Freedom of Information,
Government & Corporate Investigations
On Friday, June 12, 2020, New York State passed a package of police reform bills in response to weeks of widespread demonstrations. The reform measures (1) ban the use of chokeholds by law enforcement officers, (2) give the state attorney general power as a special prosecutor in cases of police-involved deaths, (3) ban false race-based 911 calls, and (4) repeal a controversial provision of state law — known as “Section 50-A” — which kept law enforcement officers’ disciplinary records confidential.
Section 50-A, which dates back to 1976, allowed police, fire, and corrections departments to keep disciplinary and personnel records secret. This effectively prevented the public from obtaining copies of such records under New York’s Freedom of Information Law. Thus, when assessing an instance of alleged police misconduct, Section 50-A made it more difficult to obtain copies of the involved officers’ disciplinary files, which made it more difficult to determine if that officer had been involved in other incidents in the past or had been the subject of prior investigations or disciplinary actions.
However, the repeal of Section 50-A makes those disciplinary records subject to Freedom of Information Law requests from journalists and the public, and therefore publicly available. Previously, such records were exempt from disclosure under Section 50-A because the Freedom of Information Law does not require state or local agencies to make records available if they are “specifically exempted from disclosure by state or federal statute.” Public Officers Law §87(2). The repeal of Section 50-A means that police disciplinary records can now be made public, including complaints that have not yet been substantiated.
Civil rights leaders have applauded these reforms, especially the repeal of Section 50-A, which was long-considered a barrier to holding public officials accountable for misconduct. Supporters of the reforms argue that the repeal of Section 50-A will restore and improve public faith in government and law enforcement communities, just as the Freedom of Information Law has done for several decades, by shinning a light on (and thereby allowing public scrutiny of) allegations of official misconduct. Opponents of these measures fear that making such records publicly available unnecessarily exposes police officers to risk, invasion of privacy, and stigma.
While politicians may debate the wisdom of repealing Section 50-A, one thing is certain: the public now has greater access to records which had previously, and for a long time, been shrouded in secrecy.
If you have questions about how to submit requests for, and obtain records under, the Freedom of Information Law, contact an experienced attorney for help!
A timely opinion article published by The Hill on June 10, 2020 reminds us of the ways that environmental justice issues are intertwined with the institutionalized disadvantages of certain groups, typically along racial and socioeconomic lines. These inequalities are not just economic, nor are they limited to issues involving our criminal justice system; rather, they intersect and affect a variety of public health and environmental issues, thereby perpetuating other inequalities and adversely affecting individual and group outcomes.
As a result of these existing inequalities, less affluent communities and communities of color tend to be disproportionately affected by certain environmental trends and tend to bear a disproportionate burden with respect to efforts to mitigate environmental damage or respond to environmental concerns.
The Covid-19 pandemic has exacerbated these issues and, together with the recent demonstrations around the world, have brought them to the forefront of our collective attention once again.
But this problem is not insurmountable. We can and should address environmental justice issues earlier and more frequently.
In some ways, though, the law already allows us to consider “environmental justice” issues. For example, when new major energy projects are being sited, parties typically raise concerns about environmental justice, and contribute evidence regarding the impacts of the proposed projects on environmental justice communities.
Local zoning laws can also be used to help separate industrial uses that pose a risk to human health from residential communities.
And environmental reviews can help identify potentially significant adverse impacts and help mitigate them to avoid causing or perpetuating harms.
Even where the law does not expressly require consideration of “environmental justice” issues, it is possible, when representing clients before government authorities, to frame issues in other ways, and to rely on other laws to protect clients’ rights and promote their interests, thereby decreasing a project’s harm on vulnerable communities.
If you believe that a proposed project or action raises an environmental justice issue, or disproportionately harms you and/or your community, contact an experienced environmental attorney for help.
Bridget O’Toole, Esq.,
Benjamin Wisniewski, Esq.
Under Article 10 of the Public Service Law municipal and local parties have the opportunity to participate in the siting process for major electric generating facilities. Because review of a large project can be complicated and costly, intervenor funds are available to offset the cost of participating in the process. The funds can be used to help defray the cost of retaining lawyers and technical experts. Funds are available regardless of whether a party supports, opposes, or is unsure about a project. 16 NYCRR 1000.10(b)(6). Municipal parties are entitled to at least 50% of the funds. PSL 164(6)(b).
Traditionally, the recipients of intervenor funds have been towns, counties, individuals, community groups and not-for-profit organizations with a special interest in the area. However, more entities are eligible for intervenor funds than those currently participating in Article 10 proceedings.
Generally speaking, all municipal and “local” parties are eligible for intervenor funds.
What is a Municipal Party for purposes of intervenor fund requests?
The Public Service Law defines Municipality as a “county, city, town or village located in this state.” PSL 160(1). Although counties and villages rarely request funds as municipal parties, they are certainly eligible.
What is a Local Party for purposes of intervenor fund requests?
Under the Public Service Law, “Local parties” are defined as “persons residing in a community who may be affected by the proposed major electric generating facility who individually or collectively seek intervenor funding.” Article 10 defines a “person” as any “individual, corporation, public benefit corporation, political subdivision, governmental agency, municipality, partnership, co-operative association, trust or estate.” PSL 160(3).
Under the broad definition of local parties, intervenor funding could be extended to planning boards, fire districts, water districts, school districts, and historic preservation boards, among others. And again, these entities rarely if ever participate in Article 10 siting proceedings.
Regarding recent changes to power plant siting law, it is important to note that regulations have not yet been promulgated for the Article 94-c siting process under the new Office of Renewable Energy Siting. Although intervenor funds are also available for municipal and public use under the Article 94-c process, regulations may circumscribe eligibility for, and use of, intervenor funds.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law or under the newly formed Office of Renewable Energy Siting, please contact Bridget O’Toole or Benjamin E. Wisniewski. The Zoghlin Group, PLLC represents individuals, groups, municipalities, and businesses with legal needs relating to power plant siting, environmental law, zoning and land use issues, and municipal law.
In response to inquiries on essential construction activities under Gov. Andrew M. Cuomo’s Executive Order 202.13 and Executive Order 202.6 limiting exempt construction activities to “essential” and emergency constriction, New York State Department of Environmental Protection’s (DEC) Division of Environmental Remediation issued guidance identifying the following remediation activities as essential construction:
Remedial construction activities, including new construction starts, at sites that DEC has determined pose a significant threat to public health and/or the environment, including Class 2 sites on the Registry of Inactive Hazardous Waste Disposal Sites and significant threat sites in the Brownfield Cleanup Program,
Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants, including completion of site cover systems,
Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment,
Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration,
Spill response actions, and
Investigation, including pre-design investigations, of petroleum and hazardous waste releases as determined by DEC on a case-by-case basis to be necessary to address potential human exposures and/or threat of significant contaminant migration.
DEC further clarified that these criteria are subject to change as response to COVID-19 continues. DEC’s guidance is available here.
The Zoghlin Group PLLC has experience representing municipalities, developers, contractors and property owners.& For help understanding your obligations under Executive Order 202.6 and 202.13 as it relates to remediation activities, construction and enforcement, please contact Bridget O’Toole, Esq. at The Zoghlin Group PLLC.
On March 30, 2020, Gov. Andrew M. Cuomo issued Executive Order 202.13 which, among other things, modified Executive Order 202.6 to clarify that only certain construction activities will be considered exempt from in-person restrictions as of March 28, 2020 and authorizing Empire State Development Corporation to determine which construction projects are “essential” and exempt from the in-person workforce prohibition.
Empire State Development’s guidance1 provides that:
All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.
This guidance appears to put the burden of enforcement on municipalities, which themselves are operating at reduced capacity, and leaves several questions unanswered:
Will the State or municipalities be primarily responsible for identifying non-compliant sites?
Who is responsible for shutting the site?
May deliveries to the site continue?
Who will be fined: The property owner? The developer? The general or sub contactors?
How are violations measured?
To the extent that construction is permitted as “emergency construction,” this will require a fact-specific analysis about whether the project is necessary to protect the health safety and welfare of the occupants or if it would be unsafe to allow a project to remain undone. What is unclear is who performs that fact-specific analysis: is it in the discretion of the general or sub-contractor performing the work or is it up to Empire State Development or the municipality to make that determination?
To date, there is no deadline to stabilize sites permitted as emergency construction or indication about how long non-essential construction activities will be prohibited. Requests for designation as an essential function for those projects not covered by Executive Order 202.6 may be made directly to Empire State Development.
The Zoghlin Group PLLC has experience representing municipalities, developers, contractors and property owners. For help understanding your obligations under Executive Order 202.6 and 202.13 as it relates to construction and enforcement, please contact Bridget O’Toole, Esq. at The Zoghlin Group PLLC.
By the end of 2020, more than 40 states could allow some form of legal marijuana / cannabis, including in more conservative jurisdictions, like North Dakota and Mississippi1. However, because possession of marijuana / cannabis remains illegal under Federal Law, these state-law developments could further increase confusion across the country about what is, and is not, legal.
Interestingly, states have approached legalization measures differently. Some jurisdictions — such as Washington, Colorado, Oregon, Alaska, California, Nevada, Maine, Massachusetts, Michigan, and the District of Columbia, to name a few — legalized recreational / adult-use marijuana / cannabis through citizen initiatives. By contrast, in 2018, Vermont became the first state to legalize recreational / adult-use marijuana /cannabis through legislative action (as opposed to through a citizen initiative). Many expect that New York State will soon legalize recreational / adult-use marijuana / cannabis through the legislative process in 2020, although a similar effort failed in 2019.
This growing trend towards legalization across the country begs the question: What are local governments doing to prepare?
In Maine – where state law requires municipalities to opt-in to allowing nonmedical marijuana businesses to operate – municipalities have been hesitant to fully embrace legalization due to concerns about regulatory and enforcement issues2. The experiences of local governments in states when marijuana is already legal can provide helpful lessons for municipalities in states considering legalization measures this year.
Some jurisdictions are already considering local laws to regulate the emerging industry, while others are preparing for legalization by amending their local zoning codes. On the other hand, many municipalities have held off on preparing for legalization altogether due to uncertainty about their options and what to expect.
However, with the New York State Legislature seemingly moving towards legalization this year, now is the time for local governments to consider what is in the best interests of their constituents and to identify options for regulating this growing industry.
Questions about how municipalities can prepare for marijuana / cannabis legalization, how they can adopt local laws to regulate it, and how they can use their zoning authority to exert control over this emerging business, can be complicated. That’s why it’s so important for local governments to seek guidance from experienced attorneys early in the process.
For inquiries related to Cannabis/Marijuana Law, and other Municipal Law issues, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.
On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order 202 (the “Order”)1. The Order found that “a disaster is impending in New York State, for which the affected local governments are unable to respond adequately” and, as a result, the Governor exercised his executive authority and declared “a Disaster Emergency in the State of New York.” Accordingly, the Governor invoked Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify Article 7 of the Public Officers Law, section 41 of the General Construction Law, and section 3002 of the Public Health Law “to the extent necessary to permit the Public Health and Health Planning Council and the State Emergency Medical Services Council to meet and take such actions as authorized by law, as may be necessary to respond to the COVID-19 outbreak, without meeting quorum requirements or permitting the public in-person access to meetings, provided that any such meetings must be webcast and means for effective public comment must be made available.”
In other words, the Order purports to suspend the “in-person” and quorum requirements of the Open Meetings Law for certain public health entities only, and only as may be necessary to respond to the COVID-19 outbreak. The Order was intended to ensure that such entities could continue to conduct necessary business during this period of public health concern. The Executive Order states that the suspension of those requirements is contingent on (1) such meetings being webcasted and (2) effective means being taken to facilitate public comment.
Although, at first, open government advocates may be concerned about this purported suspension of the “in-person” and “quorum” requirements of the Open Meetings Law, the scope of the Order appears to be limited.
Following the Governor’s emergency declaration and Order, the New York State Committee On Open Government (the “COOG”) issued a guidance regarding the Open Meetings Law’s “In-Person” requirement as it relates to the Novel Coronavirus (the “Guidance”). The Guidance was issued in response to multiple inquiries regarding whether public entities may obtain a “waiver” of the requirement that the public be permitted to attend open meetings “in-person” in light of concerns about the novel coronavirus (also known as “COVID-19”).
The COOG’s Guidance emphasizes that, when drafting the Open Meetings Law (the “OML”), the New York State Legislature did not anticipate the potential need for exceptions to the “in-person” requirement. Accordingly, the Guidance admits that the “Committee does not have jurisdiction to grant waivers from legal requirements … [because] there is no provision for obtaining a ‘waiver” [from the ‘in-person’] … requirement under the law.”
As this is a developing issue, New York courts have not yet addressed whether the purported “suspension” of the “in-person” requirement is permissible. Nevertheless, the Committee’s Guidance takes the position that “judicial review of an alleged violation of the OML by a public body will take into consideration that body’s desire to protect public health while continuing to perform necessary government functions. Under such circumstances, though, the staff of the Committee recommends that if any public body determines that limiting public in-person access to an open meeting is necessary given the current public health threat, those bodies should otherwise comply with the provisions of the OML regarding making meetings public through technology and also limit discussions and actions taken to those matters for which harm would be caused by delay in order to mitigate potential impact on constituents.”
As the Open Meetings Law does not provide a statutory basis for suspending the “in-person” requirement, and because courts have not yet weighed-in on whether the Governor’s Order purporting to suspend that requirement is legally permissible, Public Bodies should be very cautious to ensure that they do not violate the Open Meetings Law. Accordingly, any reliance on the Committee’s Guidance and/or the Order should be narrowly construed and applied in a limited and responsible manner, taking into account the legal risks involved in taking actions that appear to contravene statutory language.
If Public Bodies are concerned about the impacts of open meetings on public health, such bodies should consider seeking and following the advice of public health experts, even if that means cancelling or rescheduling non-essential open meetings. This would be especially appropriate if the issues to be addressed are not urgent and do not relate to public health/safety or necessary government functions. By working with medical professionals, public health experts, lawyers, and relevant government entities, public bodies can help reduce the risks to their community while ensuring that they comply with the law.
Governor Cuomo has proposed major changes to the way power plants are sited in New York State. The draft legislation is available here and here. The law is sweeping in its scope and changes all aspects of power plant siting including permitting and approval, the role of local zoning laws, land acquisition, environmental review, and creation of PILOT and Host Community Benefit Agreements. The Law Firm Hodgson Russ recently published an excellent summary of the changes (available here).
This blog explains some of my concerns about the structure and impact of the new proposed law. I have significant concerns about the proposed law and believe it will benefit energy companies to the detriment of local governments and citizens. I also question whether the proposed law is a solution in search of a problem—Article 10 is finally a mature process capable of siting hundreds of projects by 2030. By replacing a mature process (Article 10) with an entirely new, untested, and unfamiliar set of processes, the proposed law may have the unintended consequence of slowing down power plant siting and making it harder for the state to achieve its 70x30 renewable energy goal.
The evidence indicates the Article 10 siting process is working well and should not be replaced. An analysis of the list of active and approved projects under Article 10 proves this point. The full list of active projects is available here. The following facts are relevant to this discussion:
56 major renewable energy projects (wind and solar) have currently been proposed or approved. This demonstrates that many developers are using the existing process and have already invested significant time and resources in learning how to navigate Article 10.
In 2017 a total of 10 projects were proposed, in 2018 a total of 9 projects were proposed, in 2019 a total of 18 projects were proposed, and so far, in the first 2 months of 2020 a total of 7 projects have been proposed. This shows the application rate is accelerating.
5 of projects on the list have been approved so far, including 1 in 2018 and 4 in 2019. This demonstrates the approval rate is also accelerating. I expect another 4 to be approved this year. The number of approved projects will start skyrocket in 2021 and moving forward.
In a previous blog I acknowledged the governor is upset by the slow pace of project approval since 2011, but the bottom line is that the pace of application and approvals is actually accelerating. Siting enormous multi-town energy projects is a complex process. The Article 10 siting procedure took time to spin up, but has come a very long way since 2011. Applicants, judges, towns, public intervenor groups, and the Siting Board have all played a vital and important role in creating regulatory and legal framework that furthers the state’s energy goals while identifying and mitigating local siting impacts. All of this means regulatory certainty for developers, which is precisely what the state would forfeit if it were to pursue the new and more complicated approval process proposed in the budget amendment.
In addition to being unnecessary, the proposed siting process will undermine the role of municipalities and the public in the power plant siting process. My discussion of the four most negative impacts follows:
The proposed changes are inconsistent with Home Rule and remove all local land-use control for power plants, transmission lines, and battery storage projects greater than 10 mw in size. This is achieved through broadening the definition of an “unreasonably burdensome” local law to mean inconsistent with state energy goals.
The proposed changes will result in financial benefits to energy developers at the expense of local governments. The changes will cap and standardize PILOT and Host Community Benefit Agreements, standardize the methodology for assessing property improved by wind and solar energy, and create standard approval conditions that could eliminate a municipality’s ability to identify and study the problems that require mitigation.
The proposed changes will alienate local constituents by excluding them from the siting process entirely. Individuals and public interest groups are now excluded from the Siting Proceeding. This is a complete reversal of one of Article 10’s two primary goals, which is to facilitate meaningful public participation in the siting process. Because municipalities retain the right to be parties to the new siting proceeding, it is likely local governments will be inundated by angry constituents demanding action and updates.
The proposed changes will exempt developers from a rigorous review of local environmental impacts through reliance on standard conditions and automatic approval provisions.
The Article 10 process is just now hitting its stride. It would be foolhardy for the state to abandon it now. Implementation of the proposed law will be even more complicated than Article 10, and will result in numerous obstacles by creating new agencies, staffing, rulemaking, and inevitable litigation. Even after the new process is in place, it will likely take years for parties, agency staff, and energy companies to work the kinks out of the process.
Ultimately, lawmakers should realize that by voting to jettison Article 10, they are really voting for even more delay in siting power plants. Given the climate crisis, can the State afford to wait another 9 years for the new, even more complicated siting process to be up to the task?
For inquiries about the process for siting large power plants in New York State, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
On February 7, 2020, the Siting Board announced a meeting to adopt emergency changes to the Article 10 regulations. The notice is available here. Later, on February 11, 2020, the Siting Board issued a memorandum describing the rule changes, available here. The Siting Board adopted the changes on February 13, 2020. The new rules change the definition of a “revision” to an application, thereby hurting the ability of municipal and intervenor parties to seek additional intervenor fund payments or extension of the 1-year deadline for adjudication. The changes also appear to limit the review of impacts on wetlands, specifically by limiting the review of wetlands to areas within 100 feet of project components. The existing standard is 500 feet.
I have concerns about the impetus for, and effect of the proposed changes. I also question whether the emergency rulemaking procedure is justified given the lack of any discernible emergency.
The remainder of this blog provides an excerpt from a joint letter I drafted to Chairman Rhodes on Feb. 12, 2020, voicing opposition to the emergency rulemaking. I drafted the letter in conjunction with numerous attorneys who work on Article 10 cases:
The Siting Board has failed to demonstrate public health, safety, or the general welfare would not be preserved in the absence of emergency rulemaking procedures. Under SAPA §202(6)(c), “if an agency finds that the immediate adoption of a rule is necessary for the preservation of the public health, safety or general welfare and that compliance with the requirements of subdivision one of this section would be contrary to the public interest, the agency may dispense with all or part of such requirements and adopt the rule on an emergency basis.”
In support of its Emergency Rule, the Siting Board claims “unintended consequences” and “construction delays” arising from the regulatory definition of an application revision. The Siting Board states that the definition has resulted in “administrative process . . . jeopardize[ing] completion of one renewable energy project and can potentially discourage more.” The Siting Board alleges the definition of revision is resulting in “costly administrative litigation,” and causing “regulatory delays.” It concludes, “[a]bsent this emergency rulemaking, then, the State’s goals for deployment of renewable energy resources and reduction of greenhouse gases would be impeded.”
None of these cited reasons constitutes threats to public health, safety or general welfare. Instead, the Siting Board focuses on the concerns of Article 10 applicants, and claims applicants, not the public, could be financially harmed by the allegedly slow pace of Article 10 proceedings. We believe that risk of financial harm to private corporations, or loss of federal tax credits, does not justify application of emergency rulemaking procedures in the name of the public welfare.
Furthermore, obstacles to implementation of state energy goals are not “emergency” circumstances pursuant to SAPA § 202(6). These obstacles did not cause, and cannot remedy, the climate crisis. If the climate crisis itself caused the emergency the proposed rules address, that explains too much: all proposals to diminish public participation, reduce costs for developers, or shorten project reviews will warrant emergency rulemaking under this reasoning.
The desire for immediate carbon mitigation cannot be allowed to overwhelm the detailed review of local environmental impacts required by Article 10. Public and municipal intervenor parties play a vital role in identifying environmental impacts that state agencies lack the time and resources to address. The proposed regulatory changes will only serve to reduce the amount of intervenor funds available to parties, and increase the likelihood that serious and avoidable environmental impacts will slip through the cracks. The proposed changes will reduce the efficacy of the deployment of remaining funds, while making requests for extension of litigation schedules less likely to be approved. The changes will substantially impede Article 10’s public participation mandate, while virtually ensuring even lighter review of environmental impacts than is currently taking place. The proposed changes do not remedy an emergency, but they may well cause one.
For the forgoing reasons, the undersigned attorneys and the intervenor parties they represent respectfully request the Siting Board abstain from adopting the emergency rules set forth in the Draft Memorandum and Resolution filed on February 11, 2020 (DMM Item No. 3).
The full letter is available on the DMM docket for the rulemaking case, available here.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
During his annual budget address, Governor Cuomo expressed concern over the slow speed of the Article 10 power plant siting process. He proposed modifications to site more projects more quickly.
Specifically, the Governor noted, “We have to do it faster. It currently takes five to 10 years to begin constructing a new energy project. You can’t have the goals we have and then have a system of bureaucracy that takes five to 10 years to start a new energy project. It just does not work.” More information about the Governor Cuomo’s comments is here.
In response to the Governor’s comments, I would respectfully point out that Article 10 is not the only reason it takes 5-10 years to build power plants in New York. Developers spend much of that time acquiring land rights before the Article 10 process even starts. Changes to Article 10 would have no impact on reducing the years of land-leasing that occurs on the front end of any project. In addition, applicants control the duration of pre-application negotiations, a significant source of delay in many Article 10 proceedings.
I also take personal exception to the idea that Article 10 is not working. There are currently about 40 major projects under consideration. In just the past year Baron Wind, Eight Point Wind, Number Three Wind, and Bluestone Wind have been approved. Other projects such as Canisteo Wind and Alle-Catt are hot on their heels. So far, the Siting Board has not denied a single application.
Having gained substantial first-hand experience with the Article 10 siting process, I am well aware of its flaws. But the slow-pace of the proceedings is not one of them. If anything, additional time is needed to develop a complete record relating to the many local environmental and economic impacts associated with large-scale renewable energy development.
It may be time for New Yorkers to consider arguing Article 10 should not be changed. In its current form the law at least provides funding for parties to participate and create a record for judicial appeal. I would argue that this is good enough to serve the purposes of municipalities and intervenor parties who want to take a hard look at environmental impacts.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
On November 18, 2019, the New York State Bar Association’s Committee on Professional Ethics (the “CPE”) issued an opinion that “lawyers may assist clients in complying with New York’s medical marijuana laws,” even though marijuana/cannabis remains illegal under federal law.1
The CPE reasoned that, although Rule 1.2(d) of the New York Rules of Professional Conduct (the “Rules”) states that “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal,” a lawyer may generally advise a client about the reach of the law, and therefore “may give advice about whether undertaking to manufacture, transport, sell, prescribe or use marijuana in accordance with” New York’s regulatory scheme would violate federal narcotics law.
The CPE further explained that, although manufacturing, transporting, selling, and using marijuana/cannabis remains illegal under federal law, Rule 1.2(d) should not be interpreted as prohibiting attorneys from advising clients on how to comply with the state marijuana/cannabis law. The CPE explained that “the situation is different where the state executive branch determines to implement the state legislation by authorizing and regulating medical marijuana, consistent with current, published federal executive-branch enforcement policy, and the federal government does not take effective measures to prevent the implementation of the state law.”
Under those circumstances, the CPE framed the question as: “whether a lawyer may assist in conduct under the state medical marijuana law that the lawyer knows would violate federal narcotics law that is on the books but deliberately unenforced as a matter of federal executive discretion.”
In concluding that lawyers may assist clients in complying with New York’s medical marijuana laws, the CPE explained that, in adopting Rule 1.2(d), “our state judiciary [did not mean] … to declare a position on this [cannabis] debate or … to preclude lawyers from counseling or assisting conduct that is legal under state law.”
In reaching its opinion, the CPE noted that “Not only does the DOJ continue to permit states to implement their medical marijuana laws, but federal legislation now prohibits the DOJ from preventing states from doing so.”
Accordingly, the CPE reaffirmed its opinion from 2014 (CPE Opinion 1024 (2014)) that “a lawyer may ethically assist a client in conduct designed to comply with New York’s medical marijuana law” and expressly stated that “the Rules permit lawyers to give legal assistance regarding the [Compassionate Care Act (New York’s medical marijuana law)] that goes beyond a mere discussion of the legality of the client’s proposed conduct.”2
The CPE’s November 2011 opinion therefore reaffirms that attorneys in New York State may ethically advise clients on how to comply with New York’s marijuana/cannabis laws, and implies that an attorney who does so will not have to risk his/her law license in the process.
See New York State Bar Association’s Committee on Professional Ethics Opinion 1177 (2019) (Citing CPE Opinion 1024 (2014)) (“Implicitly, the state law authorizes lawyers to provide traditional legal services to clients seeking to act in accordance with the state law. . . . Nothing in the history and tradition of the profession, in court opinions, or elsewhere, suggests that Rule 1.2(d) was intended to prevent lawyers in a situation like this from providing assistance that is necessary to implement state law and to effectuate current federal policy.”)
According to a 2019 report, the Metropolitan Transit Authority’s (“MTA”) Traffic Mobility Review Board (“TMRB”) will meet behind closed doors to consider how best to institute “congestion pricing.”1 According to the MTA, the TMRB — which is tasked with recommending toll prices for drivers entering Manhattan’s central business district — is not subject to New York State’s Open Meetings Law.
A spokeswoman for the MTA argued that TMRB’s meetings do not need to be open to the public because the TMRB won’t be performing “governmental action subject to the Open Meetings law.” The MTA’s position that the TMRB may conduct business behind closed doors, coupled with the fact that the TMRB’s recommendation won’t be released until after the 2020 state legislative elections, have led to criticism that the TMRB’s recommendation and process will lack transparency. It also highlights an interesting issue regarding what entities are subject to New York’s Open Meetings Law.
With limited exceptions for “executive sessions,” the Open Meetings Law provides that “every meeting of a shall be open to the general public.”2 Accordingly, the question of whether the TMRB is subject to the Open Meetings Law turns, at least in part, on whether the TMRB qualifies as a “public body.” If the TMRB is not a “public body,” or if its gatherings do not constitute “meetings,” then it is not subject to the Open Meetings Law.
Under the Open Meetings Law, a public body is defined as “any entity, for which a quorum is required in order to conduct business and which consists of two or more members, performing a for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body.”3
Using this standard, courts have held that an entity that exercises only an advisory function does not qualify as a under the Open Meetings Law.4 Therefore, in considering whether an entity is subject to the Open Meetings Law, Courts look at whether the entity has power on its own to implement its recommendations.5
On the other hand, even where an entity purports to be merely advisory and does not wield the powers of other municipal departments, Courts have held that such entities are nonetheless “public bodies” for purposes of the Open Meetings Law where “it is clear that their recommendations have been adopted and carried out without exception.”6
Accordingly, the question of whether the TMRB is subject to the open meetings law may turn not only on its formal authority, but also on whether its recommendations are rubberstamped, modified, or investigated further by the decision-making entity.
The lesson from this is clear: an entity that is technically only advisory may nonetheless become subject to the Open Meetings Law if its decision end up getting rubberstamped. In other words, if a Court finds that an advisory body’s recommendations are being adopted and carried out without exception (i.e., if the Court finds that the advisory entity is the one that is really calling the shots), then it may determine that the advisory entity is performing a governmental function, that it constitutes a “public body” under the Open Meetings Law, and therefore that its meetings must be open to the public.
Accordingly, the MTA should be very careful about how it handles the TMRB’s recommendations. As explained above, a decision to rubberstamp the TMRB’s recommendations, without public hearings and debate, may inadvertently strengthen the position of those arguing that the decision to allow the TMRB to meet behind closed doors violates the Open Meetings Law. If that happens, the TMRB could be found guilty of Open Meetings Law violations, have a decision on its recommended “congestion pricing” annulled, and/or be ordered to pay the prevailing party’s attorneys’ fees under Section 107 of the Public Officers Law. These factors both incentivize government actors to err on the side of complying with the Open Meetings Law and provide those excluded from such public meetings with a viable path to vindicating any violations thereof.
If you have questions about whether an entity or board in your area is subject to the Open Meetings Law, and whether you have the right to attend such meetings, an experienced attorney may be able to help. If you are a member of such a board, it’s important to err on the side of transparency and public access so that you don’t wind up getting sued for violating the Open Meetings Law.
Even in states where Cannabis has not yet been legalized for recreational or adult use, many municipalities are starting to consider what they need to do to prepare themselves for legalization. For example, according to recent news reports, local health and criminal justice officials in Philadelphia, Pennsylvania have started to prepare for Cannabis Legalization. “Philadelphia experts in psychiatry, public health and law enforcement — including District Attorney Larry Krasner — are taking a ‘not if, but when’ approach.”
Philadelphia has already started examining cannabis legalization efforts in other states and municipalities, and is looking at new research regarding the impacts of legalization, in order to learn from those experiences. For instance, many jurisdictions have explored social justice reforms to correct the disproportionate impacts that cannabis criminalization has historically had on minority populations, and are looking at what can be done at the local level to protect against cannabis use by youths. Other jurisdictions, such as the City of Los Angeles, California have adopted Social Equity Programs “to promote equitable ownership and employment opportunities in the cannabis industry in order to decrease disparities in life outcomes for marginalized communities, and to address the disproportionate impacts that cannabis criminalization has had in those communities.”
The preparation for cannabis legalization in Philadelphia is particularly interesting given the conventional wisdom that New York and New Jersey will adopt such legalization legislation before Pennsylvania. This begs the question, why haven’t more municipalities in New York State started to prepare for state-wide legalization / cannabis reform?
Regardless of whether your local government wants to welcome the cannabis industry or protect against its perceived risks, local action can help prepare for what appears to be inevitable: large scale cannabis reform, and legalization for adult use, in New York State.
As our earlier blog post explained, New York State seems to be on the verge of passing comprehensive cannabis/marijuana reform legislation. This presents several new legal issues for municipalities, including questions about how to regulate the emerging industry. Local governments will likely be interested in regulating a variety of different areas of this emerging industry, including cultivation, sale, and use:
Cultivation: Where should cultivation be allowed and who should be allowed to grow cannabis/marijuana? Should growers be required to obtain a permit? Should it be confined to indoor facilities, or should outdoor cultivation be allowed? Should plant or flower-based cultivation be treated differently from edible, tincture, wax, and oil products?
Sale: Where should the sale of cannabis/marijuana be allowed? Should there be a limit on how much can be purchased at given time? Should the sale it be permitted everywhere or only in certain zoning districts? Should vendors be required to obtain a permit? If so, will the number of such permits be limited? What will the procedure be for obtaining such a permit? Who will decide if a permit should be issued? Will permits be granted “as of right,” or will the issuance of such permits be discretionary? Will there be a right to appeal an initial denial of such a permit? Can the denial of an administrative appeal be challenged in court?
Use: Should municipalities impose higher restrictions on use than those imposed by state or federal law (e.g., restricting use to those over the age of 21 or 25 rather than 18, etc.)? Should public use be limited (like alcohol)? Should use be permitted only on private property? Should smoking be treated differently than vaping? Should use of tinctures and edibles be treated differently? Should only dispensaries be permitted, or should social lounges or marijuana bars also be permitted?
Although some of these issues may be addressed by the forthcoming State legislation (therefore pre-empting local regulation of the same issues), other issues will likely be left to local governments to regulate. And while the nuances of these issues may vary from place to place based on policy considerations, the mechanism by which municipalities address these issues will likely be the same: through local laws. Accordingly, careful consideration of how local laws will regulate cannabis/marijuana will be extremely important, especially in the early days after state and/or federal legalization. If municipalities want to be able to effectively address these issues through local laws, they will need to ensure that such regulations are properly drafted, and that the procedures used to adopt them can survive legal scrutiny.
If your municipality has not yet prepared for state-wide legalization, it should consult with an experienced attorney for help, particularly with respect to zoning, land use, and municipal law issues.
Across the United States, more and more states have enacted (either through the legislature or through ballot initiatives) cannabis/marijuana decriminalization laws, medical marijuana laws, and even adult use (sometimes known as “recreational”) marijuana laws. The national trend suggests that we may see wide-scale legalization sooner than many expect, even at the federal level. However, until the federal government takes action, cannabis/marijuana remains a Schedule I narcotic under the Controlled Substances Act, and is therefore illegal to cultivate, sell, and possess.
Here in New York, though, leaders at the highest level of political office have expressed varying degrees of support for such measures. Together, these factors suggest that municipalities, businesses, vendors, and farmers will soon be faced with a myriad of legal issues that they’ve never dealt with before. That’s why The Zoghlin Group is rolling out a series of blogs identifying and discussing some of the legal issues related to cannabis/marijuana here in New York.
Although cannabis/marijuana reform legislation has not yet passed in New York State, many local governments have already started to think about how legalization could affect them. For municipalities, the question will be how to regulate this new industry. The scope and content of such regulations will depend on what laws and regulatory systems New York State adopts, and whether state laws pre-empt local laws and regulations. Nonetheless, it’s likely that municipalities will retain authority to regulate specific areas of this emerging industry, such as through zoning and land use laws.
If your municipality has not yet prepared for state-wide legalization, it should consult with an experienced attorney for help, particularly with respect to zoning, land use, and municipal law issues.
Many people have heard of New York’s Freedom of Information Law (“FOIL”) and its federal counterpart, the Freedom of Information Act (“FOIA”), but few understand how it works in practice or how to enforce the rights that those laws grant. At its core, FOIL gives the public the right to access agency records and requires agencies to “make available for public inspection and copying all records” unless specifically excepted from disclosure.
FOIL applies to every New York State and municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function. All agencies must accept written FOIL requests, and most also accept FOIL requests submitted via email or online.
When possible, FOIL requests should be directed to the agency’s “records access officer.” A FOIL request should clearly identify the documents sought, and state at the beginning that the request is made pursuant to the Freedom of Information Law. When the request is made by email, the subject line should indicate that the email contains a “FOIL Request.” This ensures that the request is seen by the proper agency personnel and is evaluated in accordance with the agency’s established FOIL procedures. This type of explicit language can also be useful in proving that the request was made pursuant to FOIL, which may come up if the requester needs to administratively appeal a FOIL denial or needs to commence an Article 78 Proceeding to compel disclosure of the requested record(s).
In preparing a FOIL request, the requester should also make sure that he or she is being as clear as possible. FOIL requests must “reasonably describe” the records sought so that the agency can properly determine what records are responsive to the FOIL request. However, the Court of Appeals has clarified that “demands under FOIL need not meet the stringent requirement under CPLR §3210 that documents be ‘specifically designated,’” meaning they need not be as descript as discovery demands in litigation. Thus, an agency may request clarification if a FOIL request is so vague that the agency is unable to determine what records are responsive. However, an agency should be careful not to deny a FOIL request on the basis that the records sought are not “reasonably described,” because the agency bears the burden of proving that a FOIL request was not “reasonably described.” Accordingly, the better course of action is for requester to be as specific as possible in his or her request, and for the agency to request clarification when needed.
If you are unsure of how to properly frame or submit your FOIL request, or if you believe your FOIL request was improperly denied, you should contact an experienced attorney for help.
Likewise, if you are concerned about how a potential FOIL violation may affect you or your business, would like help submitting a FOIL request or appeal, would like to challenge a FOIL denial in court, or if you are a member of a local government or government agency that has been accused of a FOIL violation, be sure to contact an experienced attorney for guidance.
For inquiries related to the Freedom Of Information Law, the Freedom of Information Act, the Open Meetings Law, and other Municipal Law issues, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.
See Public Officers Law §87(2).
See Public Officers Law §86(3).
See Konigsberg v. Coughlin, 68 N.Y.2d 245, 249 (1986) (“Konigsberg”); Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 82-83 (1984) (“Farbman”).
The Green Innovation Grant Program (GIGP) program, which is administered by the Environmental Facilities Corporation, provides grants on a competitive basis to projects that improve water quality and implement green infrastructure in New York State. In 2019, $15 million of grant funding was available for eligible projects through this program.
Eligible projects must provide improvement or protection of water quality through one of the following eight specific green infrastructure practices, including bioretention, downspout disconnection, establishment or restoration of flood plans, riparian buffers, streams or wetlands, green roofs and green walls, permeable pavements, stormwater harvesting and reuse, and stormwater street trees/urban forestry programs designed to manage stormwater.
GIGP will give priority to larger projects that improve water quality through the incorporation of green infrastructure. In addition, priority will be given to projects that demonstrate the effectiveness of green infrastructure in a natural environment, such as flood plains, riparian buffers, streams, and wetlands.
Eligible applicants include municipalities, private entities, state agencies, and soil and water conservation districts.
All applicants must submit a conceptual site plan, existing conditions plan, a feasibility study, and site photographs with their Consolidated Funding Application (CFA). Minimum content requirements for the feasibility study, conceptual site plan, and existing conditions plan, are included in the CFA and can also be found at: www.efc.ny.gov/gigp
Eligible projects must provide improvement or protection of water quality through one of the following eight specific green infrastructure practices, including bioretention systems, downspout disconnection, establishment or restoration of flood plans, riparian buffers, streams or wetland flood plans, wetlands and constructed wetlands, permeable pavements, and stormwater harvesting and reuse rain barrels and cisterns.
Ineligible activities and costs include, but are not limited to, the following:
• Hardening, channelizing or straightening streams and/or stream banks;
• In-line and end-of-pipe treatment systems that only filter or detain stormwater;
• Stormwater controls that have impervious or semi-impervious liners and provide no compensatory evapotranspirative or harvesting function for stormwater retention;
• Stormwater conveyance systems that are not soil/vegetation based (swales) such as pipes and concrete channels;
• Stormwater ponds that serve an extended detention function and/or extended filtration, including dirt-lined detention basins;
• Underground stormwater control and treatment devices such as swirl concentrators, hydrodynamic separators, baffle systems for grit, trash removal/floatables, oil and grease, inflatable booms and dams for in-line underground storage and diversion of flows;
• Green infrastructure practices which are being implemented to comply with the requirements of the New York State Department of Environmental Conservation SPDES General Permit for Stormwater Discharges from Construction Activity Permit;
• Wetlands construction or restoration required as compensation (mitigation) for adverse impacts to wetlands or other environmental damage caused through construction activities. This ineligible category includes both tidal and freshwater wetland mitigation projects;
• Purchase of Capital equipment such as street sweepers, sewer cleaners, and vactor trucks; and
• Project costs not directly attributable to water quality.
Grants available through the GIGP will be available to cover a minimum of 40% up to a maximum 90% of the total eligible project costs as estimated in the application. A match from state or local funds for the balance of the estimated project cost is required.
Applicants must also be willing to comply with the following criteria, if awarded:
Completing all State environmental and historic preservation reviews i.e., SEQR and SHPO;
Providing a detailed final budget and plan of finance to show that sufficient funding has been secured to provide for the local match requirement and total project cost;
Obtaining EFC approval of final Feasibility Study;
Submitting proof of the legal right to own, operate and maintain the project for the duration of its useful life; and
Compliance with Minority Women Based Enterprises (MWBE) requirements.
Applicants must complete and submit a Consolidated Funding Application (CFA) for review in Regional Economic Development Council for the region in which the proposed project is located. The last grant cycle closed on July 26, 2019.
Examples of Projects Utilizing GIGP Grant Funds
GIGP grant funds have been used by municipalities, private entities, state agencies, and soil and water conservation districts to implement significant water quality and implement green infrastructure improvements across New York State.
For example, the Village of Ilion in Herkimer County received $2,500,000 in 2018 for its Steele Creek Flood Plain Stream Channel Restoration project. GIGP funds will be used to restore the nature stream channel and floodplains along the creek, increase flood conveyance, and reduce destructive flooding.
Additionally, the Town of Hempstead in Nassau County received $433,000 to undertake a salt marsh restoration project to combat erosion in High Meadow Island and Smith Marsh.
For more information about the Green Innovation Grant Program, or for inquiries related to its potential benefits or how to apply, please contact Frances Kabat, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.
In 2019, $150 million of capital grant funding was made available to Empire State Development (ESD) from the Regional Council Capital Fund. This grant provides funds annually for regional and local economic development across New York State.
ESD grant funding is available for capital-based economic development projects intended to create or retain jobs; prevent, reduce or eliminate unemployment and underemployment; and/or increase business or economic activity in a community or Region.
Grant funding will be allocated among the ten regions, each represented by a Regional Council, based on each Regional Council ‘s development and implementation of a five-year strategic plan. Funding will be allocated to projects, including priority projects identified by the Regional Councils, identified as significant, regionally supported and capable of stimulating economic investment.
Eligible applicants include: for profit businesses, not-for-profit corporations, business improvement districts, local development corporations, public benefit corporations, economic development organizations, research and academic institutions, incubators, technology parks, municipalities, countries, regional planning councils, tourist attractions, and community facilities.
Generally, applicants should not apply for, nor will be considered for, more than twenty percent (20%) financing for any particular project based on the eligible total project cost. ESD requires that the Applicant contribute a minimum of ten percent (10%) total project cost in the form of equity contributed after Applicant’s acceptance of ESD’s incentive proposal.
Applicants must complete and submit a Consolidated Funding Application (CFA) for review by ESD and the Regional Council for the region in which the proposed project is located. The last grant cycle closed on July 26, 2019.
Business Investment: Business investments are capital expenditures that facilitate an employer ‘s ability to create new jobs in New York State or to retain jobs that are otherwise in jeopardy. Five-year job commitments will be required of all award recipients because it is by underwriting these job commitments that ESD is best able to forecast the economic benefits of providing assistance to any particular project.
Note: Applicants will be required to commit to the number of jobs at risk (of relocation or loss) that will be retained by the proposed project, the number of net new full-time jobs that will be created by the project, and the average salaries of each. Failure to achieve or maintain these employment commitments will subject a funding recipient to potential recapture of awarded grant funds.
Infrastructure Investment: Funds may be used to finance infrastructure investments in order to attract new businesses and expand existing businesses, thereby fostering further investment. Infrastructure investments are capital expenditures for infrastructure including transportation, parking garages, water and sewer, communication, and energy generation and distribution. Infrastructure Investment projects may also include planning or feasibility studies relating to a specific capital project or site. Infrastructure investment projects that are able to provide job commitments will be viewed favorably.
Note: (1) few infrastructure investment projects are anticipated to be able to provide job commitments and (2) if the employer will be an entity other than the Applicant, a third party guarantee of the Applicant‘s job commitment must be provided by the prospective employer and both the prospective employer and the third party guarantor must be found by ESD to be creditworthy.
Economic Growth Investment: An Economic Growth Investment initiative fosters economic growth through cultural activity, higher education activity, regional revolving loan and grant programs, agribusiness initiatives, other local or regional initiatives, planning or feasibility studies relating to a specific capital project or site, improvements to facilities in highly distressed areas, commercial revitalization activities in central business districts or commercial strips, or other types of projects that may not have direct job creation goals. Economic Growth Investment projects that are able to provide direct job commitments will be viewed favorably.
How Funding May Be Used
Funds may be used for:
Acquisition of land, buildings, machinery and/or equipment;
Demolition and environmental remediation;
New construction, renovation or leasehold improvements;
Acquisition of furniture and fixtures;
Soft costs of up to twenty-five percent (25%) of total project costs; and
Planning and feasibility studies related to a specific capital project or site.
Examples of Projects utilizing ESD grant funds
ESD grant funds have been used to help fund a wide range of innovative projects around New York State.
For example, in 2018, City Harbor LLC was awarded a $1,355,018 ESD grant for construction/renovation to help develop a multi-phase waterfront redevelopment project at the Southern Tip of Cayuga Lake in Ithaca. The Project will include new housing, a restaurant, seawall construction, new boat slips, broadened marina functions, connections to trails and a medical office building.
Additionally, in 2018, Damiani Wine Cellars was awarded three ESD grants, for 1) $200,000 for construction and renovation, 2) $34,000 for equipment and machinery, and 3) $324,400 for property acquisition. These funds are being used to grow three area wineries (Damiani, Osmote, and Nine-Four Wineries), allowing them to increase production and storage of cased goods. The property acquired for the project will be conditioned and planted to high-value grapes, which will be sold to Finger Lakes wineries.
What is the Downtown Revitalization Initiative (DRI)?
The Downtown Revitalization Initiative (DRI) was launched in the Spring of 2016. Every year, following a comprehensive application and review process, each of New York State’s ten Regional Economic Development Councils select one community in their area to receive a $10 million award (for a total of ten awards statewide per year).
The New York Secretary of State chairs the DRI, which is supported by Empire State Development and a state agency team comprised of personnel from the Department of State and the Homes and Community Renewal division of the NYS Department of Health and Human Services. Other state agencies provide assistance with the review and implementation of projects.
How are DRI Nominees Selected?
Regional Economic Development Councils (REDCs) consider seven criteria when selecting award recipients:
The downtown should be compact, with well-defined boundaries;
The downtown is able to capitalize on prior, or catalyze future, private and public investment in the neighborhood and its surrounding areas;
There should be recent or impending job growth within, or in close proximity to, the downtown that can attract workers to the downtown, support redevelopment and make growth sustainable;
The downtown must be an attractive and livable community for diverse populations of all ages, including existing residents, millennials and skilled workers;
The municipality should already embrace, or have the ability to create and implement, policies that increase livability and quality of life, including the use of local land banks, modern zoning codes and parking standards, complete streets plans, energy efficient projects, green jobs and transit-oriented development;
The municipality should have conducted an open and robust community engagement process resulting in a vision for downtown revitalization and a preliminary list of projects and initiatives that may be included in a DRI strategic investment plan; and
The municipality has identified transformative projects that will be ready for implementation with an infusion of DRI funds within the first one to two years.
Once a community is selected by the REDC, a Local Planning Committee (LPC), comprised of local leaders, stakeholders and key government officials is established to oversee the development of a strategic plan for downtown revitalization.
Which Communities Have Received the DRI?
The 30 past awardees for the DRI, listed by region, are set forth in the table below:
City of Geneva, City of Batavia, Village of Penn Yan
City of Elmira, Village Watkins Glen, Town of Owego
City of Jamestown, City of Olean, City of Lockport
City of Oswego, City of Cortland, City of Auburn
City of Plattsburgh, City of Watertown, Village of Saranac Lake
City of Oneonta, City of Rome, City of Amsterdam
City of Glens Falls, City of Hudson, City of Albany (Clinton Square)
City of Middletown, City of Kingston, City of New Rochelle
New York City
Jamaica, Queens, Bronx Civic Center, Downtown Brooklyn
Village of Westbury, Hicksville (Town of Oyster Bay), Central Islip (Town of Islip)
Round Four applications1 were due at the end of May 2019. So far, the following communities have received awards during Round Four of the DRI:
Western New York
Niagara Falls Bridge District
Central New York
New York City
The DRI offers an exciting opportunity for communities across the state to obtain a needed infusion of capital to support revitalization efforts and can help transform community aspirations into a reality.
For example, the Clinton Square Neighborhood in the City of Albany is using its 2018 DRI award to create a welcoming gateway to the capital city. DRI funds will be used for variety of projects, including visual and safety improvements to the neighborhood’s streetscape, construction of Clinton Square Studio, a six-story mixed-use building consisting of 70 affordable live/work lofts exclusive to artists and ground floor retail and community spaces, and renovations to Federal Park to allow for the creation of a new market concept and proving ground for start-up businesses.
For more information about the DRI, or for inquiries related to its potential benefits or how to apply, please contact Frances Kabat, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.
The DRI Round Four Guidebook is available at: https://www.ny.gov/sites/ny.gov/files/atoms/files/DRI_Four_Guidebook.pdf
The New York State Department of Environmental Conservation (the “DEC”) recently proposed changes to its regulations governing enforcement hearing procedures under 6 NYCRR Part 622.
The proposed rule change to Part 622 would “clarify the hearing process for administrative enforcement proceedings by: 1) making the regulations clearer and more accessible; 2) conforming the regulations to agency and judicial precedent; 3) correcting minor grammatical and typographical errors; 4) updating the regulations to reflect current use of electronic communications and discovery of electronically stored information; 5) correcting the regulations to reflect the current designation of the Office of Hearings and Mediation Service; 6) adding a section addressing mediation practice after an enforcement proceeding has been commenced; 7) extending the applicability of Part 622 to expedited proceedings commenced pursuant to 6 NYCRR Part 613 regarding petroleum product delivery prohibitions; 8) clarifying the contents of papers for commencing a proceeding; and 9) adding requirements for adjudicating defaults.”
The changes would also amend the definitions sections of 6 NYCRR Part 620 (Procedures for Issuance of Summary Abatement Orders) and Part 624 (Permit Hearing Procedures) to make the definitions consistent throughout Parts 620, 622, and 624.
The changes would also require that a copy of a written request for a hearing — made pursuant to 6 NYRR 621.10(a), 621.11(g), and 621.13(d) — be provided to the Chief Administrative Law Judge.
These changes will undoubtedly be important for those who find themselves subject to enforcement proceedings, as well as practitioners representing such parties. That’s why interested parties should be sure to submit comments on the proposed changes no later than January 31, 2020 at 5:00PM. Comments can be submitted to Administrative Law Judge (ALJ) Michael S. Caruso, NYS DEC Office of Hearings and Mediation Services, 625 Broadway, 1st Floor, Albany, NY 12233-1550, or by emailed to ALJ Caruso at email@example.com.
A hearing will also be held on the proposed rules change on January 7, 2020 at 1:00PM at NYS DEC, 625 Broadway, Public Assembly Room 129A/B, Albany, NY 12233. The hearing is open to the general public.
See “Hearing and Mediation Services Regulatory Revisions,” New York State Department of Environmental Conservation, Regulations and Enforcement, Proposed, Emergency, and Recently Adopted Regulations, available at http://www.dec.ny.gov/regulations/118492.html.
Were you affected by the 2019 flooding along Lake Ontario or the St. Lawrence River? A new government program may be able to help.
New York State recently launched the 2019 Lake Ontario-St. Lawrence River Flood Relief and Recovery Program to help homeowners affected by the “historic flooding along the shores of Lake Ontario and the St. Lawrence River.” The State hopes that this $20 million program, combined with other regionally significant rebuilding and resiliency efforts, will provide financial relief to families recovering from the devastating floods.
The program allows homeowners who reside in Cayuga, Jefferson, Monroe, Niagara, Orleans, St. Lawrence, and Wayne Counties to apply for up to $50,000 in state funding to help offset damages to their primary residences. If funds are still available after primary residences have been addressed, then the State will evaluate whether any remaining funding can be made available for secondary residences.
The application process for primary residences for this program opened on October 1, 2019 and will run through October 30, 2019. Homeowners of primary residences affected by flooding between January 1, 2019 and September 30, 2019 are eligible to apply.
Those who believe they may be eligible for this program should act quickly because application criteria require the application to be received by October 31, 2019. The application must specifically address damage to a primary residence that sustained direct physical flooding-related damage that threatens the safety of the home. Those who are unsure whether they qualify, or who want guidance regarding the program, should seek help from professionals who have experience with flooding-related legal issues.
In June, a New York State appellate court — the Appellate Division, Fourth Department — struck down a town’s attempt to acquire certain private property rights (an easement) by eminent domain.
The Court’s decision didn’t address policy questions (like whether the Town’s reason for taking the easement outweighed the property owner’s interests), nor did the court’s decision involve a complex constitutional analysis of “Due Process” or the “Takings” clause. Instead, the Court found that the Town’s actions in acquiring the property failed to comply with New York’s Eminent Domain Procedures Law (the “EDPL”).
Under EDPL §207(C)(3), courts may review such condemnation decisions to determine whether “the condemnor’s determination and findings were made in accordance with procedures set fourth in this article and with article eight of the environmental conservation law.” In other words, a Town’s decision to use eminent domain must comply with the EDPL and the State Environmental Quality Review Act (“SEQRA”).
SEQRA imposes substantive and procedural requirements on agencies and municipalities considering certain types of actions in order to ensure that environmental impacts are taken into account in their decision making process. Substantively, it requires them to (1) identify the relevant areas of environmental concern; (2) take a “hard look” at areas of environmental concern; and (3) make a “reasoned elaboration” of the basis for its determination.
In the case above, the Court held that the Town violated SEQRA — and therefore also violated EDPL §207(C)(3) — by issuing a “negative declaration” of environmental significance (a determination that the proposed action will not have significant adverse environmental impacts) without taking a “hard look” at the proposed condemnation’s impact on wildlife. The Court further held that the Town failed to provide a reasoned elaboration for the basis for its determination that the action would have no significant impact on wildlife or surface water. Based on its holding that the Town failed to comply with SEQRA, the Court annulled the Town’s determination to acquire the easement.
Cases like this demonstrate the importance of ensuring that environmental reviews are conducted in a complete and proper manner. Project sponsors, developers, agencies, and municipalities can end up in litigation if a SEQRA review is not conducted properly. As this case shows, failure to fully comply can result in wasted time, costly attorneys’ fees, and the annulment of the subject approval.
Needless to say, the stakes can be high. That’s why local boards, municipalities, and agencies should ensure that they are conducting all environmental reviews properly and taking such concerns seriously. Cutting corners usually just makes things worse. Those opposing a project will almost certainly scrutinize an agency’s environmental review to determine whether its approval violated SEQRA.
If you find yourself involved in or affected by a project, and have concerns about whether the environmental review is being conducted properly, make sure you contact an experienced attorney who can help. This is especially important in SEQRA cases because the timeline for bringing such claims is very short.
In a May 19, 2019 blog post, I wrote about the environmental contamination at the old Tonawanda Coke Facility in Western New York. Earlier this month, the Buffalo News reported that a developer purchased the former Tonawanda Coke site, intends to redevelop the property as a computer data center, and is seeking a state Brownfields designation as part of his remediation plans.
However, a local community group with a history of monitoring the facility, has come out in opposition to a State brownfield designation, and is instead advocating for a Federal Superfund remediation. The community group, which has earned the support of Rep. Brian M. Higgins, claims that a state brownfield cleanup would allow a company that is responsible for some of the contaminants at the site, and that has a large mortgage on the property, to obtain financial relief through state tax credits.
A lawyer for Tonawanda Coke said that the purchase agreement calls for the developer to pay the overdue property taxes for the site and assume liability for the cleanup, but does not otherwise involve any exchange of cash.
The Buffalo News reported that, after being convicted in federal court of criminal wrongdoing associated with the former Tonawanda Coke Facility, the company that formerly owned the site shut down last year, is engaged in bankruptcy proceedings, and is in the process of liquidating its asserts.
Stories of environmentally contaminated properties — like this one — are all too common. Unfortunately, many of these problems could have been avoided by fully complying with environmental laws and regulations. The cost of responding, investigating, and cleaning up contamination can be significant, especially when combined with fines, civil litigation, and, in some cases, the potential for criminal prosecution.
Although environmental laws and regulations can be complex and technical, the fate of the Tonawanda Coke facility demonstrates why ensuring strict compliance with environmental rules is so important. Whether you’re a Fortune 500 company, a statewide operation, or a small business, it’s generally better to incur compliance costs up-front than to take shortcuts that risk large fines, legal liability, and criminal prosecution. That’s why we always encourage companies to work with professionals to help them understand the legal constraints (such as on discharges), whether you are required to register or report to administrative agencies, or how to obtain and renew any required permits. Furthermore, if a company learns of a discharge or becomes the subject of a government investigation regarding a potential environmental issue, it should immediately seek advice from experienced legal counsel.
On August 26, 2019, Bull Run Energy LLC filed an application to construct a 449-megawatt (MW) wind energy facility in the towns of Altona, Clinton, Ellenburg, and Mooers. It is expected to include up to 139 wind turbines, together with associated access roads, an electrical collection system, meteorological towers, an operation and maintenance building, electrical interconnection facilities, and for construction purposes a concrete batch plant and construction staging and laydown yards. The property being considered for all these components total approximately 54,200 acres. The project area is bordered by the Adirondack Park to the south and the Canadian border to the north.
The Bull Run Project was initially proposed in 2015 and had been largely dormant since 2017 until recently. Additional information about the project is available on the New York Department of Public Service DMM website for the project, available here.
As of September 19, 2019, there are only three public comments about the project and no local parties to the proceeding. In any Article 10 proceeding, intervenor funds are provided for use by local public or municipal parties. Funds can be used to at least partially offset the cost of retaining technical experts and attorneys. Funds are available regardless of whether a party supports or opposes a project. The deadline for interested parties to request intervenor funds to participate in this matter is September 27, 2019.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski or Bridget O’Toole. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
In March of 2019, a Rochester resident sued the City of Rochester (the “City”) seeking to compel the City to provide footage from police body cameras under New York’s Freedom of Information Law (“FOIL”). The City resident specifically sought footage of body cameras worn by police officers who allegedly shot his dog — which was in his fenced-in back yard — on October 19, 2018. The resident claimed that the officers entered his property without a warrant and without his permission.
The resident asked the City for the footage, but was told in an email that the City “did not possess any body-worn camera recording of (the officer) shooting and killing” the dog. However, after the resident’s attorney submitted a FOIL request to the City seeking the footage, City officials acknowledged that the incident had been recorded, but nonetheless refused to provide the recording.
Accordingly, the resident sued the City this year, asking the New York State Supreme Court to force the City to release the video, pursuant to FOIL. In an April 25, 2019 decision, the Court granted the resident’s petition, and ordered the City to provide video, which it did.
But the case didn’t end there. Under FOIL, a successful petitioner can obtain attorneys’ fees and costs from the agency that illegally denied access to the requested record, especially where “the agency had no reasonable basis for denying access”. Accordingly, the Court held that the City was required to pay the resident’s attorneys fees from the lawsuit, and ordered the City to pay the resident $10,000.00.
This case highlights the importance of the Freedom Of Information Law. FOIL offers an important tool for individuals, groups, and businesses to gain access to government records, promote transparency, and provide a check on local power. Likewise, the federal Freedom of Information Act (“FOIA”) grants public access to federal government records, subject to specific exceptions.
Whereas the press and those concerned with government oversight sometimes use FOIL/FOIA to make information public, others use it to obtain evidence in anticipation of litigation, to stay informed about projects that may affect them, or simply to monitor what government agencies are up to.
For municipalities and agencies, though, the risks of failing to comply with FOIL can be significant, and a mistake can be expensive. The possibility that a Court may grant attorneys’ fees and costs both encourages government agencies to provide records that the public has a legal right to access, and helps offset the cost of litigation for individuals, groups, and businesses who were illegally denied access to public records.
If you are concerned about how a potential FOIL violation may affect you or your business, would like help submitting a FOIL request or appeal, would like to challenge a FOIL denial in court, or if you are a member of a local government or government agency that has been accused of a FOIL violation, be sure to contact an experienced attorney for help.
Earlier this year, an individual and two businesses (“Plaintiffs”) brought suit to challenge the Town of Canandaigua’s local sign ordinance. The complaint, which was filed in the United States District Court for the Western District of New York on June 28, claims that the Town’s local sign law violates Plaintiffs’ rights under the First and Fourteenth Amendments, and seeks an injunction, damages, and attorneys fees.
The dispute arose in May, when Town officials sent letters to property owners threatening to impose penalties, fines, and other punishments if they did not remove outdoor advertising signs from their properties. The Town claimed that the Lamar advertising signs on the local business’s property violated the Town’s sign ordinance, which (with limited exceptions) only permitted signs that advertise a business or service that is available on the premises where the sign is located rather than off-premises.
Sign laws can raise tricky issues because they must balance community concerns and zoning goals against protections for freedom of speech. Cases like these can be so complicated that entire seminars are sometimes dedicated to discussing these issues.
In January of 2018, Mindy L. Zoghlin, Esq. (the Principal Attorney at The Zoghlin Group) presented a Continuing Legal Education seminar (a “CLE”) on the subject of sign laws at the New York State Bar Association’s Annual Meeting. In her presentation, Mindy Zoghlin discussed a significant United States Supreme Court case — Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (“Reed”) — which addressed a municipality’s authority to regulate signs.
In Reed, the Supreme Court struck down the Town of Gilbert’s sign ordinance, which required permits for all outdoor signs, and which exempted certain signs from the permit requirement if they fell into specific categories. The majority in Reed essentially held that if someone must read a sign to understand what sign rule applies (or how a sign rule applies), then the law is “content-based,” and therefore subject to the highest level of judicial review known as “strict scrutiny.”
Under strict scrutiny, a government regulation (in this case a sign ordinance) will only be upheld if the government establishes that the law furthers a “compelling governmental interest” and is narrowly tailored to achieve that interest. In practice, when courts evaluate a law using strict scrutiny, the law usually ends up being struck down. As the old adage in the legal community goes: “strict scrutiny is strict in theory, but fatal in fact.”
By contrast, Justice Alito’s concurrence in Reed suggested that sign ordinances could lawfully distinguish between signs that advertise goods or services available on-premises from those that advertise goods and services available off-premises. Under Justice Alito’s reasoning, such distinctions are not necessarily “content-based,” but may instead be “content-neutral,” and would therefore be subject to a lower level of judicial review known as “intermediate scrutiny.”
Under intermediate scrutiny, a government regulation will only be upheld if it furthers an important government interest and does so by means that are substantially related to that interest.
Because the facts of Reed involved only private speech rather than commercial speech, lower courts have since held that the majority opinion in Reed does not require the application of strict scrutiny to laws regulating commercial speech (rather than private speech). Instead, many courts have held that, as Justice Alito’s concurrence in Reed suggested, and as the Supreme Court previously held in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) (“Central Hudson”), intermediate scrutiny applies to regulations on commercial speech. Accordingly, whether a sign law survives a legal challenge depends, at least in part, both on whether it treats signs differently based on their content, and whether it regulates private signs or commercial signs.
While the rules may seem complicated, and the differences minor, the consequences of enacting an improper sign law can be significant. Plaintiffs challenging unconstitutional government action often seek attorneys’ fees, which can turn a seemingly small sign violation into an expensive lawsuit. The possibility of recovering attorneys’ fees also makes such cases more palatable to plaintiffs because recovery of such expenses by successful plaintiffs reduces the cost of challenging unconstitutional laws.
Accordingly, if your municipality is considering a local sign law, it should first seek advice from a land-use attorney who understands the constitutional limitations on such laws. Likewise, if local government officials try to force you to remove a sign from your home or business, you may have the right to challenge them. In either case, before you enact such a law, enforce it, defy it, or challenge it, make sure you talk to an experienced attorney who can help.
Drafting effective legislation is hard. Drafting local legislation to regulate the development of wind and solar energy facilities is harder. Government officials and residents alike need to balance many competing interests when drafting a local law governing wind and solar energy siting. How much development is desirable? Where should wind turbines and solar panels be built? What scale of green energy development is consistent with existing community character and a town’s plan for development? Are there public safety considerations? How can a municipality protect itself against zombie turbines and zombie solar panels? These are important questions, and a good local law should address all of them. The answers are likely to be entirely specific to your town.
There are many template laws available online, but it is important to remember that local laws are not a one-size-fits-all proposition. When reviewing a template, policymakers should consider who drafted or is promoting the law, and what the person or entity’s interest is in providing such a template. For example, NYSERDA provides a template local solar law here. This template may be a great starting point for some towns, but all towns should keep in mind that NYSERDA has a vested interested in promoting wind and solar energy production in New York State.
On the other side of the spectrum, the laws here, here, and here are drafted or supported by people, towns, or entities who are, for whatever reason, opposed to large scale development of renewable energy in certain locations.
For inquiries about drafting wind and solar laws, or for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State, and has experience helping both government and public parties tackle the challenging task of updating local energy laws.
On June 5, 2019, the Observer published an article on a potential Open Meetings Law violation by the Chautauqua County Planning Board. The article alleges that, at a June meeting, the Board was considering an application involving the acquisition of land for soccer fields for Jamestown Community College. Before presenting on the plan, the College’s president allegedly asked if members of the media were present.
When the Board learned that a reporter from the Observer was present, it voted to go into executive session to discuss “privileged information.” However, the Board’s description of the topic that it sought to discuss in private — “privileged information” — was probably not specific enough to comply with state law.
Pursuant to New York’s Open Meetings Law, all meetings of public bodies must be open to attendance by the general public. The law only allows public bodies to exclude the public from portions of its meetings (known as “executive sessions”) to discuss eights categories of topics. The law further establishes that, to enter an executive session, a public body must: (1) vote to do so during a properly noticed and open meeting; and (2) identify the general subjects to be considered.
Under the law, “privileged information” is not specific enough of an explanation of the topics to be discussed during an executive session. To more fully comply with the law, the Board should have explained that it was going into executive session to discuss “the proposed acquisition, sale or lease of real property” and that “publicity would substantially affect the value thereof.” In a situation like this, if a Board can give the public more details about the topic to be discussed during the executive session without affecting the value of the property — such as the purpose of the proposed acquisition, who the property would be purchased from, or the location of the property under consideration — its decision is more likely to comply with the law.
Compliance with the Open Meetings Law is extremely important, both to the public and to the public entities. From a policy perspective, open meetings help protect the integrity of public entities by ensuring that public business is conducted in a transparent manner. For businesses and local residents, open meetings help the public stay informed about what’s happening in their communities.
For public bodies, though, the risks of failing to comply with the Open Meetings Law can be significant, and a mistake can be expensive. Under certain circumstances, courts are empowered to (1) declare that a public body has violated the, (2) require the public body to participate in a training on its obligations under the Open Meetings Law, (3) annul any action taken by the public entity in violation of the law, and (4) award a successful party the costs and attorney fees associated with successfully prosecuting an Open Meetings Law violation.
If you are concerned about how a potential Open Meetings Law violation may affect you, your business, or your neighborhood, or if you are a member of a public body that has been accused of an Open Meetings Law violation, be sure to contact an experienced attorney for help.
Nine years ago, for $1,200, a Dunkirk native bought a piece of land from the City of Lockport that contained a three-story, 16,000 square-foot building. His plan was to demolish the building and convert the property, which used to be an industrial power plant, into a gas station. But that never happened.
Within days of purchasing the property, New York State halted the purchaser’s plan to demolish the building because he had disturbed asbestos from the old power plant without (1) conducting an asbestos survey or (2) hiring a licensed contractor to remove it. His problems didn’t end there, either. More and more environmental issues associated with the property began to pile up that could be extremely expensive for the Dunkirk native.
In 2012, the United States Environmental Protection Agency (the “EPA”) added the property to the federal Superfund list, and then demolished most of the building a couple of years later. And because the Superfund law allows the government to recover cleanup costs, the Dunkirk native could end up being responsible for the $2.3 million that the EPA spent on demolition and cleanup.
In 2013, he was fined $40,000 for violations of the City building code (allegedly failing to remove a dumpster containing asbestos from the property, leaving the dumpster open, and allowing the wind to blow the asbestos around the neighborhood).
After the EPA discovered an underground fuel storage tank at the property, in 2016, the New York State Department of Environmental Conservation (the “DEC”) spent $68,000 to remove it, and recommended a $17,000 fine.
To make matters worse, the Dunkirk native also racked up $6,000 each year in unpaid property taxes. However, the environmental issues with the Property were so bad that the City didn’t seek to foreclose on it.
This story should serve as a teachable moment: Don’t underestimate the importance of environmental due diligence. If you’re considering buying a piece of property that used to be a power plant, industrial facility, or gas station, check to see if there’s a history of contamination or another risk factor that may result in environmental liability. If you’re considering buying such a property to develop, or only discover such problems after purchasing it, contact an experienced environmental attorney to help understand the risks, options, and how to move forward. As the Dunkirk man’s story demonstrates, the cost of going it alone, or “figuring it out” as you go along, could be significant. So don’t risk it!
The Siting Board cannot issue a Certificate unless it makes specific findings and determinations pursuant to Section 168 of the Public Service Law. These findings and determinations are described here. In a recent case, one wind energy developer argued that intervenor, municipal, and agency parties bear the burden of proving that a Certificate should not be granted. Will this argument prevail? And if so, how would the shift in burden of proof change the conduct of Article 10 proceedings?
The burden shifting argument is unlikely to prevail because both the State Administrative Procedure Act “SAPA” and Article 10 regulations place the burden of proof squarely an applicant for a Certificate. SeeState Administrative Procedure Act (“SAPA”) § 306(1) (“Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceeding.”); 16 NYCRR 1000.12(b)(1) (“The applicant has the burden of proof to demonstrate that all findings and determinations required by section 168 of the PSL can be made by the board, and after the board’s jurisdiction has ceased, that all determinations required by the commission may be made.”). And legality aside, it would violate fundamental principles of fairness and due process for the Siting Board to simply presume a facility should be built unless other parties to the proceeding can prove otherwise.
But if the burden is in fact shifted, the impact on Article 10 proceedings would be dramatic. If state agencies or intervenors fail to identify potential problems early in the Article 10 process, would the case be disposed of via settlement without any testimony or cross-examination of witnesses? Would the initial review of an application for compliance with PSL 164 gain additional rigor, and would extended public comment be welcomed? Would Presiding Examiners entertain dispositive motions made by applicants and aimed at knocking out intervenor issues without the need for a live hearing and follow-on briefing? The answers to these questions are unknown, but if the burden of proof is shifted, Article 10 practitioners may soon know them all too well.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
Last week, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”) announced that a Niagara County man had been sentenced for an attack on an Environmental Conservation Police Officer.1 The attack allegedly occurred in 2018 when the defendant was driving an off-road Utility Vehicle (a “UTV”). DEC Commissioner Basil Seggos explained, “the defendant in this case purposely injured our officer in an attempt to evade charges, and I thank the Niagara County Sheriff’s Department and District Attorney ... for their help in bringing this case to justice.”
According to a DEC Press release, the Environmental Conservation Police Officer (the “ECPO”) responded to a report of trespassing on private property, and found the defendant and another man at the scene operating a UTV and an All-Terrain Vehicle (an “ATV”). Both men refused the ECPO’s order to stop. When the officer attempted to place the defendant under arrest, the defendant again refused to stop the UTV, and ended up dragging the ECPO while fleeing the scene. After being dragged for an estimated 400 yards, the officer reportedly sustained injuries to his forehead, as well as cuts and bruises to his arms and legs.
The DEC Bureau of Environmental Crimes Investigation led the search for the two men, with assistance from the Niagara County Sheriff’s Office and the New York State Police. The case was prosecuted by the Niagara County District Attorney’s Office. The defendant (the UTV driver) eventually pled guilty to assault in the third degree (a Class A misdemeanor), was sentenced by a Town Justice to one year in jail, and was ordered to pay $2,237 in restitution to the State for equipment that was destroyed during the assault.
The driver of the ATV, who had previously plead guilty to attempted reckless endangerment (a Class B misdemeanor) and ATV trespassing (a violation), paid $1,030 in fines and surcharges.
If these two men had just stopped when they were ordered to, they likely would’ve only been charged with ATV trespassing or a minor violation. Instead, their poor reaction in this situation led to more severe charges and sentences. This case highlights something that is obvious to most — you shouldn’t interfere with an investigation, refuse lawful orders, or assault an officer.
When faced with a government investigation, it’s important to respond calmly, deliberately, and peacefully. Being evasive, violent, or antagonistic will just land you in more trouble. If you find yourself the subject of an environmental investigation, you need to make sure you understand the reasons for the investigation, and get advice from a knowledgeable person who can help.
See “DEC Announces Sentencing of Man for 2018 Assault on an Environmental Conservation Police Officer,” New York State Department of Environmental Conservation, Public Involvement and News, Press Release, June 6, 2019, available athttp://www.dec.ny.gov/press/117194.html.
Although the Siting Board makes the final decision to grant a Certificate of Environmental Compatibility and Public Need, most of an Article 10 proceeding is conducted before Presiding Examiners, not the Siting Board itself. The Presiding Examiners are administrative law judges from the New York State Department of Public Service and the Department of Environmental Conservation. Presiding Examiners are assigned to an Article 10 case shortly after a Preliminary Scoping Statement is filed, and remain with a case through the penultimate, trial-like adjudicatory proceedings. One of the last and most important actions taken by the Presiding Examiners is to issue a Recommended Decision to the Siting Board. The Siting Board relies heavily on the Presiding Examiners Recommended Decision when deciding whether to grant or deny a Certificate.
On May 23, 2019, the Presiding Examiners in the Application of Eight Point Wind, LLC, Case No. 15-F-0062 issued a Recommended Decision (available here).On May 24, 2019, the Presiding Examiners in the Application of Baron Winds, LLC, Case No. 15-F-0122, issued a Recommended Decision (available here). Check back to this blog soon for my analysis of some of the key recommended findings and determinations in these decisions.
Rochester, N.Y., May 15, 2019—The Daily Record selected Frances M. Kabat, Associate Attorney, The Zoghlin Group, PLLC. to receive an Excellence in Law Award, “Up & Coming Attorneys”.
The Daily Record’s Excellence in Law program honors members of the legal community with three distinguished awards: Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes.
Top Women in Law awards recognize the outstanding accomplishments of female attorneys who are making notable contributions to the legal profession while inspiring positive change in the community. The Up & Coming Attorneys category honors those who demonstrate professional accomplishment, community service and a strong commitment to the legal profession early in their careers. To be considered, nominees must be admitted to the bar for 10 years or less. The Unsung Legal Heroes category honors staff members—paralegals, legal secretaries, administrators, law librarians and legal marketers—who help lawyers achieve success.
“This year’s Excellence in Law honorees are exceptional. Not only are they professionally accomplished, but they are committed to making a difference in their community,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “The honorees, in the categories of Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes, uphold the highest legal standards and improve communities throughout Western New York. It is an honor for The Daily Record to recognize their accomplishments.”
The 2019 Excellence in Law Awards will be presented June 6 at a luncheon and awards reception starting at 11:30 a.m. at the Hyatt Regency Rochester, 125 East Main Street in Rochester. Winners will be profiled in a special magazine that will be inserted into the June 7 issue of The Daily Record and available online at www.NYDailyRecord.com.The event hashtag is #TDREvents.
For more information about sponsorships and tickets for the Excellence in Law Awards, visit www.NYDailyRecord.com or call 585-363-7271.
About The Daily Record
The Daily Record has been providing essential legal news and information to Western New York for 111 years. With insightful articles and columns keeping the community apprised of the latest industry trends; local, state and federal decisions; bankruptcies, judgments, foreclosures and public notice information; plus comprehensive listings of up-to-date business transactions for Monroe County, The Daily Record is your source for all things law, real estate and finance. The Daily Recordis part of BridgeTower Media, one of the country’s leading business-to-business media companies with 44 print and digital publications in more than 20 U.S. markets.
2019 Excellence in Law Honorees
Top Women in Law
Kathryn Bruns, Faraci Lange, LLP
Leslie M. Connolly, Harter Secrest & Emery LLP
Christina M. Deats, Law Offices of Pullano & Farrow PLLC
Carey Ann Denefrio, Littler Mendelson, P.C.
Sandra Doorley, Monroe County District Attorney’s Office
Kelly Gotham, NYS Unified Court System
Laura A. Myers, The Wolford Law Firm LLP
Anita L. Pelletier, Nixon Peabody LLP
Up & Coming Attorneys
Jennifer Aronson-Jovcevski, Boylan Code LLP
John P. Bringewatt, Harter Secrest & Emery LLP
Craig Diallo Carson, Esq., Law Office of Craig D. Carson PLLC
Maxwell Cohen, Monroe County District Attorney’s Office
Property owners, businesses and municipalities across New York State are experiencing flooding at an historic rate. The causes run the gambit from poorly maintained municipal stormwater systems to the flooding we have seen in 2017 and 2019 along Lake Ontario. Water is one of the most destructive forces of nature and once it starts coming in it can be very difficult to stop.
If your property is currently flooding, you should do the following:
Evacuate the property if water is intruding on the structure;
If the property is developed, contact the utility company to determine whether the power needs to be shut off;
Take pictures and video of the flooding at different stages, including the peak flood height (if safe);
Keep a timeline of events, e.g. how high the water was at what time, when the power was turned off, and when the water receded;
Keep a list of people you speak with and summaries of those conversations.
After the flood waters have receded, you should do the following:
Make an inventory of damaged personal property with pictures before disposing of it;
Contact a professional cleaning company to assess what can be salvaged;
Contact contractors, engineers, or other professionals to determine the cost of repair;
Submit an insurance claim (even if you do not believe you have coverage);
Compile receipts of items that needed to be replaced, including any hotels or meals while you were displaced;
Continue your timeline of events;
Keep copies of anything you sign;
Continue your list of people you speak with and summaries of those conversations;
Contact your local municipality, county or state as appropriate to find out what is being done to remedy the situation; and
Contact an attorney as soon as possible to determine whether you need to file a notice of claim with the potentially responsible actor.
Last week, the Town of Westerlo Planning Board determined that the Costanza Solar Project will not have a significant adverse environmental impact provided specific conditions are met, including (1) updating the Stormwater Pollution Prevention Plan (“SWPPP”) and (2) doubling the quantity of evergreen plantings in the c-100 area.
Because projects like this must be disclosed in New York State’s Environmental Notice Bulletin (the “ENB”), we now know that the proposal involves the amendment of a previously approved Site Plan. The new site plan would reduce the footprint at the northern most portion of the project due to the selection of more efficient panels. As in the original application, the proposed facility will produce 2Mw. The project is located at 198 County Route 405 in the Town of Westerlo, New York.
Interested businesses, groups, and individuals have thirty days from May 22, 2019 (the date of publication of the notice on the ENB) to submit comments related to this action. In our experience, many people do not fully appreciate the impact that their comments can have. Well-crafted comments can highlight community concerns, raise unforeseen issues that require further attention, demonstrate substantive or procedural impediments to approval, and otherwise prove persuasive to local agencies. We have found that those who participate in the process have a better chance of having their concerns heard and addressed.
After the Tonawanda Coke plant closed, government officials and local researchers expressed concerns about the environmental impacts that chemical contamination could cause to nearby neighborhoods and the Niagara River. Those concerns were justified by the discovery of about 900,000 gallons of ammonia waste, leaking tanks, and soils contaminated with “heavy metals like lead, mercury, cyanide and arsenic, PCBs and polycyclic aromatic hydrocarbons, a class of chemicals linked to increased rates of cancer.”1
Researchers have been conducting additional soil sampling from the surrounding communities of Green Island and the City and Town of Tonawanda to determine how far off-site the chemicals may have travelled, and therefore how extensive of a remediation is required.
After an initial tour of the surrounding area, Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”), estimated that “cleaning up Tonawanda Coke could take years.” 2
Based in part on those discoveries, the Erie County Legislature adopted a resolution in January 2019 asking the United States Environmental Protection Agency (the “EPA”) to designate the Tonawanda Coke facility a Superfund Site.3
But the Town of Tonawanda apparently has other plans for the Site. In a letter to the DEC, the Town Supervisor for Tonawanda requested that the DEC take the site off the Superfund list and re-assign it to the DEC’s Brownfield Cleanup Program (the “BPC”), which was established “to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities.” According to local officials, the BPC could help facilitate a faster, safer, and more cost-effective cleanup and redevelopment of the site.
The questions and debates that the local municipalities are facing with the Tonawanda Coke plant are by no means unique to this facility. In fact, a plethora of local governments, businesses, and individuals all across New York face questions all the time about how to deal with contaminated properties, including what government programs can help and how to recover cleanup costs from the person or entity responsible.
The United States Department of Justice (the “DOJ”) recently opened a criminal inquiry into another automobile manufacturer’s emissions-certification process.1
In the last several years, as emissions and fuel efficiency standards have tightened, automobile companies have faced accusations of violating those standards and falsifying tests or technical data. Some have questioned the accuracy of the companies’ computer-modeling methods, while other companies have been accused of installing “defeat” devices to help their vehicles cheat on the emissions tests.
In January, one automobile company paid the DOJ nearly $800 million dollars to settle claims that it had allegedly equipped vehicles with illegal emissions-management software. Likewise, other automobile companies have incurred billions of dollars in fines and legal settlements tied to alleged attempts to circumvent emissions requirements and cheat on emissions tests. As the automobile industry is seeing, taking shortcuts — or intentionally cheating to avoid compliance — can lead to substantial legal problems, including criminal investigations.
Although environmental laws and regulations can be complex and technical, ensuring strict compliance is extremely important. Whether you’re a Fortune 500 company, a statewide operation, or a small business, it’s better to incur the costs of compliance up-front than to cut-corners and risk large fines, legal liability, and criminal prosecution. Often that means engaging professionals to help you understand the legal constraints (such as on discharges), whether you are required to register or report to administrative agencies, or how to obtain and renew any required permits.
Earlier this year, the New York State Department of Environmental Conservation (the “DEC”) presented the results of a comprehensive environmental investigation of the Niagara Sanitation Landfill near North Tonawanda, New York1. The Landfill had accepted a variety of waste from the surrounding community over the course of its operation from 1955-1968, including soils contaminated from construction of the LaSalle Expressway and from Love Canal waste.
When the DEC and the New York State Department of Health investigated the Landfill in the 1980s and 1990s, they initially determined that it did not pose a significant threat to public health or the environment. However, DEC re-evaluated the area in 2013, and discovered that on-site areas of exposed waste and elevated contamination levels were present. This caused the Landfill to be reclassified as a Class 2 Superfund site in December 2015.
As a result of the reclassification, a full comprehensive remedial investigation was required. Occidental (previously Hooker Chemical) then entered into a consent order with the DEC, voluntarily removed the Love Canal-related waste in 2014 and 2015 and disposed of it at an approved facility.
Despite these findings, the DEC assured nearby residents that “there is no migration of contamination from the landfill adversely impacting surrounding properties.”
However, after some nearby residents’ homes tested positive for hazardous chemical materials, a group of citizens sued the Town of Wheatfield. Their lawsuit alleges that contaminated water from the site — containing arsenic, barium, lead, and mercury — migrated onto adjacent properties and into the sewer system, causing health issues for the residents.
Stories such as these demonstrate the importance of ensuring that hazardous materials are disposed of properly, and the significant problems that can result if proper steps are not taken.
In working with municipalities and individuals across the State we have encountered a common concern. Many people believe that Article 10 of the New York State Public Service Law (available here) expressly preempts all local zoning and land-use laws. This concern can lead to a fatalistic attitude and stymie active participation by host municipalities and intervenor parties in Article 10 proceedings. In my personal opinion, that concern is overblown. The interplay between Article 10 and local law is much more nuanced than a case of express supersession.
As a threshold issue, Article 10 does not expressly preempt all local laws—it only expressly preempts local laws that are procedural in nature or that require local permits for the construction of a facility. Unlike procedural laws, Article 10 does not expressly preempt substantive local laws such as height limitations, setback buffers, and zoning district requirements. Instead, the rule is that the Siting Board must apply such substantive laws by default. This procedural/substantive distinction in the law and regulations signals a clear recognition by the State government that a local government’s constitutional power to plan and regulate land-use should not be so easily overridden.
But the story doesn’t end with an easy distinction between procedural and substantive laws. First, the line between what is procedural and what is substantive is often gray and wavering. Second, even if a law is substantive, the Siting Board still has the power “not to apply” the law. This places the burden of proof on an applicant to show why a local law should be overridden, and the burden is both heavy and highly technical.
On April 24, 2019, Excelsior Energy, LLC (a subsidiary of NextEra Energy Resources, LLC), submitted a Public Involvement Program for a proposed solar energy facility to be located in the town of Byron, New York. Additional information about the project is available on the New York DPS DMM website for the project, available here.
As of May 6, 2019, there are no public comments about the project or parties to the proceeding. Only the Applicant’s employees and attorneys have appeared.
The filing of the PIP commenced a 150 day waiting period before the Applicant can proceed to the next step in the Article 10 process: the filing of a Preliminary Scoping Statement. In the interim, staff of the Department of Public Service will review the PIP and provide recommendations on how it could be improved The Applicant may then choose to incorporate or reject the suggested changes.
Unfortunately, the Applicant has already stated that it will not provide critical mailings relating to the availability of intervenor funding to most area residents: “Besides the open house notifications, Excelsior Energy Center does not plan additional broad mailings to area residents that do not register as stakeholders.” It remains to be seen how many residents actually “register” as stakeholders in response to the “general Project information” flyers they will receive. Will Excelsior Energy become yet another project where members of the local community only become aware of a project when it is too late to meaningfully participate in the pre-application phase of the proceeding?
Greene County’s plan to construct a new jail in Coxsackie, New York raises questions about how the proposed project will impact the environment and nearby residents. The project has made news recently as politicians and the public debate the size and cost of the proposed facility.1 According to recent reporting, the jail would take at least three years to complete, and could involve the County taking out a $39 million bond with the United States Department of Agriculture.
Because projects like this must be disclosed in New York State’s Environmental Notice Bulletin (the “ENB”), we now know that the proposal involves the construction of “an 80-bed County Jail facility with associated access roads, parking, and stormwater management areas for a total disturbance area of approximately 21.2 acres.”2 The building itself would include approximately 63,275 square-feet of floor space and, as currently designed, will cause permanent impacts to New York State Wetlands. The project also raises concerns about effects on protected wildlife because the site of the proposed jail is currently occupied habitat for the Short-Eared Owl (which New York State lists as endangered) and the Northern Harrier (which the State lists as threatened).
The proposal may also impact historical or cultural resources. According to the ENB, “the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) has determined that the proposed activity will have an impact on registered or eligible archaeological sites or historic structures.” The potential impacts on the environment, historical resources, and nearby residents required the County to prepare a Draft Environmental Impact Statement (“DEIS”) for the proposed project, which is now on file with the Greene County Legislature. Those interested in learning more about the project should review the DEIS. Comments on the DEIS must be submitted in writing no later than May 3, 2019.
On April 1, 2019, Morris Ridge Solar Energy Center, LLC (a subsidiary of EDF Renewables, Inc.), submitted a Preliminary Scoping Statement (“PSS”) for the proposed 1,350-acre Morris Ridge solar energy facility. Morris Ridge is proposed for the Town of Mount Morris in Livingston County, New York. Additional information about the project is available on the New York DPS DMM website for the project, available here.
Although the Morris Ridge solar project was publicly proposed on July 16, 2018, as of April 10, 2019 only four public comments on the project have been filed: three by local and state politicians who support the project, and one by a person who appears to generally support solar energy. The small number of comments raises concern that many people in the project area are not aware of the proposal. More vocal public opposition or support might be expected when a 1,350-acre facility of any kind is proposed for a rural community.
The United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers have proposed a new definition of Waters of the United States in an attempt to clarify federal authority under, and applicability of, the Clean Water Act (“CWA”)1. The deadline for submitting public comment on that proposed definition is rapidly approaching on April 15, 2019. A copy of the proposed rule can be found in the federal register2.
Since its inception in 1972, the Clean Water Act has regulated the discharge of pollutants into the “Waters of the United States”, but had not expressly defined the term. Prior to the implementation of the 2015 Rule, the definition of this term had been established by a number of Supreme Court decisions that only created additional uncertainties.
The proposed rule redefining “Waters of the United States”, if implemented in its current form, would replace the 2015 Rule promulgated by the previous administration defining the term, and would likely have the effect of reducing CWA jurisdiction overall.
If you are engaged in any activity that involves waterways or waterbodies that are not clearly navigable by boat, you should take a closer look at this proposed rule to determine how it may impact you. Your comments in support of or in opposition to the newly proposed definition are due by April 15, 2019.
A local recycling company in Wayne County was recently fined $725,000.00 by the New York State Department of Environmental Conservation (the “DEC”) for the illegal handling of electronic waste (“e-waste”)1. This whopping fine consisted of $225,000.00 that was to be payable within two years and an additional $500,000.00 fine that was held in abeyance if the company complies with the consent order entered with NYSDEC.
In August of 2016, the NYSDEC executed a search warrant at the Alpco Recycling facility in Macedon, NY2. Alpco is a local recycling facility known to take recyclable materials such as metals, cardboard, glass, and plastics. The facility was investigated for suspected non-compliance with New York’s Environmental Conservation Laws involving e-waste.
Electronic waste, or e-waste, as defined by New York’s Electronic Equipment Recycling and Reuse law regulates the disposal and handling of items such as computers; computer peripherals; small electronic equipment; small-scale servers; cathode ray tubes; or televisions that have been discarded or are entering the waste collection, recovery, treatment, processing, or recycling system, not including the casing or enclosure in which such item is typically assembled.
E-waste is known to contain toxic substances such as lead, mercury and cadmium, which if improperly handled, can leach into the ground and enter the groundwater.
Alpco lacked the appropriate permit to operate as an e-waste recycling facility, but was receiving e-waste such as old televisions and computer monitors, crushing them onsite and salvaging certain components for recycling.
This case demonstrates the significant, yet unavoidable, risk involved in not obtaining the correct permits or adhering to applicable regulatory program requirements.
The Coast Guard and the New York State Department of Environmental Conservation (the “DEC”) are investigating tar balls and oil sheen that were found at Coney Island and along Long Island beaches in March, 20191.
According to the Coast Guard, oil found in the Arthur Kill waterway may have come from a containership. Officials said that a 15-inch hole was discovered in one of the ship’s fuel tanks, which may have been the source of the spill. After running a chemical fingerprinting of the recovered oil, Coast Guard personnel verified that the spilled oil came from the leaking containership.
At least 87 people and 16 boats responded to assist in cleanup efforts. Captain Jason Tama, the incident coordinator, reassured the public that “our priorities continue to be the safety of everyone involved including the public and responders, and environmental cleanup.”
In our experience, oil spills can be costly and time-consuming to cleanup, and can have far-reaching and unexpected consequences. Under New York Law, an injured person may bring a claim directly against the person or entity that caused a petroleum discharge for costs associated with cleanup, and may recover both direct and indirect damages, including attorneys’ fees. Thus, oil spills can create serious liabilities. Those who think they may have caused an oil spill, or those who believe that someone else’s oil spill is affecting them or their property, should consult an environmental attorney to evaluate their options.
In January of 2019, three hunters were charged in the Town of Mount Morris when a stray bullet struck a nearby house. Although the residents of the home were inside, nobody was injured. According to the New York State Department of Environmental Conservation (the “DEC”), the hunters could end up losing their hunting privileges for up to five years.1
State DEC officials and the Livingston County Sheriff’s Office investigated the incident, which led to the hunters’ arrest on January 2, 2019.
However, their troubles didn’t end there. The hunters were charged with multiple counts for alleged misconduct that interfered with the investigation. Instead of just being charged with failing to carry tags afield while hunting, they now also face charges for tampering with physical evidence (a felony) and providing a false written statement.
After responding to the initial report, interviewing witnesses, and examining the evidence, investigators determined that the statements provided by the hunters were not credible. Apparently, the hunters attempted to conceal their actions by planting spent shell casings on the ground in an area where the shots did not occur and lying to investigators.
The lesson here may seem obvious at first — don’t lie to investigators or attempt to cover up an accident — but it’s a mistake made all too often. Our experience with government investigations indicates that, when faced with potential liability, lying to or misleading authorities is never the right move. When in doubt, seek qualified legal counsel. They will be able to guide you through an investigation and help you avoid making the same mistakes that the hunters made here.
On February 26, 2019, a novel procedural teleconference was held in the matter of Canisteo Wind Energy LLC. Canisteo Wind is a nearly 300 megawatt wind project proposed for Steuben County, New York. The DMM website for the case is available here.
The procedural teleconference was a first-of-its-kind in any Article 10 proceeding, and signaled an attempt by Presiding Examiners to address issues related to party status, intervenor funding, and scheduling earlier in the year-long Article 10 adjudication. Moving forward, this firm hopes that all Article 10 cases incorporate an initial teleconference similar to the conference held in Canisteo Wind.
In the future, the process would be further improved if intervenor awards were made verbally during the initial teleconference. By issuing an earlier ruling on party status and intervenor funding, intervenor parties would have additional time to review technical application documents with their attorneys and experts. This would help intervenors crystalize their concerns into litigable (and potentially resolvable) issues.
DEC Commissioner Basil Seggos announced in late 2018 that New York State had executed an Order on Consent with SA Dunn & Company, LLC (“Dunn”), which operates the Dunn Facility (a landfill and sand mine operation), for ongoing violations of its state mining permit1.
The Order was the culmination of a DEC investigation that began in January of 2018, when DEC observed persistent dust clouds emanating from the Dunn facility. Around that time, the Rensselaer County Legislature passed a resolution urging the DEC to increase their monitoring of the Dunn Landfill operations.
As a result of their investigation, DEC determined that “operational deficiencies [at the Dunn facility] were adversely impacting the quality of life in the surrounding community” and promised to take “all necessary measures to ensure this neighborhood is protected [and] to hold this facility accountable.” DEC Commissioner Seggos commented, “New York’s stringent rules and regulations governing mining operations exist to ensure facilities operating in our state adhere to the safest practices and highest standards possible to protect public health and the environment.”
The order assessed a $100,000 penalty against the Dunn Facility, required it to (1) develop and implement a dust control plan and (2) undertake several improvements to achieve significant dust reduction, and imposed a $225,000.00 Environmental Benefit Project primarily for the benefit of the Rensselear City School District and local community. Failure to comply with the Consent Order could lead to additional fines and even the revocation of the Facility’s permits.
Our experience with government investigations and the DEC indicates that an operator’s noncompliance with environmental laws or permit conditions can become a significant liability. This case demonstrates that obtaining a DEC permit does not end a facility’s obligations — they must still comply with applicable laws, regulations, and the conditions of their permit(s). In fact, permits often come with several conditions, the violation of which can result in fines or even permit revocation, which can be extremely costly to operators.
To avoid these potential risks and liability, operators should assiduously ensure that their facilities are in strict compliance. Host Municipalities, and those who live nearby such facilities, may do their part by reporting suspected violations to the governing federal, state, or local agencies for investigation and enforcement.
On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York.
Although the Horseshoe Solar project was publicly proposed on October 5, 2018, as of March 19, 2019 only one public comment on the project has been filed. This raises a concern that many people in the project area may not be aware of the proposal. More vocal public opposition or support might be expected when a 3,800 acre facility of any kind is proposed for a rural community.