Several Long Island municipalities have local laws that peg the issuance of certain building permits to a requirement that contractors and subcontractors be participants in a “qualified apprenticeship program” that is registered and approved by the New York State Department of Labor. While these provisions are often entitled “safe and code compliant construction” and may be perceived as fostering apprenticeship programs for building construction trades, many contractors on Long Island disagree.

They see these provisions as having nothing to do with safety or compliance. They point out that many of these codes do not require that apprentices work on the project or that the selected contractor even employ such apprentices. Rather, all that is required is that the contractor have a collective bargaining agreement with a union that has a qualified apprenticeship program. They contend that these code provisions are aimed at ensuring that contractors affiliated with certain unions get the jobs by prohibiting non-unionized contractors or unionized contractors with affiliated unions that do not meet the qualified apprenticeship program requirement from getting building permits. And they further argue that these provisions add significant costs to the price of construction.

A recent decision by a federal judge may be changing that. But first, a sampling of codes provisions on Long Island that require qualified apprenticeship programs for building permits.

Town of Huntington

Section 87-55.1 of the Huntington Town Code provides that prior to the issuance of “building permits for the construction of commercial buildings of at least one hundred thousand (100,000) square feet,” applicants must “demonstrate that any general contractor, contractor or subcontractor for such project, must have apprenticeship agreements appropriate for the type and scope of work to be performed, which have been registered with, and approved by, the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law.”

Town of Brookhaven

Section 16-3.1 of the Brookhaven Town Code requires that prior to the issuance of  “foundation permits and building permits for the construction of a building located in commercial and industrial zoning districts where the square footage of the footprint is 100,000 square feet or greater” and prior to the issuance of building permits for “an addition to an existing building located in commercial and industrial zoning districts when such addition is 100,000 square feet or greater,” that the applicant “demonstrate that any general contractor, contractor or subcontractor for such project participates in an approved apprenticeship training program(s) appropriate for the type and scope of work to be performed, that has been registered with, and approved by, the New York State Department of Labor in accordance with Article 23 of the New York Labor Law.”

Under Brookhaven’s code provision, unless an existing building has a certificate of occupancy or its equivalent, the square footage of the existing building is included in the calculation of the 100,000 square foot threshold.

Town of North Hempstead

Section 24-68 of the North Hempstead Town Code provides the following. “Every contractor or subcontractor who is a party to, or working under, a construction contract with the Town shall be a participant in good standing in a qualified apprenticeship program that is registered with and approved by the DOL and shall have in place apprenticeship agreements that specifically identify or pertain to the trade(s) and/or job title(s) called for within the construction contract.”

Section 2-9.1 of the North Hempstead Code requires that prior to issuance of a building permit for a “large commercial project,” the applicant must demonstrate that “any general contractor, contractor or subcontractor for such project is a participant in good standing in a qualified apprenticeship program that is registered with and approved by the DOL and has apprenticeship agreements, which are specifically identified as pertaining to the trade(s) and/or job title(s) called for by such project.”

A “large commercial project” is defined as “[t]he erection, construction, enlargement, alteration, removal, improvement, renovation, demolition or conversion of a commercial building or structure where such erection, construction, enlargement, alteration, removal, improvement, renovation, demolition or conversion involves an area of 100,000 square feet or more of floor area. The threshold of 100,000 square feet may be met either in a single building or a collection of buildings located on the same property.”

City of Long Beach

Section 7-48 of the City of Long Beach Code of Ordinances covers apprenticeship requirements. It provides that “as a condition precedent for, the issuance of all building permits…for construction of buildings of at least 100,000 square feet…any contractor or subcontractor, who is a party to, or working under, a construction contract, [must] be a participant in good standing of a qualified apprenticeship program that is registered with and approved by the New York State Department of Labor and to have apprenticeship agreements…which have been registered with, and approved by, the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law.”

Town of Oyster Bay

Section 93-16.3 of the Town of Oyster Bay Town Code requires that any contractor or subcontractor who is performing construction on any “structures used for purposes other than private one- or two-family residences, and shall include, without limitation, buildings used for offices, retail or wholesale stores, warehouses, schools, and public buildings” shall “be a participant in good standing of a qualified apprenticeship program that is registered with and approved by the New York State Department of Labor and to have apprenticeship agreements, as evidenced by valid D.O.L. certificates of completion which are specifically identified as pertaining to the trade(s) and/or job title(s) necessary for said construction project.”

Sections 93-16.1 and 93-16.2 apply this provision to buildings of 100,000 square feet or more, and have other refinements to that 100,000 square foot threshold.

 Legal Challenge to Oyster Bay Provision

A legal challenge to Oyster Bay’s provisions is pending in the federal court in Central Islip. That case is entitled Hartcorn Plumbing and Heating, Inc. v Town of Oyster Bay.  Plaintiffs contend that Oyster Bay’s code is unconstitutional as it applies not just to contracts that the Town is a party to or funds, but also applies to wholly private contracts.

On February 7, 2018, Judge Hurley issued a preliminary injunction, enjoining the Town of Oyster Bay from enforcing Town Code 93-16.3, with respect to any contract that the Town of Oyster Bay is not a “direct or indirect party.” As a result, at least for now, projects that do not involve the Town of Oyster Bay as a party to the contract or are not funded by the town can get building permits without demonstrating that their contractors participate in “qualified apprenticeship programs.” Whether that ruling is ultimately upheld as the case proceeds is unknown, but it may result in other municipalities reexamining their code provisions voluntarily or as a result of similar court challenges.

There is a movement afoot among Long Island municipalities to regulate or, in some cases, ban the planting, growing or cultivation of bamboo within their communities.  To some, bamboo is an exotic evergreen plant that creates an attractive and effective privacy screen.  To others, however, it is an aggressive, invasive plant that causes ecological harm and significant damage to property, if not properly contained.  The fast-growing roots, or rhizomes, of certain varieties of bamboo plants have been known to buckle driveway surfaces, puncture swimming pool walls, and compromise underground sanitary systems and utility lines.

The Town of Smithtown recently became the first Long Island Town to adopt sweeping regulation on the planting and growing of bamboo.  Smithtown’s ordinance provides that “no owner, tenant or occupier of property anywhere in the Town of Smithtown shall cause, suffer or allow bamboo to be planted, maintained or otherwise permitted to exist within 10 feet of any property line, street, sidewalk or public right-of-way.  Violators of this law are subject to monetary fines and may be ordered to remove the bamboo.  In certain instances, the Town may enter onto the violator’s property and remove the bamboo and assess the cost thereof against the property by adding it to the property’s tax bill.  The Towns of Brookhaven and Hempstead, the City of Long Beach, and the Villages of Woodsburgh and The Branch, have all followed by passing similar legislation.  At the present time, the Towns of Oyster Bay and Islip are considering the adoption of their own bamboo regulations.

Several years earlier, the Fire Island Villages of Saltaire and Ocean Beach adopted local laws regulating the planting and growing of bamboo.  Saltaire’s law prohibits the planting or growing of bamboo anywhere within the Village.  The local law, however, contains an exception for bamboo that was planted or otherwise permitted to grow prior to the effective date of the local law, provided that the property owner takes measures to prevent the bamboo from invading or spreading onto adjoining or neighboring properties.  According to the Village Code, violations of the local law are subject to a fine of up to $250 per day, in addition to civil and criminal penalties.  Last year, the Village of Babylon adopted a local law that was very similar to the one adopted by Saltaire.

However, not all Long Island municipalities have seen fit to regulate bamboo.  This past December, the Village of Sag Harbor voted to withdraw proposed legislation regulating bamboo from further consideration.  After two public hearings, at which the Village Board heard from both proponents and opponents of the proposed legislation, the Board unanimously determined that the situations in which bamboo causes problems between neighbors were too varied to legislate.  This past summer, a proposed law regulating bamboo in the Town of Huntington was defeated by a split vote of the Town Council.

While governmental regulation of bamboo is undoubtedly welcomed by those who are threatened by, or suffered from, a neighbor’s invasive bamboo, such regulations are only enforceable by the municipalities themselves.  For those who wish to take matters into their own hands, a property owner may trim any invasive bamboo roots or limbs at the property line, provided that the trimming is done in such a way that does not permanently injure the bamboo or adversely impact the bamboo’s physical integrity.  A victim of invasive bamboo may also assert claims based on traditional trespass and private nuisance[1] and seek recovery of money damages for the consequences of the trespass and/or an injunction against future trespass or nuisance.


[1] See, e.g., Yager v. Thompson, 1 Misc.3d 902A (District Ct., Nassau Co. 2003), affirmed, 8 Misc.3d 138A (App. Term 2005).