[HISTORY: Adopted by the Suffolk County Legislature as indicated
in article histories. Amendments noted where applicable. Uncodified
sections of local laws amending these provisions are included at the
end of this chapter.]
[Adopted 11-17-2015 by L.L. No. 38-2015]
[Amended 12-5-2017 by L.L. No. 3-2018; 6-5-2018 by L.L. No. 17-2018]
This Legislature hereby finds and determines that it is the
policy of both the County of Suffolk and the State of New York to
achieve energy efficiency and renewable energy goals, reduce greenhouse
gas emissions, mitigate the effect of global climate change and advance
a clean-energy economy. This Legislature also finds and determines
that Suffolk County can further these policy goals by providing property-assessed
clean energy financing to property owners for the installation of
renewable energy systems and energy-efficiency measures. This Legislature
further finds and determines that this article would establish a program
that will allow the Energy Improvement Corporation, a local development
corporation, acting on behalf of the County of Suffolk, pursuant to
the municipal agreement to be entered into between the County and
Energy Improvement Corporation ("EIC") pursuant to Article 5-G of
the New York General Municipal Law, to make funds available to qualified
property owners that will be repaid by such property owners through
charges on the real properties benefited by such funds, thereby fulfilling
the purpose of this article and fulfilling an important public purpose.
This Legislature also finds that the County of Suffolk is authorized
to implement this sustainable energy loan program, known as "Energize
NY Benefit Financing Program," pursuant to Article 5-G of the New
York General Municipal Law. Therefore, the purpose of this article
is to establish a sustainable energy loan program in the County of
Suffolk.
As used in this article, the following terms shall have the
meanings indicated:
The New York State Energy Research and Development Authority
(NYSERDA), as defined by Subdivision 2 of § 1851 of the
Public Authorities Law, or its successor.
County of Suffolk, State of New York.
The Energy Improvement Corporation, a local development corporation,
duly organized under § 1411 of the Not-For-Profit Corporation
Law, authorized hereby on behalf of the County to implement the Energize
NY Benefit Financing Program by providing funds to qualified property
owners (as defined in this article) and providing for repayment of
such funds from monies collected by the County tax collecting officer
as a charge to be levied on the real property and collected in the
same manner and same form as the County property taxes.
[Amended 12-5-2017 by L.L. No. 3-2018; 6-5-2018 by L.L. No. 17-2018]
A formal evaluation or "assessment" of the energy consumption
of a permanent building or structural improvement to real property,
conducted by a contractor certified by the Authority, or certified
by a certifying entity approved by the Authority, for the purpose
of identifying appropriate energy-efficiency improvements that could
be made to the property.
Any renovation or retrofitting of a building to reduce energy
consumption, such as window and door replacement, lighting, caulking,
weather-stripping, air sealing, insulation, heating and cooling system
upgrades, and similar improvements, determined to be cost-effective
pursuant to criteria established by the Authority, not including lighting
measures or household appliances that are not permanently fixed to
real property.
An owner of residential or commercial real property located
within the boundaries of the County that is determined to be eligible
to participate in the Energize NY Benefit Financing Program under
the procedures for eligibility set forth under this article.
An energy-generating system for the generation of electric
or thermal energy, to be used primarily at such property, except when
the qualified property owner is a commercial entity, in which case
the system may be used for other properties in addition to the subject
property, by means of solar thermal, solar photovoltaic, wind, geothermal,
anaerobic digester gas-to-electricity systems, fuel cell technologies,
or other renewable energy technology approved by the Authority, not
including the combustion or pyrolysis of solid waste.
[Amended 12-5-2017 by L.L. No. 3-2018]
A written study, conducted by a contractor certified by the
Authority, or certified by a certifying entity approved by the Authority,
for the purpose of determining the feasibility of installing a renewable
energy system.
[Amended 12-5-2017 by L.L. No. 3-2018]
A.
An Energize NY Benefit Financing Program is hereby established by
the County, whereby EIC, acting on its behalf, pursuant to the municipal
agreement, may provide funds to qualified property owners in accordance
with the procedures set forth under this article, to finance the acquisition,
construction and installation of renewable energy systems and energy-efficiency
improvements and the verification of the installation of such systems
and improvements.
B.
For funds provided to a qualified property owner which is a commercial
entity, not-for-profit organization, or entity other than an individual,
EIC shall have the authority to impose requirements on the maximum
amount of funds to be provided, which may consider factors including,
but not limited to, the property value, projected savings, project
costs, and existing indebtedness secured by such property.
C.
For financings made to a qualified property owner who is an individual,
the funds provided shall not exceed the lesser of (i) 10% of the appraised
value of the real property where the renewable energy systems and/or
energy-efficiency improvements will be located, or (ii) the actual
cost of installing the renewable energy systems and/or energy-efficiency
improvements, including the costs of necessary equipment, materials,
and labor and the cost of verification of such systems and improvements.
A.
Any property owner in the County may submit an application to EIC
on such forms as have been prepared by EIC and made available to property
owners on the website of EIC and on the Suffolk County government
website.
B.
Every application submitted by a property owner shall be reviewed by EIC acting on behalf of the County, which shall make a positive or negative determination on such application based upon the criteria for making a financing application enumerated in § 444-5 of this article. EIC may also request further information from the property owner where necessary to aid in its determination.
[Amended 6-5-2018 by L.L.
No. 17-2018]
C.
If a positive determination on an application is made by EIC acting on behalf of the County, the property owner shall be deemed a qualified property owner and shall be eligible to participate in the Energize NY Benefit Financing Program in accordance with the procedure set forth under § 444-6 of this article; provided that in no case shall a property owner that has received funds from another municipal corporation for the acquisition, construction and installation of energy-efficiency improvements and/or renewable energy systems be deemed a qualified property owner.
[Amended 12-5-2017 by L.L. No. 3-2018; 6-5-2018 by L.L. No. 17-2018]
Upon submission of an application, EIC, acting on behalf of
the County, shall make a positive or negative determination on such
application based upon the following criteria for the making of a
financing:
A.
The proposed energy-efficiency improvements and/or renewable energy
systems are determined to be cost effective based on guidelines issued
by the Authority;
B.
The property owner may not be in bankruptcy and the property may
not constitute property subject to any pending bankruptcy proceeding;
C.
The amount financed under the Energize NY Benefit Financing Program
shall be repaid over a term not to exceed the weighted average of
the useful life of renewable energy systems and energy-efficiency
improvements, to be installed on the property as determined by EIC;
D.
Sufficient funds are available from EIC to provide financing to the
property owner;
E.
The property owner is current in payments on any existing mortgage;
F.
The property owner is current in payments on any existing real property
taxes and has been current on real property taxes for the previous
three years; and
G.
Such additional criteria, not inconsistent with the criteria set
forth above, as the County, or EIC acting on its behalf, may set from
time to time.
[Amended 12-5-2017 by L.L. No. 3-2018]
A.
A qualified property owner may participate in the Energize NY Benefit
Financing Program through the execution of an Energize NY Finance
Agreement made by and between the qualified property owner and EIC,
acting on behalf of the County (the "Energize NY Finance Agreement").
B.
Upon execution of the Energize NY Finance Agreement, the qualified property owner shall be eligible to receive funds from EIC, acting on behalf of the County, for the acquisition, construction, and installation of qualifying renewable energy systems and energy-efficiency improvements; provided the requirements of § 444-7 of this article have been met.
A.
No funds shall be made available for energy-efficiency improvements
unless determined to be appropriate through an energy audit.
B.
No funds shall be made available for a renewable energy system unless
determined to be feasible through a renewable energy system feasibility
study.
C.
The cost of such energy audit and/or renewable energy system feasibility
study shall be borne solely by the property owner but may be included
in the financed amount if the work is approved.
[Amended 12-5-2017 by L.L. No. 3-2018]
The Energize NY Finance Agreement between the qualified property
owner and EIC, acting on behalf of the County, shall set forth the
terms and conditions of repayment in accordance with the following:
A.
The principal amount of the funds paid to the qualified property
owner hereunder, together with the interest thereon, shall be paid
by the property owner as a charge on his/her real property tax bill
and shall be levied and collected at the same time and in the same
manner as County property taxes, provided that such charge shall be
separately listed on the tax bill. The County shall make payment to
EIC or its designee in the amount of all such separately listed charges
within 30 days of the date payment is due to be made to the County.
B.
The term of such repayment shall be determined at the time the Energize
NY Finance Agreement is executed by the property owner and EIC, provided
that in no case shall the term exceed the weighted average of the
useful life of the systems and improvements as determined by EIC acting
on behalf of the County.
C.
The rate of interest for the charge shall be fixed by EIC, acting
on behalf of the County, at the time the Energize NY Finance Agreement
is executed by the property owner and EIC.
D.
The charge shall constitute a lien upon the real property benefited
by the Energize NY Benefit Financing Program as set forth in Article
5-L of the General Municipal Law and shall run with the land. A transferee
of title to the benefited real property shall be required to pay any
future installments, including interest thereon.
A.
EIC shall be responsible for verifying and reporting to the County
on the installation and performance of renewable energy systems and
energy-efficiency improvements financed by such program.
B.
The County shall verify and report on the installation and performance
of renewable energy systems and energy-efficiency improvements financed
by the Energize NY Benefit Financing Program in such form and manner
as the Authority may establish.
This article shall apply to all actions occurring on or after
the effective date of this article.
This article shall take effect 120 days after its filing in
the Office of the Secretary of State.
[Adopted 6-18-2019 by L.L. No. 29-2019]
A.
This Legislature hereby finds and determines that it is the policy of both the County of Suffolk and the State of New York (the "state") to achieve energy efficiency and renewable energy improvements, reduce greenhouse gas emissions, mitigate the effect of global climate change, and advance a clean energy economy. This Legislature also finds and determines that the County of Suffolk finds that it can fulfill this policy by providing property-assessed clean energy financing to Qualified Property Owners (as defined below) for the installation of renewable energy systems and energy efficiency measures. This Legislature further finds and determines that a program that will allow the Energy Improvement Corporation (as defined below, "EIC"), a local development corporation, acting on behalf of the Municipality pursuant to the municipal agreement (the "Municipal Agreement") to be entered into between the County of Suffolk and EIC, to make funds available to Qualified Property Owners that will be repaid through charges on the real properties benefited by such funds, thereby fulfilling the purposes of this article and accomplishing an important public purpose. This Legislature finds that the County of Suffolk is authorized to execute, deliver and perform the Municipal Agreement and otherwise to implement this Energized NY Open C-PACE Financing Program pursuant to the Constitution and Laws of New York, including particularly Article IX of the Constitution, § 10 of the Municipal Home Rule Law, the enabling act and this article. This Legislature further finds that this article, which is adopted pursuant to § 10 of the Municipal Home Rule Law and the Enabling Act shall be known and may be cited as the "Energize NY Open C-PACE Local Law."
B.
Therefore, the purpose of this article is to provide a method of
implementing the public policies expressed by, and exercising the
authority provided by, Article 5-L of the General Municipal Law (as
defined below, the "Enabling Act").
A.
Capitalized terms used but not defined herein have the meanings assigned
in the Enabling Act.
B.
ANNUAL INSTALLMENT AMOUNT
ANNUAL INSTALLMENT LIEN
AUTHORITY
BENEFIT ASSESSMENT LIEN
BENEFITED PROPERTY
BENEFITED PROPERTY OWNER
EIC
ELIGIBLE COSTS
ENABLING ACT
FINANCE AGREEMENT
FINANCING CHARGES
FINANCING PARTIES
MUNICIPAL LIEN
MUNICIPALITY
NON-MUNICIPAL LIEN
PROGRAM
QUALIFIED PROJECT
QUALIFIED PROPERTY
QUALIFIED PROPERTY OWNER
RPTL
SECURED AMOUNT
STATE
For purposes of this article, and unless otherwise expressly stated
or unless the context requires, the following terms shall have the
meanings indicated:
Shall have the meaning assigned in § 444-19B.
Shall have the meaning assigned in § 444-19B.
The New York State Energy Research and Development Authority.
Shall have the meaning assigned in § 444-14A.
Qualified Property for which the Qualified Property Owner
has entered into a Finance Agreement for a Qualified Project.
The owner of record of a Benefited Property.
The Energy Improvement Corporation, a local development corporation,
duly organized under § 1411 of the Not-For-Profit Corporation
Law of the State, authorized hereby on behalf of the Municipality
to implement the Program by providing funds to Qualified Property
Owners and providing for repayment of such funds from money collected
by or on behalf of the Municipality as a charge to be levied on the
real property.
Costs incurred by the Benefited Property Owner in connection
with a Qualified Project and the related Finance Agreement, including
application fees, EIC's Program administration fee, closing costs
and fees, title and appraisal fees, professionals' fees, permits,
fees for design and drawings and any other related fees, expenses
and costs, in each case as approved by EIC and the Financing Party
under the Finance Agreement.
Article 5-L of the General Municipal Law of the State, or
a successor law, as in effect from time to time.
The finance agreement described in § 444-17A of this article.
All charges, fees and expenses related to the loan under
the Finance Agreement, including accrued interest, capitalized interest,
prepayment premiums, and penalties as a result of a default or late
payment and costs and reasonable attorneys' fees incurred by
the Financing Party as a result of a foreclosure or other legal proceeding
brought against the Benefited Property to enforce any delinquent Annual
Installment Liens.
Third-party capital providers approved by EIC to provide
financing to Qualified Property Owners or other financial support
to the Program which have entered into separate agreements with EIC
to administer the Program in the Municipality.
A lien on Qualified Property which secures the obligation
to pay real property taxes, municipal charges, or governmentally imposed
assessments in respect of services or benefits to a Qualified Property.
The County of Suffolk, a municipality of the State constituting
a tax district as defined in § 1102 of the RPTL of the State.
A lien on Qualified Property which secures any obligation
other than the obligation to pay real property taxes, municipal charges,
or governmentally imposed assessments in respect of services or benefits
to a Qualified Property Owner or Qualified Property.
The Energize NY Open C-PACE Financing Program authorized
hereby.
The acquisition, construction, reconstruction or equipping
of Energy Efficiency Improvements or Renewable Energy Systems or other
projects authorized under the Enabling Act on a Qualified Property,
together with a related Energy Audit, Renewable Energy System Feasibility
Study and/or other requirements under or pursuant to the Enabling
Act, with funds provided in whole or in part by Financing Parties
under the Program to achieve the purposes of the Enabling Act.
Any real property, other than a residential building containing
less than three dwelling units, which is within the boundaries of
the Municipality that has been determined to be eligible to participate
in the Program under the procedures for eligibility set forth under
this article and the Enabling Act and has become the site of a Qualified
Project.
The owner of record of Qualified Property which has been
determined by EIC to meet the requirements for participation in the
Program as an owner, and any transferee owner of such Qualified Property.
The Real Property Tax Law of the State, as amended from time
to time.
As of any date, the aggregate amount of principal loaned to the Qualified Property Owner for a Qualified Project, together with Eligible Costs and Financing Charges, as provided herein or in the Finance Agreement, as reduced pursuant to § 444-19C.
The State of New York.
[Amended 12-17-2019 by L.L. No. 7-2020]
A.
An Energize NY Open C-PACE Financing Program is hereby established
by the Municipality, whereby EIC, acting on its behalf pursuant to
the Municipal Agreement, may arrange for the provision of funds by
Financing Parties to Qualified Property Owners in accordance with
the Enabling Act and the procedures set forth under this article,
to finance the acquisition, construction, reconstruction, and installation
of Qualified Projects and Eligible Costs and Financing Charges approved
by EIC and by the Financing Party under the Finance Agreement. EIC,
on behalf of the Municipality, and with the consent of the Benefited
Property Owner, will record a Benefit Assessment Lien on the Benefited
Property in the Secured Amount (the "Benefit Assessment Lien") on
the land records for the Municipality. Such recording shall be exempt
from any charge, mortgage recording tax or other fee in the same manner
as if recorded by the Municipality.
B.
Before a Qualified Property Owner and a Financing Party enter into
a Finance Agreement which results in a loan to finance a Qualified
Project, repayment of which is secured by a Benefit Assessment Lien,
a written consent from each existing mortgage holder of the Qualified
Property shall be obtained, permitting the Benefit Assessment Lien
and each Annual Installment Lien to take priority over all existing
mortgages.
A.
Any property owner in the Municipality may submit an application
to EIC on such forms as have been prepared by EIC and made available
to property owners on the website of EIC and at the Municipality's
offices.
B.
Every application submitted by a property owner shall be reviewed by EIC, acting on behalf of the Municipality, which shall make a positive or negative determination on such application based upon the criteria enumerated in the Enabling Act and § 444-16 of this article. EIC may also request further information from the property owner where necessary to aid in its determination.
Upon the submission of an application, EIC, acting on behalf
of the Municipality, shall make a positive or negative determination
on such application based upon the following criteria for the making
of a financing:
A.
The property owner may not be in bankruptcy and the property may
not constitute property subject to any pending bankruptcy proceeding;
B.
The amount financed under the Program shall be repaid over a term
not to exceed the weighted average of the useful life of Renewable
Energy Systems and Energy Efficiency Improvements to be installed
on the property as determined by EIC;
C.
Sufficient funds are available from Financing Parties to provide
financing to the property owner;
D.
The property owner is current in payments on any existing mortgage
on the Qualified Property;
E.
The property owner is current in payments on any real property taxes
on the Qualified Property; and
F.
Such additional criteria, not inconsistent with the criteria set
forth above, as the State, the Municipality, or EIC acting on its
behalf, or other Financing Parties may set from time to time.
A.
A Qualified Property Owner may participate in the Program through
the execution of a Finance Agreement made by and between the Qualified
Property Owner and a Financing Party, to which EIC, on behalf of the
Municipality, shall be a third-party beneficiary (the "Finance Agreement").
Upon execution and delivery of the Finance Agreement, the property
that is the subject of the Finance Agreement shall be deemed a "Benefited
Property."
B.
Upon execution and delivery of the Finance Agreement, the Benefited
Property Owner shall be eligible to receive funds from the Financing
Party for the acquisition, construction, and installation of a Qualified
Project, together with Eligible Costs and Financing Charges approved
by EIC and by the Financing Party, provided the requirements of the
Enabling Act, the Municipal Agreement and this article have been met.
C.
The Finance Agreement shall include the terms and conditions of repayment
of the Secured Amount and the Annual Installment Amounts.
D.
EIC may charge fees to offset the costs of administering the Program
and such fees, if not paid by the Financing Party, shall be added
to the Secured Amount.
The Finance Agreement shall set forth the terms and conditions
of repayment in accordance with the following:
A.
The principal amount of the funds loaned to the Benefited Property
Owner for the Qualified Project, together with Eligible Costs and
Financing Charges approved by EIC and by the Financing Party, shall
be specially assessed against the Benefited Property and will be evidenced
by a Benefit Assessment Lien recorded against the Benefited Property
on the land records on which liens are recorded for properties within
the Municipality. The special benefit assessment shall constitute
a "charge" within the meaning of the Enabling Act and shall be collected
in annual installments in the amounts certified by the Financing Party
in a schedule provided at closing and made part of the Benefit Assessment
Lien. Said amount shall be annually levied, billed and collected by
EIC, on behalf of the Municipality, and shall be paid to the Financing
Party as provided in the Finance Agreement.
B.
The term of such repayment shall be determined at the time the Finance
Agreement is executed by the Benefited Property Owner and the Financing
Party, not to exceed the weighted average of the useful life of the
systems and improvements as determined by EIC, acting on behalf of
the Municipality.
C.
The rate of interest for the Secured Amount shall be fixed by the
Financing Party in conjunction with EIC, acting on behalf of the Municipality,
as provided in the Finance Agreement.
A.
Upon the making of the loan pursuant to the Finance Agreement, the
Secured Amount shall become a special Benefit Assessment Lien on the
Benefited Property in favor of the Municipality. The amount of the
Benefit Assessment Lien shall be the Secured Amount. Evidence of the
Benefit Assessment Lien shall be recorded by EIC, on behalf of the
Municipality, in the land records for properties in the Municipality.
Such recording shall be exempt from any charge, mortgage recording
tax or other fee in the same manner as if recorded by the Municipality.
The Benefit Assessment Lien shall not be foreclosed upon by or otherwise
enforced by the Municipality.
B.
The Finance Agreement shall provide for the repayment of the Secured
Amount in installments made at least annually, as provided in a schedule
attached to the Benefit Assessment Lien (the "Annual Installment Amount").
The Annual Installment Amount shall be levied by EIC, on behalf of
the Municipality, on the Benefited Property in the same manner as
levies for municipal charges, shall become a lien on the Benefited
Property as of the first day of December of the tax year for which
levied (the "Annual Installment Lien") and shall remain a lien until
paid. The creation or any recording of the Annual Installment Lien
shall be exempt from any charge, mortgage recording tax or other fee
in the same manner as if recorded by the Municipality. Payment to
the Financing Party shall be considered payment for this purpose.
Such payment shall partly or wholly discharge the Annual Installment
Lien. Delinquent Annual Installment Amounts may accrue Financing Charges
as may be provided in the Finance Agreement. Any additional Financing
Charges imposed by the Financing Party pursuant to the Finance Agreement
shall increase the Annual Installment Amount and the Annual Installment
Lien for the year in which such overdue payments were first due.
[Amended 12-17-2019 by L.L. No. 7-2020]
C.
The Benefit Assessment Lien shall be reduced annually by the amount
of each Annual Installment Lien when each Annual Installment Lien
becomes a lien. Each Annual Installment Lien shall be subordinate
to all Municipal Liens, whether created by § 902 of the
RPTL or by any other State or local law. No portion of a Secured Amount
shall be recovered by the Municipality, EIC, or an assignee upon foreclosure,
sale or other disposition of the Benefited Property unless and until
all Municipal Liens are fully discharged. Each Annual Installment
Lien, however, shall have priority over all Non-Municipal Liens, irrespective
of when created, except as otherwise required by law.
D.
Neither the Benefit Assessment Lien nor any Annual Installment Lien
shall be extinguished or accelerated in the event of a default or
bankruptcy of the Benefited Property Owner. Each Annual Installment
Amount shall be considered a charge upon the Benefited Property and
shall be collected by EIC, on behalf of the Municipality, at the same
time and in the same manner as real property taxes or municipal charges.
Each Annual Installment Lien shall remain a lien until paid. Amounts
collected in respect of an Annual Installment Lien shall be remitted
to EIC, on behalf of the Municipality, or the Financing Party, as
may be provided in the Finance Agreement.
E.
EIC shall act as the Municipality's agent in collection of the
Annual Installment Amounts. If any Benefited Property Owner fails
to pay an Annual Installment Amount, the Financing Party may redeem
the Benefited Property by paying the amount of all unpaid Municipal
Liens thereon, and thereafter shall have the right to collect any
amounts in respect of an Annual Installment Lien by foreclosure or
any other remedy available at law. Any foreclosure shall not affect
any subsequent Annual Installment Liens.
F.
EIC, on behalf of the Municipality, may sell or assign for consideration
any and all Benefit Assessment Liens and Annual Installment Liens
to Financing Parties that provide financing to EIC, on behalf of the
Municipality, may sell or assign for consideration any and all Benefit
Assessment Liens and Annual Installment Liens to Financing Parties
that provide financing to Qualified Properties pursuant to Finance
Agreements. The Financing Parties may sell or assign for consideration
any and all Benefit Assessment Liens and Annual Installment Liens
received from EIC, on behalf of the Municipality, subject to certain
conditions provided in the administration agreement between EIC and
the Financing Party. The assignee or assignees of such Benefit Assessment
Liens and Annual Installment Liens shall have and possess the same
powers and rights at law or in equity as the Municipality would have
had if the Benefit Assessment Lien and the Annual Installment Liens
had not been assigned with regard to the precedence and priority of
such lien, the accrual of interest and the fees and expenses of collection.
EIC, on behalf of the Municipality, shall verify and report
on the installation and performance of Renewable Energy Systems and
Energy Efficiency Improvements financed by the Program in such form
and manner as the Authority may establish.
This article shall apply to all actions occurring on or after
the effective date of this article.
