To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, March 20, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
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Over the past week our typical way of conducting business has changed dramatically in response to the current coronavirus (COVID-19) pandemic. In this time of “social distancing” land use attorneys, consultants and developers are finding themselves home at night instead of attending planning board and zoning board meetings. However, it is important that we nimbly adapt to new ways of conducting business in order to keep development projects moving in a forward direction. It is also important to understand what legal requirements are suspended by virtue of declarations of emergency, Executive Orders from Governor Cuomo and County Executives, and other similar actions by state and local government. It is equally critical to understand what legal requirements remain unaffected. The following are a few items within the legal landscape to consider regarding your pending or approved development application.
1. Public Meetings
Municipalities across the Hudson Valley are responding to the pandemic differently and the responses are changing daily. One challenge is grappling with how to conduct board meetings remotely while maintaining compliance with the Open Meetings Law (“OML”). Some are cancelling board meetings while others are quickly finding ways to continue their agendas. Understanding that municipal resources play a role in the ability to quickly adapt and implement new technology to hold meetings remotely, those that have promptly navigated this terrain to keep business moving should be applauded.
Governor Cuomo recently issued Executive Orders (“EO”) that temporarily suspend or modify certain provisions of the OML, including EO 202.1 and EO 202.4. Prior Legal Alerts issued on those EO’s can be accessed here and here. Under the OML telephone conferencing and the absence of an in-person component to the meeting is not permitted. However, under these EO’s board meetings may now temporarily be conducted by videoconference or teleconference without an in-person public location, provided that the public can see or hear the meeting and there is a transcript of the meeting made available at a later date. Many municipalities are turning to videoconferencing as a means to conduct business. Zoom and Go To Meeting have been popular options.
You should not assume your upcoming planning board or zoning board meeting is cancelled. Check with municipal staff as to the status and format of the meeting and confirm your consultants are versed in the technological platform by which the municipality opts to hold its meetings.
2. Expiration Dates and Submission Deadlines
Do not assume that the expiration date of your approved project will be tolled if Town Hall is closed or the planning board is not holding a meeting this month. Timely submit your written request for an extension prior to its expiration date. Send the written request in compliance with the board’s resolution or rules of procedure, but also transmit it in a way that will leave you with proof of the date it was sent (i.e., email, overnight mail, certified mail). Once the planning board is back in session it can grant your extension retroactively.
The same concept applies to issued building permits. Most local codes provide for expiration of building permits if construction is not complete within a certain time after issuance of the permit. Submit your written application for renewal or extension of your building permit in a timely fashion to avoid potentially costly consequences of a lapsed building permit.
Lastly, do not assume that application submission deadlines will be tolled during this current State of Emergency. Unless otherwise advised by the municipality, make your submission in accordance with their current submission procedures and get in the queue for the next board meeting. Alternatively, if you confirm with the municipality that deadlines will be tolled use this time to further develop your application so this potential extended time between board meetings is not for naught.
3. Article 78 Statute of Limitations
If your application was recently denied by the planning board and you want to challenge that denial in Court you have a short window of time to file with the Court. While many Court services are temporarily suspended laws governing the statute of limitations remain in effect as of the date of this Legal Alert. In most cases, you have 30 days from the date the decision is filed in the Town Clerk’s Office to file your Petition with the Court to challenge the final decision of the planning board. The filed “decision” can include meeting minutes that memorialize the vote taken by the board. If Town Hall is closed and you cannot get a response from the Town Clerk’s Office as to whether the resolution or meeting minutes were filed, do not let 30 days pass from the date the planning board denied the application without commencing your legal proceeding through the filing and service of a CPLR Article 78 Petition. Without confirmation of the date of filing in the Town Clerk’s Office, you should presume that the decision was filed on the day of the planning board meeting.
4. Resources for Small Businesses
The economic impacts on businesses as a result of the response to the COVID-19 outbreak will be experienced by all. Businesses are being denied business interruption insurance coverage as many policies exclude acts of God. Going forward it will be important to keep abreast of resources and relief funds available for businesses. In that regard, a webinar was original scheduled for today with Small Business Association Administrator Jovita Carranza on SBA’s targeted relief efforts for small businesses. The event is being rescheduled. Please check SBA’s website for future scheduling information.
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the State’s response to COVID-19 and the impacts on local governments. Our Legal Alerts are available at the links below:
- Executive Order 202.4 – COVID-19: Reduction in Workforce By Municipalities
- Open Meetings Law Considerations in Light of COVID-19
- Updates From Governor’s March 16, 2020 Press Conference
- Governor’s Executive Order Prohibits Municipalities from Unilaterally Issuing Emergency Orders in Response to COVID-19 Outbreak
- President Trump Signs Families First Coronavirus Response Act
- New York Enacts Law Providing Job Protection and Pay for New Yorkers Quarantined as a Result of COVID-19
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Land Development & Zoning Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, and which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions. For questions on general land development & zoning issues contact Jennifer L. Gray or Eric L. Gordon or any other attorney in our Land Development & Zoning Practice Group.