The following papers were read and considered in this hybrid proceeding:

1. Order to Show Cause;

2. Petition with Exhibits A-J;

3. Memorandum of Law in Support;

4. Affirmation in Support with Exhibits A-B;

5. Answer;

6. Reply Affirmation;

7. Affidavit with Exhibit A;

8. Affirmation in Reply;

9. Appendix;

10. Affidavit in Support of Answer;

11. Affirmation in Reply.

Petitioner/plaintiff ("Peckham") is a general contractor which provides asphalt paving services. It commenced this hybrid article 78 proceeding and declaratory judgment action challenging respondents'/defendants' ("the County") application of Ulster County Local Law 5 of 2023 to a request for bids to provide in-place paving services as needed for the Ulster County Department of Public Works for the 2025 fiscal year.

On or about January 2, 2025, the County issued a request for bids pursuant to General Municipal Law § 101 and 103. Section 42 of the invitation to bid specified that applicants would need to demonstrate compliance with "Local Law 10 of 2022" (the original version of Local Law 5 of 2023). That law requires that in any "high value construction contract," defined in pertinent [*2]part as "any contract with a value equal to or exceeding $750,000 to which [the County] is a signatory," a contractor must have an apprenticeship program which has been registered with and approved by the NYS Department of Labor. The local law further specifies that "[s]uch apprenticeship program must have a graduation rate of at least 30% over the last five years..." and that a contract bidder "must provide documentation verifying a minimum of three (3) trade-specific graduates per calendar year for the last five years."

On January 7, 2025, Peckham protested the application of the local law to the bidding process. Peckham contended that the County's apprenticeship requirements were preempted by New York State and federal law. It also maintained that Local Law 5 of 2023 was not properly enacted pursuant to the Municipal Home Rule Law. Peckham also protested the local law as applied to the bid, noting that the value of the paving contract was undefined and therefore did not implicate the $750,000 threshold triggering the apprenticeship graduation rate requirements of Local Law 5 of 2023. The County responded that the apprenticeship program graduation requirements were applicable to the bid applicants. Peckham then commenced this hybrid proceeding and sought to temporarily restrain the County from opening bids upon the January 23, 2025 deadline. The County consented to delay considering bids until the parties' respective contentions could be briefed. During the pendency of this hybrid proceeding the parties moved and cross-moved for summary judgment on Peckham's causes of action seeking declarative relief.

Peckham's first cause of action maintains that the County's decision to condition acceptance of bids on compliance with the local law was error where the value of the paving contract has yet to be determined. It asserts that because the contract calls for in place paving services on an as needed basis, there is no basis to conclude that the total value of the contract will equal or exceed $750,000.

"[A] municipality may properly set the requirements for bidding in its bid documents and may disqualify a bidder for failure to comply with the bidding requirements." Matter of Majestic Plumbing & Consulting Corp. v. Half Hollow Hills Cent. School Dist., 282 AD2d 749, 749 (2d Dept 2001). Judicial review of an agency's decisions with respect to the public bidding process is limited to ascertaining whether there is a rational basis to support the agency's determination. See Matter of Adelaide Envtl. Health Assoc., Inc. v. New York State Off. of Gen. Services, 248 AD2d 861 (3d Dept 1998). The burden of proof rests with the bidder challenging the determination. E.W. Tompkins Co., Inc. v. State Univ. of New York, 61 AD3d 1248 (3d Dept 2009).

The County contends that there is no real dispute that the value of the paving contract, although advertised as indeterminate, in actuality exceeds $750,000. It asserts that the in-place paving contracts over the last seven years have resulted in County expenditures well in excess of that amount. In support it relies upon the affidavit of the County's Director of General Services Edward Jordan. Jordan states that between 2018 and 2024 the County has paid out on average approximately $1,631,045.00 annually for in-place paving service contracts. Jordan's affidavit [*3]and attached spreadsheet demonstrate that during this seven year period, the total value of the contracts only failed to surpass the $750,000.00 high value construction contract threshold once during the 2020 fiscal year when the County paid only $710,585.23. The Court takes notice that during a significant portion of the 2020 paving season the State and many of its municipal subdivisions including the County operated on a limited basis as a result of lock-downs brought about by the coronavirus pandemic.

Given the foregoing, it cannot be said that the County's decision to condition bidding on compliance with Local Law 5 of 2023 notwithstanding the presently undefined value of the 2025 in-place paving contract was irrational, arbitrary and capricious of affected by an error of law. The Jordan affidavit and supporting documentation demonstrates that, excluding the anomalous 2020 fiscal year, the historical total values of the contract at issue readily surpass the $750,000.00 threshold imposed by the local law, in some cases by two or threefold. Peckham's contention that the County may not rely upon affidavits to justify their determination that Local Law 5 of 2023 is applicable is misplaced. See CPLR 7804(e). In any event, the petition and Peckham's reply affirmations fail to controvert the County's assertion or otherwise raise an issue of fact as to the past or present value of the in-place paving contract. Wherefore, it is

ORDERED and ADJUDGED that Peckham's first cause of action is denied.

Peckham's second cause of action alleges that the local law is unenforceable as void because it was not lawfully enacted. It maintains that although the original version proposed as Local Law 10 of 2022 was subject to a public hearing, the amended version of the local law, ultimately adopted as Local Law 5 of 2023, was never noticed for a hearing prior to its final approval on May 25, 2023. The County concedes that the legislature did not hold a second public hearing on the amended local law. It contends, however, that because the revisions to Local Law 5 of 2023 were "minor or inconsequential," a subsequent hearing was not required.

Municipal Home Rule Law § 20(5) states that "no [] local law shall be approved by the elective chief executive officer until a public hearing thereon has been had before him." Such hearing must be noticed in advance to provide the public with an opportunity to comment on the proposed legislation. See Garlen v. City of Glens Falls, 17 AD2d 277 (3d Dept 1962), affd, 12 NY2d 1025 (1963). Here, the public hearing held on the local law satisfied the statutory mandate of Municipal Home Rule Law § 20(5). Local Law 10 of 2022, as originally proposed, required any contractor entering into a construction contract with the County to have an apprenticeship agreement with the graduation rate provisions to which Peckham objects. After a public hearing on Local Law 10 of 2022 on October 18, 2022, the county legislature adopted an amended version of the proposed legislation renamed Local Law 5 of 2023. The revised version limited compliance with the graduation rate requirements to only "high value construction contracts" as defined above.

Peckham does not challenge the adequacy of the notice, nor does it allege that it was deprived of an opportunity to be heard prior to the passage of Local Law 5 of 2023. Rather, Peckham urges that Municipal Home Rule Law § 20(5) necessitated a second public hearing to be noticed and held on the amended version of the local law. The statute does not explicitly prescribe that the public hearing must be on the final version of the proposed legislation. Because the purpose of the hearing requirement is to elicit public input before the passage of the local law, "[p]ublic comment would serve no purpose if the proposed legislation could not thereafter be amended." Mantello v. City of Troy, 172 Misc 2d 664 (Sup Ct 1997). Moreover, the changes between the local law in its original form and its final version "were minor and did not result in a substantially different law..." which would have undermined the intended purpose of the public hearing requirement of Municipal Home Rule Law § 20(5). Frontier Stone, LLC v. Town of Shelby, 174 AD3d 1382, 1386 (4th Dept 2019). Although Peckham contends that the change "significantly affects which contractors can bid on public works projects," the amendment does not operate to Peckham's detriment. On the contrary, the addition of the qualification that the graduation rate requirements only apply to contracts with a value meeting or exceeding $750,000 is less restrictive than the original version of the local law subjected to public hearing. Rather than demonstrating that they are aggrieved by the amendment where under the original version they were not, it appears that Peckham is merely attempting to invalidate the local law based on technical rather than substantive grounds. See also YNGH, LLC v. Vil. of Gouverneur, 121 AD3d 1266 (3d Dept 2014) (holding strict technical compliance with notice requirements of Municipal Home Rule Law § 20(5) not essential to the validity of municipal enactment where noncompliance does not thwart their legislative purpose.).

The Court also rejects Peckham's contention that the local law is invalid because it was filed with the Secretary of State more than 20 days after its adoption. See Municipal Home Rule Law § 27(1). As the statute explicitly provides that a local law shall not become effective until it is filed (see Municipal Home Rule Law § 27(3)), the 20 day deadline is directory and not mandatory. See generally City of New York v. Novello, 65 AD3d 112 (1st Dept 2009). Wherefore, it is

ORDERED and ADJUDGED that Peckham's second cause of action is denied. It is further

DECLARED that Local Law 5 of 2023 was validly enacted.

Peckham's third cause of action maintains that the local law and its graduation rate requirements are arbitrary and capricious and provide no rational benefit to the public or taxpayers. A CPLR article 78 proceeding is an improper procedural vehicle to challenge the substantive validity of a legislative act. See Matter of Save Pine Bush, Inc. v. City of Albany, 70 NY2d 193 (1987). To the extent Peckham's third cause of action challenges the applicability of the local law to the paving contract at issue, it is duplicative of its first cause of action. Wherefore, it is

ORDERED and ADJUDGED that Peckham's third cause of action is denied.

Peckham's fourth cause of action asserts that Local Law 5 of 2023 is preempted by New York State Law. It alleges that Labor Law article 23, which governs apprenticeship agreements, grants the Department of Labor exclusive authority to set standards for such programs. Peckham contends that the local law impermissibly intrudes upon the province of the Department of Labor by allowing the County "to devise their own apprenticeship requirements" which are more onerous than those required under State Law.

"Broadly speaking, State preemption occurs in one of two ways—first, when a local government adopts a law that directly conflicts with a State statute and second, when a local government legislates in a field for which the State Legislature has assumed full regulatory responsibility." DJL Rest. Corp. v. City of New York, 96 NY2d 91, 95 (2001). "Under the doctrine of conflict preemption, a local law is preempted by a state law when a right or benefit is expressly given by State law which has then been curtailed or taken away by the local law." Matter of Chwick v. Mulvey, 81 AD3d 161, 187-168 (2d Dept 2010). "The crux of conflict preemption is whether there is a head-on collision between the ordinance as it is applied and a state statute." Id., at 168. The doctrine of field preemption applies to local laws where "[s]uch laws...would tend to inhibit the operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns." Jancyn Mfg. Corp. v. County of Suffolk, 71 NY2d 91, 97 (1987).

Labor Law § 810 declares that it is the public policy of the State "to develop sound apprenticeship training standards and to encourage industry and labor to institute training programs." To accomplish this objective, Labor Law § 811 empowers the Commissioner of Labor "to encourage and promote the making of apprenticeship agreements conforming to the standards established by or pursuant to this article." Labor Law § 811(1)(a). Labor Law § 815 promulgates a nonexhaustive list of "[s]uggested standards for apprenticeship agreements," including a statement of the trade or craft to be taught, the processes to be taught, hour requirements and a statement of the scale of wages to be paid. Of particular significance, Labor Law § 816-b provides that a municipality "may require that any contractors and subcontractors have, prior to entering into such contract, apprenticeship agreements appropriate for the type and scope of work to be performed, that have been registered with, and approved by, the commissioner pursuant to the requirements found in this article."

Peckham's fourth cause of action invokes field preemption. "Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with a State-wide statute. Such local laws, were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns." Albany Area Builders Ass'n v. Town of [*4]Guilderland, 74 NY2d 372, 377 (1989). Here, no such direct or indirect conflict exists between Local Law 5 of 2023 and the Labor Law apprenticeship provisions. While Peckham maintains that the legislative scheme of Labor Law article 23 and related administrative rules evinces the State's intention to preempt the field of apprenticeship agreements, the Appellate Division has concluded otherwise. See Broidrick v. Lindsay, 48 AD2d 639 (1st Dept 1975), affd, 39 NY2d 641 (1976). The Labor Law neither expressly preempts the subject matter at issue nor does the local law implicitly abrogate or undermine article 23's stated objective of increasing the level of skilled workers in the State's labor force. See Labor Law § 810. Although the Commissioner of Labor has promulgated standards and procedures for the implementation and approval of apprenticeship programs (see 12 NYCRR 601.1 et seq.), Local Law 5 of 2023 does not intrude onto this regulatory scheme. The local law does not create new apprenticeship standards for registration by the Department of Labor. Compliance with the local law's graduation rate requirements would not disqualify an otherwise eligible program. 12 NYCRR 601.5 ("Standards for Apprenticeship Programs") sets certain minimum criteria for registration eligibility but nothing within the state's regulatory scheme suggests that an apprenticeship program cannot contain more rigorous standards not specifically enumerated therein. Lastly, while Peckham maintains that apprenticeship requirements are "de facto anti-competitive," Labor Law § 816-b permits a municipality the right to lawfully discriminate between bidders with and without apprenticeship agreements. Wherefore, it is

ORDERED and ADJUDGED that Peckham's fourth cause of action is denied. It is further

DECLARED that Labor Law § 816-b does not preempt Local Law 5 of 2023.

Peckham's fifth cause of action claims that Local Law 5 of 2023 is preempted by the Employee Retirement Income Security Act ("ERISA"). 29 USCA § 1144(a) of ERISA states that its provisions "shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." For purposes of ERISA the term "State" also includes "any political subdivision thereof...." 29 USCA 1144(c)(2). An "employee benefit plan" is defined as "an employee welfare benefit plan" which includes any "apprenticeship or other training programs." 29 USCA § 1002(1) and (3).

"Where a state or municipality acts as a proprietor rather than a regulator, it is not subject to ERISA preemption." Allied Constr. Indus. v. City of Cincinnati, 879 F3d 215 (6th Cir 2018). "When the State acts as regulator, it performs a role that is characteristically a governmental rather than a private role...." Bldg. and Const. Trades Council of Metro. Dist. v. Associated Builders and Contractors of Massachusetts/Rhode Is., Inc., 507 US 218, 229 (1993). By contrast, "when a State owns and manages property it must interact with private participants in the marketplace...Thus, because 'a private purchaser may choose a contractor based upon that contractor's willingness to enter into a prehire agreement, a public entity as purchaser should be permitted to do the same.'" Allied Constr. Indus., at 220, quoting Bldg. and Const. Trades [*5]Council of Metro. Dist., at 231.

In Allied Constr. Indus., the Sixth Circuit Court of Appeals applied the market-participant doctrine to ERISA and declined to strike down a City of Cincinnati ordinance as preempted which required bidders of public works projects to maintain an apprenticeship program which graduated at least one apprentice for each of the past five years. The court noted that the ordinance promoted the city's "strong proprietary interest in developing a skilled workforce for its many future projects." It held that while the ordinance had the practical effect of "rig[ging] the bidding system against non-union contractors," although "a state or local governmental entity may have policy goals that it seeks to further through its participation in the market does not preclude the [market-participant] doctrine's application, so long as the action in question is the state's own market participation." Id., at 222 (internal quotation marks omitted). The graduation rate requirements in the challenged local law are substantively identical to the ordinance at issue in Allied Constr. Indus. Where, as here, the County acts in its proprietary capacity, ERISA's preemption provision does not apply. For similar reasons as set forth above, the Court rejects Peckham's claim that Local Law 5 of 2023 is preempted by the National Labor Relations Act ("NLRA"). See Bldg. and Const. Trades Council of Metro. Dist., at 226-227. Wherefore, it is

ORDERED and ADJUDGED that Peckham's fifth and sixth causes of action are denied. It is further

DECLARED that ERISA and the NLRA do not preempt Local Law 5 of 2023.

Peckham's final cause of action alleges various 14th Amendment constitutional violations. There is no vested right in the award of a public works contract. Thus, Peckham fails to demonstrate a substantive due process violation. See Matter of Mid-State Indus. Ltd. v. City of Cohoes, 221 AD2d 705 (3d Dept 1995). The Court also rejects the claim that the apprenticeship graduation rate requirements of Local Law 5 of 2023 constitute unlawful discrimination and deprived Peckham of equal protection under the law. See Empire State Ch. of Associated Builders and Contractors, Inc. v. Smith, 21 NY3d 309 (2013). Peckham's remaining allegations of constitutional violations, to the extent not specifically addressed herein, have been evaluated and found lacking in merit. Wherefore, it is

ORDERED and ADJUDGED that Peckham's seventh cause of action is denied. It is further

DECLARED that Local Law 5 of 2023 is not unconstitutional.

The foregoing constitutes the decision, order and judgment of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.