Robert M. Connelly is an associate concentrating in land use & municipal law and commercial litigation. He was an Assistant Town Attorney for the Town of East Hampton, serving as counsel to both the Zoning Board of Appeals and Architectural Review Board.

Mr. Connelly earned his Juris Doctor degree from Hofstra University School of Law and his Bachelor of Arts degree from Fordham University.

hempDEREGULATING INDUSTRIAL HEMP

Plans to expand New York’s Industrial Hemp Agricultural Pilot Program were recently announced by Governor Andrew Cuomo at one of his State of the State addresses. The program, which commenced in 2016, was authorized pursuant to the federal government’s passage of its 2014 Farm Bill, which specifically allows universities and state departments of agriculture to grow or cultivate industrial hemp if:

“(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the state in which such institution of higher education or state department of agriculture is located and such research occurs.”

The law also requires that the grow sites be certified by—and registered with—their state.

HEMP NO LONGER A CONTROLLED SUBSTANCE SO LONG AS IT CONTAINS LESS THAN 0.3 THC

In 2015, a bipartisan group of U.S. senators introduced the Industrial Hemp Farming Act of 2015 that would allow American farmers to produce and cultivate industrial hemp. The bill would remove hemp from the controlled substances list as long as it contained no more than 0.3 percent THC.

The U.S. Department of Agriculture, in consultation with the U.S. Drug Enforcement Agency (DEA) and the U.S. Food and Drug Administration, released a Statement of Principles on Industrial Hemp in the Federal Register on Aug 12, 2016, to inform the public on the applicable activities related to hemp in the 2014 Farm Bill.

Under the pilot program, New York caps the number of sites permitted to farm hemp to ten locations throughout the state. The current research projects are being conducted under the auspices of SUNY Morrisville College and Cornell University’s College of Agriculture and Life Sciences. Governor Cuomo’s proposed amendments will lift the cap and expand the program to private farmers in an effort to “position New York at the forefront of a growing agricultural sector.” In 2015, it is estimated that the industrial hemp industry generated some $573 million in sales in the U.S. alone. Governor Cuomo believes that it could soon be a billion dollar industry; and New York’s Southern Tier, because of its climate and soil, is uniquely suited to be a leader in the industry.

Only time will tell if the industrial hemp industry flourishes as hoped for by the Governor or it goes up in smoke.

yellow-garbage-bagsA Suffolk Supreme Court Justice has upheld Southold Town’s “yellow bag” law which requires residents to place refuse in Town issued yellow garbage bags.   Proceeds from the sale of the yellow bags are used to operate a transfer station located in Cutchogue.

In March 2012, Go-Green Sanitation, a garbage carter, was hauled into Justice Court by the Town for operating without the proper permit and for failing to comply with the yellow bag law. The Town also obtained a short-lived restraining order from Suffolk County Supreme Court prohibiting the private carter from collecting trash from its residents not contained in the required yellow bags.

In response to the Town’s claims,  and without opposition from the Town, in July 2012, Go-Green removed the state court action to federal court alleging five counterclaims, including: (1) that the Town violated its due process rights by effectively barring it from conducting business in the Town; (2) that Go-Green did not dispose of its trash at the Cutchogue transfer station, as such, it should not be subject to the yellow bag fees and (3) the yellow bag fees constituted  an illegal user fee or tax and as a result thereof,  Go-Green sought to add an additional Southold Town resident defendant in an effort to establish a taxpayer claim against the Town.

On June 12, 2015, in a well-reasoned fifteen (15) page opinion, Eastern District Court Judge Arthur Spatt,  declined to exercise federal jurisdiction over Go-Green’s  counterclaims holding (1) that Go-Green failed to plead and/or establish a federal claim and (2) although Go-Green alleged that it envisioned filing an amended pleading to assert a proper party and proper taxpayer claim;  the Court noted that the pleading before the court, did not, in fact, contain a proper party or a properly pled taxpayer claim.   As such, the federal court lacked subject matter jurisdiction and the matter was remanded back to State Supreme Court for a final determination.

On remand, in a recent July 2016 decision,  Supreme Court Justice Paul Baisley, Jr., found that the Town’s controversial law bears a reasonable relation to the public good as it was enacted to promote recycling.   Judge Baisley further found that the Town did not exceed its authority because the yellow bag law is not an illegal tax.  So, for now, and perhaps until a properly pled taxpayer action is asserted, residents and carers alike should refer to the Town of Southold’s website to determine what their respective yellow bags fees will be.

 

In last week’s post, we discussed the case of Congregation Rabbinical College of Tartikov, Inc., v. Village of Pomona. That case involves a contested land use application for a rabbinical college that has cost the Village of Pomona and its taxpayers in excess of $1.5 million in legal fees to defend.  This week’s post looks at the Facebook posts and text messages that were posted and sent after the litigation began, and the sanctions that were imposed by the Court against the Village for its failure to disclose them during discovery.

The Facebook Posts and Text Messages

evidenceIn May 2013, a Village Trustee posted a comment on her personal Facebook page about her disapproval of an all-male gathering of Hasidic/Orthodox Jews at a municipal facility. Their religion was not explicitly mentioned in the Facebook post.  This posting was followed by what the Court described as “an angry text message exchange” between the Village Trustee and the Mayor of the Village, which resulted in the Trustee deleting her Facebook post.

In March 2015, the Mayor posted a comment on his personal Facebook page about an article in a local newspaper. In the posting, the Mayor slammed the 2013  posting by the Trustee (who by then was no longer a Trustee), noted that her 2013 post was particularly egregious in light of the pending lawsuit, was a “total lapse in reason and judgment,” and mentioned that text messages had been exchanged between them at the time.  The Mayor also noted that he couldn’t conceive of anyone considering the former Trustee as a viable candidate if she ever ran for election again, given her “predisposition to making such blatant and inappropriate remarks.”

The Mayor’s Facebook posting was quickly followed by a discovery demand by the plaintiffs asking for all social media postings and comments, including the text message exchange. The Village Defendants responded that the Mayor did not have a copy of the 2013 Trustee Facebook post and produced only a part of the text message exchange.  The part that was produced was an eye-opener.  It had the Mayor asking the Trustee whether it was her “intention to cause damage to the village” and “is it your intent to jeopardize the target…then you are succeeding and may cause us to loose! (sic).”   The portion of the Trustee’s responsive text that was produced noted that the Trustee understood the Mayor’s anger and would review her postings and delete them “to make sure there are no more unfortunate mistakes.”   The Mayor responded that his head was about to explode, that a case in New Jersey found that an official’s comments in a non-official setting led the court to find potential prejudice and publicly commenting on an all-male gathering related to a religious entity “is not good.”

Plaintiffs alleged that the Mayor lied about the preservation of evidence when he certified interrogatory responses in July 2013, two months after the initial Facebook and text message exchange, that all relevant evidence had been preserved by the Village.

The Court Finds The Village Guilty Of Spoliation Of Evidence

In his September 2015 summary judgment decision, the Court ruled that the Village was under an obligation to preserve this evidence. The Court rejected the Village’s contention that its officials did not think the post and texts were relevant, noting that once litigation has commenced, the usual retention procedures must be suspended and a “litigation hold” must be put in place to ensure relevant documents are preserved. In finding the Village guilty of spoliation of evidence, the Court cited to that fact that the lawsuit was commenced in 2007, 6 years before the Trustee’s Facebook page posting, the posting concerned a gathering of individuals of the same religious observation as the plaintiffs, the Mayor’s strong reaction to the posting and the Trustee’s comment about her “unfortunate mistakes” to demonstrate that the Facebook post and text messages should have been preserved and were relevant to the case. The Court also determined that the destruction of this relevant evidence had been done in bad faith.

As a result, the Court ruled that severe sanctions were warranted. These include an adverse inference of the Village’s discriminatory motivation. At trial, the jury will be instructed that the Facebook post indicated discriminatory animus toward the Hasidic Jewish population. While the Village will be allowed to present evidence that the challenged laws were not adopted for discriminatory purposes, the adverse inference may be difficult to overcome. The Court also awarded attorneys fees as a sanction.  In a ruling dated May 25, 2016, the Court directed the Village to pay legal fees totaling $42,940.00 to the plaintiffs’ attorneys.

Click here to read more about the underlying issues. The matter is scheduled for trial sometime later this year.

With an increase in the number of vineyards marketing themselves as venues for wedding receptions and special events, local governments across New York State have begun enacting legislation aimed at curtailing the marketing activities of vineyards, indicating that they are seeking to protect the health and safety of their communities. Vineyard Wedding PicSome towns and villages now require vineyards to obtain special permits or even submit site plans, a process that can often be drawn-out and arduous, before permitting vineyards to host certain events. But can municipalities regulate the marketing activities of vineyards located in a local agricultural district? The answer is: it depends.

NYS Agriculture and Markets Law

The New York State Department of Agriculture and Markets recognizes the importance marketing plays in the success and economic viability of a vineyard. In fact, §301(11) of the Agriculture and Markets Law (“AML”) expressly acknowledges that “marketing activities” are part of the “farm operation” of a vineyard when the wine served at these events is composed predominantly of on-farm grapes and fruit. The Department has also determined that on-farm wedding receptions, charitable events and other similar undertakings constitute “marketing activities” and are thus protected and cannot be unreasonably restricted by local municipalities if the vineyard is located in a local agricultural district.

Events hosted by vineyards must be:

  • directly related to the sale of the wine produced on-site
  • be composed from at least 51% of the grapes harvested thereon
  • be incidental to the retail sale of the wine sold
  • hosted by the vineyard or a customer of the vineyard, not an unrelated third-party.

If these conditions are not met, the vineyard cannot avail itself of the protections afforded by the AML and will be subject to local zoning laws.

Municipality Rights & Limits

The Department will also allow local municipalities to require a vineyard to obtain a special use permit or subject itself to site plan review so long as the process is streamlined and not unreasonably burdensome or cost prohibitive. Local municipalities can also require certain information from the vineyard about the proposed event. For example a town or village may be interested in the date and time of a proposed event, the number of people expected to attend, security information, etc.

Should a vineyard find the process to obtain approval from the local government to be unreasonable or arbitrary and capricious, the Department may review the matter pursuant to its powers under §305-a of the AML.

Take-away for Vineyard Owners & Operators

It is important for owners and operators of vineyards to understand that not all marketing activities will be protected by the AML. Even more important is the requirement that vineyards maintain sufficient records which conclusively demonstrate that the marketing events hosted are incidental to the annual sales of the vineyard’s wine. Moreover, the local government may require the vineyard to submit an annual report that confirms the incidental nature of the marketing events.

The AML protects vineyards located within a local agricultural district from unreasonable regulations promulgated by municipalities and can be a good friend when a vineyard’s rights are being infringed upon.

A Southold couple’s dream to build a winery and continue operating a tasting room at their Old North Road residence seems all but lost after a recent ruling of the Southold Town Zoning Board of Appeals. The Town Zoning Board denied their requests for variances that would allow the winery and tasting room to operate on the same parcel they call their home. The Board also denied the couple’s request for an area variance that would allow the winery to be constructed 60 feet from the front yard lot line, where a 100-foot setback is required.Winery

Regan and Carey Meador purchased the 23.5-acre parcel in 2012 with the intention of raising their young family there and also operating a family-run winery. However, because the development rights for all but one acre of the lot had been transferred to the Town of Southold through its Farmland and Open Space Preservation Program, the remaining one acre, on which a single-family residence is situated, is too small for both uses, according to the Southold Town Zoning Code. Unlike Suffolk County’s Farmland Program, Southold Town prohibits agricultural processing facilities, like wineries, to be located on preserved farmland.

As per the Code, the Meadors’ proposal runs afoul of the “bulk schedule”, which requires a minimum of two acres of developable land per use. Because 22.5 acres of the property is preserved farmland upon which they operate their vineyard, the remaining one-acre lot is substantially undersized for both their residence and the proposed winery, according to the Zoning Board. The Meadors argued that the entire 23.5 acres should be considered as part of the family’s farm operation, thus eliminating the need for variances from the “bulk schedule”. The Zoning Board, however, did not find that argument persuasive and unanimously denied the couple’s application. It remains to be seen whether an appeal of the Zoning Board’s decision will be taken.

Adding to the Meadors’ problems, the New York State Liquor Authority has scheduled a hearing to determine if the winery’s liquor license should be revoked, since it has been operating without the proper local permits in place.

FWine Grapes NYSor the first time since 2005, the New York State Department of Agriculture and Markets is allowing New York wineries to produce wines with grapes grown out-of-state.
The move comes after New York suffered through one of the harshest winters in recent memory, which resulted in wide scale damage to vines and resulted in a drastic reduction of 2014’s grape yield. Some vineyards even experienced trunk damage so bad that entire plants needed to be replaced.

Pursuant to §76-a(5)(b) of the New York Alcoholic Beverage Control Law, “no licensed farm winery shall manufacture or sell any wine not produced exclusively from grapes or other fruits or agricultural products grown or produced in New York.” The law, however, provides an exception to this requirement where more than 40% of a specific grape varietal is destroyed by a natural disaster, Act of God, or continued adverse weather.

In order to be designated as a New York wine though, federal law requires that at least 75 percent of grape contents must have been grown in New York. It is still too early to know whether New York wineries will be able to meet this condition.

The grape varietals which are included in the Department of Agriculture and Market’s declaration are: Riesling, Cabernet Franc, Pinot Noir, Chardonnay, Gewürztraminer, Merlot, Pinot Gris, Cabernet Sauvignon, Lemberger, Syrah, Gamay Noir, Brianna, Frontenac, La Crescent, and Noiret.

Wineries interested in using out-of-state grapes will need to complete the Department of Agriculture’s application.

In the recent decision of Verizon New York v. Village of Westhampton Beach, et al., Magistrate Judge A. Kathleen Tomlinson ruled in favor of Verizon and the Long Island Power Authority (“LIPA”) and declined to “read in” a provision into franchise agreements that would bar the utilities from allowing the attachment of wooden or plastic strips known as “lechis” to their poles.  This case arose in 2010, when the East End Eruv Association (“EEEA”) was formed and submitted applications to the Village of Westhampton Beach, Village of Quogue and Town of Southampton in order to establish an “eruv,” which is a delineated area that symbolically extends the private domain of Jewish households into public areas, permitting activities within it that are normally forbidden in public during the Sabbath and on holy days.

The applications were denied, and in January 2011, EEEA filed suit arguing that their right to free exercise of religion had been violated by preventing the establishment of the eruv. The municipalities countered with the argument that permitting the eruv on public property would be violative of the First Amendment’s Establishment Clause.  These constitutional claims are currently pending and have not yet been decided.

On January 15, 2013, Verizon and LIPA filed an action seeking declaratory and injunctive relief that they “may allow the installation of lechis on their utility poles without incurring any fines or other legal sanctions, and without any liability to the Defendants.”

With respect to Verizon, the municipalities had urged the Court to adopt their position that Verizon “may only use its poles for telephone purposes and that the use of the poles for purposes other than that for which [Verizon] was granted a special franchise under section 27 of the Transportation Corporations Law is beyond its powers.” The Court, however, flatly rejected this argument stating that “[t]his narrow construction of the statute granting the special franchise is not supported by the statute’s language” and that “[Verizon’s] certificate of incorporation contains a grant of power to use its equipment for purposes other than providing telephonic communication.”

Moreover, the Court noted that because Verizon is subject to the Business Corporations Law it “possesses the right to enter into contractual arrangements with others for the use of space on its poles pursuant to the powers granted in subdivision (a) of section 202 of the Business Corporation Law.”  In fact, the Court found that the Villages of Westhampton Beach and Quogue had both previously entered into licensing agreements with Verizon and its predecessor-in-interest, New York Telephone Company, for the attachment of banners, which is a non-utility purpose.

As to LIPA, the Court found that pursuant to New York Public Authority Law § 1020-g(c), LIPA has the “discretion to ‘use’ or ‘lease’ its poles as it sees fit.”  The Court dismissed Quogue’s contention that as a public authority created by statute, LIPA’s powers are limited to providing safe, adequate and economical electric services within its service area and, therefore, it lacks the authority to enter into contracts to attach lechis to its utility poles.

The Court similarly found, as it did with Verizon, that LIPA has entered into numerous agreements relating to the use of its poles, including one with Westhampton Beach to allow it to advertise its St. Patrick’s Day Parade.

Judge Tomlinson did, however, recognize the municipalities’ jurisdiction to regulate utility poles situated in public streets and right-of-ways pursuant to their “reasonable police powers” and rebuffed the utilities’ assertion that their rights and powers with respect to the utility poles derive from state law, and not local legislation.

Nonetheless, because Westhampton Beach had failed to identify any ordinance that prohibits the attachment of lechis, the Court refused to undertake an analysis of whether an ordinance regulating the attachment of lechis would be a valid exercise of Westhampton Beach’s police power.  Thus, the Court ruled that Verizon and LIPA are authorized to allow EEEA to place lechis on their utility poles in Westhampton Beach.

With respect to the Village of Quogue, the Court noted that its code prohibits encroachments or projections “upon, into or over any public road or street in the Village of Quogue…” and that this prohibition appears to be a valid exercise of the Village’s police powers.  While neither utility disputed the validity of the ordinance, they did dispute the applicability of the ordinance to lechis.  The Court concluded that it did not have enough information to rule on whether Quogue’s Village Code regulates the attachment of lechis to utility poles and permitted the parties to further brief the issue.

Since the action was stayed as to Southampton, the Court’s ruling pertains only to Westhampton Beach and Quogue.

While this decision has dealt a significant blow to the opponents of the proposed eruv, the municipalities may still prevail if the Court ultimately determines that the erection of the eruv on public property violates the Establishment Clause of the Constitution, which provides for the separation of church and state.

There is still time to apply for funding through the United States Department of Agriculture’s Specialty Crop Block Grant Program, but not much.

The Program was designed to provide financial support to farms and farmers who produce specialty crops, i.e., grapes, hops, etc… Approximately $66 million in funding is available nationwide with $1.4 million earmarked for New York. In New York, the program is being administered by the New York State Department of Agriculture. If you are considering seeking funding from the program do not delay! Applications in New York must be received by Friday, May 2, 2014.

Applications to be considered for funding can be found here http://www.agriculture.ny.gov/AP/Slide/SpecialtyCrop.html.