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Right-to-Farm Law NY - New York State Agriculture and Markets Law

Agriculture In The Hudson Valley: Understand Your Right-to-Farm

With New York State ready to press play after several months of being on “PAUSE” in response to Governor Cuomo’s Executive Order amidst the COVID-19 pandemic, the phased reopening of New York’s economy will be an ongoing process in the coming months.

Like many other sectors of New York’s economy, agricultural tourism (or “agri-tourism”) – such as farm stays and retreats, hotels and resorts, beverage-based operations like wineries, cideries, distilleries and breweries, and on-farm events such as farm stands, “U-pick” and harvest festivals which are designed to market and promote the farm’s crops and other products – were booming before the PAUSE. However, with new social distancing policies and guidelines, now more than ever agriculture and agricultural-related uses in the Hudson Valley and surrounding areas in New York will rely on creative adaptation to survive and thrive amidst the new realities confronting the industry.

This blog is the first in a series that will explore the ins-and-outs of Article 25-AA of the AML while largely focusing on the local land use entitlement process and the many ways agricultural and farm-related businesses are protected from unreasonably restrictive local regulation.

An important aspect of agriculture and its corresponding adaptive regrowth is understanding the dynamic between local regulation and the State’s interest in protecting and enhancing agricultural land and farm-related uses. Indeed, the interest in protecting and promoting agriculture is not limited to traditional crop-based farming and rearing of livestock, but also applies to beverage-based facilities, equestrian uses and even emerging markets such as industrial hemp and cannabis-based products. To further this interest, the State Legislature enacted Article 25-AA of the Agriculture and Markets Law (“AML”) with the express purpose of conserving, protecting and encouraging the development and improvement of agricultural land relative to local ordinances. Article 25-AA of the AML executes its legislative intent through County agricultural districts which provide various benefits such as tax exemptions,1 protection from unreasonably restrictive local regulation and right-to-farm laws.

This blog is the first in a series that will explore the ins-and-outs of Article 25-AA of the AML while largely focusing on the local land use entitlement process and the many ways agricultural and farm-related businesses are protected from unreasonably restrictive local regulation. AML Section 305-a provides that local governments “shall not unreasonably restrict or regulate farm operations within agricultural districts.” Farm operations include the land and on-farm buildings, equipment and practices which contribute to the production, preparation, and marketing of crops, livestock, and livestock products as a commercial enterprise. Farm operations also explicitly include commercial horse boarding and equine operations, as well as timber operations and compost, mulch and other biomass crops.

To assist in implementing the protections provided by Section 305-a, the New York State Department of Agriculture and Markets (the “Department”) issues guidelines as to the types of local regulations that will, in their opinion, unreasonably restrict or regulate farm operations within established County agricultural districts.2 Such guidance documents include guidelines for review of local laws affecting direct farm marketing activities,3 as well as local laws affecting farm distilleries, breweries and wineries,4 to simply name a few. The Department regularly updates these guidelines to reflect changes in the agricultural industry and the state’s legislative policies affecting same. In light of the COVID-19 pandemic, it is expected that updated guidance will be issued as the state looks to further support the industry.5

The protection from unreasonably restrictive local laws offered by AML Section 305-a will continue to play an important role in the adaptive regrowth of agriculture in the Hudson Valley and New York State. The experienced Land Use, Zoning + Development team at Cuddy & Feder is available to advocate on your behalf to ensure your agrarian business can grow without unreasonable local restriction and maintain its essential contributions to the economic stability and growth of the local community and State as a whole.

Read Part 2: Agriculture in the Hudson Valley: When State and Local Policies Conflict

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Telecommunications as Critical Infrastructure, Executive Orders Tolling Limitations Periods and the FCC “Shot Clock”

To prevent the spread of COVID-19 and protect the public, the governors of New York and Connecticut issued Executive Orders reducing the in-person workforce of all non-essential businesses and not-for-profit entities by 100%. Only essential businesses or entities providing essential services are exempt from the workforce reductions. These prevention and protection measures resulted in non-essential businesses shifting to “work-from-home”; schools in both states to suspend classroom teaching for on-line instruction and everyone relying on wireless networks for essential goods and services, such as telemedicine. In addition, first responders and the general public rely on adequate telecommunications when calling-in and responding to emergencies.

Recognizing that reliable wireless service is critical during this state of emergency, telecommunications are deemed “essential infrastructure” by both New York (Executive Order 202.6) and Connecticut (Executive Order No. 7H). In New York Executive Order 202.13 the New York State Empire State Development Corporation (NYSESDC) reaffirmed that construction by utility companies, such as telecommunications providers, is indeed essential and exempt from the workforce reductions. The federal government also identifies the continued operation and growth of telecommunications capabilities as vital during this unprecedented time. On March 16, 2020, the Director of the United States Department of Homeland Security, Cybersecurity and Infrastructure Security Agency, National Communications Coordination Branch issued a directive ordering cooperation and access to allow telecommunications providers to maintain their infrastructure to ensure the continuation of communication capabilities during the COVID-19 pandemic.

Telecommunication providers must continue to meet the public’s needs during a time when wireless networks are experiencing a significant spike in telecommuting and the use of telecommunications for social interaction as a result of nation-wide work from home and social distancing directives.

Notably, federal timeframes applicable to telecommunication siting matters remain in full force and effect to ensure that telecommunications providers can continue to deploy their essential infrastructure and provide the essential service. The FCC “shot clocks” which require telecommunication applications be reviewed and, in many cases, mandate approval of permits within a specific time frame by municipalities, are not overriding by the New York and Connecticut Executive Orders tolling legal statute of limitation periods for matters within the State’s jurisdiction and control.

The telecommunications industry’s exemption from workforce limitations and compliance with the federal timeframes for infrastructure deployment and upgrades are more critical now than ever. Telecommunication providers must continue to meet the public’s needs during a time when wireless networks are experiencing a significant spike in telecommuting and the use of telecommunications for social interaction as a result of nation-wide work from home and social distancing directives. Sufficient, reliable wireless coverage and capacity are no doubt paramount during this global pandemic. We encourage all municipalities and telecommunications providers to work purposefully in processing applications and meeting the need of local communities through enhanced wireless network infrastructure so relied on during this pandemic.

 

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Support for the Energy Sector in New York State, Part 3: Long-Term

This is the third blog in a three-part series about near-, middle-, and long-term impact for the Energy Sector in New York.

Improved Siting Process for Renewable Energy Projects

Earlier this April, the Accelerated Renewable Energy Growth and Community Benefit Act (the Act) was adopted as part of the New York State 2020 budget. The inclusion of the renewable energy siting and transmission reform in the state budget provides for an improved siting process for renewable energy projects that will help New York achieve 70% renewable electricity by 2030, as required by New York’s 2019 Climate Leadership and Community Protection Act (CLCPA), while maintaining New York’s environmental and public participation standards. It could also provide a much-needed stimulus after the economic slow-down caused by COVID-19.

Building wind and solar and investing in transmission can be part of our state’s post-COVID-19 economic recovery.

The Act establishes an Office of Renewable Energy Siting (ORES) at the NYS Department of State; lays out a sensible, stepwise permitting process; and directs the new office to establish standard operating conditions for wind and solar projects. It also has the potential to significantly reduce the amount of time it takes for developers to build renewables, while ensuring a rigorous environmental review process and creating green jobs across the state. Indeed, the new siting rules will ensure that renewable projects larger than 25 megawatts (MW) can receive approval within a year, in contrast to the previous siting process that could take several years or more. The 2020 State budget also provides funding for up to 25 full-time ORES employees.

In addition, the Act, which will be codified as N.Y. Executive Law § 94-c:

  • Creates a new New York State Energy Research and Development Authority (NYSERDA) program to identify sites that can be made “build-ready” for renewable development, and then transfer the development rights to private developers
  • Creates an Endangered Species Mitigation Bank Fund to support conservation projects
  • Calls for developing a State Power Grid and Study Program to accelerate the planning and build-out of bulk and local transmission and distribution infrastructure
  • Directs the Public Service Commission to establish a distribution and local transmission system capital program for each utility in need of local upgrades in their service territory
  • Authorizes NYPA to pursue transmission projects that are deemed high priority
  • Adds deadlines to the permitting process for transmission, which will include onshore transmission needed for offshore wind development

Local governments will have access to intervenor funds, and both they and the public will have the opportunity to participate in the process. All projects must follow local laws unless deemed ‘unreasonably burdensome,’ by the Siting Office in view of the CLCPA targets and the environmental benefits of the proposed major renewable energy facility, which is consistent with the current standard under the Article 10 siting process. It is also noteworthy that any final permit issued by the Siting Office must include host community benefits, which are intended to provide benefits to owners of land and communities where renewable facilities are located.

Importantly, the Act eliminates the need to obtain any other state or local approvals, meaning projects greater than 80 MW will no longer need to obtain a separate approval under Section 68 of the Public Service Law. In addition, projects that propose to connect to the electric grid via transmission lines less than 10 miles in length will also be included as part of the streamlined review process and will no longer need to go through the lengthy and costly Article VII approval process.

Unfortunately, the Act did not include uniform local property tax assessment methodologies. As such, the patchwork of property taxes and payment in lieu of taxes (PILOT) agreements remains. Renewable energy developers will need to continue to navigate New York’s local taxing and industrial development authorities to set project property tax levels through PILOTs.

Hopes for COVID-19 Recovery

Last year’s CLCPA requirements, including the mandate of 100% carbon neutrality in the electricity generating sector by 2040, set a high goal, and the Act provides a trajectory to reach those targets. Moreover, building wind and solar and investing in transmission can be part of our state’s post-COVID-19 economic recovery. The renewable siting reform package is a crucial piece of legislation to help New Yorkers recover from this unprecedented health and economic crisis. It will help jump start our economy by creating much-needed jobs and business opportunities, while allowing the transition to renewables to get up to speed. And it provides more certainty to developers in terms of the kinds of conditions they will have to meet, thereby making it easier and faster for these projects to navigate the process. In March, Governor Cuomo revealed details of 21 large-scale solar, wind and storage projects that will bring 1,278 MW of capacity to the upstate region alone. Hopefully, the Act will transform the current renewable siting landscape to timely deliver these projects and more. For more information contact energy@cuddyfeder.com.

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Support for the Energy Sector in New York State, Part 2: Medium-Term

This is the second blog in a three-part series about near-, middle-, and long-term impact for the Energy Sector in New York.

Essential Workers and Businesses in Energy

Throughout March 2020, New York State Governor Andrew Cuomo issued a series of Executive Orders declaring a State disaster emergency in order to facilitate a timely and effective response to the COVID-19 emergency. As a result, all businesses and not-for-profit entities in the state were required to maximize any telecommuting or work-from-home procedures that they could safely utilize, and each employer was mandated to reduce the in-person workforce at any work locations by 100%, with “essential business or entity providing essential services or functions” exempt from these restrictions. Since then, the New York State Department of Economic Development (ESD) has issued “Guidance For Determining Whether a Business Enterprise is Subject to a Workforce Reduction under Recent Executive Orders.”

Notably, for those in the energy sector, essential infrastructure includes “public and private utilities including but not limited to power generation, fuel supply, and transmission,” and essential construction is applicable not only if “the construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools,” but also and expressly if “the construction is for projects in the energy industry in accordance with Question No. 14 in the FAQ.” Reference to the Answer to Question No. 14 in the FAQ reveals a chart for general reference for the energy industry as follows:

Essential – those activities necessary to respond to the COVID-19 state emergency or to provide basic human services (e.g. food, shelter, safety, health & well-being)
  • Utility Operations & Maintenance and Capital Plan Activities for:
    • Existing power generation (including existing energy storage & EV infrastructure)
    • Utility scale new power generation for projects with an in-service date of September 1 or sooner
    • Existing fuel supply
    • Transmission and distribution infrastructure, including for maintenance, resilience, reliability and demand response
    • Ensuring safe and reliable service to customers
  • Energy Construction Activities Related to:
    • Existing or expanding grid or other critical infrastructure, including but not limited to service of:
      • Transit Facilities
Non-Essential – all other activities
  • Energy efficiency in existing buildings – all sectors
  • New power generation – except the above essential
  • New energy storage – except the above essential
  • New construction – except the above essential
  • New EV infrastructure
Emergency – health and safety
  • Projects necessary to protect health and safety of building occupants, utility customers, or the public including continuation of existing work to extent necessary to create a safe site

Essential Businesses, however, must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health (DOH), and every business, even if essential, is strongly urged to maintain social distancing measures to the extent possible. For more information contact energy@cuddyfeder.com.

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Support for the Energy Sector in New York State, Part 1: Near-Term

This is the first blog in a three-part series about near-, middle-, and long-term impact for the Energy Sector in New York.

 

At the start of the year, numerous memes celebrated 2020 as the “year of perfect vision.” With the COVID-19 pandemic hitting earliest and hardest in New York, the prospects for the foreseeable future have unfortunately become far less clear than 20/20. Nonetheless, New Yorkers know how to pull together. And there are positive develops for help available to the Energy Sector in New York, in the near-, middle- and long-term.

Near Term – Federal and State Assistance Programs

On April 16, 2020 at 9:30 AM, the New York State Energy Research and Development Authority (NYSERDA) and the Business Council of New York State co-hosted a webinar addressing the impact of Coronavirus on the Clean Energy sector, focusing on COVID-19-related federal and state assistance programs. It provided an overview of the Coronavirus Aid, Relief, and Economic Security Federal Relief Bill (CARES Act) and the Federal Small Business Administration Assistance (SBA) Programs as well as Federal and State Leave Laws and related human resource issues. Speakers included Alicia Barton, President and Chief Executive Officer, NYSERDA; Heather Briccetti, President & CEO, The Business Council of New York State, Inc.; Ken Pokalsky, Vice President, The Business Council of New York State, Inc.; Frank Kerbein, Director, Center for Human Resources, The Business Council of New York State, Inc.; and David Terry, Executive Director, National Association of State Energy Officials. For more information contact energy@cuddyfeder.com.

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New York and Connecticut Join Multi-State Council to Restore the Economy

New York and Connecticut announced on April 13, 2020 they are joining a seven-state council tasked with creating a plan to reopen the States’ economies. The council will work together “to develop a fully integrated regional framework to gradually lift the States’ stay at home orders while minimizing the risk of increased spread of the virus.” Massachusetts, New Jersey, Rhode Island, Pennsylvania and Delaware will be joining New York and Connecticut.

The group will be comprised of one health expert, one economic development expert and the respective chief of staff from each member state. The council is reported to start work on designing a reopening plan as soon as April 14, 2020. There is no deadline for the council to deliver a plan, however.

New York’s schools and nonessential businesses are scheduled to remain closed through April 29, 2020 and Connecticut’s schools and nonessential businesses are schedule to remain closed through May 20, 2020.

In this ever-changing environment, we will continue to keep you updated as the plan unfolds and are available to advise you as questions arise. For more information contact landuse@cuddyfeder.com.

Connecticut Press Release

New York Press Release

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Judges Expand Matters to be Addressed in New York State’s Virtual Courts

As the country adapts to life during the COVID-19 pandemic, so do the New York State trial courts.

New York State courts have been addressing emergency, or “essential,” matters virtually, allowing counsel and the parties to appear before the Court either by phone or videoconference. Beginning Monday, April 13, New York State trial courts will begin handling certain pending “non-essential” actions and proceedings via the virtual court system as well.

While the courts will, for the time being, still prohibit filing of new “non-essential” cases, individual judges will review their existing caseloads and decide which cases should be conferenced and which can be moved toward a resolution. Judges are also permitted to schedule conferences at the request of attorneys, and are now available during normal court hours to address discovery and other concerns. These conferences will continue to be held remotely.

Additionally, judges may now decide fully submitted motions, which will hopefully serve to both reduce backlogs and facilitate speedier resolution of the likely high volume of motion practice that will commence once the prohibition on new “non-essential” filings is lifted.

We will continue to provide updates on access to the court system during this unparalleled period in our history.

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Municipal Building Inspectors are Essential Under NY Covid-19 Executive Orders

Cuddy & Feder LLP continues to closely monitor state and federal responses to the outbreak of COVID-19 pertaining to the land use, zoning, development, and telecommunications fields. The New York State Department of State, Division of Building Standards and Codes “Guidance for Code Enforcement Personnel Relating to the Governor’s Executive Orders During the COVID-19 Public Health Emergency was released April 4, 2020 (Guidance for Code Enforcement Personnel). The Guidance for Code Enforcement Personnel summarizes and clarifies several provisions from New York’s COVID-19 Executive Orders (E.O.) that relate to building and code enforcement.

Below are a few key points highlighted in the Guidance for Code Enforcement Personnel:

Code Enforcement Officers are “essential”

E.O. 202.4 tasks municipalities with determining which personnel are “essential” and therefore exempt from personnel restrictions. The Department of State confirms that code enforcement personnel “should be deemed essential.” This determination is based on the Empire State Development Corporation’s guidance which includes “building code enforcement” as an essential service and the provisions of E.O. 202.11 whereby code enforcement officers are authorized to enforce E.O. restrictions on occupancy and operations as violations of the Uniform Code or other local building codes. This effectively mandates code enforcement officers to continue operating during this public health emergency, though the Department of State recommends the use of electronic or other remote means, were feasible, to reduce in-person contact.

Legal Citations for Restricted Occupancy and Operations

The guidance specifies the information that should be included within any legal citations (appearance ticket, notice of violation, etc.) issued for violation of an E.O. and provides an example of such citation. The necessary information includes:

  • notification of the exact nature of the violation; and
  • proof to the Court that the violation is a violation of an E.O., that the violation is deemed to be a violation of the Uniform Code, and therefore the violating party is subject to the penalties proscribed in the Executive Law.

Essential Construction

The Guidance for Code Enforcement Personnel refers to the provisions of E.O. 202.13 which modifies E.O. 202.6 by indicating that only “certain construction” (rather than merely “construction” as stated in E.O. 202.6) is “essential.” The guidance refers to the Empire State Development Corporation materials for information on what construction is “essential” (i.e. roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters).

Suspension of Code Provisions for Certain Emergency Measures

The Guidance for Code Enforcement Personnel advises that E.O. 202.5 suspends state and local codes, regulations, and laws “to the extent necessary to allow, upon approval by the Commissioner of Heath or the Commissioner of Office for People with Developmental Disabilities, as applicable, the temporary changes to physical plant, bed capacities, and services provided; the construction of temporary hospitals locations and extensions; the increase in and/or exceeding of certified capacity limits; and the establishment of temporary hospital locations.”

 

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COVID-19 Emergency Measures for Retirement Accounts

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law on March 27, 2020. Among other measures designed to ease the financial burden of the COVID-19 pandemic, this new law changes the way you can access funds from your retirement account.

Background

To understand how this new Act may impact you, we need to first review the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) which was passed on December 20, 2019, and changed the required minimum distribution (RMD) rules for people with IRAs. Under the SECURE Act, if someone reached the age of 70½ in 2019 or earlier, then that person must take the first RMD by April 1, 2020. If a person reaches age 70 ½ in 2020 or later, that person must take the first RMD by April 1 of the year after reaching age 72. In addition to this group of people, other people may be taking RMDs from inherited IRAs. People only need to take an RMD from a 401(k) if they are no longer working or if they are working, but the 401(k) plan is from a previous employer.

Required Minimum Distributions from retirement plans and accounts (like an IRA or 401(k))

Under Section 2203 of the recently passed CARES Act, there is a temporary waiver of RMD rules for this year. Under the Act, anyone who was required to take an RMD in 2020 is no longer required to take the RMD. If a person still wants to take the RMD, however, they may take it.

Withdrawals from retirement funds

In addition to the RMD provisions under the CARES Act, Section 2202 contains rules regarding withdrawals from retirement funds and loans from qualified plans. These rules only apply to individuals diagnosed with SARS or COVID-19, individuals with a spouse or dependent diagnosed with SARS or COVID-19, or individuals who experiences adverse financial consequences because of quarantine, furlough, layoff, reduced work hours, or inability to work due to child care because of SARS or COVID-19.

Such individuals can withdraw up to $100,000 and not be subject to the 10% early withdrawal penalty. Repayment can be made over a three-year period beginning on the date of withdrawal, and the distribution may be taxed over three years instead of entirely in 2020.

Loans from qualified employer plans (like a 401(k))

For those who may wish to take a loan from an employer plan, the maximum amount has been increased from $50,000 to $100,000. Loans can now be taken up to 100 percent of the participant’s vested account balance instead of 50 percent. There is a window of 180 days from enactment of Act to take the loan, and any loan repayments due before December 31, 2020, can be delayed up to one year. These changes apply to any 401(k) plan regardless of whether or not in pay status.

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Best Practices for New York State Real Estate Closings During COVID-19

In light of recent events surrounding the outbreak of COVID-19, Cuddy & Feder LLP has been closely monitoring developments in the real estate industry. Since New York State has mandated that all non-essential businesses reduce in-person work forces by 100%, our attorneys have been conducting loan and real estate closings remotely, eliminating the risk of exposure to our community that would be posed by a traditional in-person closing.

The following are a few tips and recommendations for conducting remote loan and real estate closings:

  • Escrow Closings. With a little advance planning and some coordination, most loan and real estate closings may be conducted remotely with one or more parties agreeing to hold original (or electronically) signed documents in escrow until the closing of the transaction. Ideally, the parties to the transaction should sign at least two originals of the closing documents and then scan the signature pages to the interested parties for their review to ensure that all documents were properly signed. To the extent originals are needed (e.g., promissory note, mortgage or deed), those originals may be sent directly to the residence of the bank attorney or the title closer, as applicable. Funds may be sent via wire transfers. Once all parties confirm they are ready to close, the documents and funds can be released from escrow.
  • Notaries. NY Executive Order 202.7 temporarily suspended the rule requiring physical appearance before a notary public and authorizes notarization via audio-video technology, which makes it easier to conduct closings in escrow.
  • Recording. Many county clerk offices are authorized by law to accept electronic copies of deeds and other recordable documents and are continuing to accept documents transmitted electronically for recording at this time.
  • Title Insurance. Given that many county clerks are accepting documents transmitted electronically for recording, title insurance companies are continuing to issue title policies during this time. A free Policy Authentication endorsement is available, which provides that title insurance coverage will not be denied on the grounds that the policy and endorsements were issued electronically.

For those closings that absolutely must occur in person, please be sure to follow the CDC and NYS Health Department guidelines for ensuring health and safety during this time. Please also be sure to check our website for updates related to the effects of COVID-19 on the real estate industry.