Category Archives: covid alerts

New York State Continues the Suspension of In-Person Meeting and Public Hearing Requirements

Governor Cuomo signed Executive Order 202.48 (E.O. 202.48) on July 6, 2020 and Executive Order 202.49 (E.O. 202.49) on July 7, 2020  which continue the suspension of in-person meeting and in-person public hearing requirements in continued response to the COVID-19 Pandemic. E.O. 202.48 and E.O. 202.49 are the latest in a string of Executive Orders intended to balance the needs of public safety and continued economic growth throughout the state.

The Suspension of In-Person Meeting Requirements Is Continued Until August 5, 2020

E.O. 202.48 continues the suspensions and modifications of law contained in Executive Order 202.1. E.O. 202.1 suspended several laws of the state, including the New York State Open Meetings Law (OML), permitting the continuation of municipal meetings via teleconference or video conference. E.O. 202.1’s directive is now continued through August 5, 2020:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.

Public Hearings To Be Continued To Be Held Remotely or Postponed Until August 6, 2020

E.O. 202.49 continues the prohibition contained in E.O. 202.15, dated April 9, 2020, which restricts the conduct of in-person public hearings unless such hearing can be held remotely through use of telephone conference, video conference, and/or other similar service. A notable exception from E.O. 202.49 is hearings before the Department of Environmental Conservation pursuant to the Environmental Conservation Law (ECL) are permitted to resume in-person.

Many municipalities have seamlessly transitioned to virtual or remote platforms to conduct public meetings.  Cuddy & Feder LLP continues to provide continued, quality legal service by staying up-to-date on the technology used and has participated in over 120+ virtual meetings and hearings involving the land use entitlement process to date. For more information please contact landuse@cuddyfeder.com.

New York Courts Announce Additional Re-Opening Measures for the Filing of Eviction Proceedings

On June 18, 2020 Chief Administrative Judge Marks issued a memorandum advising that, effective June 20, 2020, the moratorium on filing commercial and residential eviction proceedings is coming to an end, though restrictions remain on proceedings against tenants affected by COVID-19. Beginning on June 20th, eviction proceedings may now be filed in New York landlord-tenant courts via electronic filing or by mail. Tenants must be given a notice that they may be eligible to seek additional time to respond to an eviction proceeding, and hearings in all cases are stayed until July 6th.

Additionally, if a tenant is receiving government assistance or can demonstrate financial hardship due to coronavirus, a prior executive order prevents evictions of these tenants until at least August 20th. However, the memorandum opens the door to commence eviction proceedings for all other tenants, though the process of obtaining a judgment and warrant and effectuating an eviction against a tenant will still take time to complete. This latest step reflects the continuing efforts by the courts to return the court system to pre-Covid-19 operations.

Virtual Hearings: Helpful Tips to Ensure an Orderly and Procedurally Compliant Public Hearing

Several local municipalities and state agencies in NY and CT have instituted virtual hearing videoconferencing as a result of the COVID-19 State of Emergency. A public hearing for a specific application, unlike a public meeting, involves providing the opportunity for the public to comment on that application. These municipalities and agencies had to quickly adjust public hearings to the online videoconferencing format to ensure that land use, zoning and other municipal applications are processed while at the same time adhering to both open meetings law requirements and the important social distancing requirements to protect everyone’s health and well-being. Virtual hearings are allowing important projects to move forward, including projects for essential services such as hospitals, nursing homes, and public utilities, so that the benefits of these projects will not be delayed while the community stays at home and then recovers from the pandemic.

Similar to the many changes brought on by the state of emergency, there was minimal time to adapt to the virtual format for hearings, and municipalities and project teams are learning in real time. In this short timeframe, Cuddy & Feder’s attorneys have successfully participated in more than a dozen virtual hearings already in NY and CT on behalf of their clients. Based on our extensive experience with land use and regulatory hearings and recognizing the importance of the integrity of the public hearing process, Cuddy & Feder established several protocols and practical tips to ensure that the virtual hearing is seamless.

Prepare

Being prepared seems obvious, but how to prepare for a virtual hearing where there are no easels or poster boards with drawings? Decide which drawings or visual materials will be shown on the screen for presentation purposes. Assign a specific team member to share their screen of visual materials for the presentation. Discuss anticipated questions and make sure each team member knows which question they should plan to address, if it comes up, so that team members are not talking over each other.

Practice

Conduct a preparation meeting with the project team using the video conferencing platform for the public hearing. Walk through the presentation and have the project team members practice using the videoconferencing technology to avoid technical glitches during the hearing.

Protocols

Communicate with the municipality/agency to determine the format of the public hearing. Will you be asked to show project documents and if so, how does the videoconferencing platform allow this? How will the Chairman conduct public participation during the public hearing? Will the public be able to submit questions via email or ask questions during the virtual hearing? What is the limit of speaking time and/or of comments per commenter? If the municipality has not thought about the protocols, suggest that the Chairman or someone from the municipality or agency act as the moderator and explain the protocols at the start of the meeting to ensure that all communications are orderly.

Presentation

Make sure that in addition to all project specific requirements, that all new procedural requirements are being observed during the hearing. For instance, confirm on the record that the virtual meeting is being recorded and that the agency will transcribe the public hearing and make it available to the public (requirements of Governor Cuomo’s Executive Order No. 202.1). It may also be beneficial for the applicant to have their own stenographer transcribe the virtual meeting.

Notice

Make sure that the requisite public hearing notices are met. New requirements are applicable which are intended to inform the public how they may view and participate in such public hearing.

Privacy

Do not assume that any of the private chat rooms or other small group breakout features of the videoconferencing platform are private and not visible on the screen. If you need to communicate privately with your project team members or clients, do so outside of the videoconferencing platform.

 

Similar to an in-person hearing, a well-run and orderly videoconference public hearing allows all participants an opportunity to obtain information and a chance to be heard. With the most recent Executive Order in NY endorsing the use of videoconferencing for public hearings, hopefully more municipalities and state agencies will schedule videoconference hearings so that projects can safely move forward until in-person meetings can resume. For more information please contact landuse@cuddyfeder.com.

Telecommunications as Essential 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 for utilities, such as telecommunications infrastructure, is indeed essential and exempt from the workforce reductions.

Federal Communications Commission Chairman Ajit Pai spearheaded The Keep America Connected Pledge to ensure that everyone has reliable wireless connectivity during the COVID-19 outbreak.

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. Federal Communications Commission Chairman Ajit Pai spearheaded The Keep America Connected Pledge to ensure that everyone has reliable wireless connectivity during the COVID-19 outbreak. To date, more than 700 companies signed Chairman Pai’s Pledge.

Thus, it is important that the federal timeframes applicable to telecommunication matters remain in full force and effect to ensure that telecommunications providers can continue to deploy their essential infrastructure and provide the essential service during this period of increased demand. The FCC “shot clocks,”which require telecommunication applications be reviewed and, in many cases, mandate approval of permits within a specific time frame, are not subject to the New York and Connecticut Executive Orders tolling legal statute of limitation periods for matters within the State’s jurisdiction and control. 1

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. If you have any questions please contact telecommunications@cuddyfeder.com.

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.

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.

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.

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

Essential Business: Required Face Covering

On April 12, 2020, Governor Cuomo issued his latest Executive Order 202.16 in an effort to contain the spread of COVID-19 and protect essential workers.

Any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public. Businesses are required to provide these face coverings at no expense to their employees as of April 15, 8:00 p.m.

Disposable and reusable face masks have become difficult to purchase given the demands by health care and first responders. If face masks cannot be purchased or obtained by other means, employers should consider providing scarves, bandanas, or other homemade face coverings as alternatives until they become available. The Executive Order gives authority to local governments or local law enforcement to enforce this requirement.

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

NYS Surrogate’s Courts are Permitting the Filing of New Estate and Administration Petitions

As we have chronicled in this space, New York State courts are gradually re-opening for business. The trend continues with the announcement that beginning on Monday, April 13, the New York State Surrogate’s Courts will accept the filing of new estate/administration petitions for a fiduciary (administrator or executor) to be appointed in order to protect estate assets while matters are pending.

In other words, the Surrogate’s Court is allowing those individuals who are either (a) nominated as an executor under a decedent’s will or (b) qualified to apply as an administrator of the estate of someone who died without a will to file applications with the Court for appointment as fiduciary of the decedent’s estate. While, at this time, for new filings the Court will not issue permanent letters testamentary or administration—meaning, the Court will not determine the merits of the application or admit a will to probate, if there is one—the Court may, if it deems it appropriate, appoint the petitioner as a preliminary executor or administrator.

Under the applicable statute, the powers of a preliminary executor or administrator are quite broad, and include the ability to marshal all personal property, including financial accounts, and take possession of, manage and sell real property. But in appointing a preliminary executor or administrator, the Court is entitled to restrict the authority and powers of the fiduciary. In most cases, though, the Court will permit the preliminary fiduciary to investigate and marshal estate assets to ensure they are safeguarded pending appointment of a permanent executor or administrator.

Appointment of a preliminary fiduciary is important because it allows the fiduciary, among other things, to (a) ensure estate assets, such as real property, do not languish or sustain damage and (b) collect income properly payable to the estate. Accordingly, a nominated or eligible fiduciary should pursue appointment.

The Surrogate’s Court’s acceptance of new estate and administration petitions marks yet another significant step forward in the New York State court system’s goal to continue serving the public during these unparalleled and difficult times. For more information contact litigation@cuddyfeder.com.