182 A.D.2d 213, Town of Clarkstown v. C&A Carbone, Inc.

Citation:182 A.D.2d 213, 587 N.Y.S.2d 681
Party Name:Town of Clarkstown v. C&A Carbone, Inc.
Case Date:August 31, 1992
Court:New York Supreme Court Appelate Division, Second Department
 
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182 A.D.2d 213

587 N.Y.S.2d 681

The TOWN OF CLARKSTOWN, Respondent,

v.

C & A CARBONE, INC., et al., Appellants, et al., Defendants.

Supreme Court of New York, Second Department

August 31, 1992.

Certiorari Granted May 24, 1993.

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[Copyrighted Material Omitted]

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[587 N.Y.S.2d 682] Granik Silverman Sandberg Campbell Nowicki Resnik, New City (Morrie Slifkin, David W. Silverman, Kenneth H. Resnik, and Ricki H. Berger, of counsel), for appellants.

Richard A. Glickel, West Nyack, for respondent.

Before THOMPSON, J.P., and BRACKEN, HARWOOD and MILLER, JJ.

HARWOOD, Justice.

On this appeal, we examine the constitutionality of a local law which mandates that all solid waste processed or otherwise handled within the locality be processed or handled at a designated facility. In light of the health, safety, and environmental concerns connected with solid waste management and disposal, we conclude that the challenged local law constitutes a valid exercise of the locality's police power which offends neither the Commerce Clause of the United States Constitution nor the Due Process Clauses of the United States and New York State Constitutions. We therefore uphold the judgment of the Supreme Court which enjoins the appellants from violating that law.

The appellant C & C Realty, Inc. (hereinafter C & C) is the owner of property located within the plaintiff Town of Clarkstown at 183 Western Highway, West Nyack, in Rockland County. The appellant C & A Carbone, Inc. (hereinafter C & A), of which the appellant Carbone is an officer, and the appellant Recycling Products of Rockland, Inc. (hereinafter Recycling), of which the appellant Carbone is part owner, are interrelated corporations which, according to a complaint the corporate appellants filed in the United States District Court for the Southern District of New York, are in the "interstate business" of bringing to the Western Highway premises "certain waste materials" which are sorted "into waste which is recyclable and waste which is not recyclable" and then shipped to

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disposal facilities outside the state. On July 17, 1987, the New York State Department of Environmental Conservation (hereinafter the DEC) issued to C & A a permit authorizing it to operate at the Western Highway site, on certain conditions and with limited permission to manage recyclables, a "Transfer Station", which is presently defined by New York State regulations as a "solid waste management facility, other than a recyclables handling and recovery facility * * * where solid waste is taken from collection vehicles and placed in other transportation units for movement to another solid waste management facility" (6 NYCRR 360-1.2[b][157]. The appellants assert that the "tipping fee" presently charged to truckers and haulers using the Western Highway facility is $70 per ton, which fee the appellants are apparently free to lower or raise as they see fit. The initial expiration date on C & A's permit was July 31, 1992, and the appellants acknowledge that if a permit were to be issued today, or if the current permit were to be renewed, it would be subject to the more stringent regulations promulgated after enactment of the Solid Waste Management Act of 1988 (see, L.1988, ch. 70).

On August 7, 1989, the Town and the DEC entered into a consent decree to close a municipal landfill located on Route 303 in West Nyack which had been operated by the Town since in or about 1950, and which, from the early 1970's, when the State adopted a comprehensive refuse and solid waste regulatory scheme (see, ECL art. 27), was periodically cited for environmental violations. Pursuant to the 1989 consent decree the Town was required to develop and implement a remedial plan which would address the adverse environmental consequences caused by the landfill and by its closing. In contemplation thereof, the Town filed an Environmental Assessment Form for the construction of a Solid Waste Transfer Station at the Route 303 site. In June 1989 based in part on a report which is not included in the record before us, and following a public comment period, the [587 N.Y.S.2d 683] Town issued a negative declaration that the construction and operation of a town transfer station on the closed landfill site would not have a significant impact on the environment (see, ECL 8-0109[4]; see also, 6 NYCRR 617.8[e][1][ii]. It also determined that no further proceedings pursuant to the New York State Environmental Quality Review Act (hereinafter SEQRA) (see, ECL article 8) were required.

In January 1990 the Town, in furtherance of its remedial plan, awarded Clarkstown Recycling Center, Inc. (hereinafter

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Clarkstown Recycling) the contract for construction and operation of the Town transfer station. Pursuant to the contract with Clarkstown Recycling, the Town is obligated to deliver to the transfer facility a specified annual tonnage of acceptable waste, and the Town must pay Clarkstown Recycling a penalty if less than the specified amount of waste is delivered. Apparently in accordance with a Town resolution, Clarkstown Recycling is permitted to charge haulers $81 per ton to dispose of solid waste, without regard to its point of origin. After five years, the Town may acquire the facility for $1. Various site and other approvals were issued by the DEC and, in December 1990 the DEC issued a permit authorizing Clarkstown Recycling to operate a solid waste transfer station at the Route 303 site and, in that regard, to accept, exclusive of source-separated recyclables, up to 600 tons of solid waste per day and to conduct limited recycling activities. The initial expiration date on the Clarkstown Recycling transfer station permit is December 31, 1995.

In addition, the Town, pursuant to its remedial plan, amended its zoning code to provide that the Town shall have only one designated "transfer station", which it defined as "an area of land upon which is located * * * structures, machinery and/or other devices where any solid waste * * * is taken from a collection vehicle and placed either upon the land, into any other transportation unit, or into any other device for future movement to another location" (see, Town of Clarkstown Zoning Code § 106-3). The zoning code was also amended to define a "[r]ecycling [f]acility" as "[a]n area of land upon which is located, permanently or temporarily, structures, machinery, and/or other devices which are utilized to separate, process, modify, convert, treat, boil, compost, compact or prepare solid waste * * * so * * * any component part of the same may be recovered".

In addition to amending its zoning ordinance, the Town enacted Local Laws 1990, No. 9 of the Town of Clarkstown, governing "Solid Waste Transportation and Disposal". Its stated purpose is to ensure that all solid waste "within or generated within the Town" other than sludge...

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