Legoland Developments & New York Scaffold Law

As covered in our May 8th blog (Hudson Valley: Best Places to Live and Legoland), a new Legoland theme park in Goshen, New York is proposed to be built on 140 acres of a 523-acre site with a theme park including rides and attractions, an aquarium, restaurants and a hotel.

The proposal projects Legoland would generate average annual sales tax revenue of $1.3 million for Goshen and $9.4 million for Orange County over the next 30 years. Over 30 years, Goshen is anticipated to receive about $71 million in revenue from a host community fee and PILOT (payment in lieu of taxes, payments and tax payments).

Recently, Legoland developer Merlin Entertainments cleared a major hurdle when the Goshen Town Board approved amendments to the town’s comprehensive plan and zoning law by a 4-1 margin

Local Law 5

The first law approved, Local Law No. 5, amended the comprehensive plan to allow “commercial tourism/recreation uses” on the planned theme park site off of Harriman Drive in the Town of Goshen due to “its close access to Route 17.”

Local Law No. 5 states that the goal of the Comprehensive Plan is still to preserve Goshen’s “fragile and beautiful rural environment and provide for the needs of its people.” What was added is a new goal to provide “tourism/recreation business opportunities along State Route 17,” as well as adding a recommendation to change the zoning of the 523-acre Harriman Drive property planned for Legoland New York:

The goals of open space and environmental preservation must be pursued at the same time as the goals of providing appropriate rural development involving diverse housing opportunities, supporting local businesses, especially in the Village of Goshen center, addressing adequate Town infrastructure and facilities, and diversifying its Town-wide economic base, including attracting tourism/recreation related businesses at locations that can accommodate local and non-local tourists. … This [zoning] change is recommended to avoid uses with a highway or heavy traffic orientation adjacent to an approved residential development in the Village of Goshen and proposed development in the Town of Goshen, except if such uses incorporate sufficient buffers and other mitigations. This area has a steeper gradient and a portion of the area also contains a substantial wetland and is therefore better suited for low-density residential development or a commercial tourism/recreation facility that are designed to accommodate to a reasonable extent the natural contours of the land and the protection of the wetland area.”

Local Law 6

The second law approved, Local Law No. 6, amended the town’s zoning law by adding a “Commercial Recreation Overlay district,” incorporating the site planned for Legoland New York, which was previously zoned for residential development.

Local Law No. 6 heads this recommendation by allowing a commercial recreation facility to be developed on the Harriman Drive land. The law allows for all of the elements of the theme park, including indoor commercial recreation, like interpretive learning centers, aquariums, food service and theaters; and outdoor commercial recreation, such as motorized rides, food stands, and retail sales. Hotels, restaurants, parking lots, access roads, utilities, and drainage facilities are all now permitted on the Harriman Drive parcel.

The zoning law has an expiration date. The Commercial Recreation Overlay District will cease to exist without further action by the town board if the town planning board does not approve a special permit and site plan for a commercial recreation facility within six months of the effective date of Local Law No. 6. If no special permit and site plan are approved, the commercial recreation facility will be abandoned.

Construction and New York’s Scaffold Law

As mentioned in our March 17th blog (Orange County Legoland Project & New York Labor Law Concerns), where there is construction when heights are involved, as in with the proposed theme park, New York Labor Law Section 240 — also known as the “Scaffold Law” or “Gravity Law” — protects the rights of workers who have been injured in construction accidents involving heights by allowing them to bring lawsuits against the general contractors in charge of the construction sites, and owners of the site, where height-related accidents take place.

The goal of the law is to protect the worker against the dangers of gravity. To apply the statute, the accident must have occurred when the worker fell or when the worker was injured by a falling object. The mere fact that the worker was “elevated” does not create a cause of action under the Labor Law. In order to get the statute’s protection ffrom injury from a falling object, an object must fall as a result of a failure of an elevation device, such as an elevator, pulley, hoist, scaffold, or ladder.

The New York statute provides special legal protection to workers while working at heights primarily for two reasons: (i) the severity of the injuries that result from elevated falls, and (ii) construction workers rely on the project owner, general contractor, construction manager or project manager to provide a safe working environment. This law is unique in that workers’ compensation prohibits lawsuits against construction site supervisors in accident claims in most jurisdictions. Filing a claim will not affect any workers’ compensation benefits, and both cases can proceed concurrently.

Liability under Section 240 is absolute. When establishing responsibility for a fall, plaintiff’s fault, if any, is minor. Liability cases filed against property owners or construction firms cannot be defended by presenting a positive safety record in the past. Related Section 241 of the New York Labor Law requires that employers provide safety equipment to all workers, and outlines how a site must be constructed, equipped, arranged, and guarded, among other aspects of managing a construction site and team of workers.

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