Category Archives: Uncategorized

Amendment to the Property Disclosure Act

Amendment to the Property Condition Disclosure Act

Effective as of March 20, 2024, New York’s Property Condition Disclosure Act (the “PCDA”), in effect since 2002, no longer permits a seller of residential real estate to opt out of delivering a Property Condition Disclosure Statement (the “Statement”) by giving the Purchaser a $500 closing credit.

The PCDA requires sellers to deliver the Statement which had included forty-eight questions and now, as amended, contains fifty-six questions about the property, covering items from structural issues and mechanical systems to environmental issues and flood related matters. Accordingly, unless exempt, a seller must provide a purchaser with the Statement prior to signing a contract of sale.

Many aspects of the original PCDA remain the same, such as the exemptions and exceptions to the type of transfer where the Statement is required.  Exempt transactions include:

  • A transfer by a fiduciary such as a trustee or executor
  • The transfer of newly constructed property that has never been inhabited
  • A transfer pursuant to a court order.

Transfers of condominium units, cooperative apartments and vacant land are not subject to the PCDA.

The Transactional Department at Cuddy & Feder is ready to help purchasers and sellers navigate the revisions to the PCDA along with any residential transfer matters.

Pro housing communities

New York State’s Pro-Housing Communities Initiative: A Blueprint for Municipal Economic Development in the Hudson Valley

In a region where housing affordability and availability have long been pressing issues, the State’s recent designation of seven Hudson Valley municipalities as Pro-Housing Communities marks a significant step forward in the allocation of economic development funds and incentivizing municipalities to address the affordable housing crisis. The seven recently designated municipalities – Croton-on-Hudson, Kingston, New Rochelle, Newburgh, Poughkeepsie, Red Hook, and White Plains were all designated because their zoning codes encourage housing development and they have a track record of issuing permits for housing growth over the past five years. Each community is one where Cuddy & Feder represents housing developers that have contributed to the diversity of local housing stocks in recent years helping them reach a Pro-Housing Community designation by the State.

Understanding the Governor’s Pro-Housing Communities Initiative

Governor Hochul’s Pro-Housing Communities Program rewards communities that are designated under the program with priority treatment in municipal applications for various state discretionary funding programs. Through this designation, certified communities gain priority access to up to $650 million in funding under the Downtown Revitalization Initiative (DRI), the NY Forward program, the Regional Council Capital Fund, capital projects from the Market New York program, the New York Main Street program, the Long Island Investment Fund (LIIF), the Mid-Hudson Momentum Fund, and the Public Transportation Modernization Enhancement Program (MEP). These State funded programs empower municipalities to plan and implement local economic development initiatives and continue their momentum on the supply of affordable housing.

State funding can be leveraged and even alleviate financial barriers associated with affordable housing development, making projects economically viable.

Opportunities for Developers

For developers, the Pro-Housing Communities designation achieved by a municipality unlocks additional synergies and tools with which to partner with communities gaining access to these additional state funding sources. State funding can be leveraged and even alleviate financial barriers associated with affordable housing development, making projects economically viable. Pro-Housing Community designations require annual updates to the State to remain certified which presents an opportunity to work with municipalities to further streamline the entitlement process, expedite approvals and incorporate complimentary projects into local planning. These types of proactive stances by local governments certainly send the right signals to the investment and development community. They efficiently allow private and public capital to be deployed where appropriate to deliver vibrant communities with varied types of housing and execute on those projects aligned with community needs and priorities.

Navigating the Local Landscape

At Cuddy & Feder LLP, our team is dedicated to helping developers streamline their projects. The Pro-Housing Communities initiative offers municipalities another State tool and source of priority funding to achieve local economic development and pro-housing projects. Whether you’re seeking guidance on land use, zoning and development or negotiating community agreements, we’re here to provide tailored legal solutions in each of the Hudson Valley’s designated Pro-Housing Communities.

 

Natural Gas

New York State Considering Proposal to Move Away from Natural Gas

Under Section 12 of the New York Transportation Corporations Law, as amended, liquified natural gas providers are required to provide gas lines to any building owner in the State that requests it.1 Under the application of this law, as long as the building is within 100 feet of an existing main, current ratepayers share the associated installation costs. However, recently proposed legislation may reform this longstanding practice, in a push to reduce the State’s reliance on natural gas.

Governor Kathy Hochul incorporated proposed legislation into her released FY 2025 budget proposal. The bill also has the support of 74 sponsors in the State legislature. Now known as the Affordable Gas Transaction Act, it ends the 100-foot “shared cost rule” and the mandate to provide gas to every owner which requests same, in order to enable the State to achieve its energy and sustainability goals as established under the State’s Climate Leadership and Community Protection Act.

If adopted, it will have a notable impact across the State, and in particular in Westchester County, where Con Edison’s natural gas moratorium came to an end as of December 1, 2023.

If adopted, new users will pay for the connections. 2 An exception is made for reconnections to gas mains following interruptions.3 The intent, in part, is to shift households’ demands to electricity, to be powered by renewable energy sources. Notably, Con Edison supports the removal of the 100-foot rule.

The Governor elected to exclude goals to establish energy costs at 6% of a household’s income for moderate and low-income residents, which some legislators are asking to be incorporated. Opposition also exists to the proposed legislation – including from the AFL-CIO and the International Brotherhood of Electrical Workers, which take the position that the State does not have enough access to affordable renewable energy sources; and that the legislation will result in a loss of jobs.4

The proposed legislation aligns with other State initiatives articulated in the budget, including expanding thermal energy networks, which have gained the support of unions and environmental organizations.5 If adopted, it will have a notable impact across the State, and in particular in Westchester County, where Con Edison’s natural gas moratorium came to an end as of December 1, 2023. See “As gas moratorium lifts, Westchester homeowners should consider all energy options,” 6

As the State continues to promote the transition to renewable energy sources through acts such as the Gas Transaction Act, Cuddy & Feder is fully prepared to assist clients in establishing new renewable systems, both site-specific systems and macro-systems providing electricity for users throughout communities. Such efforts will continue to gain importance in light of the legislative proposal to reduce reliance on natural gas. As discussions regarding what energy sources are most sustainable, affordable, and reliable evolve at the State and local level, Cuddy & Feder will continue to advocate for our utility, renewable, and developer clients.

Corporate Transparency Act - What you need to know

Corporate Transparency Act, FinCEN, BOI Report What you need to know in 30 seconds

If you are an owner of a company, such as a limited liability company or a corporation, you will likely be required to comply with the Corporate Transparency Act, which went into effect on January 1, 2024.

If your company is subject to the Corporate Transparency Act, then you are a “Reporting Company” and you will need to make a determination as to who are the beneficial owners of your Reporting Company. A beneficial owner of a Reporting Company is an individual who either directly or indirectly: (1) exercises substantial control over the Reporting Company; or (2) owns at least 25% of the Reporting Company’s ownership interest.

The BOI Report includes certain identifying information of each beneficial owner such as legal name, date of birth, social security number and home address. Each beneficial owner will also need to provide FinCEN with a copy of his or her government-issued photo identification.

Once you have determined the identity of the beneficial owners of your Reporting Company, you then need to provide the U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) with a Beneficial Ownership Information Report (BOI Report). The BOI Report includes certain identifying information of each beneficial owner such as legal name, date of birth, social security number and home address. Each beneficial owner will also need to provide FinCEN with a copy of his or her government-issued photo identification.

The filing deadlines for the BOI Report depend on when the Reporting Company was formed. For all Reporting Companies that were formed before January 1, 2024, each beneficial owner must file a BOI Report by January 1, 2025. For all Reporting Companies that are formed between January 1, 2024 through December 31, 2024, each beneficial owner must file a BOI report within 90 days after the Reporting Company was formed. For all Reporting Companies that are formed on or after January 1, 2025, each beneficial owner must file a BOI Report within 30 days after the Reporting Company was formed. The BOI report can be filed online at https://boiefiling.fincen.gov/fileboir.

If you are unsure whether your company qualifies as a Reporting Company, who qualifies as a beneficial owner or have any questions at all relating to the Corporate Transparency Act, the Transactional Department at Cuddy & Feder LLP is here and ready to help.

Modern Medical Office Space

Office Leasing is Down – So What Else is New? Repurposing Office Space for Medical/Clinical Use

We are all familiar with the negative impact COVID-19 has had on office leasing. However, a silver lining emerges as some landlords explore innovative ways to repurpose vacant office spaces for medical use. In the quest for the right tenant and space, landlords find an opportunity to not only fill vacancies but also command higher rents for spaces in high demand.

Yet, the transition to leasing space for medical use presents its own set of challenges, demanding careful navigation by both landlords and tenants.

Navigating the complexities of leasing for medical use often includes a significant challenge: obtaining a Certificate of Need (CON) from the New York State Department of Health (DOH). Without a CON, the medical-use tenant is legally restricted from providing specific medical services in the new premises. Consequently, the tenant typically seeks a lease contingent upon securing the CON. However, this process entails a considerable amount of time and money. Landlords may find themselves bound by a contingent lease for several months, and in some cases, up to a year or more. Balancing the tenant’s reluctance to pay rent during this period with the landlord’s desire to initiate rent collection sooner demands skillful negotiation and compromise. Crafting a lease structure that accommodates both parties in terms of rent and timing becomes essential in navigating this intricate situation.

The question of who bears this expense becomes a pivotal issue, with both landlord and tenant presenting valid reasons for the other to cover it.

The situation becomes even more complex if the landlord assumes responsibility for constructing the space for the tenant, giving rise to a classic “chicken-and-the-egg” predicament. The issuance of a Certificate of Need (CON) by the Department of Health (DOH) is contingent upon the approval of final construction drawings for the new premises. Consequently, the tenant relies on these drawings to satisfy the CON contingency. However, obtaining a building permit is another hurdle, requiring the same set of construction drawings. This sets up a dilemma for the landlord, who needs these drawings to fulfill their obligation of building the space for the tenant. Adding to the complexity is the cost associated with these construction drawings. The question of who bears this expense becomes a pivotal issue, with both landlord and tenant presenting valid reasons for the other to cover it. To navigate this intricate web of challenges, the involved parties must enlist the support of an experienced legal team. Their guidance is indispensable in negotiating and devising solutions that cater to the interests of both sides.

Thomai (Amy) Natsoulis, partner at Cuddy & Feder LLP, has assisted both landlords and tenants in successfully resolving the issues that frequently arise in negotiating leases for medical space, including the above, in order to successfully and efficiently get to the point where the parties can execute a lease of space for medical use. Should you have any questions or need guidance on your leasing needs, our team is here to help.

Climate Leadership and Community Protection Act (CLCPA) – New York Disadvantaged Communities

New York’s Emerging Climate Protections for “Disadvantaged Communities”

In the four years since New York State enacted the Climate Leadership and Community Protection Act (CLCPA),1 representatives from both state agencies and environmental justice communities have commenced a coordinated effort to establish protections and aid communities facing environmental hardships and climate risks. To prioritize the safety and health of these disadvantaged communities (DACs), CLCPA Section 7(3) requires state agencies to analyze and consider impacts to DACs when issuing permits.2 The NYSDEC has recently released a draft policy guidance document, DEP 23-1, outlining the applicability and requirements of a DAC analysis.3

Identifying Disadvantaged Communities

Disadvantaged communities are broadly defined as “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households.”4

The CLCPA established the Climate Justice Working Group (CJWG) to determine specific criteria used to determine whether a census tract qualifies as a DAC. Current CJWG members include environmental justice community representatives from across the state and representatives from several state agencies.5 This Group finalized its DAC criteria on March 27, 2023, following its release of the draft criteria on December 13, 2021, and response to public involvement and feedback throughout 2022.6 The adopted criteria is not static; the CJWG remains responsible for annually reviewing and modifying it as needed to incorporate new data and scientific findings.7

The DAC criteria is split into two general categories: the environmental burdens or climate change risks within a community, and population characteristics and health vulnerabilities that can contribute to more severe adverse effects of climate change.8 Several indicators are provided for each category, including land use and facilities associated with historical discrimination or disinvestment, potential pollution exposure, income, race and ethnicity, health outcomes, and housing mobility.9

New York’s draft policy DEP 23-1 demonstrates a significant commitment to environmental justice by prioritizing the well-being of Disadvantaged Communities (DACs), mandating heightened permit reviews, and emphasizing public participation for a more equitable and sustainable future.

Percentile ranks of each indicator by category are combined to measure a census tract’s level of risk and characteristics relative to other tracts.10 Tracts with scores higher than tracts statewide were then identified as DACs, resulting in 35% now identified as DACs.11

The State has provided several interactive mapping resources that assist in identifying DACs.12 These maps demonstrate that 44% of the census tracts in the Mid-Hudson region, for instance, are DACs.13

Implementing CLCPA Section 7(3): NYS DEP 23-1

The New York State Department of Environmental Conservation (NYSDEC) recently issued a draft policy document providing state agencies with guidance expounding on the CLCPA’s requirement to consider impacts to and prevent disproportionate burdens on DACs.

This guidance provides that CLCPA 7(3) would apply to major permit applications and modifications or renewals of existing permits involving water withdrawal for cooling purposes, air pollution control, liquefied natural gas and petroleum gas, solid waste management, and industrial hazardous waste management.14 This heightened level of review would also apply to permits administered under the Uniform Procedures Act (UPA) for projects involving energy production, generation, transmission or storage facilities; projects with “sources and activities that may result in GHG emissions or co-pollutants, indirectly or directly”; and non-UPA facility registrations related to the major permits listed above “where DEC determines an analysis is necessary or appropriate to ensure CLCPA consistency such as projects with significant GHG or co-pollutant emissions”.15 The meaning of directly or indirectly and significant are not discussed in the draft policy.

Disproportionate Burden Reports

The requirements of DEP 23-1 will apply to these permit types if the project is located within or likely to affect a DAC.16 Once an affected DAC is identified, an applicant and the reviewing agency will determine whether a disproportionate burden report is required. If the project will result in increases in GHG emissions or co-pollutants associated with any emission sources “directly related to and essential to” the project, an applicant must prepare a report. The report must identify and address any burdens placed on the DAC. These burdens include any GHG or co-pollutant emissions from the project, public health stressors resulting from any emissions, project contribution to existing pollution burdens, design considerations to reduce of eliminate any burdens, and project benefits. Upon completion, the report must be made available for public review and comment in accordance with UPA procedures. Relevant comments will be considered by the agency, along with all application materials, when issuing a final decision.

Enhanced Public Participation

Regardless of whether a disproportionate burden report is required, if the project is located within or likely to affect a DAC, an applicant must also conduct enhanced public participation measures. The relevant procedures are outlined within NYSDEC’s Commissioner Policy 29 (CP-29).17 This Policy requires an applicant to implement and certify a public participation plan, which will include identification of key stakeholders, distribution of application materials to the public, hosting public informational meeting(s), and a report summarizing these efforts and all public concerns raised during the process.18 In addition to these CP-29 requirements, applicants for projects involving DACs must also engage with members of the public regarding design considerations and potential benefits of the project. The PPP and engagement will be assessed by the reviewing agency when making a decision on the permit application.

DEP-23-1 is available for comment until November 27, 2023.19

AI and Legal Ethics – Law Firm AI Policy – Ethics of Lawyers Using ChatGPT

The Attorney’s Ethical Obligations When Using AI

The original version of this article was published in the July 28, 2023 edition of the New York Law Journal.

Since its public debut in late 2022, ChatGPT has garnered widespread acclaim for its fast response generation, contextual understanding, and relaxed tone that simulates human speech. The legal industry, like many others, has recognized the potential of artificial intelligence technologies such as ChatGPT to revolutionize legal research, contract review, and client communication. However, the incorporation of AI in the practice of law brings with it a set of ethical challenges that attorneys must consider and carefully weigh. While AI tools like ChatGPT offer remarkable capabilities, they are no substitute for human judgment, opinions, and emotional intelligence—all of which remain vital for achieving the best results for clients. ChatGPT’s efficiency in automation comes with a set of potential risks and ethical concerns that must not be ignored.

First and foremost, attorneys have an absolute duty to provide competent representation to their clients. 1 That “competent representation” requires not just legal knowledge and skill, but also thoroughness and reasonable preparation necessary for the representation. 2 Anyone, whether lawyer or no, can plug a few directives into an AI tool like ChatGPT and use the results in place of their own work. But lawyers owe a greater duty to their clients than that: we must evaluate the ChatGPT response for accuracy, check to ensure any cited authority is still good law, and tailor the response to fit not just the facts of the case at issue, but also the audience that will read it. Anything less would fall short of the thoroughness and reasonable preparation requirements of the New York Rules.

While ChatGPT has enormous potential to increase attorney efficiency, there remain serious ethical quandaries with the use of artificial intelligence work. Attorneys must be mindful of these potential pitfalls while using AI software and should only use it as the helpful tool it is meant to be, not as a replacement for thoughtful work product.

Nor is ChatGPT as reliable as it seems at first blush. Attorneys using ChatGPT must always make certain to double-check the AI response’s accuracy, lest they find themselves in hot water with the court—and shortly thereafter, their clients. Indeed, overreliance on ChatGPT’s accuracy has already led to sanctions for two New York attorneys, where the AI tool simply made up cases to support a legal argument the attorneys then attempted to advance before the Honorable Kevin Castel of the United States District Court for the Southern District of New York.3 Needless to say, things did not go well for the attorneys in question.4 In his June 22, 2023 decision upholding monetary sanctions against the attorneys’ clients and their firm under Rule 11 of the Federal Rule of Civil Procedure, Judge Castel wrote, “The filing of papers without taking the necessary care in their preparation is an abuse of the judicial system that is subject to Rule 11 sanction. . . . An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.” Mata v. Avianca, — F. Supp. 3d —, 2023 WL 4114965, at *11-12 (S.D.N.Y. June 22, 2023) (citations and internal quotations omitted). The Court ultimately held that the attorneys, in using and relying upon ChatGPT in lieu of their own research, acted with “subjective bad faith in violating Rule 11[.]” Id. at 15. And Judge Castel made clear that the $5,000 fine meant the attorneys in question were getting off lightly for their actions:

In considering the need for specific deterrence, the Court has weighed the significant publicity generated by Respondents’ actions. The Court credits the sincerity of Respondents when they described their embarrassment and remorse. The fake cases were not submitted for any respondent’s financial gain and were not done out of personal animus. Respondents do not have a history of disciplinary violations and there is a low likelihood that they will repeat the actions described herein. . . . [But the] Court will require Respondents to inform their client and the judges whose names were wrongfully invoked of the sanctions imposed. The Court will not require an apology from Respondents because a compelled apology is not a sincere apology. Any decision to apologize is left to Respondents.

Id. at 17. Mata may well have been the first case of its kind on the subject of thoughtless reliance on AI tools in the legal field, but it surely will not be the last. In the wake of such a highly-publicized case as Mata, it is safe to assume that no future court will be so lenient going forward.

Even setting aside such blind faith in artificial intelligence as the attorneys in Mata displayed, perhaps the most significant ethical pitfall inherent in the use of AI tools such as ChatGPT is the risk to client confidentiality. A primary ethical obligation of an attorney to their clients is to maintain client confidentiality, including protecting client information from unauthorized disclosure.5 And using ChatGPT can pose a critical risk that such information may be exposed. ChatGPT chat history is accessible and reviewable by ChatGPT employees,6 which may effectively waive attorney-client privilege. Similarly, OpenAI—the company behind ChatGPT—may provide personal information (including client-identifying information) to third-party vendors and affiliates, heightening already-serious ethical concerns over data security and privacy.7 Even if ChatGPT kept all chat history entirely private, that would not guarantee its security: a recent data breach made public nearly 1.2% of all chat history of ChatGPT Plus subscribers.8

Again, there is no question that ChatGPT—like other, similar AI tools—has the potential to revolutionize the legal field. But it is not a one-for-one substitute for human attorney work product and should not be treated as such. While ChatGPT has enormous potential to increase attorney efficiency, there remain serious ethical quandaries with the use of artificial intelligence in legal work. Attorneys must be mindful of these potential pitfalls while using AI software and should only use it as the helpful tool it is meant to be, not as a replacement for thoughtful work product.

*Reprinted with permission from the July 28, 2023 edition of the New York Law Journal© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Solar and Wind PILOTs

Solar and Wind Energy PILOTs – Recent Changes to Appraisal Methodology Further Support Renewable Energy Development

The ever-growing trend of supporting and promoting clean energy to combat the negative effects of climate change includes the State of New York promulgating a standard appraisal methodology for solar and wind energy systems with a nameplate capacity equal to or greater than one megawatt. The standard appraisal methodology, known as the discounted cash flow approach, was added to the New York State Real Property Tax Law by new Section 575-b in 2021 as part of the State budget. Until recently, however, implementation of Section 575-b has been on hold due to a lawsuit filed by a collection of individual towns from Schoharie County. Noncompliance with the procedural requirements of the State Administrative Procedures Act (“SAPA”) was the primary basis for the petitioners’ challenge to the assessment model. In response, Section 575-b was further amended by the Legislature in the 2023 State budget to clarify that the appraisal model is authorized without regard for the SAPA. The parties entered a Stipulation of Discontinuance in May and the Department of Taxation and Finance posted a notice that the standard appraisal model is now in effect.

The Department of Taxation and Finance, in consultation with the New York State Research and Development Authority (“NYSERDA”) and New York State Assessors Association (“NYSAA”), will annually update the appraisal model. It remains to be seen what the year-over-year impact of the standard appraisal model will be. Indeed, the Department of Taxation and Finance acknowledges that the renewable energy industry is evolving and changing, and the intent of the model is to reflect those annual changes. But it appears that the immediate effect is a reduced valuation for solar projects, and correspondingly, a reduction in the amount of taxes and Payments in Lieu of Taxes (“PILOT”) that can be collected.

Continuing to financially incentivize renewable energy development is one of the most effective ways for the State of New York to achieve a green energy future and combat climate change.

Real Property Tax Law Section 487 automatically exempts solar and wind energy systems from taxation for a period of fifteen years unless the taxing jurisdiction, i.e., a county, local municipality, or school district, opts-out pursuant to RPTL Section 487(8), rendering the solar or wind energy system fully taxable. If a taxing jurisdiction has not opted-out, they can require a PILOT. However, RPTL Section 487(9) states that the PILOT payment cannot exceed the amount that would otherwise be payable if the green energy facility was fully taxable. Based on the foregoing, if the appraisal model continues to reduce the taxable value of solar projects, it will continue to support and incentivize the development of more facilities and help the State achieve the renewable energy benchmarks established by the Climate Leadership and Community Protection Act (CLCPA).

Cuddy & Feder’s attorneys are experienced in every stage of the renewable energy siting process, including land acquisition and leasing, SEQRA, Site Plan, Special Permit and Variance approval, as well as PILOT negotiations pursuant to the recently enacted standard appraisal model.

Unmarked Burial Site Protection Act – New York State Laws re: Native American Unmarked Graves

Unmarked Burial Site Protection Act Sparks New Considerations for Development Community

On May 2, 2023, the New York State Legislature passed a new law, the “Unmarked Burial Site Protection Act,” that for the first time regulates Native American remains and funerary-related artifacts found on private land. This law was incorporated into the State’s recently adopted FY 2023-2024 budget, which was then signed by Governor Kathy Hochul. The new law represents a significant change to New York’s regulatory approach, as there was no previous requirement that such remains and artifacts found on private property be reported to the State (such limits only applied to projects on public land and publicly-funded projects). It is notable that last year, Governor Hochul vetoed an almost-identical proposed law, despite the State legislature passing it almost unanimously, going on record to state that she was seeking to balance property interests and grave protection.1 The former and recently-adopted law were drafted with the input of the Shinnecock and Unkechaug Indian Nations, and some form of the law has been proposed for over 20 years.2

By passing the Unmarked Burial Site Protection Act, New York State is sending a powerful message about the importance of respecting Native American remains and burial artifacts. This new law not only enhances grave protection but also sparks new considerations for the development community, emphasizing the need to balance property interests with cultural preservation.

Pursuant to the new law, the sale, destruction, or removal of these remains and burial-related artifacts will be considered a Class E felony. If found during ground disturbance activity, property owners would have to pause projects upon discovery and report said finds to the applicable County Medical Examiner. If the Examiner determines that the remains or burial-related artifacts were more than 50 years old, the State Archaeologist would have to determine their origins. If determined to be related to an Indian Nation or tribal community, the property owner must then consult with a committee of tribal representatives and State experts. Moreover, Indian Nations, tribal communities, and “culturally affiliated groups” (groups, including tribal communities, whose past or present government, traditional culture, or religions were affiliated with the remains or artifacts), would be given a right of possession over the discovered remains and artifacts. If no agreement can be reached between the property owner and these parties related to next steps, the developer can remove the remains and artifacts after 90 days under the oversight of a professional archaeologist (this 90-day period was an extension of the 10-day period in the previously proposed law that was vetoed by the Governor). Tribal representatives would be able to monitor the excavation process.3

Land use applicants should take particular note of this law, as it represents an issue that may be considered by a Lead Agency under the State Environmental Quality Review Act (“SEQRA”) if remains or artifacts are found.4 Moreover, it is important to note that New York State is home to a number of Indian Nations and tribal communities and a long tribal history, and this law will have impacts on development across the State. Cuddy & Feder’s land use, zoning and development attorneys are experienced in every stage of the SEQRA review process and are prepared to assist its clients through this process, including the procedural steps that this new law creates for those seeking to improve their properties.

New York Energy Storage – Battery Storage Siting and Permitting

Battery Energy Storage Siting – Permitting in New York

Large-scale energy and battery storage are playing a critical role in New York’s plans for grid resilience and the transition to clean and sustainable energy. In 2019, New York passed the Climate Leadership and Community Protection Act, which includes some of the most ambitious energy and climate goals in the country, including plans for achieving 3 gigawatts of energy storage capacity by 2030. In late 2022, NYSERDA and the NYSDPS outlined a roadmap called “New York’s 6 GW Energy Storage Roadmap” to double the state’s energy storage targets by 2030. This updated roadmap identifies barriers and provides comprehensive recommendations for expanding New York’s energy storage programs through NYSERDA-led initiatives.

For both large-scale (bulk) and community, commercial, and industrial (retail) systems, one of the findings highlights challenges in completing interconnection processes in a timely manner, which can sometimes involve lengthy local land use and entitlement procedures. On average, timelines range from three to five years from the time of an interconnection request and financial commitments to the actual commissioning of a storage facility. To assist developers and local communities with the entitlement process, NYSERDA has published an Energy Storage Guidebook containing model codes, permits, and other relevant information to support rezoning and planning for energy storage systems.

Communicating the benefits of energy storage facilities for local grid resilience and their interrelationship with sustainable energy from solar and wind is crucial when engaging with municipalities.

Our experience with numerous renewable energy projects throughout New York, including early battery storage projects and utility-scale and community solar installations under the NY-Sun program, confirms that the NYSERDA model law for energy storage systems serves as a starting point for most local governments. Active engagement has been crucial to achieving success, extending beyond the typical site due diligence process to assess project feasibility and create a local roadmap. There is simply no substitute for early and strategic communication on how a project is supported through NYSERDA financial programs, understanding location constraints related to grid interconnection, and addressing the unique aspects of each municipality’s land use regulations to eliminate variability.

Communicating the benefits of energy storage facilities for local grid resilience and their interrelationship with sustainable energy from solar and wind is crucial when engaging with municipalities. Complex sets of federal, state, and local regulations should not serve as barriers to streamlining a project’s success. Addressing potential impacts, such as noise, safety, aesthetics, and land use compatibility upfront, can contribute to efficient permitting timelines, including compliance with the State Environmental Quality Review Act (SEQRA).

Successfully siting and permitting battery energy storage projects in New York requires meticulous planning, community engagement, regulatory compliance, and proactive guidance. As the energy landscape continues to evolve, it is essential to stay updated on regulatory changes, engage with stakeholders, and adapt strategies accordingly. By collaborating with experienced professionals at Cuddy & Feder, we assist energy companies in avoiding common pitfalls and ensuring a smooth path towards deploying renewable systems that contribute to a cleaner and more resilient energy future in New York.