New York Adopts Legislation to Address Vacant and Abandoned Foreclosures

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For far too long, vacant and abandoned foreclosed homes have been a serious problem for citizens and public officials in New York. According to a recent study,[1] vacant foreclosed homes number over 3,000 in the state of New York, trailing only New Jersey. One need not venture inside a property to see that it is vacant and abandoned – usually its status is quite evident to passersby. The telltale signs are overgrown grass and weeds, broken or boarded windows, sagging gutters and other signs of disrepair. Abandoned homes are not only eyesores for citizens, but pose safety hazards and drag down values of nearby homes. To top it off, the local municipalities are often stuck with maintaining these homes – cutting the grass to prevent rodent infestation, repairing the gutters to prevent flooding and sometimes demolishing homes that have become a serious safety concern. Often these costs are significant and are ultimately passed on to the taxpayers.

As one might suspect, the current law requires the homeowner to maintain his or her property. When that owner defaults on his or her mortgage, often due to financial distress, the owner does not have the means to maintain the property, thus resulting in the property maintenance issues mentioned above. Sometimes the owner(s) eventually abandon the property during the foreclosure process. Under the current law, since a lender does not become the owner of the property until the foreclosure process is completed (which can sometimes take years in New York), the maintenance responsibility continues to fall on the owner who no longer lives the property and has little incentive or ability to maintain it. Thus, the property continues to fall further into disrepair, often resulting in intervention by the local municipality at the ultimate cost of the local taxpayers.

New York recently enacted the “Abandoned Property Neighborhood Relief Act of 2016,” effective December 20, 2016, to address these issues. The provisions of the Act fall into three primary categories: 1) requiring lenders to inspect and maintain vacant property prior to completion of foreclosure, 2) the implementation of a statewide abandoned property registry and reporting system to monitor vacant properties, and 3) providing an expedited foreclosure process for vacant properties.

As mentioned above, currently, the responsibility to maintain a foreclosure falls to the lender only when after it comes into ownership of the property at the completion of the lengthy foreclosure process. Pursuant to the Act (with some limited exceptions), lenders will now have the duty to inspect and maintain abandoned and vacant properties prior to completion of the foreclosure proceedings. Specifically, within 90 days of delinquency, the lender must complete an exterior inspection of the home to determine whether it is vacant and must continue to inspect every 25 to 35 days.

If a home is determined to be vacant, the lender must secure and maintain the property, including: securing points of entry (i.e. doors, broken windows), winterizing the property, protecting against mold growth, and addressing code violations (such as overgrown grass and weeds). Should a lender fail to maintain the property, it will be subject to a $500.00 per day fine. Additionally, should a lender fail to maintain the property, a municipality may itself address maintenance and, per the Act, will have the right to commence an action directly against the lender to recover its costs. Pre-foreclosure recovery against the lender is generally not available today and will be a boon to municipalities that will now have a method by which to quickly and fully recoup their maintenance costs (as opposed to now, where a municipality’s costs are often billed to an owner who is nowhere to be found and ultimately levied on to a tax bill that the owner cannot pay).

The Act also calls for the implementation for a statewide electronic abandoned and vacant homes registry to be operated by the New York State Department of Financial Services (“DFS”). Within 21 business days of when a lender/servicer learns or “show have learned” that a property is vacant, the lender must cause the property to be entered into the statewide vacant property registry by providing the following information to DFS: 1) the name and contact information or the lender who will be required to maintain the property, 2) whether a foreclosure action has been filed and if so, when and 3) the last known contact information of the homeowner.

Though the Act provides that the information in the registry will be kept “confidential” (presumably to protect defaulting homeowners), it also provides that the information will be provided by the DFS to local municipal officials upon request so long as it is used strictly to address vacant and abandoned property in a manner consistent with the Act. Furthermore, the Act calls for the establishment of a hotline where neighbors and residents can report to the DFS regarding apparent vacant properties. If executed properly, the registry and the hotline could be a very valuable resource that could be leveraged by both NY State and local municipal officials to ensure lenders are timely and fully addressing maintenance responsibilities on vacant foreclosures.

In the legal and banking community that deals with foreclosures, New York is known for its notoriously slow and cumbersome foreclosure process – a process to which many attribute at least some blame for the vacant and abandoned properties crises. The Act seeks to address this problem by implementing an expedited foreclosure process for vacant and abandoned property. In sum, lenders may make use of an expedited legal process known as an “order to show cause” in order to quickly bring a foreclosure process to conclusion so long as the lender demonstrates that the property is indeed vacant. In order to do so, it must conduct 3 consecutive inspections of the subject property, at least 25 to 35 days apart, and show 1) no evidence of persons residing there, and 2) that the property was not being maintained in a manner consistent with requirements of the NY Property Maintenance Code.  Evidence of lack of occupancy may include: overgrown or dead vegetation, accumulation of mail, past due utility notices, accumulation of trash, absence of window coverings, broken windows, failure to secure entry points, and that the property is structurally unsound or otherwise hazardous.

In addition, New York is pursuing measures to prevent abandoned property in the first place, including the establishment of the “Community Restoration Fund” program whereby New York will be able to purchase defaulted mortgages and offer favorable mortgage modifications in order to keep owners in their homes.

Prior to the Act, municipalities sought to address vacant properties by adopting a patchwork of local legislation. Generally, the local legislation centers on requiring lenders to register with the local municipality and post a bond that can be accessed by the municipality to deal with maintenance on foreclosed properties. Municipalities should be aware that the Act provides that local legislation cannot be inconsistent with the Act. New York State’s intent appears to be that the Act will accomplish the purpose of the aforementioned local legislation by having DFS maintain a statewide registry (rather than local registries), by legally requiring lenders to maintain prior to foreclosure (and thus dispensing with the need for municipalities to step in) and by providing municipalities a direct path to recovery against lenders should they fail in their duties.

As effective date of Act approaches (Dec. 20, 2016), public officials should prepare to make use of the new tools they will have at their disposal.  From the ability to interface with DFS to identify vacant homes to the right to recover maintenance costs directly from the lender, the Act promises long overdue tools that appear likely to significantly and positively impact the abandoned and vacant homes crises in New York.

[1] http://www.housingwire.com/articles/37068-strong-housing-market-helps-reduce-lingering-foreclosure-inventory.

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The Regulation of Fireworks in New York

Firework displayWhen I was a kid growing up in New Hampshire, it wasn’t unheard of for my friends and I to get a hold of firecrackers or roman candles and explore their pyrotechnic greatness in remote, wooded areas. In retrospect, these adventures probably weren’t a great idea for a number of reasons (but watching dead stumps stuffed with firecrackers explode was quite a fulfilling experience). If I had grown up in New York, I would have been deprived of these fond memories. That’s because fireworks have been illegal in New York since about 1940 (except for public displays by professionals). However, in 2015 New York law was amended to allow the sale and use of a certain subtype of fireworks known as “sparkling devices.”

While you still shouldn’t see people shooting off roman candles or tossing firecrackers (since they aren’t “sparkling devices”), you’ll see a lot more than you would have prior to 2015. Spanning over two pages in length, the definition of “sparking devices” is set forth at Part 225 of Title 9 of the New York Codes, Rules and Regulations.  Sparking devices are divided into two categories – “ground-based or hand held devices” as well as “novelties.”

“Ground-based or hand-held devices” are defined as those devices which produce a shower of colored sparks as their primary effect, and which may also include a colored flame, an “audible crackling effect” or whistling, and smoke. They cannot rise into the air, fire projectiles into the air and cannot explode. “Novelties” are defined as those devices which are not regulated as “explosives” and are generally limited to devices such as “party poppers,” “snappers” and the like. While the definition of sparking devices seems fairly narrow, you’ll soon see that fireworks vendors have no problem filling up large (obnoxiously colored) tents full of an impressive variety of of pyrotechnic goodies.

Sparking devices may be sold in New York only on specified dates during the Independence Day and New Year seasons. Specifically, sale dates are limited as follows: from June 20th to July 5th (though permanent and specialty retailers may begin sales on June 1st), and from December 26th to January 2nd.

Whether you are able to find fireworks for sale nearby depends on which county you are shopping in. That’s because the law is not a blanket authorization for the sale of approved fireworks anywhere New York. Instead, the law permits each individual county to decide, via local legislation, whether the sale of sparkling devices will be allowed within its jurisdiction.  By way of example, in the Rochester area, fireworks may be sold in Wayne County and Ontario County, but are not authorized for sale in Monroe County. A full listing of counties which have authorized the sale of fireworks can be found here:  http://troopers.ny.gov/Publications/Crime_Prevention/fireworks_law_changes.pdf. Notably, the sale of any fireworks is completely banned in New York City.

Fireworks vendors are required to be certified by New York State. While local municipalities such as villages, towns and cities may not regulate fireworks (since New York regulates them, as described above), some choose to regulate the zoning and land use aspect of the temporary fireworks sales tents by requiring site plan review. Since many of these temporary tents are quite large and are placed in parking lots of existing, busy and commercialized sites, there are a few important factors which the local planning review agency should consider, including: traffic safety, vehicle and pedestrian ingress and egress, sufficient parking and sufficient building separation. Your local building inspector should also review the plans for safety, ensuring that the operation is compliant with the New York Fire Code.

As authorizing counties “explode” with the proliferation of temporary fireworks sales tents, may you go forth with your newfound knowledge of New York fireworks regulations and have a safe and enjoyable Fourth of July celebration!

The Often Overlooked SEQR Environmental Assessment Form and its Close Friend, the SEQR EAF Workbook

 

Stack of Documents

It is often neatly tucked away in between many other more interesting documents submitted in support of a new project application. Our eyes are instead drawn to the letter of intent, site and subdivision maps and graphics of building elevations and signs. How about that landscaping plan or the traffic study? This unassuming, vaguely familiar form may garner a quick glance but is otherwise unattended to, left cold and lonely and buried beneath stacks of more interesting and seemingly more relevant documents.

To many, the SEQR (“State Environmental Quality Review Act”) Environmental Assessment Form is a mysterious document that raises as many questions as it offers answers. Who is supposed to complete it? By when must it be completed? Why are there multiple parts and what are they for? How am I supposed to understand all of these terms I have never heard of before? Isn’t the planning staff or engineer supposed to handle this?

Fortunately, the NY Department of Environmental Conservation has created a very useful resource which helps to answer many of these questions – the SEQR Environmental Assessment Form Workbook. You can find the workbook online here, at the DEC’s website.

Not only can the workbook be used as a reference to address a particular question about the EAF, but, perhaps more importantly, it is designed as a guide which can be used to walk through each and every question, line and part of the EAF.

To get a head start, you should know that the workbook is divided into a few categories – Short Form EAF – Part 1, Part 2 and Part 3 and Long Form EAF – Part 1, Part 2 and Part 3. If these terms are unfamiliar or vague to you, please read on below, where I give a very brief overview.

So, the next time an EAF form lands on your desk, I suggest you take a look at the SEQR Workbook. In my experience, it can really demystify the EAF forms.  Also, if any of you are headed to New York City this year for the Association of Towns Annual Conference, I will be there presenting on the SEQR EAF and the Workbook. Hope to see you there!


 

The long form EAF is used for projects which typically raise substantial environmental questions, also known as “Type 1” actions. The short form, which is much shorter and less detailed than the long form, is required for projects which are not typically as substantial, referred to as “Unlisted” actions.

Part 1, submitted by the applicant, simply identifies factual information related to the project, ranging from the property address and the applicant’s name, to the size and zoning of the property, etc. This information forms the basis for filling out Parts 2 and 3.

Part 2, to be completed by the lead agency, is used for the initial, more general, environmental review of the project. It comprises a series of check boxes representing categories of potential environmental impacts which the lead agency must consider.

Part 3, also to be completed by the lead agency, is less of a form and more of blank page which is used to draft a narrative to explain (and make) the lead agency’s determination (positive declaration or negative declaration). This is where we decide whether the project will undergo further, more scrutinizing environmental review (in the form of an EIS).

 

 

 

Practice Tips on Drafting Local Legislation for New York Municipalities

 

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As a municipal attorney I have had many opportunities to write, amend and analyze local legislation. Along the way, I have developed a mental checklist that I consider when working on such legislation. In this post I will reduce that mental checklist to writing in order to provide practice tips for drafting local legislation.

Local legislation includes local laws, ordinances and codes of municipalities such as counties, cities, towns and villages. Often, a municipality’s local legislation is referred to as that municipality’s “code.”  In fact, a municipal code, such as a “Town Code,” is merely an organized collection of select legislation that typically includes a variety of local laws and ordinances. A code book is created so that a municipality’s local legislation is retained in an organized and accessible manner (rather than filed away in various cabinets of a dark file room), so that it can be easily accessed and referred to by municipal staff and the public alike.

There are two general areas which should be considered when drafting local legislation – substance and procedure.

Substantive Considerations:

  1. Provide Intent.

Describe, in the local legislation itself, why the legislative body is adopting it. What is the background? What is the goal? What facts, studies or other items have been considered? Intent is important not only because it provides a context, but also because in some cases where local legislation is challenged in court, the “intent” section is used by courts to interpret otherwise ambiguous provisions.

  1. Clarity.

Obviously, we want our laws to be clear and understandable. Case law bears out innumerable examples where our federal and state legislators have fallen short here.  Below are a few tips that should help with clarity:

  1. Most importantly, where appropriate, use definitions for key terms. Capitalize those terms when they are used within the legislation to indicate they are defined.
  2. Avoid long, meandering sentences that are often difficult to follow and understand. Break them up into smaller sentences.
  3. Make an effort to divide content into meaningful categories and use distinct sections throughout the law.
  4. Make use of titles, both for sections and subsections.
  5. Ensure that the proposed legislation is properly formatted – used nested lists, spaces between sections, underline or bold titles, etc.
  6. Have another person, or a few different people, review your proposal prior to adoption. Sometimes what may be clear to you is not clear to everyone else. Remember, local legislation needs to be understandable not only to the people who draft it, but, most importantly, to the local residents who must ultimately understand and abide by it.

      3. Consistency – Local.

Proposed legislation should not only be internally consistent (meaning it doesn’t contradict itself), it also should be consistent with legislation already on the books. Check other areas of your municipal code book that may be related and ensure that the new legislation doesn’t unintentionally undercut or conflict with those areas. Also, make sure you pick a term and stick with it – don’t use different, interchangeable words to describe the same thing. This is why definitions are important.

  1. Consistency – State and Federal / Constitutionality.

Ensure that the proposed legislation does not impermissibly supersede or conflict with other state or federal law. For example, in New York, much litigation ensued over whether a local municipality had the authority to regulate zoning with respect to hydrofracking. The issue revolved around whether, and to what extent, New York State Law related to the activity prohibited local legislation on the topic. Be aware of state law on a topic and ensure it does not preempt your proposed legislation.

Be aware of Federal Laws on the topic that may preempt local legislation. For example, while local governments are permitted to adopt legislation related to the siting of cell towers, the Federal Telecommunications Act prohibits local legislation from addressing a number of topics, including, for example, how a cell tower may affect the health of those in its proximity.

Finally, ensure that the local legislation you adopt is constitutional. One particularly treacherous issue here is sign codes – they may not violate the First Amendment, meaning they may only regulate signs in a manner that is “content neutral.”

  1.  “Teeth.”

Make sure your proposed legislation has “teeth” – meaning that it has “bite” because it can be enforced. Create a distinct “Enforcement” section and set forth what constitutes a violation, what process must be carried out to address such a violation and detail the penalties for a violation.

Procedural Considerations:

  1. Legislative Authority.

Prior to putting pen to paper (or fingers to keyboard), the first task should be to ensure that the municipality has the authority to do whatever it is that it seeks to do. Municipalities are only permitted to do what they have been expressly empowered to do under the law – this doctrine is referred to as “legislative authority.” Find authority for whatever local legislation you are drafting. For example, in New York towns, such authority is often found in NY Town Law or NY Municipal Home Rule Law.

  1. Due Process – Notice and Public Hearing.

Often, the state law which provides legislative authority provides for due process, usually requiring a properly noticed public hearing at which members of the public may offer their input on the proposed legislation. Typically, the public hearing must be noticed in a local newspaper a specific number of days in advance.

  1. Input from Other Agencies.

In some cases, the proposed legislation must be referred to another agency for its review and input prior to approval. For example, pursuant to NY General Municipal Law Section 239-m, legislation dealing with land use in close proximity to other municipalities must be reviewed by the local County Planning Board prior to approval.

  1. Environmental Requirements.

Environmental review is often a pre-requisite to adoption of local legislation. It may seem odd to analyze the environmental effect of legislation since, initially, legislation only changes words on a page. But, consider, for example, local legislation which changes the zoning code of a Town so that it now permits landfills – this may ultimately result in an actual landfill with substantial environmental impacts. In New York, environmental review is conducted pursuant to the State Environmental Quality Review Act (SEQR).

  1.  Implementation.

The legislative board’s approval of the proposed legislation at open meeting is not the final step. Ensure that the local legislation is properly filed with the Town Clerk and the Secretary of State in New York. Finally, work with staff to ensure the legislation is properly incorporated into the local code book.

Rain, Surface Water Runoff and Drainage – The Big Picture

There is no ignoring the issue of surface water runoff  in the northeast US, especially during the spring season, which comprises snow melts followed by lots of rain. Speaking of which, we have had it pretty badly during the past six months here in upstate New York – shivering through what seemed to be the coldest, snowiest and longest winter in a long time, followed by one of the wettest spring seasons I can remember.

For homeowners in northeast U.S., the spring season means soggy, muddy backyards dotted with puddles of stagnant water, and sometimes much worse – flooded basements, a new stream through the front yard, or the washing away of thousands of dollars of landscaping. As one might imagine, this also means lots and lots of calls from concerned citizens to local municipalities.

But even after all the headaches we have and will continue to have with these drainage issues in the northeast US, when I compare them to the water issues further west, I can’t really complain. While the problems in the northeast deal with too much water and where to put it, further west, the problem is not enough water, and how to conserve it.

For example, large municipalities out west are spending millions on plastic balls which are dumped over water bodies to slow evaporation and conserve water. In Phoenix, the lack of water is so pervasive that it has fundamentally changed the ground upon which the City sits so that the City itself is actually sinking, by some calculations at a rate of .75 inches per year. That’s terrifying.

Nonetheless, it’s clear that properly addressing surface water runoff, or “drainage,” is an important topic, at least in the northeast U.S. A key element of solving the drainage problem begins at the time of application for new development. Whether a local Village Board is handling a major rezoning request, a Town Planning Board is considering a 30 home residential subdivision or a Zoning Board is addressing a variance for a larger driveway, problems resulting from drainage can be greatly minimized when our local municipal boards properly plan for and implement measures to deal with surface water.

During application review, local municipal boards should work with their engineer to ensure it fully considers the drainage implications of a proposed project. Even something as minor as the widening of a driveway (which often means replacing grass lawn that absorbs water with impervious pavement that generates surface water runoff) can generate enough surface water runoff to damage a neighbor’s lawn, drown their newly planted bushes or possibly flood a basement. Mitigation measures ranging from implementing drainage swales (i.e., “ditches”), properly grading a driveway, hooking into municipal storm water systems or even properly directing the outflow of gutter discharge can have substantial effects on potential drainage issues.

Other strategies outside of application review may also prove useful, including establishing and ensuring compliance with maximum developable area standards to limit impervious areas, creating and maintaining a drainage district, and ensuring Stormwater Pollution Prevention Plans (“SWPPPs”) are carefully monitored and complied with.

Let us be grateful that we have so much water that we must be careful about where we direct and drain it. Let us be thoughtful about where we put it and how it gets there. But, also, let us not forget that we could face a much more dire problem – not having enough water. After all, we could face the same tough choice as Tom Selleck – hijack municipal water for our garden or watch our gardens slowly wither away. 

It’s Almost Election Season – Are You Ready For A Few Political Signs?

Is this a legitimate part of the political process, or just a legitimate mess?

From a practical standpoint, local sign codes are very, very important . . . yet many municipalities get them wrong. For example, this summer the U.S. Supreme Court determined that a town’s sign code was unconstitutional. The journey of this case all the way up to the U.S. Supreme Court demonstrates the complicated legal balancing act between free speech and a government’s authority to regulate signage.

One particular area where sign codes often go wrong is dealing with political signage. It won’t be long now before political candidates around the nation start planting their signs  . . . EVERYWHERE. Once you see the first one, you know the onslaught of them will quickly follow – on every  corner, in your neighbors’ front yard, and every 10 feet all along the road you traverse on the way to work in the morning. While many of us recognize the importance of the political process, we grow tired of seeing so many of these signs.

Some municipalities have adopted sign codes which regulate and attempt to limit the number and density of political signs. Often, however, these provisions are technically unlawful and, like the case above, would fail if challenged in court.

Before we talk more about sign codes, I want to remind us all that as a matter of general property law (Town, Village and City Codes aside), a sign may only be placed upon property with the permission of the owner. This means that signs cannot be placed upon that highly visible, vacant, undeveloped parcel on the corner (which is actually owned by somebody), within the grassy right-of-way abutting a public roadway or, oftentimes, even at the entrance to the Town Park without permission of the owner (whether the owner is a private person, a corporation, or a municipality).  Many of those signs you see along the roadway are actually within the public right-of-way (which usually extends beyond the pavement of the road well into the grass) and, based upon that municipality’s zoning laws, may be properly be removed by the local municipality.

My second comment on political signs, and sign codes in general, is that per the 1st Amendment, signs may not be regulated on the basis of content or message, but may be regulated on the basis of a number of other things unrelated to message or content(such as size, location, shape, etc.). Therefore, where a sign code singles out and addresses political signs (as many do), that sign code is almost always unconstitutional because it is regulating the message or content of the sign (politics). What, then, are we to do about the impending barrage of political signs?

There is a strategy municipalities can use to address many political signs while still respecting the 1st Amendment –  address them based upon the physical sign structure itself, and not in relation to the political message or content on the sign.  Political signs during election season almost all share a common characteristic that has nothing to do with the message on the sign itself –  structurally, they are temporary signs, comprised of a vinyl or coated cardboard sign face wrapped around metal wire legs. They are designed to go up before the election and to come down thereafter.

Regulations which address temporary signs will most certainly capture most political signs during election season (since they are often temporary signs), allowing a municipality to address the number of temporary signs permitted on a  property, the size of those signs, and how long they may remain before they must be removed, for example.

While targeting political signs is unconstitutional, regulating  signage based upon the physical structure of sign itself (i.e., a sign designed/constructed to be temporary only) that happens to include many political signs is perfectly permissible. Be sure to get your sign code into shape as this election season quickly approaches!

The Proposed Lago Casino in Tyre, NY – A Lesson on Proper Environmental Review

A rendering of the proposed Lago Casino in Tyre, NY.
The proposed Lago Casino in Tyre, New York is a big deal.

Most would agree that a casino is the kind of development that can dramatically reshape the very nature and character of a community. The potential impacts of a casino stretch far beyond the immediate vicinity where the casino is ultimately located, likely across the entire Town and greater region.

These likely impacts highlight the need for the Town to be careful and precise during is local review and permitting process. However, it appears that the Town of Tyre made at least one critical mistake during its environmental review (pursuant to the State Environmental Quality Review Act, or SEQR) of the proposed Casino, resulting in a Court voiding the Town’s approvals. In sum, it appears the Town failed to adopt a written explanation (a “Part 3”) for its determination that the Casino would not have any significant adverse environmental impacts (i.e., a “Negative Declaration”).

Not only does this mean that the Town’s approvals are undone and thus must be completed anew, but now the construction of the Casino (which had already commenced) must be halted and, in some respects, rolled back so that the site remains safe while the Town considers approval of the project . . . again.

The court decision is a costly setback for both the Town and the developer, which both must spend additional time and money to re-navigate the local approval process. This matter should serve as a reminder to local New York municipalities to carefully and completely address SEQR, particularly when dealing with substantial, controversial projects.