Ames v. Smoot

• Decision Date: 27 December 1983
• Citation: 98 A.D.2d 216,471 N.Y.S.2d 128
• Parties: In the Matter of Amyas AMES, et al., Respondents, v. William S. SMOOT, et al., comprising the Board of Trustees of the Incorporated Village of Laurel Hollow, New York, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 128

471 N.Y.S.2d 128

98 A.D.2d 216

In the Matter of Amyas AMES, et al., Respondents, v. William S. SMOOT, et al., comprising the Board of Trustees of the Incorporated Village of Laurel Hollow, New York, Appellants.

Supreme Court, Appellate Division,

Second Department.

Dec. 27, 1983.

Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., Mineola (George J. Farrell, Jr., John M. Armentano and Ellen M. Young, Mineola, of counsel), for appellants.

Eisenman, Allsop & Strack, Woodbury (James A. Eisenman, Woodbury, of counsel), and Chadbourne, Parke, Whiteside & Wolff, New York City (Paul G. Pennoyer, Jr., Charles K. O'Neill and James C. La Forge, New York City, of counsel), for respondents (one brief filed).

Before LAZER, J.P., and GIBBONS, GULOTTA, WEINSTEIN and RUBIN, JJ.

LAZER, Justice Presiding.

Has the enactment of article 33 of the Environmental Conservation Law pre-empted the field of pesticide regulation and thus precluded local governments from legislating in that area? Since we believe that it has, we conclude that the local law enacted by the Incorporated Village of Laurel Hollow prohibiting aerial spraying of pesticides was void and that it could be repealed without the filing of an environmental impact statement.

Although the enactment under immediate challenge is Laurel Hollow's Local Law No. 1 of 1982, which repealed Local Law No. 1 of 1981, the real issue in this case is the validity of the 1981 local law, the enactment that proscribed aerial spraying of pesticides. Seeking to save the ban on aerial spraying, three Laurel Hollow homeowners commenced an article 78 proceeding for a declaration that the repealing legislation was invalid since it had been enacted without compliance with the State Environmental Quality Review Act (SEQRA) (ECL art. 8) because of the failure to file an environmental impact statement. Such a statement must be filed before an environmental "action" is taken (see ECL 8-0109). Whether there is merit to petitioners' contention depends on whether the prohibition against aerial spraying was a valid exercise of local legislative power not in conflict with State law. The village position is that the prohibitory local legislation was a nullity because the regulation of pesticides has been pre-empted by the State. In reaching the substance of the issue, we treat the article 78 proceeding as a declaratory judgment action since it is rather settled that article 78 is not an appropriate vehicle for the review of legislative action (CPLR 103, subd. [c]; Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 407, 301 N.Y.S.2d 1, 248 N.E.2d 855).

A municipal corporation is a political subdivision of the State and its lawmaking authority can be exercised only to the extent that it has been delegated by the State (People v. De Jesus, 54 N.Y.2d 465, 446 N.Y.S.2d 207, 430 N.E.2d 1260; Matter of Marcus v. Baron, 57 N.Y.2d 862, 456 N.Y.S.2d 39, 442 N.E.2d 437, revg. 84 A.D.2d 118, 445 N.Y.S.2d 587 for reasons stated in dissenting opn. at App.Div. 84 A.D.2d 118, 134-138, 445 N.Y.S.2d 587). The State Constitution and various enabling statutes grant municipalities the power to adopt local laws (1) relating to their "property, affairs or government" provided that the local legislation is not inconsistent with the Constitution or any general law (see N.Y. Const., art. IX, § 2, subd. [c], par. [i]; Municipal Home Rule Law, § 10, subd. 1, par. [i]; Statute of Local Governments, § 10), and (2) with reference to certain enumerated subjects, including "[t]he government, protection, order, conduct, safety, health and well-being of persons or property therein" except "to the extent that the Legislature shall restrict the adoption of such a local law" (see N.Y. Const., art. IX, § 2, subd. [c], par. [ii], cl. [10] ). While regulation of pesticide use clearly involves the "safety, health and well-being" of the population, local laws exercising police powers are invalid if they are inconsistent with State law (see Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 234 N.Y.S.2d 862 affd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623, upon the opn. at the App.Div. 17 A.D.2d 327, 234 N.Y.S.2d 862) unless the local legislation falls within certain provisions authorizing local laws that supersede State legislation (see, e.g., Municipal Home Rule Law, § 34, subd. 3; Matter of Heimbach v. Mills, 67 A.D.2d 731, 412 N.Y.S.2d 668 [county charters]; Municipal Home Rule Law, § 10, subd. 1, par. [ii], cl. [d], subcl. [3]; cl. e, subcl. [3]; Matter of Sherman v. Frazier, 84 A.D.2d 401, 446 N.Y.S.2d 372 [town and village supersession powers] ). Since the instant local laws are not encompassed by the statutory exceptions which permit inconsistency with State legislation, resolution of the appeal depends on whether Local Law No. 1 of 1981 and article 33 of the Environmental Conservation Law are inconsistent.

As a word of art relative to the legislative powers of local governments, "inconsistent" refers both to cases of express conflict between local and State law such as local prohibition of what State law permits (Wholesale Laundry Bd. of Trade v. City of New York, supra ) and to situations where statutory law evidences the State's intent to pre-empt local regulation (People v. De Jesus, 54 N.Y.2d 465, 469, 446 N.Y.S.2d 207, 430 N.E.2d 1260, supra; People v. Cook, 34 N.Y.2d 100, 356 N.Y.S.2d 259, 312 N.E.2d 452; Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 334 N.Y.S.2d 129, 285 N.E.2d 285; Matter of Kress & Co. v. Department of Health of City of N.Y., 283 N.Y. 55, 27 N.E.2d 431). Where a State law indicates a purpose to occupy an entire field of regulation, local regulations are pre-empted regardless of whether their terms conflict with provisions of the State statute or only duplicate them (see Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 468 N.Y.S.2d 596, 456 N.E.2d 487; People v. De Jesus, supra; Robin v. Incorporated Vil. of Hempstead, supra; 6 [rev] McQuillin, Municipal Corporations [3d ed], § 21.34).

The intent to pre-empt may be deduced not only from express language providing for exclusivity, but also from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme (Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra; People v. De Jesus, supra; Robin v. Incorporated Vil. of Hempstead, supra; Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harv L Rev 737; Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Berger Court, 75 Col L Rev 623), including the need for statewide uniformity in a given area (see, e.g., Robin v. Incorporated Vil. of Hempstead, supra [regulation of abortion procedures]; Wholesale Laundry Bd. of Trade v. City of New York, supra [minimum wage restrictions] ).

ECL article 33 and its attendant regulations (6 NYCRR Parts 325, 326) clearly evince the State's intention to pre-empt local regulation of pesticide use. Declaring that it recognizes the significance of the use of pesticides to the "welfare, health, economic well-being and productive and industrial capabilities of the people of this state" (ECL 33-0301), the Legislature has established a system of pesticide regulation which includes the designation of restricted use pesticides (see ECL 33-0303, subd. 3, par. d), and a scheme for the testing and certification of pesticide applicators. To effectuate the desired result and to insure uniformity, the legislation provides that "[j]urisdiction in all matters pertaining to the distribution, sale, use and transportation of pesticides, is by this article vested exclusively in the [C]ommissioner [of Environmental Conservation]" (ECL 33-0303, subd. 1). Modeled after the Federal Insecticide, Fungicide and Rodenticide Act (U.S.Code, tit. 7, ch. 6, subch. II, et seq.), ECL article 33 expressly asserts the need for uniformity by declaring that "it is desirable that there should be uniformity between the requirements of the several states and the federal government relating to pesticides" and by authorizing the commissioner to adopt regulations in conformity with agencies of the United States government (ECL 33-0303, subd. 4; 6 NYCRR 320.1). If the enhancement of national uniformity is a significant target of article 33, it would be a peculiar interpretation to view the statute as permitting New York's 62 counties, 929 towns, 556 villages and 62 cities (see 1980-1981 New York State Legislative Manual, pp 956-1007) to adopt their own regulatory schemes concerning the use of pesticides within their geographical limits.

If further evidence of the intent to pre-empt is needed it is provided by the complete and detailed nature of the State scheme. Comprehensiveness and detail are important in determining the existence of an intent to pre-empt (see, e.g., Matter of Marcus v. Baron, 57 N.Y.2d 862, 456 N.Y.S.2d 39, 442 N.E.2d 437, supra; People v. De Jesus, 54 N.Y.2d 465, 469, 446 N.Y.S.2d 207, 430 N.E.2d 1260, supra; Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 350, 334 N.Y.S.2d 129, 285 N.E.2d 285, supra; Kindermann Fireproof Stor. Warehouses v. City of New York, 39 A.D.2d 266, 333 N.Y.S.2d 854; People v. Kelsey, 112 Misc.2d 927, 447 N.Y.S.2d 637; Hoetzer v. County of Erie, 497 F.Supp. 1207).

The views we express are not without significant precedential authority for in Long Is. Pest Control Assn. v. Town of Huntington, 72 Misc.2d 1031, 341 N.Y.S.2d 93, affd. 43 A.D.2d 1020, 351 N.Y.S.2d 945, the Town of Huntington's effort to assert local control over pesticide use was struck down. Huntington had enacted an ordinance creating a pesticide control board, delegating to it the authority to register all pesticides intended for use or sale in the town and forbidding the sale or use of unregistered pesticides. The pesticide control board subsequently published lists of approved and nonapproved pesticides...