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!

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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).

 

 

 

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.