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.

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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!