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This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Enhanced Cancer Disability Benefit Regulations Finalized

fire service lawsOn October 17, 2018, the Division of Homeland Security and Emergency Services published a notice of adoption with respect to the New York State Volunteer Firefighter Enhanced Cancer Disability Benefits Program regulations.  The regulations were adopted as proposed.  A link to the Division’s website (here) contains links to both the regulations and the New York State Register.

The Register (starting at page 16) includes an assessment of public comment with respect to the proposed rules (including a response to each written comment).  Unfortunately, none of the comments resulted in any changes, and the regulations were adopted as originally proposed.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

Revised Regulations Implementing State Environmental Quality Review Act Adopted

The New York State Department of Environmental Conservation recently announced that it has formally adopted revisions to the regulations implementing the State Environmental Quality Review Act (SEQRA).  The new regulations will become effective on January 1, 2019.

I expect to write another post summarizing the major changes shortly.  In the meantime, you can find out more information about the amendments on the DEC’s website.


Open Meetings Law Will Require State Agencies To Live Stream Meetings

It is about time that the State of New York finally catches up to what the town of Penfield is already doing!  For many years, local towns like Penfield have have broadcast public meetings over their local public access cable television stations.  Several years ago, Penfield began broadcasting public meetings–both hearings and work sessions–in full high-definition on the Internet.  Once that happened, you no longer needed to have access to the town’s cable access channel.  You can now watch meetings of the town, zoning, and planning boards from anywhere in the world–as long as you have Internet access.

On December 11, 2015, the State of New York enacted an amendment to the Open Meetings Law (L.2015, ch.519), adding a new subdivision (f) to Section 103 of the Public Officers Law.  Starting next month, open meetings of agencies (which for the purposes of this new subdivision generally include only state agencies) shall be broadcast to the public and maintained as records of the agency.  The new subdivision also generally requires agencies to stream such meetings in real-time, and post video of the meetings on the agency’s website within and for a reasonable time after the meeting.  One caveat, though, is that agencies are only required to stream and post the meetings if they already maintain a regularly and routinely updated website, and if they already utilize a high-speed Internet connection.  Don’t all state agencies maintain updated websites, with high-speed connections?  They should.

Even though the Governor was criticized for his recent FOIL vetoes, this amendment gives good government groups at least one small victory this term.  As noted by the sponsor’s memorandum in support of the legislation:

This legislation would help increase transparency by allowing people to virtually participate in open meetings, without imposing additional burdens on public bodies.  Moreover, making the content of these meetings easily available to the public would reduce the likelihood of repeated questions to the agency, the impact of misinformation, and the number of individual FOIL requests.

In the past, I have viewed live-streaming and archived video of oral arguments at the Court of Appeals.  Living and working more than three hours away from Albany, it would not have been practical for me to do that for the cases I was able to observe without the Internet capabilities of the Court.  The availability of live-streaming and video archiving now enables those of us in Western New York to more easily observe our government in action.  I am looking forward to the opportunity to observe the agencies in the executive branch from the comfort of my office in Rochester.  The amendment takes effect on January 10, 2016.

LOSAP Penalty for NY Public Employees Removed

Many fire districts have established Length of Service Award Programs (“LOSAPs”) in an effort to recruit and retain volunteer firefighters.  The service awards provided under these LOSAPs relate to credits earned annually by performing various volunteer firefighting functions for a period of years, and are generally paid on a monthly basis upon the participating volunteer reaching a certain age.

Previously, public employees who serve as volunteer firefighters were unfairly penalized, in that they were not permitted to earn any credit for responding to calls during the individual’s regularly assigned work periods.  Effective immediately, this penalty no longer applies.

The Memorandum of Support accompanying Chapter 535 of the Laws of 2015 notes the absurdity of the prior restriction:

Section 217(f) of the [General Municipal Law] precludes a volunteer firefighter who provides firefighter services (generally, emergency services) during his or her “regularly assigned work periods” from receiving LOSAP credit for those services. So, in spite of the increasingly desperate need to attract folks willing to undergo hundreds of hours of required training and stay active for many, many years to earn any marginally-significant LOSAP benefits, public employees are “dis-incented” from providing volunteer firefighter services for circumstances over which they have no control and which may already cause them significant employment-related penalties.

Thankfully, on December 11, 2015, the Governor signed legislation to repeal this penalty, effective immediately.

Seat Belt Use Required For Volunteer Firefighters

Volunteer Fire Fighters Now Must Buckle-Up!

Volunteer Firefighters Now Must Buckle-Up!

When New York’s Seat Belt Law was originally enacted in 1984, the Legislature exempted “authorized emergency vehicles” from the definition of “motor vehicles” whose operators and passengers had to be restrained by safety belts, because it was believed that the operators of these vehicles needed to be able to perform their duties in an “unhampered fashion.” However, that is about to change for volunteer firefighters.

On November 20, 2015, the Governor signed an amendment to the Seat Belt Law (Chapter 448 of the Laws of 2015), which now includes vehicles owned or operated by volunteer fire departments within the definition of “motor vehicles” whose operators and passengers must be restrained.  The amendment also applies to ambulances owned or operated by voluntary ambulance services as well.  However, the safety restraint requirements still do not apply: (a) to a passenger in the rear seat of a fire vehicle or ambulance if the seat is not required to be equipped with safety belts, nor (b) to emergency medical personnel during the course of providing patient care in the rear compartment of an ambulance in accordance with applicable patient care standards, guidelines and protocols established pursuant to the Public Health Law.

In support of this legislation, the sponsor’s memorandum noted:

The single largest cause of Volunteer Firefighter and EMS responder death is vehicle accidents to and from an incident scene. The largest contributor to those deaths is failure to wear seat belts.  Volunteers would like the current exemption removed from the law making New York law consistent with the training and operational procedures currently in place to promote seat belt use.

Use of seat belts promotes safety and saves lives. Since buckling a seat belt takes just a few seconds, fire and ambulance vehicles should be required to use them. This bill is strongly supported by the Fireman’s Association of the State of New York.

This amendment will not take effect until November 1, 2016.


Fire District Materials: 2015 Batavia Conference

fire service lawsOn Saturday, September 26, 2015, I was honored to be invited to participate as one of the panelists at the 2015 Western New York Fire District Officers Legislative Association Workshop.  I understand that the event was a “sell-out” with fire district officials from over 11 counties in attendance.  There were many topics covered, and I wanted to follow-up with a short post including some additional information and links to relevant information from some of the topics that were covered.

Fundraising.  During one of the breaks, I was asked about firefighters participating in fundraising activities in support of other (non-fire) organizations.  A word of caution about this.  Although the statute governing fundraising, General Municipal Law section 204-a, generally provides that firefighters participating in fundraising activities are covered by the Volunteer Firefighters’ Benefit Law (“VFBL”), not all kinds of fundraising activities are included in this coverage.  Section 204-a defines “fund raising activity” as “a method of raising funds to effectuate the lawful purposes of a fire company.”  Thus, if the funds are not being raised for “the lawful purposes of a fire company” it is not likely that there would be coverage under the VFBL if a firefighter is injured while participating in such activity.

One of the fundraising activities briefly discussed involved raffles.  The New York State Gaming Commission website has a section dedicated to Charitable Gaming–including Raffles.  You can find it here.  It is critical that both the requirements of the General Municipal Law and the applicable gaming rules are followed.

Firefighters Under 18.  There are opinions from the Attorney General’s Office indicating that firefighters may be as young as 16 years old.  But, before deciding whether or not to permit firefighters that young, the fire district should consult with counsel about the unique rules applicable to such firefighters, and also to review the risks associated with having firefighters that young on active duty.  Fire districts are also authorized by section 204-b of the General Municipal Law to establish youth programs, provided the program complies with the requirements of the statute.  Participants in such a youth program are not active firefighters.  Unlike active firefighters, youth participants are not eligible for VFBL coverage, and they may not participate in any emergency operation or any hazardous activity.

Blue Lights.  The SafeNY website contains a good FAQ page [here] with a good summary of the requirements applicable to the different types of sirens and flashing lights–including the blue lights used by volunteer firefighters.  The website also contains links to the relevant statutes, including Section 375(41)(4), which governs the use and operation of the blue lights.

Bonding Credit Card Users.  Recent audits by the New York Comptroller have included a recommendation that fire districts and other municipalities bond individuals who are issued credit cards.  Here is a copy of a recent audit with this recommendation.

Document Retention Policies.  I have been asked by my fire district clients how long it should retain certain documents.  Fortunately, the New York State Archives published a document retention and disposition schedule applicable to fire districts and other political subdivisions in New York.  The schedule–known as MU-1–may be found here.

Thank you for visiting my blog. I hope you consider subscribing by email, liking my page on Facebook, or following me on Twitter. You may also want to subscribe to our firm’s email newsletter, In Confidence, here. You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.

Fire District Materials: Batavia Conference 2014

fire service lawsI am once again looking forward to speaking at the Western New York Fire District Officers Legislative Association Workshop in Batavia, New York, on September 27, 2014.  As I did last year, I wanted to write a short post as a resource for those attend.  Unfortunately, several of the documents I intended to reference (with links) are publications of the New York State Comptroller’s Office, and that website seems to be unavailable at the moment.

Although there will be a lot of important topics covered by the panelists, I will focus my remarks on two areas: (1) recent amendments to the procurement statutes; and (2) a general discussion of the Nonprofit Revitalization Act of 2013, and its applicability to volunteer fire companies.

Last year, I spent quite a bit of time discussing the expanded “piggybacking” exception to competitive bidding in New York.  Shortly after last year’s conference, the statute was amended again to further expand this exception to include contracts awarded on the basis of “best value” in a manner consistent with New York’s bidding statutes.  Following this amendment, the Comptroller issued an amended bulletin in November 2013, expanding on its earlier discussion.  There is a link to the bulletin in my post from last year, and it should bring you to the updated bulletin.

Shortly before the Nonprofit Revitalization Act of 2013 became effective on July 1, 2014, one of my colleagues wrote an excellent summary of the key provisions of the Act.  A copy of the article, Nonprofit Best Practices Now Mandatory, may be downloaded by following the link.  If you would like to have one of our attorneys review your company’s bylaws and make recommended changes to ensure compliance with the Act, please feel free to contact me.

Thank you for visiting my blog.  I hope you consider subscribing by email, liking my page on Facebook, or following me on Twitter.  you may also want to subscribe to our firm’s email newsletter, In Confidence, here.  You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.



Court of Appeals Upholds Local Zoning Laws Restricting Hydrofracking

Yesterday, the New York Court of Appeals–New York’s highest court–decided an important land use case involving town-wide restrictions prohibiting hydraulic fracturing, also known as hydrofracking.  The case has been widely reported in the media, but I think it is worth reading the actual decision because it contains a good discussion of preemption in the context of a municipality’s home rule authority to regulate land uses.  You may read it here: Matter of Wallach v. Town of Dryden (2014 NY Slip Op 04875).

In upholding the home rule authority to prohibit hydrofracking, the Court held:

At the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve. The discrete issue before us, and the only one we resolve today, is whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities. There is no dispute that the State [*12]Legislature has this right if it chooses to exercise it. But in light of ECL 23-0303 (2)’s plain language, its place within the OGSML’s framework and the legislative background, we cannot say that the supersession clause — added long before the current debate over high-volume hydrofracking and horizontal drilling ignited — evinces a clear expression of preemptive intent. The zoning laws of Dryden and Middlefield are therefore valid.

Matter of Wallach, 2014 NY Slip Op 04875 at *11-12 (2014).

Reminder: Open Meetings Law Now Requires Prior Disclosure of Agendas, Proposed Resolutions, and Other Documents

A little over two years ago, I wrote about an amendment to New York’s Open Meetings Law requiring prior disclosure of documents scheduled to be discussed at a meeting of a public body.  As of February 2, 2012, the Open Meetings Law requires public bodies to make certain documents–including agendas as well as any other document scheduled to be discussed at a public meeting–available before or during the meeting when they will be discussed.

Documents, such as proposed resolutions, laws, rules, regulations, policies or any amendments thereto that are scheduled to be discussed during an open session of a public meeting, should be made available upon request “to the extent practicable as determined by the agency or department” prior to or at the meeting during which the records will be discussed.  For more information about the requirements imposed by this amendment, please see my earlier article here.

I’ve had this issue come up several times in the last month or so, and wanted to be sure that my municipal clients are aware of this relatively new requirement.  Failure to comply with this or any other requirement of the Open Meetings Law could result in a court voiding any action taken, and the public body may be required to pay attorney’s fees and attend a training session on the requirements of the Open Meetings Law sponsored by the Committee on Open Government.

Court Rules That Cluster Subdivision’s Density and Open Space Restrictions Are Not Encumbrances

Ellison Heights Phase II

Last week, the Fourth Department issued the latest decision in the 17 year saga involving the development of the Ellison Heights Project–a multi-phased cluster subdivision within the Town of Penfield, New York.  As the court noted in the first round of litigation involving this project:

Cluster development. . . is a form of subdivision development which enables units to be located on a site in a manner that does not comply with the bulk requirements of the applicable zoning law. . . . Cluster development enables dwellings or other structures to be constructed on the most suitable portion of the property, thereby resulting in the preservation of tracts of land in their natural state.

In order to accomplish the clustering of development, a town board may authorize the planning board to approve an alternate development which deviates from minimum area, side and rear yard, depth, frontage, and similar requirements.  Matter of Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Board, 253 A.D.2d 342, 345 (4th Dep’t 1999).

The most recent case involving this project, Ellison Heights Homeowners Ass’n, Inc. v. Ellison Heights LLC, 2013 N.Y. Slip Op. 08685 (4th Dep’t 2013), involved a dispute between the owners of the already developed Phase I of the project, and the developer, who was seeking modifications to Phase II.  Both properties were originally owned by the same developer, who obtained approval from the Penfield Planning Board to develop the parcel into apartment buildings and town home units as a cluster development.

After acquiring the project, the present developer obtained approval from the Planning Board in 2005, to amend the site plan, and develop it in phases, resulting in a reduction of the number of townhomes to be developed on Phase I, among other things.  The townhomes were ultimately constructed and the property on which they were located was transferred to a homeowners association (the “HOA”).

In 2011, the developer again applied to the Planning Board to further amend its site plan by changing the configuration of the apartment buildings and reducing the number of units from the 199 that were originally approved to 180.  In doing so, the developer sought to develop Phase II using the same density and open space restrictions established by the Planning Board when the project was originally approved in 1999, thereby incorporating the open space of the HOA’s property in its density calculation.

While the application was pending before the Planning Board, the HOA commenced an action against the developer and the Town of Penfield seeking, among other things, declarations regarding its property rights pursuant to Article 15 of the Real Property Actions and Proceedings Law (the “RPAPL Claims”).  The HOA alleged that the defendants had no right to restrict development on the HOA’s property by using the open space located on the HOA’s property in the developer’s calculation of the density of the development on its own property.

The trial court dismissed the RPAPL Claims against all defendants, and dismissed the remainder of the complaint against the Town (in the interest of full disclosure, my colleague, Joe Platania, represented the Town of Penfield in the 1999 case, and I represented the Town on this case, and continue to represent the Town in the Article 78 Proceeding which is still pending).  The trial court also denied the HOA’s motion to amend the complaint, and the HOA appealed both of those orders in the consolidated appeals that were just decided.

On appeal, the HOA argued that the trial court erred in determining that documents on file with the Town permanently encumber and restrict further development of its property.  According to the HOA, those documents, which reference the density and open space restrictions for the cluster development, are not within its chain of title and thus cannot form the basis for an encumbrance on its property.  This argument was rejected by the Appellate Division.

In affirming the trial court, the Appellate Division made three key rulings:

  1. The Court rejected the HOA’s arguments regarding the RPAPL Claims, because “the density and open space restrictions on further development of [the HOA’s] property are the result of zoning regulations and do not amount to encumbrances that must be recorded in [the HOA’s] chain of title.”  The Court held that “the density and open space conditions that restrict further development of plaintiff’s property are the result of the Town’s ‘ability to impose such conditions on the use of land through the zoning process,’ which conditions are ‘meaningless without the ability to enforce those conditions, even against a subsequent purchaser'” (quoting O’Mara v. Town of Wappinger, 9 N.Y.3d 303, 311 [2007]).  Therefore, because the density and open space restrictions were the result of the zoning process, and not property encumbrances that must be recorded in the HOA’s chain of title in order to be enforceable, the Court concluded that dismissal of the RPAPL Claims–rather than the issuance of declarations pursuant to RPAPL–was the proper remedy.
  2. Perhaps not surprisingly, the Court also held that “either party could apply to the Planning Board for modification of the density and open space restrictions on its property and, if [that party] disagreed with the Planning Board’s determination, [that party’s] remedy would be to commence a proceeding pursuant to CPLR article 78 after exhausting its administrative remedies.”  While this notion has been commonly understood to be true among land use practitioners, this may be the first time an appellate court explicitly expressed this principle.
  3. Finally, the Court held that the complaint was properly dismissed against the Town.  According to the Court, “The Town will not ‘be inequitably affected by a judgment in the action’ (CPLR 1001[a]), nor does the Town ‘have an estate or interest in the real property which may in any manner be affected by the judgment.'”  Thus, the Town is not a necessary party to the RPAPL Claims.

This may not be the last word on the Ellison Heights Project.  As noted above, there is an Article 78 Proceeding currently pending, and the HOA is expected to perfect its appeal in the coming weeks.

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