New York Association of Convenience Stores

130 Washington Avenue, Suite 300, Albany NY 12210

TELEPHONE: (800) 33-NYACS or (518) 432-1400 FAX: (518) 432-7400

MEMORANDUM IN OPPOSITION

S.4474 by Senator Marcellino/A.7404 by Assemblyman Grannis

AN ACT to amend the environmental conservation law and the public service law,

in relation to enacting the health, safe and energy efficient outdoor lighting act

The New York Association of Convenience Stores is a private trade association representing the interests of nearly 6,000 neighborhood mini-marts and convenience stores across the state, most offering extended hours which necessitate outdoor lighting for safety and security reasons.

All of us applaud the sponsors' commitment to energy efficiency, preserving the natural environment, and peace and quiet for residential neighborhoods.

However, we respectfully challenge the assertion that human circadian rhythms, the physiology of flora and fauna, and the wonders of the night sky are so imperiled by the ravages of outdoor lighting that it is necessary to statutorily spawn "light trespass" lawsuits against business owners.

For a neighbor who feels the outdoor lights at a convenience store are misdirected or excessive, there is adequate recourse. First, they can approach the business owner directly. If the business is uncooperative, they can contact the local zoning or code enforcement officer, who has the power to order the business to immediately take corrective action if a violation is found. Why encourage citizens to skip these rational steps and go directly to court?

The bill would grant an affirmative defense to business owners who can show they are in compliance with all local zoning restrictions that existed at the time of installation, but it would needlessly force the business to hire an attorney at considerable cost to prove each element of compliance. A simpler, better approach would be to automatically grant the affirmative defense upon presentation of a Certificate of Occupancy, which the town, city or village would have granted only after verifying compliance with its outdoor lighting and other standards.

We are troubled by the highly subjective definition of light trespass set forth in the bill – "the placement or operation of a stationary outdoor luminaire…in a manner whereby illumination or glare is cast unnecessarily on the property of another with the effect of reducing privacy, limiting use or enjoyment, hindering sleep and/or detracting from the appearance of the illuminated property without the permission of the owner, lessee or lawful occupant thereof." That could be shortened to "if it annoys me."

Just as neighbors should be entitled to the quiet enjoyment of their property, business owners should be entitled to protection from frivolous legal action arising from hazy statewide standards that conflict with specific local zoning requirements they already comply with. Accordingly, we oppose passage of this bill in its current form.

James S. Calvin

President, NYACS

June 3, 2005