[HISTORY: Adopted by Dutchess County as indicated in article
histories. Amendments noted where applicable.]
STATUTORY REFERENCES
Municipal cooperation — See General Municipal Law Art.
5-G.
Municipal Sustainable Energy Loan Programs — See
General Municipal Law Art. 5-L, § 119-ee et seq.
General powers of local governments to adopt and amend local
laws — See Municipal Home Rule Law Art. 2, §
10.
Local development corporations — See Not-for-Profit Corporation
Law Art. 14, § 1411.
Energy Research and Development Authority — See
Public Authorities Law Art. 8, Title 9.
Lien date — See Real Property Tax Law Art. 9, § 902.
CODE OF LOCAL LAWS REFERENCES
Taxation — See Ch. 264.
[Adopted 5-11-2015 by L.L. No. 4-2015; amended in its entirety 5-14-2018 by L.L. No. 3-2018]
A.
It is the policy of both the County 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. The County of Dutchess ("the County") finds
that it can fulfill this policy by providing property-assessed clean
energy financing to property owners for the installation of renewable
energy systems and energy-efficiency measures. This article establishes
a program that will allow the Energy Improvement Corporation ("EIC"),
a local development corporation, acting on behalf of the County of
Dutchess, pursuant to the municipal agreement to be entered into between
the County and EIC pursuant to Article 5-G of the New York General
Municipal Law (the "Municipal Agreement"), 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 purposes of this article and fulfilling an
important public purpose.
B.
The County of Dutchess is authorized to implement this Energize NY
Benefit Financing Program pursuant to the Municipal Home Rule Law
and Article 5-L of the New York General Municipal Law.
C.
This article shall be known and may be cited as the "Energize NY
Benefit Financing Program Law of the County of Dutchess."
For purposes of this article, and unless otherwise expressly
stated or unless the context requires, the following terms shall have
the meanings indicated:
The New York State Energy Research and Development Authority,
as defined by Subdivision 2 of § 1851 of the Public Authorities
Law, or its successor.
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 of Dutchess 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 County taxes.
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, and 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.
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.
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
cost, 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:
(1)
10% of the appraised value of the real property where the renewable
energy systems and/or energy-efficiency improvements will be located;
or
(2)
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 at the County's 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 enumerated in § 152-5 of this article. EIC may also request further information from the property owner where necessary to aid in its determination.
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 § 152-6 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.
Upon the 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.
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 the 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 § 152-7 of this article have been met.
C.
The Energize NY Finance Agreement shall include the terms and conditions
of repayment set forth under § 152- 8 of this article.
A.
No funds shall be made available for energy-efficiency improvements unless determined to be appropriate through an energy audit as defined in § 152-2.
B.
No funds shall be made available for a renewable energy system unless determined to be feasible through a renewable energy system feasibility study as defined in § 152-2.
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.
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 the property owner's 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 the 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.
[Adopted 8-12-2019 by L.L. No. 5-2019]
This article shall be known as the "Energize NY Open C-PACE
Financing Program" and shall read as follows.
A.
It is the policy of both the Municipality 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. The Municipality 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 article establishes a program that will allow the Energy
Improvement Corporation (as defined below, "EIC"), a local development
corporation, acting as a limited agent for the Municipality pursuant
to the municipal agreement (the "Municipal Agreement") to be entered
into between the Municipality 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
article provides 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").
B.
The Municipality is authorized to execute, deliver and perform the
Municipal Agreement and otherwise to implement this Energize 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.
C.
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."
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
NONMUNICIPAL 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 § 152-18B.
Shall have the meaning assigned in § 152-18B.
The New York State Energy Research and Development Authority.
Shall have the meaning assigned in § 152-13A.
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 § 152-16A 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 attorney's 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 Dutchess, 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
fewer 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 § 152-18C.
The State of New York.
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 § 152-15 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 January of the fiscal 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.
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 Nonmunicipal 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 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.
If any clause, sentence, paragraph, section, or part of this
article shall be adjudged by any court of competent jurisdiction to
be invalid, such judgment shall not affect, impair or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section, or part thereof involved in the controversy
in which such judgment shall have been rendered.
This article shall take effect immediately upon filing in the
office of the Secretary of State.
