Rochester Law Review

Required Disclaimers

Pursuant to Rules 7.1(e)(3) and (f) of the NY Rules of Professional Conduct, you are hereby advised that "prior results do not guarantee a similar outcome" and the contents of this blog constitute "Attorney Advertising."

Legal Advice

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.

© Peter J. Weishaar and Rochester Law Review, 2013 – 2018.

All Rights Reserved

Are Rochester Drivers Less Careful?

Always wear your seat-belt!

Always wear your seat-belt!

On my way in to work this morning, I passed a few heads of cabbage that remained along the shoulder of I-490 after an accident that happened a few days ago.  In case you haven’t heard, it was all over the news (and all over the road!):  thousands of heads of cabbage spilled all over both lanes of the expressway after the truck carrying them tipped over along a sharp curve.  You can read about it here and see some more pictures here.

Anyway, on the heels of that incident, it probably should come as no surprise that a new report from Allstate Insurance Co. shows that Rochester drivers are less careful than last year.  The Rochester Business Journal reported that:

The average driver in Rochester will experience a car crash every 7.7 years.  By comparison, Kansas City, Kansas–ranked first in the report–drivers will experience an accident every 13.3 years.  That is nearly 25 percent less likely than the national average of 10 years.

I guess it may be time for us all to take a defensive driving course again.  But, sometimes, no matter how defensively we’re driving, an accident may be unavoidable.  Tragically, serious accidents can sometimes be caused by judgment-proof drivers (with no assets), carrying either a minimal amount of insurance or no insurance at all.  That is why I always tell my friends, clients and family members how important it is to have adequate “SUM” coverage.  I’ve written about this before, and urge you to read these posts to find out more about this kind of coverage that you MUST have: Wrong-Way Crashes Highlight Need for Adequate SUM Coverage and Walkers, Runners, and Bicyclists: Tune Up Your Auto Insurance!

If you or a family member are ever seriously injured in an accident caused by another person’s carelessness, you can always contact us to talk about your rights and available options.  Information about our Personal Injury Practice may be found here.  Hopefully, you’ll never need us for that.

Safe travels!

Should Your Internationally Adopted Child Have A Certificate of Citizenship?

My wife and I have two children adopted from Korea, and we’ve both been very involved in the local Korean-American Adoption community.  From time to time, we’ve been asked questions by other parents that touch on this issue, and my wife keeps telling me that I need to write a post about this.  So, for this post, I’ll depart from my usual legal topics to write about something else that is very dear to my heart.  By the way, the answer to the question posed above is a resounding “yes!”

I know the Certificate of Citizenship is expensive and you may find that the Department of Health Certificate of Birth Record may work fine for now, but some day you or your child may encounter a bureaucrat who claims–rightly or wrongly depending on the date and manner in which your child was adopted–that your child is not a U.S. Citizen.  Get the Certificate of Citizenship now, while you still have all of the documents that are needed to complete this process.  Even though you can also obtain a passport–which will show citizenship–a passport expires.  A Certificate of Citizenship will not expire, and it can be used to obtain a Passport and other documents where proof of citizenship are required.

You may have heard stories about international adoptees who came to America as children, and later faced deportation–either because their adoptions were never finalized or they never officially became U.S. Citizens.  One such story widely reported involves Adam Crapser, a Korean-American who was later abandoned by his U.S. parents, and whose adoption was never finalized.  After a life struggling with joblessness because of his lack of immigration papers, homelessness and crime, Mr. Crapser–now a 39 and a married father of three–is facing deportation because he’s not a citizen.  You can read more about his story here.  Even though Mr. Crapser’s story may be the exception, rather than the rule, I am surprised to hear when parents tell me that they haven’t yet sought the Certificate of Citizenship.

Internationally adopted children whose adoptions were finalized after February 27, 2001, automatically become U.S. Citizens if the requirements of the Child Citizenship Act of 2000 are met.  The USCIS website has an excellent summary of the law (in plain English) here.  The U.S. State Department’s website also has some useful information about the law here.

Even though a Certificate of Citizenship is not required, I highly recommend you apply for one on behalf of your children.  You can find the application on the Department of Homeland Security’s website.  As I said above, both of my children were adopted from Korea.  Even though they both automatically became U.S. Citizens when their adoptions were finalized, I had a tremendously difficult time obtaining my first child’s Social Security Number because I made the mistake of failing to obtain a Certificate of Citizenship before applying for the Social Security Number.  Below is my story–an odyssey really–of the bureaucratic red tape I encountered because I did not have a Certificate of Citizenship.  It is reposted from a blog my wife and I wrote about adopting our first child.  [It has been edited to maintain privacy, but it is otherwise my post from February 12, 2010].

Red Tape and the Need for a Certificate of Citizenship

Pursuant to the provisions of the Child Citizenship Act of 2000, our son officially became a US citizen when his adoption was finalized in the US. In other words, he automatically became a citizen when the Surrogate signed the order of adoption. Now that he’s a US citizen, one would think it would be pretty easy to get a Social Security Number, right? Not so (for us anyways).

I knew we’d need to have our son’s SSN so we could claim the adoption tax credit in this year’s taxes. First, I should note that the forms on the SSA website are not exactly designed for someone in our situation. Since I had some questions about how to fill out the forms, given the fact that our son was an international adoptee, I tried to contact someone at the SSA who could answer a few questions for me.

One has no chance getting anyone on the phone at the local number. The line is always busy, and gets forwarded to the national SSA number. After navigating the phone tree, I finally reached a human being on the other line. Before I could proceed any further, however, the woman on the other end asked me for a social security number . . . . . What?  Let me explain why I’m calling. She actually asked again for my son’s social security number! When I was actually able to ask my questions, I was told that they were not allowed to answer specific questions (What???). She then suggested that I “hire a professional forms preparer, like an attorney.” (What the . . . .?).

Not having had any luck getting anyone to answer any of my questions, we decided to go in person (all three of us) to the Social Security Administration office downtown. We brought all of our original passports, my son’s green card, adoption certificate, certified adoption order, etc. After waiting for a while with a 2-year-old, our number was finally called. It was apparent that our son actually didn’t need to be there, but we had him there just in case. The service representative made certified copies of all of our original paperwork, and completed the SS-5 form on the computer. When we were done, he gave us a letter that said we could expect to receive our son’s card in about four weeks (but he told us that we should actually expect to receive it within 7 to 10 days). That would be perfect, because that would give us plenty of time to have the number in time to do our taxes . . . . or so I thought.

After a week, no card.

Ten days, no card.

Four weeks, and still no card.

Finally after five or six weeks (I can’t even remember now), I tried to contact SSA to find out why there was a delay. As happened previously, I couldn’t reach anyone locally, and nobody at the national office would help me. Out of desperation, I contacted Louise Slaughter’s office (our congressional representative). The person at this office, was actually quite helpful and tried to put me directly in touch with a manager at the local SSA office. Within 24 hours of contacting Louise Slaughter’s office, I heard from a manager. It turns out they lost our paperwork. The only paperwork in the file was the SS-5 printout. “When were they going to let us know there was a problem?” “Eventually somebody would have called us” was their response.

So, I took time out of my day to trudge back over to the SSA office and let them copy my original documents again! (This is also a reason why you should never, ever, let anyone with any federal or other agency keep any of your original documents–let them make certified copies!).

A few more weeks go by, and still no card. I tried calling the local SSA office using the manager’s number I got as a result of contacting Louise Slaughter’s office, and now even those calls were not being returned. Out of desperation, I again headed over to the local SSA office to try and get someone to help me. After spending over two hours there, and now on my third or fourth person (including two who rather insensitively and incorrectly told me that my son wasn’t a citizen yet), I finally got someone to help me.

She explained to me that the problem was actually with the Department of Homeland Security. Apparently DHS was not able to confirm that our son was actually the person who lawfully entered the country with the name on his green card. Duh! His name was legally changed when he was adopted. The certified copy of the adoption order has BOTH NAMES and explains that he will be going by the new name.

{Editorial Note: This was just after DHS let the underwear bomber board a plane using his name–which is a name on a terrorist watch list. Therefore, it is probably too much to ask, to have this same agency determine that a 2-year old who legally changed his name is the same person as the 10 month old who entered the country using the name on his green card}.

Anyway, the SSA representative explained how she would send a paper request to DHS and try and get the approval from DHS, so SSA could issue the card. She also gave me the super secret manager’s number that doesn’t go to voice mail if anyone wants it . . . . they have to pick it up!

At this point, I’m starting to really get pretty ticked (I also got a parking ticket because I was there as the SSA office was closing, so if I left to put more money in the meter, I wouldn’t be able to get back into the SSA office, and all the time I already wasted, would have REALLY been wasted). I next tried to contact DHS to try and figure out what the problem was.

Perhaps not surprisingly, DHS was equally as unhelpful. I decided that the only way to “fix” this problem was to get a certificate of citizenship even though our son should theoretically not ever need this document. In order to get this document, I needed to provide copies of all the same documents I provided to SSA (which SSA in turn sent to DHS already). And, of course, you need to fill out a form, and pay the government another $420 fee (on top of all the other fees I already paid for the other immigration documents).

In an effort to minimize any other problems, I made an appointment to do this at the Rochester satellite DHS office. I thought I would be able to sit down with a representative and explain my situation, and show them all of my documents. Wrong! When I got there there were two reps sitting behind thick glass windows with small circles to talk through (and you could barely hear them and they could barely hear you–especially if there is an elderly person who only speaks English as a second language talking very loudly to the rep next to you) and a little slot to pass papers back and forth (even though the side was wide open and I could very easily walk around the counter . . . .). And, the counter space was about 4 inches wide and I could barely spread my files out.

Once again, I was told that my son was not yet a citizen and that was probably why DHS could not confirm lawful status to SSA . . . . Idiots!

Anyway, I submitted my forms and continue to wait . . . . for both DHS and SSA. I’ll keep you posted as to what happens.

The moral of the story so far is that if you are the parent of a child adopted from another country, you must get the certificate of citizenship. Even if you don’t think you will need it, there are many, many misinformed bureaucrats out there, and you need to do everything you can to ensure that your child doesn’t have to face the red tape and hassles I’ve faced here (especially when they are older, and you might not be around to help them). I know another family that adopted a child from the same country through the same agency a year earlier. It was smooth sailing for them at the SSA, and they have yet to get a certificate of citizenship. I did everything the same, and we have had nothing but . . . . well nothing has happened and we’re still waiting for an SSA, nearly four months after applying.

I’ll provide an update when and if I have one . . . stay tuned.

After receiving the Certificate of Citizenship, I re-applied for a Social Security Number, and it came right away.  For our second child, I got the Certificate of Citizenship first, and then applied for the Social Security Number, and that process went much smoother.  Don’t let your child be hassled like I was.  Get the Certificate of Citizenship.

Partial Enforcement of Non-Compete Still a Risky Proposition

Earlier this week, I wrote an article on our firm’s website about some recent developments regarding partial enforcement of restrictive covenants:  New York Employers Could Soon Have More Difficulty Enforcing Restrictive Covenants.  The article was primarily based upon a Fourth Department case of Brown & Brown, Inc. v. Johnson, a case that was recently argued at the New York Court of Appeals.  Yesterday, the Court of Appeals decided the case.  You can read the decision here.

This weekend, I will write a more extensive update about the case on our firms’ website, but there are still a few interesting takeaways to note.

Although partial enforcement under New York law was one of the issues under review, the threshold issue addressed by the Court of Appeals was whether or not to apply a Florida choice-of-law provision.  The Appellate Division held that New York law should apply, and the Court of Appeals affirmed that part of the ruling.  After an extensive review, comparing the laws of the two states on this issue, the Court held:

Considering Florida’s nearly-exclusive focus on the employer’s interests, prohibition against narrowly construing restrictive covenants, and refusal to consider the harm to the employee–in contrast with New York’s requirements that courts strictly construe restrictive covenants and balance the interests of the employer, employee and general public–defendants met their “‘heavy burden’ of proving that application of Florida law [to the non-solicitation provision of the parties’ agreement] would be offensive to a fundamental public policy of this State.”

There have been a number of occasions where I have reviewed non-compete agreements containing choice-of-law provisions from Florida or other more “employer-friendly” states.  From now on, it seems very unlikely that such a provision would be enforced absent some significant distinguishing set of circumstances.  Employers wishing to enforce restrictive covenants in New York should narrowly tailor them to meet the requirements for enforceability under New York law.

On the issue of partial enforcement, the Court of Appeals reversed the decision of the Appellate Division.  But, the Court did so because it believed there were issues of fact that raised questions about whether the employer engaged in overreaching or used coercive dominant bargaining power to obtain the restrictive covenant at issue.  That issue was remanded back to the lower courts for further proceedings.  Partial enforcement is not assured, and employers should be concerned about the apparent trend by courts to decline to partially enforce over-broad restrictive covenants.

Capicola Confidential: Secrets of the Sandwich-Maker

BLTI’ve never eaten at Jimmy John’s, but they must have some incredible sandwiches, made with either top secret ingredients or through a confidential process (or both!).  It turns out that this sandwich chain requires its hourly workers to sign non-compete agreements, prohibiting its employees from working for a competitor for two years(!) after leaving Jimmy John’s.  I don’t know how I missed that, but it was apparently widely reported back in October, in Business Insider and the New York Times, among other publications.

According to the New York Times article, this isn’t really all that uncommon, as more and more employers are requiring low- and moderate-wage workers to sign these agreements. But, it seems to me very unlikely that these agreements would be enforceable in New York.  Plus, given the expense of enforcement, it is doubtful that any employer would truly think it worth the cost of litigating these agreements.  But, a low-wage under threat of litigation and unable to afford a lawyer to defend them in such an action may not know that, and feel trapped in their current job.

In New York, these agreements are more common among professionals, executives, and higher-paid salespersons with access to confidential business-related information.  And, even in those situations enforcement is not a sure thing.  Restrictive covenants in employment—also referred to as non-compete clauses—are generally not favored, and will be enforced by the courts only to the extent they are reasonable and necessary to protect legitimate business interests, such as the protection of an employer’s trade secrets or confidential customer lists, or protection from an employee whose services are unique or extraordinary. Courts have also held that employers have a legitimate interest in preventing former employees from exploiting the goodwill of a client or customer, which had been created and maintained at the employer’s expense, to the employer’s competitive detriment.  What legitimate interest would a sandwich chain have to justify preventing one of its sandwich-makers from leaving and working for a competitor?

This may all be moot if Congress passes the Mobility and Opportunity for Vulnerable Employees (MOVE) Act (not to be confused with the Military and Overseas Voter Empowerment Act).  According to the press release issued by one of the sponsors, the legislation:

will enable low-wage workers to seek higher-paying jobs without fearing legal action from their current employer.  The MOVE Act will ban the use of non-compete agreements for employees making less than $15 an hour, $31,200 per year, or the minimum wage in the employee’s municipality, and will require employers to notify prospective employees that they may be asked to sign a non-compete agreement.

According to the press release, it is estimated that 8-15% of low-wage workers are asked to sign non-compete agreements in an effort to dissuade those workers from seeking better, higher-paying jobs within the same industry. Although such agreements in these contexts may ultimately prove to be unenforceable in many jurisdictions, passage of the MOVE Act would remove any doubt with respect to these employees.

For more information about restrictive covenants and some recent developments in New York law, I invite you to read the latest posting on our firm’s website: New York Employers Could Soon Have More Difficulty Enforcing Restrictive Covenants.

Urban-Suburban Interdistrict Transfer Program Upheld by Second Circuit in 2000

UrbanSuburban

 

The Urban-Suburban Interdistrict Transfer Program has been in the news quite a bit lately, as several suburban Monroe County school districts consider whether to join the Program, which permits minority students from the Rochester City School District to transfer to suburban school districts.  This evening the Spencerport Central School District voted to become the eighth suburban district to join the program.  According to the Democrat and Chronicle, at least three more suburban districts are considering whether to join as well.

One of the most rewarding cases I worked on early in my career was Brewer v. West Irondequoit Central School District, 212 F.3d 738 (2d Cir. 2000), a case upholding the Urban-Suburban Interdistrict Transfer Program.  This evening, I dusted off my copy of our brief, and flipped through the pages of the Joint Appendix.  Here are some interesting facts from the case as they existed at the time of the appeal:

  • The Program began in 1965, with the voluntary transfer of 25 minority students from a predominantly minority Rochester City School District school to the predominately white West Irondequoit Central School District.
  • Program participating involved a voluntary commitment by each suburban district, and the decision-making process was typically accompanied by vigorous political debate, and the public airing of racial attitudes and prejudices.
  • The Program survived an early legal challenge in Etter v. Littwitz, 47 Misc. 2d 473 (Sup. Court Monroe County 1965), aff’d, 28 A.D.2d 825 (4th Dep’t 1966), as well as funding cuts and recurring political opposition to its state funding.
  • Over time, the Program expanded to include more transferring students and additional participating suburban school districts.  At the time of the appeal, six suburban districts participated in the Program:  Brockport, Penfield, Brighton, Pittsford, Wheatland-Chili, and West Irondequoit.  Subsequently, Fairport joined the Program, and as noted above, Spencerport has decided to join.
  • The Program operates and is funded pursuant to State legislative and State Education Department authorization.  This was true at the time of our appeal, and I believe it to be true today.
  • Program literature and historical news accounts in the record report that the Program was the first such voluntary inter-district desegregation effort in the United States.
  • At the time of our appeal, the Program was the only one of its kind in New York State.
  • The Program was not established, nor was it administered to permit a select group of students to attend a “better school” based on their superior academic achievement or intelligence.  Rather, the goal and purpose of the Program as specified by the State Education Department was “to promote a reduction in racial isolation in the elementary and secondary schools of the State.”
  • Although the “outbound” component of the Program generates the most press, at the time of our appeal there was also an “inbound” component to the Program, whereby non-minority students may transfer from participating suburban districts to attend school in Rochester.  According to information in the record, approximately 29 suburban students transferred inbound to attend a Rochester City School District school for the 1996-97 school year, and 50 students did so for the 1998-99 school year.
  • During the then-30 years of its existence, the Program received high praise and commendations from numerous people, including a sitting U.S. President, federal and state legislators, members of the New York Board of Regents and State Education Department officials, local school superintendents and administrators, teachers, parents, and students.
  • In celebration of the Program’s 20th Anniversary, President Ronald Reagan congratulated the Program, noting:

For two decades your voluntary program has provided an opportunity for thousands of students to learn and grow in a multi-cultural environment.  It has broadened their horizons and promoted high student achievement and academic excellence.

-President Ronald Reagan, February 24, 1986 (Joint Appendix on Appeal at A-152).

In upholding the Program, the Second Circuit held “that a compelling interest can be found in a program that has as its object the reduction of racial isolation and what appears to be de facto segregation.”  Brewer, 212 F.3d at 752.

As these young children from Rochester begin their education in Spencerport (and any other district joining the Program), I hope that they will be welcomed by their new peers–including many whose parents may have been opposed to joining the Program.  Although society continues to struggle with whether or not voluntary desegregation programs like this are constitutionally permissible, many people believe that all of these children–whether from the suburbs or the city–will benefit from interactions with other children from different backgrounds.

New York Department of Labor Will Not Require Wage Notices in 2015

Two weeks ago, I wrote about two recent amendments to the Wage Theft Protection Act.  One of those amendments eliminated the annual wage notice that employers were required to provide employees.

One of the problems identified by the Governor when he approved these amendments was the fact that the changes were not effective until 60 days after signed.  The problem with that effective date (for 2015 at least) was that the notice required employers to provide the annual wage notices no later than February 1, 2015.

Thankfully, legislative leaders and the Governor have agreed to a chapter amendment to make this change effective immediately: “Accordingly, given the pending enactment of this chapter amendment, the Department will not require annual statements in 2015.”  You can see the notice for yourself here.

Talk about good timing.  Tomorrow I am scheduled to conduct my staff reviews.  That’s one less thing I have to prepare tonight.

LLC Members Personally Liable For Failure To Pay Wages?

DHR Logo SidebarAs I wrote in a post earlier today [Annual Notice Provision Eliminated From Wage Theft Prevention Act], Governor Cuomo signed legislation yesterday amending certain provisions of the Wage Theft Prevention Act.  In addition to eliminating the annual notice provision, the amendments enhance certain penalties and make it easier to pursue repeat violators who attempt to evade the provisions of the act by setting up new businesses with similar operations and ownership.

One of the other significant provisions of this legislation [L.2014, ch.537], is the inclusion of an amendment to the New York Limited Liability Company Law.  The amendments now impose personal liability on the members of a limited liability company with then ten largest ownership interests for the failure of the company to pay the wages of its employees.  These amendments are similar to provisions already contained in the New York Business Corporation Law.  Although the liability is also joint and several, employees wishing to take advantage of these provisions must first satisfy certain conditions, including providing written notice to the member against whom a claim will be made.

Over the last several years, the Legislature has made it a priority to protect employees from employers who fail to pay wages.  These amendments are part of that effort, and the they simply bring the provisions of the Limited Liability Company Law more in line with the provisions that already apply to most other business entities in New York.

Annual Notice Provision Eliminated From Wage Theft Prevention Act

performance appraisalIn January, I wrote about the notice requirements of the Wage Theft Prevention Act that apply to both new employees and existing employees.  [See Employers: Do Not Forget Your Annual Employee Wage Theft Prevention Act Notice].  The Act required employers in New York to provide all new employees with a written notice setting forth the employee’s rate of pay and other pay-related information.  The Act also required employers in New York to provide another written notice containing the same information to all other employees annually, before February 1 of each year.

Not surprisingly, the annual notice provision was roundly criticized by employers and business groups across the state because of the administrative burden and expense imposed on employers.  The Rochester Business Alliance noted that the required written notice contained the same information that employees already receive on their paystubs.

Earlier this year, the Legislature passed an amendment to the Wage Theft Prevention Act, eliminating the annual notice requirement, and yesterday, Governor Cuomo signed the bill into law (L.2014, ch.537).  The amendments also increase certain penalties for non-compliance and include provisions making it easier to establish successor liability against employers who attempt to evade the provisions of the law by purporting to set up new companies.

In his approval memorandum, the Governor noted that he was signing the bill into law, even though there were some technical and substantive problems that will need to be addressed.  I would expect the Legislature to act on these issues early in the new year.

 

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).

%d bloggers like this: