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NYSAPLS LEGISLATIVE UPDATE

By Emily Whalen, Esq., NYSAPLS Legislative Counsel

The 2022 New York State Legislative Session ended in early NYSAPLS issued a “Memo of Concern” in response to these
June and is scheduled to reconvene in January 2023. This year bills; even with the improved language in the Senate version,
was the 2nd year of the 2-year legislative session, therefore all NYSAPLS feels that any allowance of a waiver of the survey
bills introduced but not passed by both houses will need to requirement could negatively impact consumers and infringe
be reintroduced in January. During the 2021-2022 legislative on private property rights by increasing the opportunity for
session, approximately 15,000 bills were introduced, while fiber optic equipment to be incorrectly located.
only around 1,000 of those were passed by both houses of the The Senate version of the bill passed 63-0 but the Assembly bill
legislature. While NYSAPLS follows the status of over 100 remains in Committee.
individual bills, the majority may never see any movement.
ESOP
Following are some highlights of legislation of interest (S.5261-B/A.1891-D, sponsored by Senator Kennedy and
to NYSAPLS: Assemblymember Lupardo)
2022 New and Active Bills This legislation would allow Design Professional Corporation
(DPC) firms in New York State to be up to 100% ESOP
DOT Waiver (Employee Stock Ownership Plan) if certain conditions on the
(S.8472-B, sponsored by Senator Mannion and A.9894 by composition of the ESOP and the DPC’s board and leadership
Assemblymember Paulin) are met. If more than 75% of the plan’s voting trustees or
This legislation amends the Highway Law. The Assembly more than 75% of the plan’s committee members are design
version allows the Commissioner of the Department of professionals, 100% ESOP ownership is permitted. An ESOP
Transportation to waive the requirement of a survey as part of owning more than 25% of the outstanding shares of a DPC will
an agreement with a fiber optic utility for use and occupancy be required to register with the State Education Department
of a state right-of-way for the purpose of installing, modifying, and will be issued a certificate granting the ESOP the authority
relocating, repairing, operating, or maintaining fiber optic to hold shares of such corporation; the certificate will be subject
facilities, including as part of the Department’s consolidated to professional misconduct provisions and those failing to
application where the use and occupancy of the right-of-way is maintain an active registration will be subject to discipline.
utilizing existing infrastructure such as aerial pole attachments ESOPs shall not influence, or attempt to influence, any
and underground conduits. The Senate version of this proposal decisions falling within a design professional’s scope of practice.
is an improvement over the Assembly version as it sets forth This bill passed both houses of the legislature (in the Senate, the
guidelines for waiver of a survey so that the waiver is permitted bill passed 3 times and each time the vote was unanimous; in the
only in instances where it can be reasonably expected that the Assembly, there was one no vote) and was signed into law by the
existing survey on file is up to date. Governor as Chapter 439 of the Laws of 2022 on July 21, 2022.

16 EMPIRE STATE SURVEYOR / VOL. 58 • NO 5 / 2022 • SEPTEMBER/OCTOBER