How a Town Fights an Unwanted Waste Facility
Robert Gerhard, III, et al. v. Town of Root
In 1997 Robert Gerhard III (d/b/a "Gerhard/ALCEN") and John Battaglia, principles of "Environmental Solutions," tried unsuccessfully to force the Town of Root (Montgomery Co.) to accept a landfill proposal. After the town board enacted a local landfill ban in response to the proposal, Gerhard sued the town. On October 16, 1997, Judge Vito C. Caruso dismissed the lawsuit because New York's Environmental Conservation Law [sect. 27-0711] invites towns to enact more stringent regulations of waste facilities, because New York's Municipal Home Rule Law [sect. 10(1)(ii)(a)(11)] empowers towns to regulate for environmental protection, and because New York's Town Law [sect. 130(6)] allows towns to adopt laws prohibiting dumps.
Judge Caruso reached this decision despite the town board having acted defensively against Gerhard, by passing a new law after Gerhard brought his proposal to the board. The facts as set forth by the judge are worth reviewing by town boards and citizens faced with a similar situation. Excerpts from the unpublished opinion of the Judge Caruso are presented immediately below. Further below we discuss a number of other New York cases upholding a town's power to severely restrict or prohibit waste facilities.
The uncontroverted evidence shows that in July 1996, petitioner Robert A. Gerhard, III, d/b/a/ Gerhard/ALCEN (Gerhard) obtained from petitioners Alton Mahr and his wife Harriet Mahr, an option to purchase 240 acres of their property on Mahr road in the town for the purpose of determining its suitability as a landfill (the Mahr Road landfill). shortly thereafter, Gerhard obtained similar options for an additional 230 acres from two other contiguous landowners. In all, the proposed private dump would be 150 acres in size with a 250 acre buffer area. It was intended to be accept 2,500 tons of municipal solid waste per day from Montgomery County and the surrounding region.
At the same time Gerhard was obtaining option, the town, which previously had been selected for three possible full landfills and two partial sites to be constructed by the Montgomery, Otsego, Schoharie Solid Waste Authority, was in the middle of reviewing a proposed dump/junkyard law. The proposal was adopted as Local Law No. 1 of 1996 by the board on October 9, 1996 (hereinafter the Dump and Refuse Law of 1996). The law provided that no refuse (including solid or liquid waste) was to be stored, accumulated, deposited, recycled or abandoned in the town without a valid dump permit. It established an administrative process whereby new landfills could seek a permit from the board in order to operate in the town.
By late 1996, public opposition to the proposed Hahr Road landfill was growing. During this time, a working copy of a waste management facilities law (the precursor of Local Laws Nos. 1 and 3 of 1997) was introduced to the Town of Root Planning Board (the Planning Board). On January 16, 1997, the Planning board unanimously recommended that the Board consider adopting the proposal as a local law. On January 23, 1997 a special meeting of the Board was convened and at that meeting it was determined to hold a public hearing on the waste management facilities law on February 5, 1997. Viewing the new as an "action" within the meaning of the State Environmental Quality Review Act (SEQRA), the board designated itself as lead agency and directed Town Attorney Peter Doherty (Doherty) to complete an environmental assessment form (EAF) for the proposed law.
On January 29, 1997, notice of the February 5, 1997 meeting was published . . . The full Board along with approximately 90 Town residents attended the hearing [meeting]. In addition to hearing comments on the law, during the hearing Doherty addressed SEQRA. He classified the action as a Type I [potentially environmentally significant] and reviewed the long form EAF he had completed. Near the close of the hearing, some of those in attendance urged the Town board to vote immediately on the law and this was met with a ground swell of support for such a vote from the others in attendance. The Board agreed to vote and immediately after the public hearing was closed, a special meeting was convened. At the meeting, the Board first voted to accept the findings in the EAF as a negative declaration [of environmental significance]. Following a discussion, a motion was then made to accept the Waste Management Facilities Law as Local Law No. 1 of 1997, albeit "with the provision that the [Dump and Refuse Law of 1996] will remain in affect [sic] except the portions that deal with solid waste management facilities." It passed unanimously.
After this, a question evidently arose about whether the adoption of Local Law No. 1 of 1997 was procedurally proper because it occurred during a special Board meeting which had not been announced. Hence, a special meeting of the Town Board was called for February 28, 1997. At that meeting, the waste management facilities law was adopted as Local Law No. 3 of 1997.
A subsequent request by petitioners Gerhard, Mohawk Environmental Services, Inc., and John B. Battaglia that the Board consider their application for a permit under the Dump and Refuse Law of 1996 was denied. By resolution passed on May 14, 1997, the Board found that a permit under the dump and Refuse Law of 1996 could only be granted by an amendment or repeal of Local Laws Nos. 1 and 3 of 1997. [From the Decision and Order of Caruso, J., Index No. 97-1113]
Judge Caruso found that any procedural irregularities in the town board's actions were excusable since the board took a "hard look" at environmental issues, and its ban on all solid waste management facilities "would have nothing but a positive impact on all the areas of environmental concern identified in the EAF (i.e, land, water, air quality, plants and animals, agricultural land resources, aesthetic resources, historic and archeological resources, open space and recreation, transportation, energy, noise, odor and public health)." The judge found that the lengthy public hearing on the first law (No. 1) did the job of a hearing for the second law (No. 3), which was "the exact same law."
The heart of the decision, however, was the judge's discussion of the town's police power--its power to enact laws for the health, welfare and safety of its citizens. The town may exercise its police power to ban landfills (or incinerators), noted the judge, apart from any zoning laws and apart from county laws. Finally, the judge found that all New York courts have rejected Gerhard's argument that state environmental law pre-empts local laws regulating waste:
Article 27 of the Environmental Conservation Law [ECL] has been held not to pre-empt the area of waste management, but, instead, has been interpreted as including local government "in the planning and control of problems endemic to waste management" (Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 NY2d 679, 683-684). . . . it is of note that the very inconsistency argument raised here [by Gerhard], namely, that a local law which prohibited commercial solid waste transfer stations from the schedule of permitted uses contained in a town zoning ordinance was inconsistent with ECL 27-0711, was considered and rejected by the Second Department in Town of LaGrange v. Giovennetti Enters. (123 AD2d 689 [2d Dept., 1986]). New York courts have also rejected similar claims of inconsistency in analogous situations (see, Monroe-Livingston Sanitary Landfill v. Town of Caledonia, supra, at 683 [local law which prohibited refuse generated outside the town from being landfilled within the Town]; cf. Matter of Gernatt Asphalt Prods. v. Town of Sardinia, [87 NY2d 668]; Matter of Frew Run Gravel Prods. v. Town of Carroll, 71 NY2d 126). [From the Decision and Order of Caruso, J., Index No. 97-1113]
In fact, every reported decision of every appellate court in New York has upheld the validity of a local ban on waste facilities. Here are excerpts from the cases cited by Judge Caruso and other cases, all of which are still good law:
In Town of La Grange the Second Department said: "The exclusion of commercial solid waste transfer stations . . . does amount to a complete prohibition. . . . . E.C.L. 27-0711 permits municipalities to adopt stricter requirements, and an ordinance is not inconsistent with the E.C.L. merely because it 'prohibit[s] something which the State law would consider acceptable.'" (quoted citation omitted).
In Town of Islip v. Zalak, 165 AD2d 83, 90-92, the same court held that local laws "intended to regulate a particular occupation [such as landfilling], rather than to regulate the general uses of the land" need not be treated as zoning laws but rather as laws enacted under specific grants of authority to regulate that occupation. The same thing was held by the Fourth Department in Niagara Recycling v. Town of Niagara, 83 AD2d 316, 324n.2.
In Moran v. Village of Philmont, 147 AD2d 230,234, the Third Department said: "While we recognize that Local Law No. 2 effects a complete prohibition of private landfills, we find that the ordinance constitutes a valid health and safety measure within the scope of the village's police powers."
The same court held in Pete Drown, Inc., v. Town Board of the Town of Ellenburg, 188 AD2d 850, 851, that a local law prohibiting commercial incineration of solid waste and medical waste in the town is not inconsistent with the New York's environmental laws.
In the Gernatt Asphalt Prods. case (cited by Judge Caruso) New York's highest court said that the state Mined Land Reclamation Law--which unlike the state's Environmental Conservation Law is a comprehensive law covering all aspects of the way gravel mines must operate--did not prevent towns from enacting local laws imposing stricter land reclamation standards including a ban on all future commercial gravel mines.
These holdings arise from well-established general principles of law that provide that the action of municipalities enacting local laws to protect health, welfare and safety will enjoy a strong presumption of validity by the courts, and a heavy burden will be imposed upon those who challenge such local laws.
According to the U.S. Supreme Court, when a community legislates pursuant to its police powers, "[i]t is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable." Hadacheck v. Los Angeles, 239 U.S. 94. New York's high court agrees: "It is not the function of the courts but of legislators to determine the 'reasonableness, wisdom and propriety' of the regulations needed to protect the community." Town of Hempstead v. Goldblatt, 9 NY2d 101, 105 (quoted citation omitted).
It is from this general recognition of the power and duty of local government to protect safety and public health that courts consistently find waste disposal bans and regulations valid:
Wiggins v. Town of Somers, 4 NY2d 215, 221: "Garbage is a deleterious substance . . . and garbage dumps emit obnoxious fumes."
Town of Plattekill v. Dutchess Sanitation, 56 AD2d 150, 151: "Garbage is a deleterious substance. . . . Adverse conditions which result from such a facility are obvious and the fact that such an operation is subject to sanitation regulations does not alter the fact that garbage dumps, no matter how carefully controlled, present some hazard to a community."
Town of LaGrange, at 689 (cited above): "To the extent that this ordinance prohibits transfer stations, it is sufficiently related to the town's concerns with the effect that garbage, rubbish and refuse kept, even temporarily, on private lands within the town would have on the public health, safety and welfare."
Moran v. Village of Philmont, at 234 (cited above): "In today's society, it can hardly be doubted that municipalities may regulate the disposal of refuse materials. . . . In an instance, as here, where solid waste materials are being deposited within a residential community, the potential hazards are obvious. While we recognize that Local Law No. 2 effects a complete prohibition of private landfills, we find that the ordinance constitutes a valid health and safety measure within the scope of the village's police powers."
Pete Drown, Inc., at 852 (cited above): "[The town's] passage of [an incinerator ban] was a valid exercise of its police powers, as demonstrated by the . . . fact that the 'Intent' section of the law referred to the importance of taking actions 'to insure the public is protected from potential hazards resulting from commercial incinerators operating within the Town."
There are many more New York decisions in this vein. But it is revealing to look at that part of the Town of Root's local law, upheld by Judge Caruso, which sets forth the reasons for banning all waste facilities:
1. The inability of geological science to precisely ascertain the existence and flow of groundwaters and to map subterranean geology makes it impossible to determine the extent to which solid and liquid waste disposal may, or may not be, contaminating water supplies;
2. Substantial scientific opinion questions the environmental and health effects of both 'resource recovery' facilities that incinerate or burn solid waste and the handling and disposal of ash residue from such facilities, and the containment methods for liquid waste;
3. Solid and liquid waste regulation under New York Environmental Conservation Law (ECL) is inadequate to relieve the forgoing concerns.
After quoting the above portions of Root's local law, Robert Gerhard III and his fellow plaintiffs complained, "nowhere in the Town records or Town Board meeting minutes is there any indication that expert advice was sought to substantiate this reasoning." Judge Caruso held that this complaint is irrelevant; is enough that the town board made such judgments, they were reasonable, and the board acted accordingly.