S T A T E O F N E W Y O R K
________________________________________________________________________
1923
2009-2010 Regular Sessions
I N A S S E M B L Y
January 14, 2009
___________
Introduced by M. of A. THIELE -- read once and referred to the Committee
on Local Governments
AN ACT to amend the town law, the general city law and the village law,
in relation to authorizing towns, cities, and villages to require an
applicant for a land use approval to agree to defend, indemnify,
release, and hold harmless such local governments from any claim,
action, or proceeding brought against such local governments in
relation to land use approvals
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. The legislature hereby finds that
towns, cities, and villages commit substantial time and resources to
comply with necessary state and other requirements before granting a
land use approval. Judicial challenges to said approvals are costly and
time consuming for local government. In addition, said challenges often
seek financial awards, damages, and attorneys' fees. Applicants are the
primary beneficiaries of such approvals. Therefore, it is appropriate
that local governments be given the authority to require applicants to
agree to bear the cost of defending such claims, actions, or
proceedings, and bear the responsibility for any costs, attorneys' fees
and damages which may be awarded to a successful challenger.
S 2. The town law is amended by adding a new section 261-d to read as
follows:
S 261-D. INDEMNIFICATION AGREEMENTS. 1. DEFINITION. AS USED IN THIS
SECTION, "LAND USE APPROVAL" SHALL MEAN AN APPROVAL GRANTED BY A TOWN
FOR A CHANGE OF ZONE, SUBDIVISION, SITE PLAN, SPECIAL PERMIT, SPECIAL
EXCEPTION, VARIANCE, OR OTHER LAND USE PERMIT GRANTED PURSUANT TO THIS
ARTICLE.
2. AUTHORITY. IN ADDITION TO EXISTING POWERS AND AUTHORITIES TO REGU-
LATE PLANNING, LAND USE, OR ZONING, A TOWN BOARD SHALL HAVE THE AUTHORI-
TY TO REQUIRE AN APPLICANT FOR A LAND USE APPROVAL TO FILE WITH THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03228-01-9
A. 1923 2
TOWN, AS A CONDITION OF PROCESSING THE APPLICATION, A FULLY EXECUTED
INDEMNIFICATION AGREEMENT. SAID AGREEMENT SHALL REQUIRE THE APPLICANT TO
DEFEND, INDEMNIFY, RELEASE, AND HOLD HARMLESS THE TOWN FROM ANY CLAIM,
ACTION, OR PROCEEDING BROUGHT AGAINST THE TOWN TO ANNUL A LAND USE
APPROVAL OR ANY CONDITION OF SAID APPROVAL. SAID INDEMNIFICATION AGREE-
MENT SHALL INCLUDE DAMAGES AWARDED AGAINST THE TOWN, IF ANY, COST OF
SUIT, ATTORNEYS' FEES, AND OTHER EXPENSES INCURRED IN CONNECTION WITH
SUCH ACTION.
3. AGREEMENT PROVISIONS. THE AGREEMENT SHALL INCLUDE, BUT NOT BE
LIMITED TO, THE FOLLOWING PROVISIONS:
(A) THE TOWN SHALL NOTIFY AN APPLICANT OF ANY CLAIM, ACTION, OR
PROCEEDING TO ANNUL A LAND USE APPROVAL OR ANY CONDITION OF APPROVAL
WITHIN THIRTY DAYS. IF THE APPLICANT IS NOT SO NOTIFIED, THE APPLICANT
SHALL NOT THEREAFTER BE RESPONSIBLE TO DEFEND, INDEMNIFY, OR HOLD HARM-
LESS THE TOWN.
(B) THE TOWN SHALL FULLY COOPERATE IN THE DEFENSE OF THE CLAIM,
ACTION, OR PROCEEDING. IF THE TOWN FAILS TO DO SO, THE APPLICANT SHALL
NOT THEREAFTER BE RESPONSIBLE, TO DEFEND, INDEMNIFY, OR HOLD HARMLESS
THE TOWN.
(C) THE TOWN SHALL RETAIN THE RIGHT TO PARTICIPATE IN THE DEFENSE OF
THE CLAIM, ACTION, OR PROCEEDING IF IT BEARS THE COST OF ITS OWN ATTOR-
NEY AND DEFENDS THE ACTION IN GOOD FAITH.
(D) THE APPLICANT SHALL NOT BE REQUIRED TO PAY OR PERFORM ANY SETTLE-
MENT UNLESS THE SETTLEMENT IS APPROVED BY THE APPLICANT.
(E) THE APPLICANT SHALL INDEMNIFY THE TOWN FOR ALL OF THE TOWN'S
COSTS, FEES, AND DAMAGES WHICH ARE INCURRED BY THE TOWN IN ENFORCING THE
INDEMNIFICATION AGREEMENT.
4. AGREEMENT APPROVAL. THE FORM OF THE INDEMNIFICATION AGREEMENT SHALL
BE APPROVED BY THE TOWN BOARD BY RESOLUTION.
5. PAYMENT ON DEMAND. THE APPLICANT SHALL PAY TO THE TOWN UPON DEMAND
ANY AMOUNT OWED TO THE TOWN PURSUANT TO THE INDEMNIFICATION AGREEMENT
REQUIREMENTS PRESCRIBED IN THIS SECTION.
S 3. The general city law is amended by adding a new section 81-g to
read as follows:
S 81-G. INDEMNIFICATION AGREEMENTS. 1. DEFINITION. AS USED IN THIS
SECTION, "LAND USE APPROVAL" SHALL MEAN AN APPROVAL GRANTED BY A CITY
FOR A CHANGE OF ZONE, SUBDIVISION, SITE PLAN, SPECIAL PERMIT, SPECIAL
EXCEPTION, VARIANCE, OR OTHER LAND USE PERMIT GRANTED PURSUANT TO THIS
ARTICLE.
2. AUTHORITY. IN ADDITION TO EXISTING POWERS AND AUTHORITIES TO REGU-
LATE PLANNING, LAND USE, OR ZONING, A CITY LEGISLATIVE BODY SHALL HAVE
THE AUTHORITY TO REQUIRE AN APPLICANT FOR A LAND USE APPROVAL TO FILE
WITH THE CITY, AS A CONDITION OF PROCESSING THE APPLICATION, A FULLY
EXECUTED INDEMNIFICATION AGREEMENT. SAID AGREEMENT SHALL REQUIRE THE
APPLICANT TO DEFEND, INDEMNIFY, RELEASE, AND HOLD HARMLESS THE CITY FROM
ANY CLAIM, ACTION, OR PROCEEDING BROUGHT AGAINST THE CITY TO ANNUL A
LAND USE APPROVAL OR ANY CONDITION OF SAID APPROVAL. SAID INDEMNIFICA-
TION AGREEMENT SHALL INCLUDE DAMAGES AWARDED AGAINST THE CITY, IF ANY,
COST OF SUIT, ATTORNEYS' FEES, AND OTHER EXPENSES INCURRED IN CONNECTION
WITH SUCH ACTION.
3. AGREEMENT PROVISIONS. THE AGREEMENT SHALL INCLUDE, BUT NOT BE
LIMITED TO, THE FOLLOWING PROVISIONS:
(A) THE CITY SHALL NOTIFY AN APPLICANT OF ANY CLAIM, ACTION, OR
PROCEEDING TO ANNUL A LAND USE APPROVAL OR ANY CONDITION OF APPROVAL
WITHIN THIRTY DAYS. IF THE APPLICANT IS NOT SO NOTIFIED, THE APPLICANT
A. 1923 3
SHALL NOT THEREAFTER BE RESPONSIBLE TO DEFEND, INDEMNIFY, OR HOLD HARM-
LESS THE CITY.
(B) THE CITY SHALL FULLY COOPERATE IN THE DEFENSE OF THE CLAIM,
ACTION, OR PROCEEDING. IF THE CITY FAILS TO DO SO, THE APPLICANT SHALL
NOT THEREAFTER BE RESPONSIBLE, TO DEFEND, INDEMNIFY, OR HOLD HARMLESS
THE CITY.
(C) THE CITY SHALL RETAIN THE RIGHT TO PARTICIPATE IN THE DEFENSE OF
THE CLAIM, ACTION, OR PROCEEDING IF IT BEARS THE COST OF ITS OWN ATTOR-
NEY AND DEFENDS THE ACTION IN GOOD FAITH.
(D) THE APPLICANT SHALL NOT BE REQUIRED TO PAY OR PERFORM ANY SETTLE-
MENT UNLESS THE SETTLEMENT IS APPROVED BY THE APPLICANT.
(E) THE APPLICANT SHALL INDEMNIFY THE CITY FOR ALL OF THE CITY'S
COSTS, FEES, AND DAMAGES WHICH ARE INCURRED BY THE CITY IN ENFORCING THE
INDEMNIFICATION AGREEMENT.
4. AGREEMENT APPROVAL. THE FORM OF THE INDEMNIFICATION AGREEMENT SHALL
BE APPROVED BY THE CITY LEGISLATIVE BODY BY RESOLUTION.
5. PAYMENT ON DEMAND. THE APPLICANT SHALL PAY TO THE CITY UPON DEMAND
ANY AMOUNT OWED TO THE CITY PURSUANT TO THE INDEMNIFICATION AGREEMENT
REQUIREMENTS PRESCRIBED IN THIS SECTION.
S 4. The village law is amended by adding a new section 7-703-b to
read as follows:
S 7-703-B INDEMNIFICATION AGREEMENTS. 1. DEFINITION. AS USED IN THIS
SECTION, "LAND USE APPROVAL" SHALL MEAN AN APPROVAL GRANTED BY A VILLAGE
FOR A CHANGE OF ZONE, SUBDIVISION, SITE PLAN, SPECIAL PERMIT, SPECIAL
EXCEPTION, VARIANCE, OR OTHER LAND USE PERMIT GRANTED PURSUANT TO THIS
ARTICLE.
2. AUTHORITY. IN ADDITION TO EXISTING POWERS AND AUTHORITIES TO REGU-
LATE PLANNING, LAND USE, OR ZONING, A VILLAGE LEGISLATIVE BODY SHALL
HAVE THE AUTHORITY TO REQUIRE AN APPLICANT FOR A LAND USE APPROVAL TO
FILE WITH THE VILLAGE, AS A CONDITION OF PROCESSING THE APPLICATION, A
FULLY EXECUTED INDEMNIFICATION AGREEMENT. SAID AGREEMENT SHALL REQUIRE
THE APPLICANT TO DEFEND, INDEMNIFY, RELEASE, AND HOLD HARMLESS THE
VILLAGE FROM ANY CLAIM, ACTION, OR PROCEEDING BROUGHT AGAINST THE
VILLAGE TO ANNUL A LAND USE APPROVAL OR ANY CONDITION OF SAID APPROVAL.
SAID INDEMNIFICATION AGREEMENT SHALL INCLUDE DAMAGES AWARDED AGAINST THE
VILLAGE, IF ANY, COST OF SUIT, ATTORNEYS' FEES, AND OTHER EXPENSES
INCURRED IN CONNECTION WITH SUCH ACTION.
3. AGREEMENT PROVISIONS. THE AGREEMENT SHALL INCLUDE, BUT NOT BE
LIMITED TO, THE FOLLOWING PROVISIONS:
A. THE VILLAGE SHALL NOTIFY AN APPLICANT OF ANY CLAIM, ACTION, OR
PROCEEDING TO ANNUL A LAND USE APPROVAL OR ANY CONDITION OF APPROVAL
WITHIN THIRTY DAYS. IF THE APPLICANT IS NOT SO NOTIFIED, THE APPLICANT
SHALL NOT THEREAFTER BE RESPONSIBLE TO DEFEND, INDEMNIFY, OR HOLD HARM-
LESS THE VILLAGE.
B. THE VILLAGE SHALL FULLY COOPERATE IN THE DEFENSE OF THE CLAIM,
ACTION, OR PROCEEDING. IF THE VILLAGE FAILS TO DO SO, THE APPLICANT
SHALL NOT THEREAFTER BE RESPONSIBLE, TO DEFEND, INDEMNIFY, OR HOLD HARM-
LESS THE VILLAGE.
C. THE VILLAGE SHALL RETAIN THE RIGHT TO PARTICIPATE IN THE DEFENSE OF
THE CLAIM, ACTION, OR PROCEEDING IF IT BEARS THE COST OF ITS OWN ATTOR-
NEY AND DEFENDS THE ACTION IN GOOD FAITH.
D. THE APPLICANT SHALL NOT BE REQUIRED TO PAY OR PERFORM ANY SETTLE-
MENT UNLESS THE SETTLEMENT IS APPROVED BY THE APPLICANT.
E. THE APPLICANT SHALL INDEMNIFY THE VILLAGE FOR ALL OF THE VILLAGE'S
COSTS, FEES, AND DAMAGES WHICH ARE INCURRED BY THE VILLAGE IN ENFORCING
THE INDEMNIFICATION AGREEMENT.
A. 1923 4
4. AGREEMENT APPROVAL. THE FORM OF THE INDEMNIFICATION AGREEMENT SHALL
BE APPROVED BY THE VILLAGE LEGISLATIVE BODY BY RESOLUTION.
5. PAYMENT ON DEMAND. THE APPLICANT SHALL PAY TO THE VILLAGE UPON
DEMAND ANY AMOUNT OWED TO THE VILLAGE PURSUANT TO THE INDEMNIFICATION
AGREEMENT REQUIREMENTS PRESCRIBED IN THIS SECTION.
S 5. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of all further judicial review, the
judgment shall not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
S 6. This act shall take effect immediately.