MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A firm principle of this service is "don't reinvent the wheel" so here at the start of the answer, I must refer readers to Jerry Nichols' 2005 article, "PILOT Payments--a potential revenue source for public libraries."[1]  The article is an excellent primer on what a PILOT agreement is, and how libraries should cultivate the awareness and use of them (and verify they are getting their fair share of PILOT money!).

The question above asks about the impact of a library's "type" on the ability to benefit from a PILOT; that issue is not addressed by the 2005 article.  So, with the understanding that there is already some good foundational information out there on PILOTS and libraries, this answer will explore that angle.

So, to start: what is a PILOT?

A "PILOT" agreement is a formal arrangement to pay money "in lieu of taxes" by an entity not subject to real estate taxes (such as a new business park, recreational project, or educational facility).  The acronym "PILOT" is used formally (and properly) in connection with regional "Industrial Development Agencies" (or "IDA"'s) who are authorized by law to create them.[2]

The term "PILOT" is also informally (and improperly) used to refer to other types of payments by tax-exempt entities who are trying to cultivate a good relationship with their local municipality.[3]  This answer only addresses the "real" type of PILOT.

When functioning as intended, a PILOT for a development project can ensure that a municipality or school district that uses real property taxes to fund critical services (such as local roads to a new business park, recreational project, or educational facility) has revenue to maintain the critical services, even as some large users don't pay for them in the same way.[4]

Done properly, a PILOT Agreement creates conditions favorable for economic development (exemption from real property taxes while an initiative creates a benefit to its community), but creates and enforces a fair, reliable, and fiscally sound way to replace critical funds.

So, a PILOT is all about the money--money for a town or village, money for a school district, and money of other things powered by real property taxes.  And as Mr. Nichols' article points out, when they are being negotiated, sometimes the "powers that be" can leave out the local library.

Which brings us to the member's insightful questions:

• Are there differences based on the type of public library?
• Or differences based on the taxing entity: special district, town or school district?
• Are there provisions in the legislation authorizing PILOT agreements or in Real Property Tax Law that impact library taxes and PILOT agreements?

When it comes to formal PILOTs, the answers to the member's three questions are:

Yes, but...

Yes, but...

Yes, but...

We'll address those three "buts" all together.[5]

To not get overly technical[6], projects that qualify for exemption from real estate taxes and a PILOT gain their exemption from the Industrial Development Agency (the "IDA") sponsoring the project.  So it is the IDA's tax status, not a particular project's, that creates the exemption from real property taxes.

When it comes to library revenue derived from real property taxes (which IDA's are exempt from) different type of libraries have different types of ways to get tax revenue.   Some municipal libraries simply have a budget in their tax-funded village/town/city budget.  Others have their own municipal levy (a "414").  Still others have a separate budget line on their school district tax bill (a "259"). 

There are any number of permutations of this, but the important take-away here is: a project exempt under GML 854 is immune to real property taxes under any of these approaches.

This is where things can get tricky (and, I suspect, is the genesis of our astute member's questions).

GML 854 authorizes PILOT using the following definitions:

(1) “Agency”—shall mean an Industrial Development Agency created pursuant to this act.

(16) “Affected tax jurisdiction”—shall mean any municipality or school district, in which a project is located, which will fail to receive real property tax payments, or other tax payments which would otherwise be due, except for the tax exempt status of an agency involved in a project.

(17) “Payments in lieu of taxes”—shall mean any payment made to an agency, or affected tax jurisdiction equal to the amount, or a portion of, real property taxes, or other taxes, which would have been levied by or on behalf of an affected tax jurisdiction if the project was not tax exempt by reason of agency involvement.

A plain reading of the definition of "affected tax jurisdiction" could inspire someone to say "This means PILOT only applies to a 'municipality or school district', not the library, or a special library district."

A library-aligned, thoughtful reading of the definitions could inspire someone to point out: "Payments in lieu of taxes can go to not only a 'municipality or school district', but to an "agency" to replace taxes "which would have been levied by or on behalf of an affected tax jurisdiction.  Meaning: an IDA can require, accept, and distribute money to other entities deprived of revenue due to the exemption, if that tax would have been levied by a municipality or school district.

This is borne out when one reviews the NY Comptroller's audits of IDA PILOTs.  For instance, in a 2021 audit of Glen Cove's IDA[7], it was found that PILOT payments that should have been directed to a school district public library were not properly channeled to the library.

While the rules of PILOTS will vary between IDAs, I would that argue the law positions ANY type of library (even an association library) that benefits from a real property tax levy to benefit from PILOT.

Which brings me to the tricky part.[8]

Not too shockingly, dealing with a local IDA can be...improvisational.

Don't take my word for it.  Here is what the New York Comptroller has to say:

"IDAs have a substantial degree of discretion over how PILOT agreements are negotiated, and the criteria used to determine PILOTs differs among IDAs. Such inconsistencies, according to critics, can cause IDAs to compete against each other for business.

In addition, due to unclear PILOT agreements negotiated by IDAs, poor communication with assessing bodies and a lack of monitoring, projects often fail to pay the full amount of PILOTs and thus deprive taxing jurisdictions of needed revenues.

...

Although they are required to adopt a uniform tax exemption policy, IDAs are allowed to deviate from that policy. In these cases, an IDA must explain in writing why there is a need for deviation and notify the affected taxing jurisdictions."

They key is to learn your local IDA's approach, local policy (if any), and to get in line early and regularly as the PILOT is negotiated, formalized, and complied with (this means: get ready to have coffee with your local public and IDA officials).

Because a PILOT can be a significant source of revenue for a local library, this is one where local legal counsel--well versed in the local IDA's way of doing things, or willing to "go deep" and develop that knowledge on the fly--can be worth budgeting for and retaining.

As I have written in another ATL[9],  any use of legal counsel--even if pro bono--should be per a written retainer agreement that confirms the scope of the work.

In the case of an attorney working to help a library negotiate PILOT, a sample scope is:

To represent the Library before the [INSERT NAMES] IDA(s); and 

To assist the Library in monitoring when opportunities for inclusion in PILOT agreements arise; and

To identify and develop timely strategy for securing payments via PILOT in agreements; and

To represent the Library in finalizing benefits under PILOT agreements; and

To assist the board of trustees in monitoring compliance with PILOT payments owed to the Library, and include a summary of such monitoring in the library's annual financial report.

This type of scope for any attorney should not "break the bank;" while there is no way to truly project the hours such work would take, 15 attorney hours per negotiated agreement is not unreasonable, and 3 hours per year to assess compliance is not out of line, either. 

This is an area where any attorney experienced in municipal law--and willing to do their homework on your particular library--should be able to help.  Further, and more critically, as the Comptroller's commentary shows, there is a high degree of subjectivity and flexibility in IDA PILOT agreements, which means a local attorney may have a significant advantage for timely inserting a library into an ongoing PILOT negotiation process.  The right lawyer will know the folks at the relevant IDA, or be willing to get to know them, and will consider (among other things) the following:

• As a result of State legislation passed in 1993 amending section 874 of the General Municipal Law, each IDA is required to establish a “uniform tax exemption policy with input from affected tax jurisdictions … and shall provide guidelines for the claiming of real property, mortgage recording, and sales tax exemptions.”
• The guidelines must include: the period of exemptions; percentage of exemptions; types of projects for which exemptions can be claimed; procedures for payments-in-lieu-of-taxes and circumstances under which real property appraisals are required.
• Although they are required to adopt a uniform tax exemption policy, IDAs are allowed to deviate from that policy. In these cases, an IDA must explain in writing why there is a need for deviation and notify the affected taxing jurisdictions. While approval by these local governments is not required, the IDA is obliged to review and respond to any issues raised by them.

Thank you for an excellent question!  I wish you good fortune in working with your local IDA.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action.  Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.

As a lawyer who studies^[1] how the law impacts what people do--and how we do it--I find skateboarding fascinating.^[2]  Since at least the late 80's,^[3] in town meeting after town meeting, legal case after legal case,^[4] site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).

That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury.^[5]  It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.^[6]

Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.^[7]

For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum.  The mission of your institution is to be accessible, inclusive, and to serve your community.  Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds). 

How can an institution achieve this balance?

For an institution confronted by this issue, there is a five-step process that must be conducted:

STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds.^[8]  Does your library own the lot, or is it rented and subject to the terms of a lease?  What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).

STEP TWO:  What insurance covers the lot, and what types of incidents are covered?  This step will provide insight into how your institution is set up to manage the risks you've identified.

STEP THREE:  What is the purpose of the parking lot and grounds?  What functions do those resources serve?  Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library.  However, in the case of a lease or shared premises, that might not be the case.

STEP FOUR:  Confirm and harmonize everything from the first three steps. 

This fourth step sounds simple, but it can take many forms. 

For instance:

NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.

STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.

Why these steps?  Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations.  For instance:

In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.

For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:

"Our parking lot is for the safety and convenience of

our Library's diverse and wonderful community.

Please limit your use of our lot to parking your bike or car

while using the services of the library."

Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:

"Parking lot use limited to parking for

library patrons, employees, and vendors.

POLICE ENFORCED."^[11]

Which brings me to the member's actual question:

"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"

As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache. 

In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:

"This parking lot is for parking only.

No recreational use allowed at any time."

And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.

We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.

If that is true, what is the purpose of the signage?

The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).

Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.

Why?  If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability.  To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).

This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.

In closing, I have to say: writing effective property signage is a tricky thing.^[12]   Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource.  Here is a model to consider (after your library follows all the steps):

"To promote a safe and welcoming environment,

this parking lot is for parking and library-approved events only.

All other uses must be approved in writing by the library.

To inquire about using our lot for a community event, call ###-###-####."

...with shorter, smaller, punchier signs at key areas to reinforce the core message:

"No playing in our parking lot at any time.

Safety first!"

I wish all libraries reading this a reduced-risk, injury-free parking lot.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a cool idea—aggregating and cataloging drone shots.   Someone fifty years from now will be very, very grateful for that type of work!

But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security.  How does the library make sure none of those concerns negatively impact the project?

Let's take those in order.

Legal Concern: Copyright

This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone.  They are never the property of the area photographed (unless the property owner is also the photographer).

What is the "one exception" to that ownership?  If the photographer is taking the drone images as part of their regular job,^[1] the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).^[2]

Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library.  Other than those complications, with the right agreement,^[3] permission and use should be simple.

Legal Concern: Privacy & Security

The "copyright" section, above, is fairly simple.  Things are a bit more complex when it comes to privacy and security.

There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security.  Here are the most common I could rattle off at a cocktail party:

• The risk of the images being the result of "Unlawful Surveillance,"^[4] which is an “E” Felony in the state of New York.  "Unlawful Surveillance” is (among other things) taking a picture of a person dressing (or undressing) in a place where that person has a “reasonable expectation of privacy” (and they haven't agreed to pose for the picture);^[5]
• The risk of the images being a violation of a person's "right of publicity,"^[6] which is using someone's image for commercial purposes without their written authorization.  For instance, if the images were found on a site where they were being used for a commercial purpose.
• The risk of the images being the result of, or evidence of, trespass, harassment, and other criminal law violations that could result from a person deploying a drone over a residence, business, or area near an airport.

In addition to my "rattle it off" list, I did some research.  If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:

• The risk that the images are the result of harassing sea otters.^[7]

In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation.  We’ll address that more in the last section.

Legal Concern: FAA-restricted Areas

The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:

https://www.faa.gov/uas/public_safety_gov/media/FAA_UAS-PO_LEA_Guidance.pdf. 

I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times.^[8]  However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times. 

The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:

https://www.faa.gov/uas/recreational_fliers/where_can_i_fly/airspace_restrictions/

This was so cool, I looked up my part of the state:

And now I know where not to fly the drone I don’t own.

Sample License for Use of Drone Pictures

Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space,^[9] or otter harassment, here is a sample license for securing permission to include them in an online catalog:

IRREVOCABLE, NON-EXCLUSIVE LICENSE

[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.

Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.

In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].

Signed by Photographer: _________________________.

Signed on behalf of the Library: ___________________________.

A Final Word on Getting "Permission"

This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.

However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.

Why is that?  If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary. 

Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value.^[10]  And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections^[11] the project will be able to avail itself of.

Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. ^[12]

My takeaway in this final part of the answer?   If your project is of academic, historical, or social value, don't let lack of permission be a roadblock.  Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on.  This will lay the groundwork for a strong archive or catalog.

Posterity will thank you.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

In law school, one of the first classes you take is "real property."
 

I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property?  What...is there something called UNreal property?

Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"

Warn your kids: this is what three years of law school will do to you.

I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them.  Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts,[1] and poring over inspection reports.  And don't get me started about design-build contracts.

In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019.  So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.

This background allows me to jump right into the specific concerns of the member's questions:

Question 1: "How much autonomy does the Library have in accepting and selling this property?"

Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.

Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.

Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.

Question 3: Finally, who controls the proceeds from the sale?

Answer: the board of the library, and no one else.

To the member's brief, pithy questions, I will add a question of my own:

Question 4: Why am I so confident about the answers to questions 1 through 3?

Answer: because I have researched the following:

• The relevant state laws and regulations of the State of New York
• Case law regarding cases involving public library sale of property
• Relevant guidance from the State Comptroller
• Relevant guidance from the NY Attorney General
• Relevant guidance from the State Education Department

These materials span over sixty years of library law-making, and I am not going to summarize them all here.  But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:

Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York,[2] may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."

Here are some examples showing how this legal structure has been applied:

In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners.[3]  This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot).  If that is the case, the law and regulations applicable to both entities would govern a sale.  However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.[4]  

Flash forward to 1976, when the Comptroller stated that a school district library[5] could acquire a building on its own.[6]   Since that time, there hasn't been a lot of case law over who owns library buildings:[7] like any other stand-alone, not-for-profit education corporation, a library can own its own building.

That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used.[8]  This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).

Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings.[9]  Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county).  But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.

So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability.  As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).

Thank you for a great question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A new library building!  How exciting.  And what a huge additional array of additional duties it presents, as the library begins to think about moving.

Transitioning library space is a huge undertaking.  And when it involves selling the legacy structure previously occupied, the task can get even bigger.

Here are just a few of the plot twists I have run into during real estate deals involving old buildings:

• We found out that the building wasn’t actually owned by the library (it was owned by the sponsoring municipality);
• We learned that part of the parking lot the owner had used for over twenty years wasn’t actually on their property (it was on their neighbor’s);
• The inspection showed that the building had a ruptured sewage line and had, for decades, been wallowing in its own filth, causing major foundation issues;
• We verified there was friable asbestos in all the wall plaster;[1]
• We imposed a restrictive covenant requiring the original floorboards to never, ever be removed (also called a “preservation easement”);
• We discovered a secret underground tunnel.[2]

Why am I setting out this litany of events, when the member just wants to know if there are any posting/bidding/process requirements when a Special Legislative District or “SLD” public library sells a former building?

I mention them because every real property transaction—no matter what type of library is involved—is different.  And while the base requirements to transfer the building are actually very simple (we’ll get to them soon), the lurking contingencies can create painful extra “required” steps if not addressed well before the sale.

So, before I confirm the one step that absolutely must be taken, here is the “Ask the Lawyer: Basic Factors for Painlessly[3] Selling Your Library Building.”

Once you’ve assembled the “Sale File,” the attorney retained to assist the with the sale will be able to help the library chart a path forward.

Why do I keep emphasizing the early involvement of an attorney?  One look at all the variables created by the factors in the chart above (and my bullet list of “interesting” contingencies) shows why the early involvement of a lawyer is necessary. 

Now, at this point the astute reader will probably say: “This is a great chart and all, Ms. Lawyer, but are you really answering the member’s question?  They asked about required steps for the sale of a special legislative district library.”

The reason the chart (partially) answers the member’s question—or rather, positions someone to answer it—is because, based on the variables listed on the chart, there may be numerous steps required in the sale. 

But what steps—no matter what—are required?

For a library whose building is not owned or controlled by a village/town/city/county,[6] the sale is governed by a combination of the Education law, and the NY Not-for-Profit corporation law, which empowers a library’s governing board to acquire and dispose of library assets[7] in a way that best stewards the overall well-being of the library.[8] No public posting or precise bidding process is required. But there is one thing:

No matter what—the board will need to pass a resolution approving the sale…after receiving sufficient information to show they have examined the sale terms and made a decision in the best interests of the library.

How do you show the contract terms are in the library’s best interest?  By considering them in light of the library’s overall position, and the factors in the Sale File.

Now, with all that being said, I do have to emphasize an important distinction: the transfer of a library building is different than the transfer of an entire library. The transfer of an entire public library as a “going concern” may be subject to a municipal vote, which is allowed by Education Law Section 266.  But, as ruled in 1992 in the case of  Briody v. Lewiston[9], Section 266 does NOT apply to the sale of only the library’s building.

The Briody case, by the way, is a great example of why a library sale requires careful legal planning.  In that instance, the library conveyed its legacy building “pursuant to an agreement entered into in 1972, which provided that, if the Library moved to another location, it would convey its property to the Town and Village, which could dispose of the property for any purpose.” On the chart I provided above, this type of “Briody contingency” would be caught by a combination of factor 5, addressed by factor 9.

The good news is, when a library has already gone through the intricate dance required to fund, plan, and contract for a new building, they likely already have an attorney “briefed and ready” to assist with the sale of the old.  That attorney will also be in the position to help the library plan for contingencies that could delay the move (such as—shudder—complications during construction).

So, what steps get you to that board resolution, and a smooth process?  Assemble the Sale File, ask your attorney out for a stroll, and start planning a sale the board members can vote for with full confidence that they are making the best decision for the library.

Best wishes for an easy Certificate of Occupancy, a smooth transition to the new building, and a sale that shows the trustees are formidable fiduciaries!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Not only is it legal, but it is required by law.

When the new provisions of New York’s Public Health § 1399-o first went into effect June 19, 2019, “Ask the Lawyer” got a question about enforcement, so we wrote a guide for implementation. 

While hopefully the “guide” has been useful (it warmed my heart to see one library[1] getting media coverage for putting up signs with wording I suggested), it might be easy to miss the actual heft of this law as we think about the details of implementation.

So here, without too much distracting commentary, is the text of the new law:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property. [emphasis added]

Seems pretty straightforward to me…“outdoor areas” as in: the outside (with an exception for nearby residential properties).

Despite this straightforward language, since I wrote the “guide,” we have gotten some questions from members stating that their local health department claims they will only enforce compliance within 100 feet of exits and entrances.

This feedback really concerned me.  First, it is contrary to the plain language of the law.  Second (but really first), libraries are finding new ways to reach out to the public every day; this includes outdoor programming.[2]  “Outdoor areas” of the library serve the public, too.

So, inspired by this latest question, and the feedback we’ve received, I called my local Erie County Department of Health, and reached  Rob Tyler, who works on smoking enforcement. 

Rob and I had a nice chat about how sometimes the language in these laws can be open to interpretation, but this seemed pretty clear.  But then he suggested: “You should probably call the State.  They are one ones who can give guidance on the law.”

So, after thanking Rob for his time, I called the General Counsel’s Office at the New York State Department of Health, and was directed to attorney Megan Mutolo.[3]

Megan also agreed with me on the plain language of “outdoor areas.”  That said, she urged me to urge libraries to build a relationship with their county health departments so libraries are ready to enforce the new law together. 

This is good advice from Megan.  Since New York tries to encourage “municipal home rule,”[4] as much as possible is left to local officials from within a particular community.  This means that local health departments can have their own take on the new law…one that you can discuss with them while forming a meaningful alliance.[5]

So, to the “helpful tips” in the “guide,” inspired by this question, I add: Consider making a connection with your local health department, and reviewing the precise language of the new law together.  Many departments, if they have not given the new law a careful review, might overlook the requirement about “outdoor areas.”  But that language is there, and when read in context, is very clear—as is the library’s obligation to enforce this law.

Thanks for your question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation. 

When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination. 

I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that?  And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?

Unfortunately, finding the answer is not as easy as crashing your bike into a marker.

The solution starts out simply enough:  property that is “fixed” to land becomes a “fixture,” and title to it runs with the land.[1]  This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it.  And unless something provides otherwise, a historic marker on the property would belong to you, too.

The problem is, there are a lot of “somethings,” that could provide “otherwise.” 

In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page).  And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.[2]

Meanwhile, many private organizations exist to support the site-specific preservation of history.  As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.  

As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary)[3].  That is a typical approach.  However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest. 

So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.” 

How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on?  There is no one-size-fits-all answer, but here is a process that should help:

Step 1:  Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).

Step 2:  Confirm if any easement or other real property condition controls the area of the land with the marker.

Step 3:  Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation. 

Step 4:  Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement,[4]  designer/creator document, etc), may relate to the marker.  

Step 5 (optional, but highly recommended):  Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.

I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible.  But it remains true: to assess the status of an historical marker, you need to know its history.   

As for Step 5…that is more of a “best practice” than a legal consideration.  Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning).  This includes not only owners, but those who feel a connection to and love for the memorial.  When in doubt, it is good to exercise diplomacy!  And who knows, they might chip in on the maintenance fund.

History, property law, and signage are all serious business. 

Thanks for a great question.

CODA

For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.

The [INSERT NAME] Historical Marker Legal Abstract and Dossier

Sponsored by [INSERT NAME OF ORGANIZATION]

This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker.  This project might not require all the items below to be completed.  When an item does not apply, enter “N/A” for “not applicable.”

Marker name:

Marker text:

[Attach picture of Marker]

Address of property Marker is located on:

Owner of property at time of installation:

Survey of property with Marker location noted: [attach after noting location on copy]

Attached signed copy of agreement with property owner:

          [if easement or other property right granted, attach]

Installation start date:

Installation completion date:

Insert Description of Maintenance Plan or attach copy of plan:

Is there any money held in trust or budgeted for future maintenance?  If so, please describe:

Federal law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

State law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

Local law passed under:

[Attach copy of law and, if relevant, resolution or permit]

Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:

Attach copy of any fundraising solicitation:

The Marker’s designer was:

[Attached contract with designer]

If there is a graphic, who owned the copyright?

The Marker’s fabricator was:

[Attached contract with designer]

Did the Organization’s board pass a resolution regarding the Marker?  If so, attach a copy.

Did the Organization enter into a collaboration agreement to organize and effect the Marker?  This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project. 

If such an agreement was entered into, please attach.

Name of person filling out form:

Complete file with all attachments is located at____________________________.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors.  I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery.  A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.

What laws impact a library’s relationship with its neighbors?  Most libraries exist on land[1], or within a building, so the controlling law is called “real property” law.  “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo).  Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”

Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law.  And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too. 

And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.

Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor.  But are there any general “best practices” to abide by?  Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.

Practice #1: Know where you stand

Every library should know precisely what property they occupy, and how they occupy it.  To do this, I recommend what I call a “binder solution.” 

For libraries that own their own property, the binder contains:

• Deed
• Survey
• Assessment information (even if the building is off the tax rolls)
• Mortgage (if you have one)
• Any recorded easements or rights-of-way
• Current and past insurance summaries and policies
• Permits (if any)
• All contracts and documents related to maintenance
• Fixture and structure warrantees (driveway warranty, roof warranty, etc.)
• Deferred maintenance plan

Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world. 

For libraries that do not own their premises, the binder contains:

• Lease
• Survey or floorplan of library’s portion of building
• Current insurance summary or policy
• Permits (if any)
• Warrantees for on-site physical assets your library paid for/owns (copier warranty computer system warranty, etc.)
• All occupancy-related correspondence with landlord, including notice of defects or safety hazards

Why does all this matter?  Many real property battles are lost when owners over-state or mis-portray their rights.  Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).

Practice #2: Know your neighbor

This advice works on two levels.

The first level is obvious: know your neighbors.  Invite them over.  Know the names of their kids and what sports team they root for.  That type of outreach is insurance against any number of serious disputes.

The second level is a bit more covert: what’s in their “binder”?  Are they the owner?   Are they renting?  Might they be a squatter?  Basically, to the extent possible, develop a “binder solution” for them, too.  In getting to know them a bit better, you might develop some insights on the roots of your dispute.

Practice #3: Isolate this issue

In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break.  You are alongside and--in some places practically on top of—each other, 24/7.    And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.

That said, if you have a potential neighbor dispute, isolate what you think the true cause might be.  Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989?  Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?

The point of this is: make sure you really know what’s up.  That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.

Which brings us to…

Practice #4: Use a professional!

Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations.  They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.

If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor.  Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.

Practice #5: Pick your battles!

Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission.  For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.

It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:

My overall guidance?  Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families.  It’s amazing how much ill will can dissolve over apples and pears.

Good luck out there!