N.Y. Comp. Codes R. & Regs. tit. 5 § 10.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 10.4 - Eligibility

(a) To be eligible to compete for designation as an empire zone, an area or each constituent part thereof must be characterized by pervasive poverty, high unemployment and general economic distress; correspond to traditional neighborhood or community boundaries and, where appropriate, be bounded by major natural or man-made physical boundaries, such as bodies of water, railroad lines, or limited-access highways; must meet the requirements set forth in subdivision (b), (d), (f) or (h) of this section pursuant to the most recent census data available, where applicable, or, in lieu of census data, pursuant to other data deemed reliable by the commissioner, and meet the zoning and land availability criteria set forth in subdivisions (j) and (k) of this section. Zones designated pursuant to subdivisions (b) and (h) of this section shall be known as "investment zones" and zones designated pursuant to subdivisions (d) and (f) of this section shall be known as "development zones".

(b) An area shall be eligible for designation if it includes a United States census tract or tracts or block-numbering area or areas, or portions thereof, each full census tract or portion of a block- numbering area of which, according to the most recent census data available, has:

(1) a poverty rate of at least 20 percent for the year to which the data relate;

(2) an unemployment rate of at least 1.25 times the statewide unemployment rate for the year to which the data relate;

(3) a population of at least 2,000.

(c) Each zone designated under subdivision (b) of this section must be wholly contained within up to three distinct and separate contiguous areas; provided, however, that empire zones designated prior to April 1, 2005 shall identify such distinct and separate contiguous areas, which shall equal up to their total allotted acreage at the time of designation, by January 1, 2006. Provided further, however, that notwithstanding the provisions of paragraphs (b)(1)-(3) of this section, section 10.5 of this Part and section 957(d) of the General Municipal Law, a regionally significant project may be located outside of the investment zone's distinct and separate contiguous areas but within the zone applicant's municipal boundaries. Provided further, however, if the investment zone is located in a county that does not have a development zone such regionally significant project may be located within the county's boundaries.

(d) Any county may apply for designation of an area within a municipality as an empire zone if:

(1) the average rate of unemployment in the county in the two most recent calendar years was at least 1.25 times the State average for those years;

(2) the rate of poverty in the county for individuals was 13 percent according to the most recent census data available; and

(3) the county does not contain a census tract or tracts, portion of a block-numbering area, or a city, town or village which, according to the most recent census data available, has:

(i) a poverty rate of at least 20 percent for the year to which the data relate;

(ii) an unemployment rate of at least 1.25 times the statewide unemployment rate for the year to which the data relate; and

(iii) a population of at least 2,000.

(e) Each zone designated under subdivision (d) of this section must be wholly contained within up to six distinct and separate contiguous areas; or, in the case of a zone located in more than one county, up to 12 distinct and separate contiguous areas; provided, however, that empire zones designated prior to April 1, 2005 shall identify such distinct and separate contiguous areas, which shall equal up to their total allotted acreage at the time of designation, by January 1, 2006. A zone created pursuant to this subdivision shall apply to have up to three separate and distinct contiguous areas designated as investment zones under subdivisions (b) and (h) of this section; provided that:

(1) 75 percent of the acreage used to define the boundaries of a distinct and separate contiguous area as an investment zone must be in either an eligible or contiguous census tract; and

(2) if the applicant county already contains an applicant municipality with its own empire zone, and the eligible census tracts in the county are located exclusively within the boundaries of the applicant municipality, then the applicant county is not required to locate the investment zones within the boundaries of the applicant municipality.

(f) Notwithstanding the provisions of subdivision (b) or (d) of this section, any county may apply for designation of an area within a municipality as an empire zone provided that the following requirements are met:

(1) at the time of application, the unemployment rate of the metropolitan statistical area must exceed the national average of unemployment and the metropolitan statistical area must have experienced or is likely to experience within three years the lesser of a loss of 4,000 direct jobs or a dislocation of workers equal to one-half percent of the employed population of the metropolitan statistical area and at least 50 percent of the job loss or dislocation of workers must result from the action of a single employer, or 80 percent of such job loss or dislocation must occur in a single North American Industry Classification (two-digit code); or

(2) at the time of application, the unemployment rate of the metropolitan statistical area must be equal to or less than the national average of unemployment and the metropolitan statistical area must have experienced or is likely to experience within three years the lesser of a loss of 8,000 direct jobs or a dislocation of workers equal to one percent of the employed population of the metropolitan statistical area and at least 50 percent of the job loss or dislocation of workers must result from the action of a single employer, or 80 percent of such job loss or dislocation must occur in a single North American Industry Classification (two-digit code); or

(3) at the time of application, the unemployment rate of the labor market area must exceed the national average of unemployment and the labor market area must have experienced or is likely to experience within three years the lesser of a loss of 500 direct jobs or a dislocation of workers equal to two percent of the employed population of the labor market area; or

(4) at the time of application, the unemployment rate of the labor market area must be equal to or less than the national average of unemployment and the labor market area must have experienced or is likely to experience within three years the lesser of a loss of 1,000 direct jobs or a dislocation of workers equal to four percent of the employed population of the labor market area; or

(5) at the time of application, the municipality is declared a natural disaster area by the President of the United States; or

(6) at the time of application, the municipality contains:

(i) a defense or military base or facility which has been designated for closure or realignment; or

(ii) a State-operated hospital or facility listed in section 7.17 or 13.17 of the Mental Hygiene Law which has been designated by either the Commissioner of Mental Health or the Commissioner of Mental Retardation and Developmental Disabilities for contraction or discontinuance within two years from the date of the official announcement of the solicitation of applications for zone designation;

provided, however, that no more than one-third of the zones designated shall be based on applications filed pursuant to this paragraph.

(g) Each zone designated under subdivision (f) of this section must be wholly contained within up to six distinct and separate contiguous areas; or, in the case of a zone located more than one county, up to 12 distinct and separate contiguous areas; provided, however, that empire zones designated prior to April 1, 2005 shall identify such distinct and separate contiguous areas, which shall equal up to their total allotted acreage at the time of designation, by January 1, 2006. A zone created pursuant to this subdivision shall apply to have up to three separate and distinct contiguous areas designated as investment zones under subdivisions (b) and (h) of this section; provided that:

(1) 75 percent of the acreage used to define the boundaries of a distinct and separate contiguous area as an investment zone must be in either an eligible or contiguous census tract; and

(h) An area shall be eligible for designation if it includes a United States census tract or tracts or block numbering area or areas or portions thereof, each full census tract or portion of a block numbering area of which according to the most recent census data available has:

(1) at the time of application, an unemployment rate equal to or exceeding the unemployment rate of the State of New York;

(2) a rate of poverty for individuals of at least 20 percent;

(3) a number of households receiving public assistance of 14 percent or more;

(4) the municipality is considered a non-metropolitan area; and

(5) there is no other empire zone in the county in which designation is sought.

(i) Each zone designated under subdivision (h) of this section must be wholly contained within up to three distinct and separate contiguous areas; provided, however, that empire zones designated prior to April 1, 2005 shall identify the three distinct and separate contiguous areas, which shall equal up to their total allotted acreage at the time of designation by January 1, 2006; provided, however, the existing zone must include as much designated acreage into the distinct and separate contiguous areas as possible. Provided further, however, that notwithstanding the provisions of paragraphs (h)(1)-(5) of this section, section 10.5 of this Part and section 957(d) of the General Municipal Law, a regionally significant project may be located outside of the investment zone's distinct and separate contiguous areas but within the boundaries of the applicant municipality. Provided further, however, if the investment zone is located in a county that does not have a development zone such significant project must be located within the county's boundaries.

(j) If an area for which application is made is governed by zoning laws or other laws or regulations governing land use, such laws or regulations must allow at least 25 percent of such areas to be used for commercial or industrial activity.

(k) At least 25 percent of the total land within the proposed zone must be vacant, abandoned or otherwise available for industrial or commercial development.

(l) Any zone designated pursuant to subdivisions (b), (d), (f) and (h) of this section may apply to the commissioner to add one additional distinct and separate contiguous area, upon demonstration that the distinct and separate contiguous areas created pursuant to subdivisions (c), (e), (g) and (i) of this section:

(1) lack sufficient existing infrastructure to accommodate business development and, there are other areas of the applicant municipality that can be characterized by pervasive poverty, high unemployment, and general economic distress, are in need of economic revitalization, and could benefit from designation as an empire zone; or

(2) such additional area is necessary for a project and constructing the project in the three or six proposed distinct and separate contiguous areas, as the case may be, would be inconsistent with open space conservation and wetland protection; or

(3) lack sufficient acreage for further economic development.

Provided, however, such additional distinct and separate contiguous area shall not result in an empire zone that exceeds 1,280 acres.

(m) Any certified business located outside of an empire zone's distinct and separate contiguous areas, pursuant to this section, shall be allowed the empire zone benefits until they are decertified. Such status shall apply to an expansion of the certified business within the parcel or portion thereof that was originally located in the zone before redesignation. Each zone must identify any such business by December 30, 2005.

(n) The boundaries that comprise the distinct and separate contiguous areas must include at least the real property on one side of a public thoroughfare when such street is used as a boundary. No boundary shall be constructed as to connect one tax parcel to another tax parcel by using a thoroughfare's center line, sidewalk or other similar means of connecting a non-contiguous area to the zone's distinct and separate contiguous areas.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 10.4