Gary D. Peake Excavating Inc. v. Town Bd. of Town of Hancock

• Decision Date: 22 August 1996
• Docket Number: D,No. 1746,1746
• Citation: 93 F.3d 68
• Parties: , 26 Envtl. L. Rep. 21,620 GARY D. PEAKE EXCAVATING INC., a New York Corporation; Gary D. Peake, Plaintiffs-Appellants, v. TOWN BOARD OF THE TOWN OF HANCOCK, a Municipal Corporation and Political Subdivision of the State of New York, Defendant-Appellee. ocket 95-9280.
• Court: U.S. Court of Appeals — Second Circuit

Page 68

93 F.3d 68

65 USLW 2148, 26 Envtl. L. Rep. 21,620

GARY D. PEAKE EXCAVATING INC., a New York Corporation; Gary

D. Peake, Plaintiffs-Appellants, v. TOWN BOARD OF THE TOWN OF HANCOCK, a Municipal Corporation

and Political Subdivision of the State of New

York, Defendant-Appellee.

No. 1746, Docket 95-9280.

United States Court of Appeals, Second Circuit.

Argued June 27, 1996.

Decided Aug. 22, 1996.

Thomas S. West, LeBoeuf, Lamb, Greene & MacRae, L.L.P., Albany, N.Y. (Michael S. Elder, Goodwin, Procter & Hoar, Albany, NY, of counsel), for Plaintiffs-Appellants.

John Hudanich, Hartjen & Hudanich, Johnson City, NY, for Defendant-Appellee.

Before: MINER, JACOBS and PARKER, Circuit Judges.

MINER, Circuit Judge:

Plaintiffs-appellants Gary D. Peake Excavating, Inc. and Gary D. Peake (together, the "Plaintiffs") appeal from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, Ch. J.) granting in part their motion for summary judgment and granting in part the motion for summary judgment of defendant-appellee Town Board of the Town of Hancock. The district court determined that Section 5 of Local Law No. 1 of the Town of Hancock ("Law No. 1" or the "ordinance") violated the Commerce Clause of the United States Constitution by discriminating against out-of-state waste. The district court severed Section 5 from Law No. 1 and determined that the remainder of the ordinance did not violate the Commerce Clause. On appeal, the Plaintiffs contend that severance of Section 5 of Law No. 1 was inappropriate, and that Law No. 1, following the severance of Section 5, violates the Commerce Clause. For the following reasons, we affirm the judgment of the district court.

BACKGROUND

Peake is a resident of the Town of Hancock (the "Town"), which is located in Delaware County, New York, directly across the Delaware River from Pennsylvania. Peake is the owner of Gary D. Peake Excavating, Inc. ("Peake Excavating"), a company engaged in the demolition and excavation business in New York and Pennsylvania. Peak Excavating maintains an office and equipment facility on Peake's 614-acre property located in the Town. Peake Excavating's demolition activities generate large quantities of construction and demolition debris known as "C & D debris." Prior to 1988, the disposal of C & D debris largely was unregulated in New York State, and Peake Excavating disposed of its C & D debris on Peake's property.

In 1988, the New York State Department of Environmental Conservation (the "DEC") promulgated a comprehensive regulatory scheme governing the approval, construction, operation, and monitoring of C & D debris landfills. See N.Y. Comp.Codes R. & Regs. tit. 6, § 360-7. In January of 1991, Peake applied to the DEC for a permit to construct a C & D landfill on his property. Peake planned to dispose of Peake Excavating's C & D debris in the landfill and to accept C & D debris from others in return for a disposal charge or "tipping fee." According to Peake, the proposed landfill would generate at least four million dollars in tipping fees.

In February of 1991, the Town Board enacted Law No. 1, entitled "A Local Law prohibiting the operation of dumps and dumping." Law No. 1 provides, in pertinent part:

Section 2. Declaration of Policy:

It is hereby determined by the Town Board that the operation of dumps for the disposal of garbage and rubbish, and the dumping of garbage and rubbish, is likely to constitu[te] a hazard and menace to the health and safety of the residents of the ....

Town of Hancock and it is therefore the intent of this Local Law to prohibit dumping and the operation of dumps[ ¹] in the Town of Hancock, pursuant to Section 130, subdivisions (6) and (15) of the Town Law of the State of New York.

Section 4. Restrictions:

a) The operation or maintenance of a dump is hereby prohibited in the Town of Hancock.

b) The dumping of paper, garbage, rubbish, trash, toxic chemicals and substances and other waste materials of any nature in the Town of Hancock except at a municipally operated transfer station or land fill is prohibited.

Section 5. Exception:

Nothing herein contained shall be deemed to prohibit any person from disposing of non-commercial or industrial rubbish, waste material, and garbage on property upon which such rubbish, waste material, and garbage is produced.

....

Section 7.

The invalidity of any Section or provision of this Local Law shall not invalidate any other Section or provision thereof.

Violations of Law No. 1 are punishable as a misdemeanor with a maximum fine of $1000 and a maximum term of imprisonment of six months.

Although the Town does not operate its own C & D landfill, it operates a transfer station that accepts up to 100 square feet of C & D debris from any person. The County landfill is located approximately 50 miles from the Town and generally does not accept out-of-county waste. Therefore, Law No. 1 precludes Peake from operating a C & D landfill on his property and substantially limits the amount of C & D debris that the Plaintiffs can dispose of in the Town.

On June 21, 1994, the Plaintiffs commenced an action in the district court, claiming that Law No. 1 violated the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. They sought a declaration that the ordinance was unconstitutional, a permanent injunction prohibiting the enforcement of the ordinance, and attorney's fees. The Plaintiffs claimed that, by preventing Peake Excavating from disposing of C & D debris on Peake's property, Law No. 1 caused them to suffer monetary damages, including lost profits and increased disposal costs. The Plaintiffs alleged that, as a result of Law No. 1, Peake Excavating's "ability to obtain demolition jobs in Pennsylvania has been virtually eliminated."

In April of 1995, all parties moved for summary judgment. On May 26, 1995, the district court granted the Plaintiffs' motion for summary judgment to the extent of declaring that Section 5 violated the Commerce Clause. The district court determined that Section 5, which permits Town residents to dump waste on their property if the waste was produced on that property, violated the Commerce Clause because it discriminated against out-of-state waste based only on its point of origin. The court then severed Section 5 from Law No. 1 and found that the remainder of the ordinance did not violate the Commerce Clause or the Equal Protection Clause. Accordingly, the district court granted the Board's motion for summary judgment to the extent that it declared that Law No. 1, without Section 5, did not violate the Commerce Clause. Consequently, the district court denied the Plaintiffs' motions for a preliminary injunction and for attorney's fees.

On July 21, 1995, the Plaintiffs moved for reconsideration, claiming that, even after Section 5 was severed, the ordinance violated the Commerce Clause. By order dated November 24, 1995, the district court denied the Plaintiffs' motion for reconsideration. The Plaintiffs filed a timely notice of appeal on December 11, 1995.

DISCUSSION

I. Ripeness

The Board contends that the Plaintiffs' claims are not ripe for judicial review. The The ripeness doctrine's "basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Lab. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In determining whether a claim is ripe for review, we consider the fitness of the issues for review and the hardship to the parties of withholding review. See id. at 149, 87 S.Ct. at 1515-16. However, it is well settled that a litigant need not expose himself to criminal prosecution to challenge the constitutionality of a statute providing criminal penalties. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979).

Board argues that, because Peake currently is not using his property as a disposal facility and cannot do so until he obtains a permit from the DEC, Law No. 1 has not prevented him from disposing of C & D debris on his property. We disagree.

We believe that the Plaintiffs' challenge to the constitutionality of Law No. 1 is ripe for adjudication. The issues presented by the Plaintiffs' claims are fit for judicial review because they are purely legal and may be decided without further factual development. See Able v. United States, 88 F.3d 1280, 1290 (2d Cir.1996) (holding that constitutional challenge to statute was "ready for judicial determination" because it presented issues that were "primarily legal, and not factual, in nature").

Moreover, the Plaintiffs would suffer substantial hardship if judicial review were withheld. Peake already has spent "considerable sums" of money in an effort to obtain a permit from the DEC to operate a C & D landfill. He claims that he is "reluctant to spend more money to obtain the additional information required by [the DEC] because, even if a permit were granted, Local Law No. 1 would still prevent [him] from operating [his] disposal facility." Reviewing the ordinance at this time will allow Peake to make an informed decision as to whether he should expend additional money to obtain a DEC permit to operate a C & D landfill. If we uphold the ordinance, Peake will be able to cut his losses by halting his efforts to obtain a DEC permit; if we invalidate the ordinance, Peake can continue with the DEC permitting process, knowing that obtaining the DEC permit would not be in vain. In contrast, if judicial review were withheld until Peake obtained a DEC permit, Peake would have to choose between (1) abandoning his plans to construct the C & D landfill in deference to a potentially unconstitutional ordinance and (2) expending "considerable sums" of money to obtain a DEC permit and thereafter commencing an action challenging the ordinance. We see no reason why Peake should have...