Recently, in On Point Window Treatment, Inc. v. 208 Clinton Place, LLC, 2024 N.Y. Slip Op. 50241 (N.Y. Sup. Ct. 2024), the Kings County Supreme Court held that even when paired with an insurance procurement requirement, a landlord could not rely on an indemnity clause negotiated into its lease to exempt such landlord from liability.
On September 22, 2023, Governor Kathy Hochul signed legislation (A.1967/S.5400) amending the Property Condition Disclosure Act (“PCDA”), which effectively eliminates a seller’s option to provide a residential homebuyer with a $500 credit in lieu of a Property Condition Disclosure Statement (“PCDS”). The amendment further requires sellers to disclose property information regarding flood risk, flood history and flood insurance. This consequential shift is consistent with Gov. Hochul’s implementation of her comprehensive resiliency plan to protect New Yorkers from extreme weather. The amendment goes into effect on March 20, 2024.
This bill goes a long way towards helping give homebuyers the information they need to make informed decisions about one of the biggest financial investments of their lives — their home.
Joel Scata, Natural Resources Defense Council Attorney for Water Initiatives
Elimination of “Opt-Out” Provision
The New York legislature enacted the PCDA to supplement the information provided by professional inspections and tests and searches of the public records conducted by residential homebuyers (New York Sponsors Memorandum, 2001 Ch. 456). The PCDA was also a response to adherence seen in New York’s case law to the doctrine of “caveat emptor” or “buyer beware,” which has long permitted a residential seller to remain silent as to most matters that are not actively concealed by the seller. Consequently, buyers ended up with the burden of thoroughly inspecting the premises, searching public records and asking sellers the “right” questions about the property. Despite the introduction of the PCDA, sellers were given the opportunity to “opt out” of providing buyers with a PCDS, if they were willing to pay the price – $500. Unsurprisingly, the $500 credit to the purchaser became the standard, and not the PCDA.Continue Reading Disclosure Revolution: Legislation Makes Property Condition Disclosure Statements Mandatory, Adding Flood Risks, and Waving Farewell to the $500 Credit
The 2022/2023 State budget included watershed (no pun intended) amendments to the regulations governing New York’s Freshwater Wetlands. It has been published that the changes to the Freshwater Wetlands Act are expected to capture approximately one million acres (1,560 square miles) of previously unregulated freshwater wetlands – the equivalent in landmass of 1/10th the state of Rhode Island. As part of the move, the New York State Department of Environmental Conservation (“DEC” or “Department”) is seeking information from stakeholders as it considers the revisions to the regulations and develops criteria to implement the Act. Continue Reading DEC Seeks Feedback by February 17th as it Considers Revamped Freshwater Wetland Regulations
Recently in BMG Monroe I, LLC v. Village of Monroe Zoning Board of Appeals, the Second Department reinforced strict compliance with all State Environmental Quality Review Act (“SEQRA”) visual impact findings and mitigation conditions.
BMG Monroe I, LLC, (“BMG”) is a developer that owns at 78.93-acre tract of undeveloped land located in both the Town of Monroe and the Village of Monroe. BMG sought to develop 181 residential units on the property.
In 2001, a developer (not BMG) submitted an application to the Town and Village to develop the Property for residential use: the Smith Farm Project. The Smith Farm Project included 181 homes and on-site recreational amenities, including a community green, a recreation/activity center, an outdoor swimming pool, and a network of walking trails.Continue Reading Exact Compliance with SEQRA Architectural Conditions Are Enforceable
In Matter of County of Monroe, 72 NY2d 338 (1988), the New York Court of Appeals addressed the applicability of local zoning laws to actions undertaken by a government entity operating within a geographic area subject to another government entity’s zoning powers. The controversy in Monroe involved the expansion of a county-owned and operated airport located within the corporate boundaries of the City of Rochester. The Monroe Court established that governmental immunity from local zoning is determined based upon a “balancing of public interests” that requires the consideration of nine factors, including “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” 72 NY2d at 343 (citations omitted).Continue Reading Under Monroe Doctrine, Government Immunity from Local Zoning May Extend to Private Projects
The initial phase of New York City Local Law 18, also known as the Short-Term Rental Registration Law, went into effect in New York City on Tuesday, September 5th, 2023. Enforcement of Local Law 18 is expected to significantly reduce the number of illegal, short-term rental listings – i.e. listings for less than thirty (30) consecutive days – available in New York City, especially on major online booking platforms such as Airbnb and VRBO.
Under the New York City Multiple Dwelling Law, it is illegal to rent out your apartment and/or home for less than 30 consecutive days, except in very limited circumstances. For a short-term rental to be legal under the Multiple Dwelling Law, (i) no more than two (2) paying guests may be hosted at a single time, (ii) the host must maintain primary occupancy and reside in the dwelling unit during the stay, and (iii) the paying guests must have access to all parts of the listing, what is referred to as a “common household.” Continue Reading Goodbye to Airbnb in NYC?
On July 28, 2023, in response to three separate fires at Battery Energy Storage System (“BESS”) locations in New York, Governor Kathy Hochul announced the creation of an inter-agency fire safety working group. The Fire Safety Working Group, to be comprised of the Division of Homeland Security and Emergency Services Office of Fire Prevention and Control, New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation, Department of Public Service, and the Department of State.Continue Reading Fires at New York Battery Energy Storage System Facilities Ignite State Response
On April 4, 2023, the Town of Riverhead joined the growing list of Long Island municipalities to have adopted special zoning regulations for Battery Storage Energy Systems (or BESS) projects. The law, which was filed with the State and took effect on April 15, 2023, is codified in Chapter 301, Article LIID of the Town Code, appropriately titled “Battery Energy Storage Systems.” A copy of the adopted regulations is available by clicking the following link: Riverhead Bess Continue Reading Riverhead Gives the Green Light to New BESS Zoning Regulations
Last month, in Cuffaro v Zoning Board of Appeals of the Village of Bellport (Index # 620453/2021), the Suffolk Supreme Court reinforced the existing and binding case law that a municipality’s issuance of a building permit to a similarly situated lot effectively sanctions the subdivision of that property by deed without the requisite subdivision approval. In a strongly worded decision, the Court held that a municipality cannot rely on a supposed illegal subdivision as a basis for denying an application where it has otherwise sanctioned the subdivision by granting certificates of occupancy to its sister lot. Continue Reading “Grandfathering” By Issuance of Building Permits
The New York Climate Leadership and Community Protection Act (“CLCPA”) established ambitious targets to transform New York’s energy generation and efficiency. The CLCPA was signed into law in 2019 with goals to achieve 100% zero-emission electric generation by 2040 and greenhouse gas emission reduction to 85% below 1990 levels by 2050, among others. The clean energy investments contemplated by the CLCPA include $35 billion in large-scale renewable and transmission projects, $6.8 billion to reduce building emissions, $1.8 billion for solar and more than $1 billion for clean transportation initiatives. Continue Reading Green for Green: New York’s Climate Justice Working Group Identifies Qualified Disadvantaged Communities for Clean Energy and Energy Efficiency Investments