicable to do so. The public infrastructure projects that are covered are defined very broadly as consisting of “transportation, sewer and waste water treatment, water, education, housing and other publicly supported infrastructure.” That is a very broad net, especially when housing and education is factored in. Unlike the State Environmental Quality Review Act, there are no exemptions for minor projects or ministerial approvals.

The new law also requires each covered state agency and authority to appoint from staff a “Smart Growth Advisory Committee” to investigate and prepare Smart Growth Impact Statements and to advise its agency/authority on how to promote smart growth goals. The following state agencies and authorities are subject to the Act whenever any of them consider whether to undertake, approve, support or finance the construction or reconstruction of new or expanded public infrastructure.:

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.

The term “New York agencies” is not defined. Coverage is likely congruent with the list of “state authorities” regulated by the Authorities Budget Office as defined in Section 2 of the Public Authorities Law. But it is possible that the Act also covers local authorities and IDA’s.

The ten Smart Growth criteria include topics such as:

• 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.

So far, there have not been any public statements or guidance issued by any of the covered agencies or authorities on whether and how they are implementing this requirement even though it likely impacts billions of dollars worth of pending public infrastructure proposals. The Act expressly denies private parties a right to sue a covered agency or authority for violating its requirements, but that provision would not prevent a government entity from suing to invalidate a project approval nor would it prevent other involved agencies, bond counsel, or lenders from denying necessary approvals or sign-offs due to noncompliance with the Act.

In addition to the covered agencies and authorities, this Act should be of interest to municipalities, school and utility districts that seek state funding and/or approvals for their public infrastructure projects, for private developers that require state approvals or funding for those parts of private developments that involve public infrastructure (i.e. public road improvements adjoining new retail development), and for private contractors, designers, architects, engineers, and lawyers seeking to plan, design, obtain regulatory approvals and money for, and/or build public infrastructure projects.

Here is a link to the Act, which is Chapter 433 of the Laws of 2010. http://www.assembly.state.ny.us/leg/?default_fld=&bn=A08011%09%09&Summary=Y&Text=Y

Special thanks to Thomas J. Warth of Hiscock & Barclay for the summary.

Here is a link to the Hiscock & Barclay client alert on the Act: http://www.hblaw.com/pdf/M&LU10-01-10.pdf