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HomeMy WebLinkAboutPlanning Board/ZBA Members Training RETRIEVE BILL Page 1 of5 CHAPTER TEXT: LAWS OF NEW YORK, 2006 CHAPTER 662 AN ACT to amend the general municipal law, the general city law, the town law and the village law, in relation to requiring certain train- ing for local planning and zoning officials Became a law September 13, 2006, with the approval of the Governor. Passed by a majority vote, three-fifths being present. The People of the State of New ~or~~resented in E~nate and Assem- blYl do enact as. follows: Section 1. Paragraph (d) of subdivision 2 of section 239-c of the general municipal law, as added by chapter 451 of the laws of 1997, is amended to read as follows: (d) Training and attendance requirements. (~& a aQRai~iQR sg app~iR~ mt'-~ 'tg tRe F] ;ilRJliR'j ];....~ilia, t'N~ g';?-ilRty 1 gJi sl il1ii. Uil l;Qa~~ II~. QIil''ti&.liilisA t:EaiRiR~, SQRtiR'li.R'j aa\i.aatii,9R aRa JQOili1iiR.! ii11i~QRai!ilR8'i1 ii'ii'iflli iVil..gf~..t.Q i"9I' &\a.'illl lIl.<;;IIIRVi:i"tF'] JiL_~ach member ~_._a coun:!:"'y planninq board shall QQmplete, _~t a minimum, four hours of tra~ninq each~r des~anQd to en~le such me~ers to more effect~vely carry out their duties. Train- inq rece~ved_bv a member in excess of four hours in ~ one year may be 9~rr~ed over by the ~~mber into succeeqinq years in order to meet the requi~ements.__.-.2.L~is paraq.;~ Such traini.nq shall be approved by _the ~Q~nty and mav include, but pot be limited to, tra~ninq provided by a reqioI1;~l or__9ounty planninq _office or___~.9.mmiBsioE..J county planning feder- ation, state__~qencv, statewide municipal association, colleqe or other ~imil~~t~t~Traininq may be provided in a variety of formats, inc~udi~~~t not limited to, electronic m~dia, video, distance learninq ~nd._..'l:::radi_tional classr90m traini~~ Ji-j:_L__To be eliqib1:.~ for reappointm'i!.I}t to__~uch boar~such__member..shall h.<!y~~gomplete_d the tra;!.ninq promoted by _~he county J;~ursuant ~~~o this !2.araqraph.. Jii~_L-The traininq re~ed by this paraqraph ma~ waived or modi- fied by~ the count~whenL-~~Jl_~q.9!!ent of the qoverninq. board, it is ~~ the best i~terest of the county to do so. 1i~ No decision of a county planninq board shall be voided or decla~~d ~nvalid because of a fai~ure to comply with this Earaqraph~ ~ 2. Subdivision 1 of section 27 of the general city law, as amended by chapter 458 of the laws of 1997, is amended and a new subdivision 7-a is added to read as follows: 1. Authorization. The legislative body of each city, except a city having a population of more than one million, is hereby authorized by local law or ordinance to create a planning board consisting of five or seven members. Members and the chairperson of such planning board shall be appointed by the mayor or other duly authorized appointing authority. In the absence of a chairperson, the planning board may designate a member to serve as chairperson. [Il<l il1illi.ii..R~ 'n'il~ aFFaiRtlll.9RtS. taGl Il\a.~nill. ..~ ti"'~'iil. auly i'I..tR9~ilil'iilg afi'FQiRt:i.R~ ~'ltR~:E"ity Ill~Y rQ~li~g plQRAiR! ~"ara m8.Gs~Q t'>? ggRlFlstGl t.JiaiRiA!J aRa eSR1;.iAtaiR~ 9g"lQeitj;oR QG"~&Q8 iN. :4.6iIfillii'J1'G ~RiHi' IT.ii1ik ailY l;ogiill r'ii'if"] :F~R1'iiRtg f...r t:aiil tJ<aiRiR'j 'ilf Q1d.SR B1.--'lq-aJi& ] Not EXPLANATION-~Matter in it~Jig~ is new; matter in brackets [_] is old law to be omitted. http://plIblic.leginfo.state.ny.lIslbstfnnef.cgi ?QUER YTYP E=CHAPNO+&SESS YR=2006+&QUER YD... 10/31/2006 RETIUEVE BILL Page 3 of 5 3 CHAP. 662 ---'..Q..L To be. eliqible for reappointment to such boa~~ such member shall have completed the traininqEromoted bv the city pursuant to this subdi- vision. .(0) The traininq required bv this subdivis~on may !?~ waived or_ modi- fi~~reso!~tion of the leqislative body of the city when, in the ;udqement of sllch.__leqislativ:.e body. it is in the best interest q.~__the Q!!::~ do so. J~!L1:lo decision of a board of appeals sha)...!___pe v~i.:Q~~~--9:eclared invalid because of a failure to comply with this_~ubdivi~i~ ~ 4. Subdivision 2 of section 267 of the town law, as amended by chap- ter 458 of the laws of 1997, is amended and a new subdivision 7-a is added to read as follows: 2. Appointment of members. Each town board which adopts a local law or ordinance and any amendments thereto pursuant to the powers granted by this article shall appoint a board of appeals consisting of three or five members as shall be determined by such local law or ordinance and shall designate the chairperson thereof. In the absence of a chairperson the board of appeals may designate a member to serve as acting chair- person. The town board may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the town board for such purpose. [I:Fl. liI';l]tiR!J "''''ilk app9i.:atmlilRt.S, 'kR& 1i.auR ~~~~a liIay ~Q~i_9 &aara Q~ -FFeals m..&8_& ta ~~~Flg~9 t_aiRiR~ ~a s&Rt.iRYiR!f aa.1:ilililtieR i191.aFSeS ia iiUil<;r~iFa:aR9a 1TJi.t.k a~~ 18'eal i'"<;;'"ifliilO'iiBileRte :far tAg traiR~R~ af ii"'ilR liIiiilmS1ii'll<& ] 7-~-=.,~~~ninq and attendanC:~,_.requirements. ___--1& Each member of the b~~rd of appeals sh~ll~.9.,omplete_~~~a mi~!Uum.,. four hours of ._..~aininq each 'year desiqned to enable such members to~__more effectively car;y.__out .t.heiJ;. duties. TraA:..ni.nq~eceived_.l2Y: a member in excess of four ho~rs _ .in ~ one year may be.. carried .lJver QY the member .!._!1to~_ succeedinq vears.._in o~4er to ~eet ~he requireme~ts .9f this .subdivis.ion. Such traininq shall be~Foved by the town board and ~ay include, but not be limited to, traininq provided by a municipali tv, reqiqnal or cO~.!!.~--121anninq ...._9.;ffice 9..;" commissiop., county .1?lann.in~federation, state aqenQY_f._!?_t;.~.!:ew.;ide !U'l1:nicipal_ ,~~sociation, __.gC?ll~ge ..or other similar en..t-i.tv. Traininq mav.._be pr~yided in a variety of formats, inc~~dinq but not limited to,~lec= ~ronic medi~video, distance learning an~_tr~ditio~_~l_~~ssroom train- in~ JP.L-1'.9~~_ eligible for reappointment to such board, such member_~?ll.J~_ h~ve completed the traininq promoted by the town pursuant to this subdi- visio~ ..iQL~...'!'~.trs:j.ninq required bv this ~ubdiv:!-sion may be waived or 1!!9d.:!-...= fied by resolution of the town board when, in the jud~~~t~~town QoardL-it is in the best inte~est of the town t9_do ?~~ ML_No~_ decision of a zoninq boarC!_qf_~EI?eals shall be voided o~ declared_i.-nvalid because p~__failure to comply_~ith JJ'lis_subdiv~sion. ~ 5. Subdivision 1 of section 271 of the town law, as amended by chap- ter 458 of the laws of 1997, is amended and a new subdivision 7-a is added to read as follows: 1. Authorization. The town board of each town is hereby authorized by local law or ordinance, to create a planning board consisting of five or seven members and shall, by resolution, appoint the members of such board and designate the chairperson thereof. In the absence of a chair- person the planning board may designate a member to serve as chair- person. The town board may, as part of the local law or ordinance creat- ing said planning board, provide for the compensation of planning board http://public.leginfo.state.ny.us/bstlrmcfcgi?QUERYTYPE=CHAPNO+&SESSYR=2006+&QUER YD... 10/31/2006 RETRIEVE BILL . . Page 4 of5 CHAP. 662 4 members. [Iii '\iI'ilti R~ Ii"lak i'FF'iiii A~"'9'R"i&, tAg ~'il'HR Ji7~ii1iil lRilY Ji'il~i]i& FlaK AiR! saa~a .9~~Q~B ~s sa~~lQt8 tJi'ai~iRi aRa SQRtiRYiR! QQQ8atiQ~ SSY5&QS ia aSiJliJi'gilR'Q1e ui.....k all-)" l..ga.l :l'Q~'i.li"i'iJ1'int'i& i'i5 t'R9 ~JiiliRiR~ {if B1.iS'a .--......9:1'8 ] 7-a. Traininq and attendance requirements. a. Eac;h mell!Pe!,__Qf.~he_ plan- ninq board shall complete. at a minimum, four hours_of traininq._~"~c~ year desiqned to enable suc4._.!'!1:.~~_~_~~~_~ore effectively car~--2.!:!.~_~:q.eir duties. Traininq received by a member in excess of four ~ours~~ anv_2~e year m~y_be carried over bv the member _into succeed~years in or4~~to meet the requirements of this subdivision~ Suc~_____.t~ai!!in~shall be ~pproved bv the town board and m~Y-inc~~de, but not be limited ~_ tra~ninq provided bv a municipality, reqional ~;_qou~ planninq o~fice or commission, county planning federation, ___~tate aqencv.s~~t_~wide municiEal association. colleqe or ._~ther si1!!ilar._~'mtity.~._ Traininq may be ~ovided in a variety of formats, includi~_but not +,~,!!!ite~._.~..2~(;;!:c- tronic media, video, distance lea~ninq and t~~ditional_ classroo~_ train- inq. ~__~9-..__be eliqible for reappo~ntment to such boardL such member shal~. p.ave completed the traininq promoted bv the._town pursuant to t.h:is supdi- vision. c. The traininq required bv this ~ubdivision may be wai~~d or ~odifi~Q bv resolution of the town board when, in the iudqment of the to~n board, it is in the best interest of the town to do so. d. N~ decision of a planninq board shall be voided or declar~~_jnval~4 because of a failure to comply with this subdivision. ~ 6. Subdivision 2 of section 7-712 of the village law, as amended by chapter 235 of the laws of 1996, is amended and a new subdivision 7-a is added to read as follows: 2. Appointment of members. Each village board of trustees which adopts a local law and any amendments thereto pursuant to the powers granted by this article shall create a board of appeals consisting of three or five members as shall be determined by such local law. The mayor shall appoint the board of appeals and the chairperson thereof, subject to the approval of the board of trustees. In the absence of a chairperson the board of appeals may designate a member to serve as acting chairperson. The board of trustees may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the board of trustees for such purpose. fIR. BUiJil.Rg 11 191:1 iiLFPsiRiiIil.9fit., "';'\;ag --ii,. "I "I.:ifit Ilv.w;il ~'5 "i-..R"tiill'iUl R1iiY -<;~i~<;, s":'"siiil -wg OilPPil"Als JaQRllil"i15"l -l;;. saBlFlliil-l;;.8 1;.:E'iiliR;iA~ eRa 'i71i'Alii:A.U'; -3' 9,ha'iil'ai;:iQ~ SQlaP&QS iR 17 'i7iliilUiliiRse Hi ...k iilRrY 1-<11"] lril'ifti..i-~JIIlii1Jllis '57- t:R'i "i1ili<liJliiR~ ';l.c <;;'"HifR -'i?:mJ;;Uii'S.] 7-a. Trai.ni!l~~d attendance requirements. .~) Each member 9t:. th~ board of appeals shall comple~e, at a minimum, four. hour~ of traininq each year desiqned to enable suc~_members to,~ore effect~yelv carry ou~ ~~~r duties. Traininq received by a member in excess of fou~_hours in ~I}Y_ onE!-.yea,r may be carrjed over by the member into sucgeedinq years in order to meet the requirements,. of this ..~ubdivis:b_Q!l. Such traininq sJ!_al~ p~~~~roved by the board ~; trust~es and may includ~L_put not.be limit~g to, traininq provided bv..a municipali tv, ~eqional 2!:._ counJ~Y_--.121anninq office or commissio~ countv__p.l~_!!ninq federatAc?'!l, state aqeD.cy, state- wid~ mt!,nicj.pal aS5o_qiat_~.Q}fJ colJ::~gg or otp._e_f.._?imilC!~eI}_~~_~. Trainipg ~~~ be provided in a variety of for~at9, in~+ud~~ put~9t limited taL electronic media, video, dj.._~tance _-.1.~~_;,ning___..iLn~ tra.di tismaJ:.__"class_rooIl! traininq, http://public.leginfo. state.ny. us/bstfrmefcgi?Q U ER YTYP E=CHAPNO+&SESS YR =2006+&Q UER YD... 10/31/2006 88P18111b8l'/0C18b8l' 2008 1I8I.7,Nll.2 I. Introduction Members of planning and zoning boards and local legislative bodies constantly make decisions that may be worth millions of dollars to ap- plicants and that may have serious impacts on public health and safety. These board members must perform their duties in accordance with fed- eral and state constitutional provisions. state statutes (and sometimes federal statutes) and locally adopted laws and ordinances. Board mem- bers must be careful to make decisions that do not expose the munici- pality to liability for all sorts of actions, including civil rights violations. In addition, board members must be mindful to constantly base their decisions on facts and evidence in the record so as not to be acting in an arbitrary and capricious manner, and board members must, at all times, act in accordance with high ethical standards imposed on those in public service. Of course, each of these areas opens potential opportunities for lawsuits that cost municipalities large sums to defend, and which cost applicants significant amounts of money in unrealized income plus the expense oflitigation. Unlike other players in the land use decision making process, such as professional planners, code enforcement officers and engineers, members of local legislative bodies and land use boards often have no specific education Patricia E. Salkin 18 Alsoclate DeaD Bnd DIrector 01 the Government Law Center 01 Albany law School. DeaD 8aIIIln '8 gratelul to Albany law 8chODIstudool Megan Christian '07101' her research asslstancB. This article II band upon a national survey on mandatory training programs authored by Salkin appearing In 35 Re81 Estate l.J. 316 (2008). THOMSON * VVEST New York Zoning law and Practice Report is published by Tl1omsonANcsl, 50 BlOau Street East, Rochesler, NY 14694. @2006 TllomsonlWest 40402684 2 NEW YORK PI.AI\NNG AND PRACTICE REPORT or training in land use matters prior to their election or appointment. In fact, in most jurisdictions (including New York), the only legal requirements to be satisfied prior to running for office or seeking an appointment to a planning or zoning board is that the individual be a citizen of voting age (18 years) and that they reside in the jurisdiction where they seek to serve. Pressures can be intense stemming from, for example, commu- nity opposition to a particular proposed project. Board members are required however, to follow procedural and substantive requirements contained in the law. With limited exceptions, once seated on these boards, individuals are not required to participate in formal training programs specifically focused on land use planning and zoning law, putting them in the position to learn solely from "on the job training." Published in 2002, the American Planning Associ- ation's Growing Smart Legislative Guidebook is the seminal work on modernizing planning and zoning enabling statutes.l In recognition of the need for train- ing, and based on a New Hampshire statute, Chapter 10 of the Guidebook recommends that states empower localities to require that all new members (as well as alternate members) of land use boards complete at least six hours of training within six months of as- suming office.' This training, as recommended by the Guidebook, is to focus on duties as a member of the board' The Guidebook stops short of suggesting that state legislatures require such training to occur' While a wealth of training opportunities may exist on plan- ning and zoning topics across the country at meetings of national, statewide, regional and locally-based orga- nizations many local decision makers do not routinely attend these workshops. New York is now the sixth state to require mandatory training and continuing education courses for members of planning boards and zoning boards of appeals. 5 Previously, New York autho- rized local legislative bodies, at their option, to require training for members of planning and zoning boards.' II. New York's New Law In June 2006, both houses ofthe New York State Leg- islature passed legislation requiring board members (and alternate members) to receive a minimum of four hours of training each year.7 Sent to the Governor on September 1, 2006;-the bill became Chapter 662 ofthe Laws of 2006 on September 13. Effective January 1, 2007, all members of municipal planning and zoning boards are required to complete a minimum of four hours annually of training.' Such training is to be designed to enable board members to more effectively carry out their duties' To be eligible for reappointment to the applicable board, a member must be in compliance with the law.lO Where more than four hours of training is received in a year, the law allows the time over four hours to be car- ried over to following years.ll The law provides that the training program is to be approved by the municipality, and may include, but not be limited to, "training pro- vided by a regional or county planning office or commis- sion, county planning federation, state agency, statewide municipal association, college or other similar entity."l' Furthermore, the law provides that the training may be offered in a variety of formats including, but not lim- ited to, electronic media, video, distance learning, and traditional classroom instruction.'" The new law man- dates the training but allows municipalities to pass a resolution waiving or modifYing the requirement, when in the judgment of the local legislative body, it is in the best interest of the municipality to do so!' Lastly, the law provides that no decision of the planning or zoning board will be voided or declared invalid as a result of a failure to comply with the training mandate.l' The Sponsor's memo in support of the legislation in- dicates that "sound land use decisions result in fewer lawsuits and this lowers costs for municipal liabil- ity insurance, particularly in regard to the increasing complexity and pace of growth in communities and re- gions across the state." The memo states that "there is a growing consensus among planning federations, local governments, builders institute, insurance companies, economic development corporations, land preservation trusts and environmental groups that well-trained municipal planning and zoning board members are es- sential to maintaining and enhancing the future vital- ity and quality of communities across the state." The new law was also enacted, in part, to establish uniform minimum training standards statewide. A major goal of the new law is to allow flexibility for localities to design training content and method of training to suit their needs and that of individual board members. Some localities may even tailor the content to round out the knowledge base of the board, taken as a whole, recognizing that not everyone can master all subjects that may come into play locally. For example, one board member may become particu- larly knowledgeable in SEQRA, another in Ag land preservation, and a third affordable housing strate- gies, all in response to local needs and priorities. These board members bring back this information to share with their colleagues. The recognition that "one size may not fit all" makes the new law easier to implement and of even greater value to communities who will benefit from the opportunity to develop and! or require tailored educational opportunities to best match local interests. As to the potential cost impact of the new mandate, the sponsor's memo points out that there is a signifi- cant amount and variety of no-cost and low-cost land use training already available statewide. The New York State Legislative Commission on Rural Resources ) For authorization to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) 646-8600 01' West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific material involved, the number of copies you wish to distribute and the purpose OJ' format of the use. New Y orl{ Zoning Law and Practice Report (USPS# pending) is issued bimonthly, six times per year; published and copyrighted by ThoiUsonIWest, 610 Opperman Drive, Fa. Box 64526, se Paul, MN 55IG4-0526. Application to mail at Periodical rate is pending at St. Paul, MN. POSTMASTER: Send I-ldrlri\<;s r.h~'llll;CS tn New York Zoning" Law and Practice IU~port, 610 Opppnnan Drive, P.O. Box 64526, St.. Paul, MN ,55164-052G SenlemherlOclohm' 2008 NEW YORK PLANNING AND PRACTICE REPORT 8 has has partnered with others to publish a Fact Sheet entitled "Promoting the Training of Municipal Plan- ning and Zoning Officials," which, among other things, offers a listing of available free training opportunities from a number of organizations: state agencies, includ- ing The Departments of State, Agriculture & Markets, and Environmental Conservation; statewide munici- pal associations (Association of Towns of the State of New York, New York Conference of Mayors, New York State Association of Counties, and the New York Plan- ning Federation); the New York Municipal Insurance Reciprocal (offering on-line training); and academic institutions (including the Land Use Law Center of Pace University School of Law and the Government Law Center of Albany Law School). The Fact Sheet also notes that many counties and municipalities offer their own training, and that municipalities may approve, at their option, a course of self-study.!' III. Examples of Existing Locally Mandated Training Programs-New York More than two dozen local governments in New York had laws in place prior to the new state statute, requiring planning and zoning board members to undergo training and complete continuing education courses. These local laws were adopted pursuant to the prior law that authorized local legislative bodies to do so at local option. Municipalities that have al- ready adopted local training initiatives should review their laws to make certain that they comply with the minimum standards set forth in the new State law (many do not currently meet the required minimum number of hours, and, where municipalities desire to require less hours, the new law requires a resolution be passed to that effect). What follows are examples of the existing approaches to mandated training in New York, offered to provide ideas and examples of what municipalities may wish to consider in implementing the new state mandate (keeping in mind that the new law requires four hours of annual training). In the Town of Huntington, appointed planning and zoning board members, and members of the board of assessment review, must attend a three hour seminar, taught by the Director of Planning, Town Attorney or Town Assessor, covering topics such as procedure, due process, ethics and other subjects relevant to the Boards' functions." Upon completion of the training program, members are required to annually attend a pre-approved course, class, workshop or seminar of at least three hours and then file a document with the Town Clerk's Office by December 31 of each year showing that he/she attended the programs." In Lyons, members of the joint town and village plan- ning board are required to complete three hours ofland use training within twenty-four (24) months of appoint- ment.19 Thereafter, members must complete twelve hours of training during their seven year term.20 The Town of Rochester requires planning board and zoning board members to attend training pro- grams related to the functions of the boards within six months from the date of their appointment.2! Thereaf- ter, members must attend a minimum of two continu- ing education programs annually." Authorized train- ing programs include those presented by the County Planning Board, the NY Association of Towns or any other program provided that it has been approved by the Board's chairman.23 The Town of Milan conducts an annual training program and requires board members to attend." Failure to receive a certificate of completion from the Town Board results in removal from office?' The Town of Cortlandt requires planning or zoning board members to complete a training course covering the basic skills required to effectively perform the du- ties of their office, within two years of taking office.26 In Shawangunk, planning and zoning board mem- bers are required to attend at least one seminar, workshop or continuing education course during the calendar year.27 Members must request and receive approval from the Town Board with respect to the seminar, workshop or continuing education course.28 The Town covers the costs of attending the training and reimburses the members for travel and meal ex- penses related to the training in accord with the poli- cies established by the Town Board. Failure to attend a class during the calendar year results in removal from the board. However, where a member is unable to attend a training session, he/sh~' may apply in ad- vance to the Town Board for relief from the annual requirement if there are no local courses available and the person can show that traveling will cause her an undue hardship.29 The Town of Northhampton requires all members of the Planning Board to attend Town Board approved training programs offered by New York State.'. The Town reimburses members for attending the sessions for what they determine to be fair and reasonable costs incurred as a result of the training'! In the Town of East Fishkill, Planning Board mem- bers must attend, within the first two years of ap- pointment, a training program sponsored by but not limited to the NYS Association of Towns, NYS Depart- ment of State, NYS Department of Environmental Conservation, Dutchess County Planning Federation, Westchester County Planning Federation, the NYS Planning Federation or other appropriate entities." In Poestenkill, members of the zoning board of appeals are required to attend a minimum of two training sessions within twelve months from the date of appointment and thereafter attend a minimum of three training sessions every three years.33 The training sessions must be approved in advance by the zoning board of appeals and will include but not be limited to sessions offered by New York State, other municipalities, governmental associations, education- al institutions or in-house updates or seminars'4 In Wheatfield, planning and zoning board members are required to attend a minimum of eight hours of training courses within twelve months from appoint- ment and then attend at least eight hours of training every three years thereafter." The sessions must be approved in advance by the Wheatfield Town Board and may include programs offered by New York State, other municipalities, governmental associations, edu- 4 NEW YORK PLANNING AND PRAellCE fiORT cational institutions or in-house updates or seminars.36 The Chairs of the zoning board and planning board must notifY the Town Board before December 1 each year of any member who has failed to comply with the training requirements'7 The Town Board then con- ducts a hearing within fifteen days of written notice to the member to determine whether good cause exists for removal and ifitdoes, than the person is removed." The member has the right to be represented by counsel at the hearing at their own expense." In Kirkwood, members are required to attend a minimum of six hours of training within the first year of appointment and thereafter annually attend at least three hours.'. The sessions must be approved in advance by the Town Board and can include programs sponsored by the NYS Department of State, the NYS Association of Towns, the NYS Department of Environmental Conservation, the NYS Planning Fed- eration, Broome County Department of'Planning and Economic Development, Broome County Cooperative Extension and other such entities as well as in-house updates, training seminars or Municipal Law semi- nars conducted by the Town Attorney.41 In the Town of Alabama, all members of the zoning board and planning board are required to complete a minimum of five hours of education within two years from the date of appointment, and then annually complete at least two hours of training. 42 The sessions must be approved in advance by the town board.43 The Town of Marlborough requires planning and zoning board members to attend annual training pro- grams from a list of approved programs established by the town board and the planning board chairperson.44 The training requirement may be waived on an indi- vidual case-by-case basis for one year upon a showing of good cause for the member's inability to attend the programs, but shall not grant such a waiver for two consecutive years.45 In Dryden, members of the zoning board of ap- peals must attend all scheduled training and review sessions conducted by the town attorney as we1\ as all seminars, workshops and continuing education courses designated by the Town Board'6 If a member does not attend at least two sessions by the town at- torney in one calendar year, then the member may be removed from the board." If'the member does not at- tend at least one seminar, workshop or continuing ed- ucation course within two consecutive calendar years, than that member may be removed from the board'8 The topics covered in the sessions include, but are not limited to: procedures, substantive issues, review of court cases, ethics, conflicts of interest and such other topics as the town attorney shall determine may as- sist the bO(lrd in carrying out its functions in a timely, fair and lawful manner.49 The Towns of Clarkstown and Ramapo require that their members complete a training class offered by the Rockland Municipal Planning Federation.'. In Clarkstown, members have 2 years from the date of appointment to receive certification whereas in Ramapo it is only one year,51 In addition, Ramapo requires members to receive recertification every two years from the date oftheir initial certifiC(ltion." Fur- thermore, the Ramapo Town Board has the discretion to grant an extension of no more than one year to a member to receive certification." The Town of Bethany requires its members to at- tend a minimum of five hours in relevant courses within 2 years from the date of their appointment and then undergo training every 2 years thereafter. 54 The training sessions must be approved in advance by the Town Board and can include programs sponsored by the NYS Department of State, NYS Association of Towns, NYS Department of Environmental Conserva- tion, Genesee County Planning Department and the NYS Planning Federation. 55 In Canaan, members are required to use their hest efforts to attend one or more training courses each year offered through the local community college or any organization offering programs involving land use planning and/or zoning." The Town of Watertown requires that an appointee or an existing member, complete four hours of approved training and there- after continue to receive four hours of training each year," In the event that a person completes more than four hours in a given year, that person may carryover a maximum of four hours for the following year. 58 The training must be approved by the Towb Board. The Town Board can decide whether to waive the require- ment provided that a member applies in writing for a waiver or modification of the requirements." In the Villages of Farmingdale and Port Jefferson, all members must attend a minimum of six hours of training within one year of being appointed." There- after, members must attend a minimum of six hours of training every two years.61 If a member is in the final 12 months of hislher term than the person is required to attend a minimum of three hours of training'2 In Farmingdale, the training sessions must be approved in advance by the Village Board" The Village of Suffern requires its members to attend training programs related to the functioning of said board within two years of the date of their appointment and thereafter attend a minimum of two acceptable training sessions each year" Before a member can attend a session, he/she must provide the Board of Trustees with a description of the ses- sion, including the topics to be covered, the speakers and the anticipated duration of the sessions." The Board of Trustees then consults with the Village Attorney and the Planning and Zoning Board Chair- men to determine whether the session is sufficient to satisfy all, a portion or none of the required training and continuing education requirements'6 The Board of Trustees does grant extensions oftime upon a good cause showing from the member as to why helshe can- not satisfy the requirements on time." The Board will not waive the requirements.68 The Vi1\age of Fredonia requires that its members have four hours of training each calendar year" The Village Board of Trustecs has the right to waive any training requirements if a member can show that hel she already has the necessary experience or knowl- edge or has shown good cause for heing unable to meet - --------------. --..--------..--_0 September/October 2006 NEW YORK PlAIVIVING AND PRACTICE REPORT 6 the training requirements.7o Some approved training courses include those offered by the NYS Department of State, the NYS Mayor's Conference, NYS Planning Federation and other such entities as well as in-house updates or seminars. "The Chairperson of the Zoning and Planning Board has to notify the Village Board in writing on or about January 15 of each calendar year of any member who fails to meet the requirements." The Village of Huntington Bay requires that its members attend a minimum of six hours of training during their first year in office and a minimum of 6 hours every 2 years thereafter.73 Most of the local laws provide that where a mem- ber fails to comply with the requirements within a specified period of time, he/she may be removed from the board. The new state law provides that failure to receive required training makes a member ineligible for reappointment to their board (unless exempted by their governing board). The new state law does not offer language suggesting that failure to comply could be or should be grounds for removal for cause from the board (however, local governments may so pro- vide). Many of the local laws provide the same "safe harbor" for decisions of the board consistent with the new state law, by providing that failure to obtain the training does not affect the decisions that the person made while serving on the board. Some of the local laws provide for due process prior to removal (e.g., notice and an opportunity to be heard). Iv. Drafting Local Training Requirements Drafters oflocallaws and resolutions addressing train- ing for planning and zoning board members should consider the following when developing these laws: 1) Who is to be covered by the local action? Spe- cifically, lawmakers should consider whether the legislation only covers members of planning and zoning boards (which is all that is required under the new state law) or whether other public sector players in the land use decisionmaking process should be included. For example, in some cases professional planners and members of other re- lated boards vested with authority for land use decisions and recommendations could be subject to locally adopted requirements. 2) What is required in terms of quantity of training? Lawmakers need to consider how many hours of training/education are required for each of the covered positions. The minimum required under the new state law is four hours, but, munici- palities may reduce this number by passage of a resolution. Some municipalities may desire more education and training. 3) How long do covered individuals have to complete the training? Local laws may be more specific in terms of time frames for completion of initial and ongoing training requirements. For example, the new state law only invokes annual requirements (presumably the training could all be accom- plished on the last day of the year), but local laws may require completion of some or all ofthe train- ing within a certain number of months of initial appointment to the board. 4) What is the content and quality control of the training? Some states provide a laundry list of po- tential topics appropriate to satisfy the training requirement. In other cases (New York), it is left to the local government to determine the content of the training based upon locally assessed edu- cational needs. Where local laws are silent as to content, there is a missed opportunity to ensure that people are actually benefiting from new or appropriate information, and rather these laws present the risk that people will simply "put in the time" in whatever course is available whether or not the content is beneficial. Quality of both the content and the communication of the content is another important factor to be considered. 5) Who pays the cost for training? States, including New York, typically do not like to impose unfunded mandates on local governments, and local govern- ments are loathe to require th~. volunteers they often beg to serve on boards to pay for their own job-related education. Therefore, the cost of the training is typically borne by the public sector. This can be accomplished by government-spon- sored training offered at no-cost to participants, or by municipalities joining together to offer no-cost training through regional, county or local planning departments with planning and/or legal staff pro- viding the instruction. Where covered individuals are afforded the freedom to choose other training programs that are reimbursable by the govern- ment, a designated person or board is often charged with pre-approving such program to make certain in advance that the education offered is beneficial, relevant and appropriate to satisfy the applicable requirement. One effective method of delivering training in a "convenientl1 fashion for board mem- bers is to require attendance one hour early at the first meeting ofthe month or the first meeting of ev- ery other month, and bring the trainer to the meet- ing so that the board can satisfy their requirements together without travel and major cost to the local- ity. This training can be taught by the municipal attorney, the municipal planner, an academic, staff from a state agency charged with providing techni- cal assistance and training, or any number of other resources. Some providers have developed on-line training courses to assist board members in com- pleting the training in a more flexible manner.74 6) How is it determined whether covered individuals satiSfy the requirement? The state law is silent on this issue. In most cases, laws provide for self- reporting to a designated government official or board. Some laws neglect to require that covered ---------~ S.nl.mh"lnr.lnh" ?nnR .' 8 NEW V_ PLANNBIIG AND PRACTICE REPORT individuals certify compliance, leaving the likeli- hood of an unenforceable requirement. Covered individuals could be required to file annual certi- fications of compliance on a date certain, or they may be required to complete and submit a form for each training session attended within a cer- tain number of days of completion. Governmental entities may not desire to assume responsibility for tracking hours and notifying covered individu- als of impending deadlines, preferring the self- certification route. 7) What are the penalties/consequences of non-com- pliance and what process is due? State law only provides that members may not be reappointed where they fail to complete the training. Imposing a monetary penalty may not be the most politically appealing option for volunteer board members. The threat of removal also may not be the most effective method of encouraging compliance, since volunteers may not care ifthey are removed where failure to comply is necessitated by busy sched- ules for an often thankless job that requires a significant time commitment. This is the trickiest aspect of crafting a training law, because the con- sequences need to be real to encourage cooperation with the training goal, but not oppressive so that people will refuse to serve on the hoards. Training requirements are 111uch easier to enforce on paid staff in that regard. One possible option is to issue a press release at the end of each year recognizing those covered individuals who have completed the training, and identifying those who have not. The NOTES 1. Stuart Meek, ed., Growing Smart Legislative Guide- booh, 2002 ed. (American Planning Association, 2002) (hereinafter Guidebook), 2. Guidebook at B10-404 (pp.10-51 to 10-52). 3. Guidebook at B10-404 (pp.1O-51 to 10-52). 4. Guidebook at BlO-404 (pp.1O-51 to 10-52). 5. New York joins: Kentucky(KY. REV. STAT. ANN. B147 A.027 (2001)); Louisiana (LA. REV. STAT. ANN. B33:103.1 (2004)); New Jersey (N.J. STAT. ANN. B40: 55D-23.3 (2005) & N.J. STAT. ANN. B40:55D-23.4 (2005)); South Carolina (S.C. Code Anu. BB-29-1340 (2003) & S.C. Code Ann. B6-29-1350 (2003)); and Ten- nessee (TENN. CODE ANN. B13-4-101 (2002)). 6. NY GEN CITY B271 & B8Ll; NY TOWN 13267.2 & 132711; NY VILLAGE 137-712.2 & 137-718.1; NY GEN MUN 13239-c. 7. Ch. 662 of the N.Y. Laws of2006. 8. Ch. 662 of the N.Y. Laws of 2006. Cities with a popula- tion of one million 01' more are not covered by the new law, and the new law applied to county planning boards where the members are appointed by the county govern~ ing body. (Although it is the intent of the drafters that this new Jaw i-lpply to members of planning commissions desire to avoid public attention may be enough to encourage compliance with the mandate_ Where members are to be removed for non-compli- ance with a training requirement, local laws should be specific as to how (and by whom) members will be notified that they have not satisfied their obligation. An opportunity to be heard about the issue should also be permitted. The law may provide that in cases of extenuating circumstances (which may be detailed in the law), such as illness, an extension to complete the training may be requested. Most of the laws to date simply indicate that failure to comply with the requirement may result in removal. Where mu- nicipalities are serious about the mandate, the laws should be drafted to require removal, and alternate board members may be appointed to temporarily serve until permanent appointments can he made. V. Conclusion With multi-million dollar decisions at the doorstep of volunteer members of planning and zoning boards, and significant environmental and public health is- sues potentially at play, all of which raise the stakes in local decision making, New York t'ook a positive step in joining five other states to mandate training for board members. Local governments now have the responsibility of implementing the new state law, and there is latitude to craft training programs and requirements that will best suit the needs of the par- ticular municipality. A number of organizations, agen- cies and academic institutions are ready to help in the roll-out of appropriate, no-cost and low-cost training. The municipal insurance industry should take partic- ular note of the value in training programs and offer premium discounts for municipalities in New York. formed under GML 234, the language ofthe law does not clearly so state, In all likelihood, this oversight will be the subject of a future chapter amendment). 9. Ch. 662 of the N.Y. Laws of2006. 10. Ch. 662 of the N.Y. Laws of2006. 11. Ch. 662 of the N.Y. Laws of 2006. The new State law allows members to llstockpile" training hours, 80 that where only four hours are annually required but eight hours are completed, the member may "savell those extra four hours and apply them towards the next an- nual requirement. While this may serve as an incentive to engage participation in longer training programs or conferences, it may not advance the goal of making sure that members are "up-ta-date" on the most current changes in statutory and caselaw. 12. Ch. 662 of the N.Y. Laws of2006. 13. Ch. 662 of the N.Y. Laws of2006. 14. Ch. 662 of the N.Y. Laws of2006. 15. Ch. 662 of the N.Y. Laws of 2006. 16. To obtain a copy of the Fact Sheet, contact the NYS Leg- islative Commission on Rural Resources by phone at 518- 455-2544 or via e-mail atruralres@Senate.state.ny.us. 17. Town of Huntington, Local Law No. 28-2002. NEW YORK PLANNING AND PRACTICE REPORT 7 18. Town of Huntington, Local Law No. 28-2002. 19. Town of Lyons, Local Law 1-2002. 20. Town of Lyons, Local Law 1-2002. 21. Town of Rochester, Local Law 3-1999. 22. Town of Rochester, Local Law 3-1999. 23. Town of Rochester, Local Law 3-1999. 24. Town of Milan, Local Law 1-1993. 25. Town of Milan, Local Law 1-1993. 26. Town ofCortlandt, Local Law 14-1989. 27. Town of Shaw an gunk, Local Law 4-1995. 28. Town of Shawangunk, Local Law 4-1995. 29. Town of Shawangunk, Local Law 4-1995. 30. Town of Northhampton, Local Law 2-2000. 31. Town of Northhampton, Local Law 2-2000. 32. Town of East Fishkill, Local Law 2-1993. 33. Town of Po est en kill, Local Law 1-1999. 34. Town of Po est en kill, Local Law 1-1999. 35. Town of Wheat field, Local Law 6-1993. 36. Town of Wheat field, Local Law 6-1993. 37. Town of Wheat field, Local Law 6-1993. 38. Town of Wheat field, Local Law 6-1993. 39. Town of Wheat field, Local Law 6-1993. 40. Town of Kirkwood, Local Law 4-2001. 41. Town of Kirkwood, Local Law 4-2001. 42. Town of Alabama, Local Law 1-1997. 43. Town of Alabama, Local Law 1-1997 (the courses in. clude those from the NYS Department of State, the NYS Association of Towns, the NYS Department of Environmental Conservation, the County Planning De- partment, NYS Planning Federation as well as in house updates and seminars). 44. Town of Marlborough, Local Law 3-1998 and Local Law 4-2001. 45. Town of Marlborough, Local Law 3-1998 and Local Law 4-2001. 46. Town of Dryden, Local Law 1-1993. FROM THE FEDERAL COURTS Second Circuit looks to the "totality of evidence" in determining whether reasonable alternative avenues of communication exist in the municipality for adult businesses. A nightclub operator who sought to exhibit topless dancing challenged the constitutionality of the City of New Rochelle's zoning ordinance on First and Four- teenth Amendment grounds alleging that the City failed to afford reasonable alternative avenues for such a use. The Circuit Court upheld the lower Court's denial of the Operator's motion for a preliminary in- junction to enjoin enforcement of the zoning law for failure to demonstrate likely success on the merits. In explaining that zoning ordinances that limit adult en- tertainment uses to particular locations are constitu- tional so long as they leave open "reasonable alterna- tive avenues of communication," the Court said that 47. Town of Dryden, Local Law 1-1993. 48. Town of Dryden, Local Law 1-1993. 49. Town of Dryden, Local Law 1-1993. 50. Town of Clarkstown, Local Law 2-1994 and Town of Ramapo, Local Law 5-1993. 51. Town of Clarkatown Local Law 2-1994 52. Town of Ramapo, Local Law 5-1993. 53. Town of Ramapo, Local Law 5-1993. 54. Town of Bethany, Local Law 2-1995. 55. Town of Bethany, Local Law 2-1995. 56. Town of Canaan, Local Law 2-1995 57. Town of Watertown, Local Law 2-2005. 58. Town of Watertown, Local Law 2-2005. 59. Town of Watertown, Local Law 2-2005. 60. Village of Farrningdale, Local Law 3-2003 and Village of Port Jefferson, Local Law 9-2000. 61. Village of Farmingdale, Local Law 3-2003 and Village of Port Jefferaon, Local Law 9-2000. 62. Village of Farmingdale, Local Law 3-2003 and Village of Port Jefferaon, Local Law 9-2000. 63. Village of Farrningdale, Local Law 3-2003. 64. Village of Suffern, Local Law 5-1993. 65. Village of Suffern, Local Law 5-199:1. 66. Village of Suffern, Local Law 5-1993. 67. Village of Suffern, Local Law 5-1993. 68. Village of Suffern, Local Law 5-1993. 69. Village of Fredonia, Local Law 8-1999. 70. Village of Fredonia, Local Law 8-1999. 71. Village of Fredonia, Local Law 8-1999. 72. Village of Fredonia, Local Law 8-1999. 73. Village of Huntington Bay, Local Law 7-2002. 74. }l'o1' example, the New York Municipal Insurance Recipro- cal offers an on-line Zoning School for their member mu- nicipalities. See, http://www.nymir.org/zoning_reg.shtml (aite visited July 2006). *** a determination of reasonableness is made by review- ing the "totality of evidence" to determine what areas remain available for these businesses. In this case, the Court found that available for adult business uses there were six lots, comprising about 2.74 acres in a Light Industrial zone (and that this was 2.77% of the land zoned for light industrial), representing 0.04% of the total land area in the City. The Court noted that the Operator "failed to show that the demand for sites in New Rochelle that could be used for adult enter- tainment businesses exceeds this supply." Therefore, the Court concluded that the Operator's claim was not so much that there were no reasonable alternatives, but rather that the Operator preferred to use its cur- rent site which was not zoned for such use. Casanova Entertainment Group, Inc. u. City orNew Rochelle, 165 Fed. Appx. 72 (2d Cir. 2006). 8 NEW YORK PLANNING AND PRleneE RB'ORT \ Second Circuit holds that the Coastal Zone Management Act does not allow for a private right .of action for enforcement. Citizens challenged the granting of permits for a fence by the New York City Department of Buildings on the grounds that the fence obstructed a public right of access to the beach and that the fence was approved without the City conducting a review of the environmental impact of the fence which violates public and private rights under the federal Coastal Zone Management Act, Following the U.S. Supreme Court's ruling in Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001), the Second Circuit noted that private rights of action to enforce a federal law must be created by Congress. Finding nothing in the text of the Act that would make the municipality liable to the plaintiffs for granting the building permit without reviewing the project to de- termine whether it is consistent with the coastal zone, and determining based on a structural review of the Act that there is no right of private enforcement, the Second Circuit adopted the holding of the Third Cir- cuit and Western and Eastern District Courts in New York in holding that the Act does not create a private right of action. George v. NYC Dept. of City Planning, 436 F.3d 102 (2d Cir. 2006). FROM THE STATE COURTS Court of Appeals finds that pursuant to a local zoning code, a Church could operate a conference center and training facility on their property and that such use was not a college or seminary. The Court of Appeals determined that the Church was operating an allowable conference and training facility, and not a college or seminary consistent with the zoning ordinance where the ordinance provided that permitted principal uses in the relevant zoning district included conference and training facilities that include, but are not limited to: "a. Continuing education activities and facilities. b. Classroom space and teaching equipment. c. Offices for staff," as well as indoor and outdoor recreational facilities and housing and dining facilities so long as such facilities are not operated as a public hotel or public restaurant. In ex- amining the Church's activities on the land, the Court determined that they were no different than what was allowed, and that although in one course of education some Church members might reside at the facility for up to two years to complete their course of study, the Court determined that "nothing in the Town Code says or implies that only training programs of rela- tively short duration are permitted in the...district." The Court deemed it irrelevant as to whether the use could be labeled a college or a seminary as opposed to a conference or training center. Lastly, the Court noted that since the Town Code made specific refer- ence about opening the facilities to use by the public (e.g., housing and dining facilities), that the Town's primary concern was really short term, as opposed to long term, visitors. Although the church prevailed in their disagree- ment with the town regarding the use of the subject property as a conference and training center, since the case was initiated prior to RLUIPA and since the Court ultimately found for the Church under a state- law action which did not turn on a state counterpart to RLUIPA, but rather on a definition in the local zon- ing code, attorneys fees that might have been avail- able to the prevailing party under RLUIPA are not available under the present circumstances. Thwn of Mount Pleasant v. Legion of Christ, Inc., 7 N.Y..3d 122, 818 N.Y.S.2d 171,850 N.E.2d 1147 (2006). First Department finds no spot zoning where the subject property was included in a rezoning of a ten-block area and w'here there was no proof that such action was inconsistent with the comprehensive plan. Where the City Council amended the zoning resolu- tion, which had the effect of down zoning the plain- tiff's property from a designation that would have permitted high-density buildings to One that permit- ted medium-density buildings, the Court determined that the rezoning did not constitute reverse or spot zoning. Althongh the plaintiff alleged that its prop- erty was specially targeted for down-zoning because it had made several prior applications for high-rise and mixed-use buildings on the premises, the Court found that the plain tiffs did not prove that the rezoning was site specific since it covered a ten-block area, and they failed to provide that it was inconsistent with the well-considered land use plan for the area. Specifi- cally, the court noted that the evidence showed that for more than thirty years the City had consistently turned away from high-rise development in that area and towards "contextual" development to preserve the historical character of the neighborhood. The Court also noted that the there was no evidence in the record to support the plaintiff's allegation that its property alone was adversely affected by the zoning amendments. Peck Slip Associates LLC v. City Council of City of New York, 26 A.D.3d 209, 809 N.Y..S.2d 56 CIst Dep't 2006), leave to appeal denied, 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 (2006). Visit West on the Internet! http://www.west.thomson.com ,,~".~_.....,.. 'n~.~..._.. onn<1