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percent, the entire cost of such appraisal shall be borne by the applicant, otherwise, the entire cost thereof shall be borne by the commissioner of general services.

(ii) For leases, easements and conveyances of such interests for commercial use of structures on state-owned underwater lands, the annual fee imposed shall not exceed two percent of the user's net annual income for structures not in existence on the effective date of this paragraph. Nor, in connection with a structure in existence and in commercial use on the effective date of this paragraph, shall the fee charged in connection with such a conveyance made after the effective date of this subparagraph exceed annually the following schedule for five years following the effective date of the interest conveyed pursuant to subdivision (b) of this section provided timely application pursuant to that subdivision has been made: .2 (two-tenths) of one percent; second year: .4 (four-tenths) of one percent; third-year: .6 (six-tenths) of one percent; fourth year: .8 (eight-tenths) of one percent; fifth year, and thereafter: one percent; provided that all such percentages in this paragraph shall be that percentage of the net income derived from the structure or structures on state-owned lands, excluding transactions involving sales or repair of boats, and sale of gasoline; and the dollar valuation of the interest conveyed shall not be increased from year to year during that five year period. The fee charged shall be discounted ten percent for annual permits.

(iii) For leases, easements and conveyances of such interests for residential use of non-exempt structures in existence and residential use on the effective date of this paragraph, the annual fee shall not exceed the lesser of twenty dollars per slip or one hundred dollars.

(iv) Nothing in this paragraph shall preclude the commissioner of general services from agreeing, upon the request of and negotiation with the Owner or user of adjacent upland, to such other conveyances or agreements consistent with this section providing for different periodic payments, or a more flexible payment structure, than the fee caps and fees, respectively, set forth for commercial and residential facilities herein. Moreover, notwithstanding the fee caps set in this section, the commissioner may exceed those caps if required to cover the yearly pro rata share, over the term of the conveyance or interest, of the administrative costs in connection with that conveyance or interest.

(f) The commissioner, in consultation with the commissioner of environmental conservation, the secretary of state, the office of parks, recreation and historic preservation and other interested state agencies administering state-owned lands underwater, shall promulgate pursuant to article two of the state administrative procedure act such rules with respect to grants, leases, easements and lesser interests for the use of state-owned land underwater, and the cession of jurisdiction thereof, as in his or her judgment are reasonable and necessary to protect the interests of the people in such lands underwater. Such regulations shall include without being limited to: the fees to be charged, consistent with the provisions of this section, including mitigation of such fees in the event of economic hardship on existing commercial enterprises; fee limitations to administrative expenses for municipal uses which are public, non-commercial and offer services free or for nominal fees, and for uses undertaken and operated for public and non-commercial purposes by not-for-profit corporations characterized as "Type B" corporations pursuant to paragraph (b) of section two hundred one of the not-forprofit corporation law, and for uses undertaken and operated for public purposes by a corporation formed pursuant to the religious corporation law or by a corporation formed pursuant to* special act of this state and which has as its principal purpose a religious purpose; such further exemptions for projects as the commissioner determines do not represent significant encroachments; limitations on grants, including conversion grants, with respect to underwater lands consistent with the public purposes of this subdivision and limiting such grants to exceptional circumstances; and factors to be examined in considering an ap plication for a lease, easement or other interest. Those factors shall include without limitation the following: (i) the environmental impact of the project; (ii) the values for natural resource management, recreational uses, and commercial uses of the pertinent underwater land; (iii) the size, character and effects of the project in relation to neighboring uses; (iv) the potential for interference with navigation, public uses of the waterway and rights of other riparian owners; (v) the

* So in original. (Word "a" inadvertently omitted.)

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effect of the project on the natural resource interests of the state in the lands; (vi) the water-dependent nature of the use; (vii) and any adverse economic impact on existing commercial enterprises. The final promulgation of rules establishing fees or fee structures shall be subject to the approval of the director of the budget.

any

(8) (1) From one year after the effective date of the rules authorized by paragraph (f) of this subdivision and adopted pursuant to subdivision five of section two hundred two of the state administrative procedure act, and thereafter, any person who violates any of the provisions of this subdivision; or who fails to perform any duty imposed by this subdivision; or who violates or fails to comply with any rule, regulation, determination or order of the commissioner promulgated pursuant to this in subdivision may be enjoined from continuing such violation, and event shall be liable for a civil penalty of not more than five hundred dollars for each such violation and an additional civil penalty of not more than one hundred dollars for each day during which such violation continues; provided, however, that such penalties shall be imposed by the commissioner only after written notice and an opportunity to be heard are given to the owner, occupier or other person or entity having a legal or beneficial interest in a prohibited structure or area of fill which notice shall be transmitted by certified mail, return receipt requested and which shall set forth the provisions of this section, a description of the prohibited structure or area of fill, the amount of the penalty, that the person must comply with the provisions of this section within thirty days, and the specific date thirty days thereafter following which the person shall be subject to such penalty and after which further penalties shall accrue on a daily basis.

(ii) If the commissioner of environmental conservation notifies the commissioner of any failure to comply with conditions of a lease, easement ΟΙ other interest, the commissioner shall investigate such suspected violation. The commissioner, on his or her own initiative or at the request of the commissioner of environmental conservation, shall thereafter take enforcement action as described herein or request the attorney general to institute an action to enjoin such violation and to recover any damages therefor.

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§ 4. Subdivision 1 of section 30-a of the public lands law, as added by chapter 957 of the laws of 1974, is amended to read as follows: 1. Except as to lands under water, salt springs lands and abandoned canal lands, the head of any state agency having custody or jurisdiction over any state-owned lands may determine that such lands are no longer necessary or useful to the purposes of such agency, and he or she hereby authorized to declare the same abandoned. Upon the filing of a declaration of abandonment of such lands with an approval thereof by the commissioner of general services such lands shall become unappropriated state lands provided, however, that no state lands, the sale or transfer of which is prohibited by the constitution, shall be thus affected. Within thirty days of approving the abandonment the commissioner of general services shall publish a notice of the approval in the state register and the environmental notice bulletin, and send such a notice to the chief elected official of each county and municipality where the affected lands are located.

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§ 5. The section heading and subdivision 1 of section 15-0503 of the environmental conservation law, the section heading as amended by chapter 233 of the laws of 1979 and subdivision 1 as amended by chapter 442 of the laws of 1983, are amended to read as follows:

Protection of [streams; dams and docks] water bodies; permit.
1. Except as provided in subdivision 4 of this sectiont, no]

a.

No dam or impoundment structure, including any artificial obstruction, temporary or permanent, in or across a natural stream or water shall be erected, constructed, reconstructed or repaired by any person or local public corporation without a permit issued pursuant to subdivision 3 of this section.

course,

b. Except where a lease or other appropriate conveyance of an interest authorizing the use and occupancy of state-owned lands underwater has been obtained from the commissioner of general services pursuant to subdivision seven of section seventy-five of the public lands law, no dock, wharf, platform, breakwater, mooring, or other structure in, on or above waters shall be erected, placed, constructed, reconstructed, or expanded after the effective date of this paragraph by any person or local public EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

corporation without a permit issued pursuant to subdivision 3 of this section. The term "reconstructed" as used in this section shall mean the substantial rebuilding of structures or facilities and shall not apply to ordinary maintenance or repair of existing functional structures or facilities, such as repainting, redriving pilings or replacing broken boards in docks.

C. A city, town, village or county may submit to the commissioner a local law or ordinance regulating docks or other structures as described in paragraph b of this subdivision. The commissioner shall review such law or ordinance to determine whether it provides environmental protection comparable to, or greater than, the provisions of such paragraph and any regulations promulgated thereunder. If the commissioner determines that the local law or ordinance submitted meets such requirements, the commissioner may delegate, upon such terms and conditions as he or she deems appropriate, to the local government the authority to administer the permit program and to charge a fee for permit processing. Any delegation may be revoked by the commissioner if he or she finds that the local government has failed to carry out the program in accordance with the terms of the delegation.

§ 6.

Subdivision 4 of section 15-0503 of the environmental conservation law is amended by adding three new paragraphs c, d and e to read as follows:

c. A dock, pier, wharf or other structure used solely as a landing place on water providing dockage for five or fewer boats and encompassing within its outer perimeter an area less than four thousand square feet;

d. A mooring facility providing mooring for fewer than ten boats; e. Seasonal replacement or reinstallation of structures installed prior to the effective date of this paragraph.

§ 7. Subparagraph (iv) of paragraph (a) of subdivision 5 of section 70-0117 of the environmental conservation law, as added by of the laws of 1977, is amended to read as follows:

chapter 723

(iv) Docks, piers, wharves or other structures in waters not to exceed one hundred twenty-five dollars, except docks, piers or other structures required to be permitted under article twenty-four or twenty-five of this chapter or where a local government administers the program pursuant to a delegation from the commissioner under paragraph c of subdivision one of section 15-0503 of this chapter.

§ 8. Section 911 of the executive law is amended by adding a new subdivision 10 to read as follows:

10. "Comprehensive harbor management plan" shall mean a plan to address the problems of conflict, congestion and competition for space in the use of harbors, surface waters and underwater lands of the state within a city, town or village or abounding a city, town or village to a distance of fifteen hundred feet from shore. A harbor management plan must consider regional needs and, where applicable, must consider the competing needs of commercial shipping and recreational boating, commercial and recreational fishing and shellfishing, aquaculture and waste management, mineral extraction, dredging, public access, recreation, habitat and other natural resource protection, water quality, open aesthetic values and common law riparian or littoral rights, and space, the public interest in such lands underwater.

§ 9. Subdivision 5 of section 915 of the executive law is amended by adding a new paragraph i to read as follows:

1. The establishment of a comprehensive harbor management plan and the means for its implementation.

10. Section 911 of the executive law is amended by adding a new subdivision 11 to read as follows:

11. "Water dependent use" means an activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water.

tegra 11. The executive law is amended by adding a new section 915-b to

read as follows:

§ 915-b. Water dependent uses. Notwithstanding any other provision of law, water dependent use activities as defined in subdivision eleven of section nine hundred eleven of this article, shall not be considered a private nuisance, provided such activities were commenced prior to the surrounding activities and have not been determined to be the cause of conditions dangerous to life or health as determined by the commissioner of health, the local health officer, or local board of health pursuant to sections thirteen hundred, thirteen hundred-a, thirteen hundred three

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and thirteen hundred four of the public health law and any disturbance to enjoyment of land has not materially increased.

§ 12. The executive law is amended by adding a new section 922 to read as follows:

§ 922. Comprehensive harbor management plans. 1. In order to implement a comprehensive harbor management plan the local legislative body of a city, town or village may adopt, amend and enforce local laws or ordinances, not inconsistent with the laws of this state or the United States, to regulate the construction, size and location of wharves, docks, moorings, piers, jetties, platforms, breakwaters or other structures, temporary or permanent, in, on or above waters and the use of surface waters and underwater lands within a city, town or village bounding a city, town or village to a distance of fifteen hundred feet from the shore. Such local laws or ordinances may provide for the imposition of fees for reasonable expenses incurred by the city, town or village in carrying out this regulatory authority.

or

2. No local law or ordinance adopted pursuant to the powers granted by this section shall take effect until it shall have been submitted to and approved in writing by the secretary of state, nor shall such local law or ordinance affect projects and facilities undertaken or constructed by public authorities for which a statutory exemption has been provided or public authorities formed by compact with another state or any subsidiary thereof formed pursuant to bi-state legislation. The secretary of state shall not approve any local law or ordinance without first consulting with the commissioner of general services and other interested state agencies administering state-owned lands underwater, nor shall the secretary approve any local law or ordinance not in accordance with any comprehensive harbor management plan adopted as part of a local waterfront revitalization program by the local legislative body of the city, town or village and approved by the secretary pursuant to this article. 3. (a) Municipalities on lakes, other than those lakes identified in subdivision four of section nine hundred eleven of this article, may, pursuant to this section, develop cooperative lakewide local waterfront revitalization programs and harbor management plans.

(b) Where no local waterfront revitalization program and harbor management plan exists which has been cooperatively prepared by all of the municipalities which border the shores of such a lake, no local law or ordinance adopted by one such municipality pursuant to a harbor management plan shall be approved without a finding by the secretary of state that the local law or ordinance is consistent as well with the management of the lake by, and interests of, the lake residents and its municipalities as a whole.

(c) Where an organization or entity has been created by statute to provide lakewide planning or regulation, such local laws or ordinances shall be consistent with the plans developed by such organization or entity pursuant to the procedures required in such statute.

4. No provision of this chapter shall be deemed to diminish the authority of any city, town or village pertaining to the regulation of harbors, surface waters and underwater lands granted by any other law, charter, patent or other instrument. Nor shall it be read to authorize local harbor management plans displacing conforming water-dependent businesses in existence on the effective date of this section.

5. Any conveyances of interests pursuant to subdivision seven of section seventy-five of the public lands law and any permits issued pursuant to subdivision one of section 15-0503 of the environmental conservation law shall be consistent, insofar as possible, with approved comprehensive harbor management plans adopted pursuant to this section.

$ 13. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered.

$14. Nothing in this act shall be deemed to limit the existing powers of the commissioner of parks, recreation and historic preservation or the existing powers of the commissioner of environmental conservation under article 3 of the navigation law.

EXPLANATION-Matter in italics is new; matter in brackets [] is old law

§ 15. This act shall take effect immediately, except that sections five, six, and seven of this act shall take effect two hundred seventy days after it shall have become a law, provided however, that effective immediately, the addition, amendment, and/or repeal of any rule or regulation necessary for the implementation of the above mentioned sections of this act on their effective date are authorized and directed to be made and completed on or before such effective date.

CHAPTER 792

AN ACT to amend the public authorities law, in relation to the state of New York mortgage agency providing pool insurance

Became a law August 7, 1992, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assenbly, do enact as follows:

Section 1. Paragraph (b) of subdivision 3 of section 2405-d of the public authorities law, as amended by a chapter of the laws of 1992, amending the public authorities law relating to the state of New York mortgage agency, as proposed in legislative bill number S. 8449-B, is amended to read as follows:

(b) The provisions of the emergency housing rent control law, the local emergency housing rent control act, the city rent and rehabilitation law, the emergency tenant protection act of nineteen seventy-four and the New York city rent stabilization law of nineteen hundred sixtynine shall not apply to [the tenancy of the tenant-purchaser under the lease-to-own contract from and after the purchase by the agency of the mortgage loan on the residence so long] a residence subject to a leaseto-own mortgage, provided that the mortgage is purchased by the agency. Such exemption shall begin at the commencement of the lease term and shall endure for so long thereafter as the agency holds the mortgage loan. The agency shall not sell the mortgage loan prior to the closing of the transfer of title to the tenant-purchaser or default by the tenant-purchaser under the lease-to-own contract.

§ 2. Subdivision 1-a of section 2428 of the public authorities law, as amended by a chapter of the laws of 1992, amending the public authori ties law relating to the state of New York mortgage agency, as proposed in legislative bill number S. 8449-B, is amended to read as follows:

1-a. The agency may issue commitments to provide and may provide pool insurance in an amount not in excess of twenty-five percent of the outstanding principal indebtedness at the time of commitment of any aggregate of mortgage loans or with respect to mortgage loans acquired pursuant to section twenty-four hundred five-b of this title, twenty-five percent of the initial principal indebtedness of any aggregate of mortgage loans.

§ 3. This act shall take effect on the same date as a chapter of the laws of 1992, amending the public authorities law relating to the state of New York mortgage agency, as proposed in legislative bill number S. 8449-B, takes effect; provided, however, that nothing contained herein shall be deemed to affect the application, qualification, expiration or repeal of any provision of law amended by any section of this act and such provisions shall be applied or qualified or shall expire or be deemed repealed in the same manner, to the same extent and on the same date as the case may be as otherwise provided by law.

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