State Commission of Correction says state regulations pre-empt local zoning authority in Herkimer County Jail debate

By WKTV News

HERKIMER, N.Y. - The New York State Commission of Correction has said that it is siding with Herkimer County's position in a pending lawsuit against the Village of Herkimer in reference to the building of a new correctional facility.

In the letter, sent to Robert J. Malone, Attorney for Herkimer County, the Department states that actions required by the state pre-empt authority by the local government.

"The letter states that the State Legislature has clearly given responsibility for the construction and placement of local correctional facilities to the Commission of Correction, thereby pre-empting local government actions like the Village of Herkimer's recent zoning changes seeking to exclude the construction of a jail at the state approved former P&C site in the Village," said Vincent J. Bono, Chairman of the Herkimer County Legislature.

The letter, in its entirety reads as below:

August 6, 2012

Hon. Robert J. Malone, Esq.
Herkimer County Attorney
109-110 Mary Street Suite 1320
Herkimer, New York 13350
Re: Herkimer County v. Village of Herkimer

Dear Mr. Malone:

I am writing to clarify the Commission's position regarding potential intervention in the above captioned matter. As you are aware, the Commission has been considering filing a motion to intervene in the pending matter between Herkimer County and the Village of Herkimer on the sole issue of whether the Village's zoning changes, which purport to exclude the construction of a jail within the Village, are pre-empted by state law and regulations.

After evaluating recent ease law and the facts of the Herkimer County matter, Commission Counsel's Office agrees with. Herkimer County's position in its pending action against the
Village that state law and regulatory schemes do, in point of law, pre-empt the Village's zoning authority. See County Law § 216, Correction Law Article 3 and 9 NYCR.R. Part 7000 et.seq.

The Commission's opinion is based upon the recent decision in Woodbury Heights Estate Water Co., Inc. V. Village of Woodbury, 943 N.Y.S.2d 385 (2012), citing Sunrise Check Cashing and
Payroll Services, Inc.. v. Town of Hempstead, 91 A.D.2d 126 (2d Dept. 2011). The Woodbury Court more fully described the doctrine of field preemption as the situation where "the State has
acted upon a subject, and in so acting has evidenced a desire that its regulations should pre-empt the possibility of varying local regulations." Id, at 389, citing Sunrise Cheek Cashing and Payroll
Services, Inc, v. Town of Hempstead, 91 A.D.2d 126 (2d Dept. 2011). As noted above, the State Legislature has enacted a comprehensive and detailed statutory scheme by which the
Commission of Correction, pursuant to its comprehensive regulations, is to regulate the construction and placement of local correctional facilities. As a result, the Legislature has clearly
devolved this function exclusively to the Commission, thereby pre-empting any local government action to the contrary.

Any finding to the contrary would not only be inconsistent with the statutory scheme, but would seriously inhibit the ability of a county to construct and site new local facilities, Indeed, if given the option to "zone-out" a local correctional facility, it is likely that many towns and villages would attempt to do so, which could result in the need to continue to use inadequate and unsafe
local facilities.

Unfortunately, upon recent inquiry with the Court, it does not appear that tire Commission's intervention would be considered timely at this stage of the proceeding. However, based upon
the foregoing, should there be additional or appellate review of this matter, it is the intention of the Commission. to seek permission to file appropriate amid curiae briefs in support of the state's
pre-emption in this area, and by correlation, in support of Herkimer County's position in this proceeding. The Commission will do so in order to protect tide state's sovereign rights, exercised through the Commission of Correction, to regulate the construction and placement of local correctional facilities. Kindly keep our offices appraised of the progress of these proceedings, so that the Commission may seek to assert its position in a proper and timely fashion.

If you have any questions in this regard, please do not hesitate to contact me.

Very truly yours,
Michael F Donegan
Counsel

cc: Thomas A. Belicht, Chairman
Phyllis Harrison-Ross, Commissioner
Terry Moran, Regional Supervisor

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