New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter V - RESOURCE MANAGEMENT SERVICES
Subchapter A - Land Use
Part 502 - Floodplain Management Criteria For State Projects
Section 502.9 - Variance provisions relating to certain facilities and lands owned or formerly owned by the state

Universal Citation: 6 NY Comp Codes Rules and Regs § 502.9

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Variances to the provisions of section 502.4 of this Part may be granted by the department to any person who has acquired or who proposed to acquire lands or facilities owned or formerly owned by the State, where the deed or other instrument of transfer contains a covenant or use restriction placed upon such lands or facilities by the State at the time of disposition. Any person seeking relief from such covenant and use restrictions may submit a written request to the Commissioner of Environmental Conservation at 625 Broadway, Albany, NY 12233, and include the following information:

(1) the name and address of the petitioner;

(2) a copy of the deed or other instrument of transfer which includes the full text of the covenant or use restriction;

(3) a copy of maps or drawings, to suitable scale, which clearly identify the location of the property with existing or proposed improvements shown thereon;

(4) a description of the proposed uses for the property;

(5) a detailed text clearly indicating the basis for the petitioner's claim of unnecessary hardships and/or practical difficulties in the way of complying with the requirements imposed by the covenant and use restrictions; and

(6) any other information that the commissioner deems necessary to make a finding pursuant to subdivision (d) of this section, based upon the standards contained in subdivision (e) of this section.

(b) The procedures for the submission of requests for variances under this section, time periods for department action thereon, provisions relating to minor projects, and notice and hearing requirements, shall be governed by the provisions of Part 621 of this Title. A copy of the department's decision shall be sent by mail to the petitioner requesting the subject variance and to the chief administrative officer of each city, town or village in which the property is located. The granting of any variance pursuant to this section shall not be construed as relieving any person from obtaining any other necessary approval(s) from any Federal, State or local government body.

(c) Variances shall not be granted for any project or activity within any designated regulatory floodway, if any increase in flood levels would result during the base flood discharge.

(d) A variance may be granted or denied by the commissioner based upon information submitted by the petitioner and other resources available to the department. The granting of a variance pursuant to this section may contain such conditions or limitations as may be deemed reasonably necessary to assure that the spirit of the act shall be observed, public safety and welfare secured, and substantial justice done.

(e) Standards for the granting of a variance.

(1) The petitioner shall establish to the satisfaction of the commissioner that he will suffer an unnecessary hardship if the variance is not granted, or that there are practical difficulties in the way of carrying out the strict letter of the requirements of the covenant and use restriction. In the absence of a satisfactory showing of good and sufficient cause, no variance will be issued.

(2) The basis for the granting of a variance shall be a determination that the petitioner has established:

(i) that the proposed project or use of such lands is consistent with the findings and purposes of the New York State Legislature as expressed in section 36-0101 of the Environmental Conservation Law; and

(ii) that the public safety and welfare will be secured and substantial justice done.

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