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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.

Remember to Vote in Fire District Elections Tonight!

If you live in a Town, chances are that your fire service is delivered by a Fire District.  Many people assume that their local fire department is merely another department within their Town’s government.  But, generally around much of Upstate New York, fire service is delivered by a Fire District, which is a separate political subdivision with its own taxing power and a separately elected Board of Fire Commissioners.

Tonight is the night when nearly all local Fire Districts hold their elections for Fire Commissioner.  Sometimes there are other propositions before the voters, like whether to dispose of surplus apparatus, or whether to incur indebtedness for the purpose of constructing a new fire hall or purchasing a new piece of apparatus.

Fire District elections are typically held between the hours of 6pm and 9pm (and can sometimes start earlier), and each Fire District is required to publish a notice of election.  The notice of election is also provided to the clerks of each Town serviced by the Fire District, and the clerks are thereafter required to post the notice on the Town’s website.  Thus, if you are not sure if you live in a Fire District, and want to know where the election will be held, the best place to start may be your Town’s website.  For example, the Town of Penfield is serviced by three Fire Districts: West Webster Fire District, Penfield Fire District, and the North East Joint Fire District.  Notices of election for each district may be accessed from the Penfield Town Clerk’s page here.

NYS Comptroller to Fire Districts: Bond Credit Card Users

Some of you know that I represent a number of fire districts in and around Monroe County.  I have found that one of the best resources for fire district commissioners is the New York State Comptroller’s website.   The website has a lot of useful information, as noted in a prior post.  From time to time, I peruse the latest audit reports available on the website, looking for issues that other districts have faced, so I can advise my clients about these developments and assist the commissioners in carrying out their duties.

When reviewing the latest batch of audits from the New York State Comptroller’s Office, I saw only one audit of a fire district.  Although there were no major criticisms noted, I did take note of a recommendation from the auditors that I wanted to pass along to you.

In this latest fire district audit, the auditors found:

  • The Board-adopted credit card policy authorizes issuing credit cards to certain District officials. The policy states that each credit card purchase is limited to $2,500 and must be documented by submitting a receipt which specifies the purchase date, amount, location, reason, item description, and the purchaser’s name. However, this policy does not require bonding insurance for all individuals who are issued District credit cards. We found that the only individual bonded was the Treasurer.

Therefore, the auditors recommended that the board of fire commissioners amend the district’s credit card policy to require the provision of bonding insurance for any board member, official or employee responsible for using credit cards.  Although I have not seen a specific statutory requirement mandating bonding insurance here, I do think this is a good recommendation if you are going to permit district personnel to use credit cards issued to the district.  If you are a fire district commissioner and would like discuss this issue further, or if you would like to know more about the services provided by our firm, please visit the municipal page of our firm website.  You may also contact me directly by clicking the “contact” tab above.

Summary Judgment Denied in First Amendment Claim Involving Malicious Prosecution of Sign Ordinance Violations

Fed. Dist. Court in NY Clears Path for First Amendment Sign and Malicious Prosecution Claims.

Local Laws to be Published on State Website

On the way in to work this morning, it was reported that the Governor signed a number of bills into law.  So as I often do, I checked the State Legislature’s website to see if any of these recently enacted laws will impact my clients or my practice.

While the newspapers and other media outlets have so far focused on the series of laws that promote the state’s wine trails, it was another chapter that caught my eye.

Within the next six months, the Secretary of State will be required to annually publish local laws on the Department of State website in addition to publishing them in a separate volume as a supplement to the Session Laws.  Chapter 383 of the Laws of 2013 amends subdivision 5 of section 27 of the Municipal Home Rule Law so that it will also require the Secretary of State to publish a complete codification of all local laws in effect that have been adopted by the legislative body of each county on the Department of State’s website.

Soon, it will be easier for laypeople and attorneys alike to find Local Laws enacted pursuant to the State’s Municipal Home Rule Law.  This is another step in the right direction towards making government more open and accessible.

Fire District Materials: Batavia Conference 2013

I am looking forward to speaking at the Western New York Fire District Legislative Association Workshop tomorrow, and I wanted to write a short post as a resource for those attending.

As I wrote last December, New York expanded the “piggybacking” exception to competitive bidding.  Since that time, a number of fire districts have been approached by vendors offering goods and services under other governmental contracts, claiming that the contract falls within the newly expanded “piggybacking” exception.  But, as the State Comptroller noted, “It is the responsibility of local officials to review each proposed procurement to determine, on advice of the local government’s counsel as appropriate, whether the procurement falls within the exception.”  Thus, we expect to spend quite a bit of time discussing this exception tomorrow, as well as the Comptroller’s November 2012 bulletin discussing this relatively recent amendment.

A copy of the Comptroller’s bulletin may be found here, and I highly recommend reviewing this bulletin before considering whether to make a procurement under this exception to competitive bidding.  It is essential that you also involve counsel in the process.

The Comptroller’s Office has an excellent website, with a lot of very useful publications, and one that I recommend every year at this conference is the Comptroller’s Local Government Management Guide titled, Seeking Competition in Procurement.  This guide was just amended and reissued on May 2013, and it includes a sample procurement policy–which is one of the first things the Comptroller’s Office asks for when they show up at your door to conduct an audit.  This edition of the procurement guide also includes a discussion of the “best value” standard which is now also permitted in New York.

Another topic that will be discussed is the Open Meetings Law.  In the beginning of 2012, the Open Meetings Law was amended to require prior disclosure of agendas, proposed resolutions and other documents.  Shortly after this amendment was enacted, I wrote about it here.

Thank you for visiting my blog.  I hope you will 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.

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