Edenwald Contracting Co., Inc. v. City of New York

• Decision Date: 27 February 1974
• Citation: 86 Misc.2d 711,384 N.Y.S.2d 338
• Parties: EDENWALD CONTRACTING CO., INC., et al. v. CITY OF NEW YORK et al.
• Court: New York Supreme Court

Page 338

384 N.Y.S.2d 338

86 Misc.2d 711

EDENWALD CONTRACTING CO., INC., et al. v. CITY OF NEW YORK et al.

Supreme Court, Trial, Term, New York County, Part II.

Feb. 27, 1974.

Norman Redlich, Corp. Counsel, New York City, for defendants.

Berman, Paley, Goldstein & Berman, New York City, for plaintiffs.

SIDNEY H. ASCH, Justice.

This action is brought by plaintiffs for a judgment declaring illegal certain administrative actions taken by both the Administrator of Transportation (formerly Commissioner of Highways) and the Commissioner of Purchase of the City of New York, and enjoining the continued implementation thereof by such officials and their successors.

The action taken by the Administrator of Transportation, commencing in July 1968 was to issue a directive requiring that in all Highway Department paving contracts involving night work, no asphalt plant be operated between the hours of 9 P.M. and 6 A.M. unless such plant was located in an area of M--3 zoning (par. 11).

(Numbers in parentheses, unless otherwise expressly noted are references to the numbered paragraphs of the Stipulation of Facts entered into between the parties.)

The Commissioner of Purchase adopted substantially the same restriction and, commencing in May 1972, required as a condition of all contracts for the purchase of night asphalt for delivery into City trucks after 9 P.M. that the contractor's plant be located in an M--3 zone (par. 12).

Plaintiff Metropolitan is engaged in the business of manufacturing asphalt paving mixtures and is a subsidiary and affiliate of plaintiffs Grace and Edenwald (paras. 7, 9).

Plaintiffs Grace and Edenwald, which are paving contractors, created Metropolitan for the purpose of supplying almost all of their asphalt requirements (paras. 9, 10). All three plaintiffs are recognized suppliers and contractors for the City of New York and have successfully bid upon, been awarded and satisfactorily completed contracts for the City (paras. 4--8).

Plaintiffs' plant facilities are located at 155--45 6th Road, Whitestone, New York, which is now designated an M--1 zoning district (par. 13). The plant was constructed in 1953 in accordance with zoning then in effect and its use for the production of asphalt on a night and day basis was (and continues to be, under the M--1 zoning designation given plaintiffs' area under the later zoning ordinance of December 1961) a permissible use. Plaintiffs have produced and delivered asphalt on a night and day basis since 1953 in the ordinary course of their business (par. 16; Ex. A).

Prior to July 1968, the Administrator of Transportation (then Commissioner of Highways) received complaints from residents and citizen groups in the vicinity of plaintiffs' plant regarding nighttime noise resulting from the operation of plaintiffs' plant and truck traffic to and from such plant (paras. 18--19).

As a result of such complaints, in July 1968 the then Commissioner of Highways, on his own initiative and judgment, issued a directive that in the performance of Highway Department contracts between 9 P.M. and 6 A.M. deliveries could be made only from plants located in an M--3 zone (paras. 11, 18).

The Commissioner of Purchase adopted the judgment of the Commissioner of Highways and starting in May 1972, a substantially similar restriction was, and continues to be, inserted in Department of Purchase Contracts (paras. 12, 18).

Such decisions by the Commissioners were made by reason of the local residents' complaint directed at plaintiffs' night operations and were designed with the knowledge tht of the various asphalt plants in this City, only Metropolitan's plant was in an M--1 zone while all others were in an M--3 zone (Par. 17).

No allegation is involved in this proceeding of excessive or illegal noise, or noise other than that concomitant to the ordinary operation of plaintiffs' facilities. No notice or hearing was given plaintiffs prior to the directives issued by the Commissioners.

It will be noted from Exhibit A--1 attached to the Stipulation of Facts that the M--1 district in which plaintiffs' plant is situated is surrounded by R--2, R--3 and R--4 residential districts created under the later 1961 zoning ordiance, and that plaintiffs' vehicles must by necessity pass through such mixed residential areas in order to reach their destinations.

Exhibit B attached to the Stipulation of Facts shows (to the extent relevant to the legal issues involved) that plaintiffs' asphalt plant is located a distance of 357 feet from its closest outside wall to the nearest street. It is more than 445 feet to the nearest 'dwelling' which is a combined bar and residence. The distance to the next residence (as noted on the truck route outlined on Exhibit B) is substantially further although not measured on Exhibit B.

The Department of Highways has substantially reduced the night paving contracts it has awarded (Par. 24; Ex. D to D--4). That is primarily due to the fact that night paving is being performed by the City's own forces either with City produced asphalt or through purchases of night asphalt from private producers such as Metropolitan.

Thus, since May 1972, when the Department of Purchase started placing its restrictions as to an M--3 zone in its night asphalt purchase contracts (even including its estimated contracts to June 30, 1974), one finds a total of $13,102,445 in contracts. Of that total, $6,328,750, or 48.30% Of all contracts are night supply contracts from which the City has excluded Metropolitan (Par. 24, Ex. C).

Specifically, so far as this action is concerned, Metropolitan's bid for a Department of Purchase letting of May 31, 1972, was $50,000 below the next bidder. However, it was not awarded the contract (which was awarded to the second bidder) solely because its plant was not in an M--3 zone (Par. 22).

Thereafter, Metropolitan was the low bidder in another letting on April 19, 1973, by the sum of $96,900. Again, it was not awarded the contract (which was awarded to the second bidder) solely because its plant was not in an M--3 zone (Par. 23).

Under contract M--67--23 let by the Department of Highways, Edenwald was the low bidder and, although it received an award of contract, it was prevented from using Metropolitan's facilities for the supply of asphalt between 9 P.M. and 6 A.M. (Par. 21).

Two agreed facts stand at the fore. First, the actions of the agency heads resulted from the complaint of certain residents in the area of plaintiffs' plant regarding noise arising out of plaintiffs' operations only, and not out of the operation of any other asphalt producer (Pars. 18--19). Second, all of the asphalt producers, with the exception of Metropolitan, have their plants in an M--3 zone (Par. 17).

There has been no serious denial (although perhaps a glossing-over) by defendants that the actions of the agency heads were aimed directly at plaintiffs, and no others, and were designed with a view to curtailing neight operations of the Metropolitan plant.

Unfortunately, and praiseworthy as the purpose may be, such actions by the agency heads are illegal as beyond the scope of their power and authority.

The basic power of the heads of city agencies is bound in New York City Charter section 1105, which provides as follows:

'a. Each head of an agency may, except as otherwise provided by law, make rules and regulations for the conduct of his office or agency and to carry out its powers and duties.'

The 'power to make rules and regulations,' however, as the Court of Appeals has told us is, 'administrative, not legislative' (Acorn Employment Service v. Moss, 292 N.Y. 147, 54 N.E.2d 340). Thus, an agency head may make rules (also subject to certain restrictions) to carry out the express function of his agency as conferred by statute, but he may not, even to promote the public good and welfare, create policy and encroach on legislative functions.

It may well be that the agency heads in this case were of the opinion that their actions promoted the welfare of the citizens in the area of plaintiffs' plant by reducing nighttime noise. But, an examination of the powers given to the heads of the Transportation Administration and the Municipal Services Administration under the New York City Charter, as well as an examination of the cases in similar actions, unquestionably establishes that such agency heads have exceeded their powers.

In the case of Natilson v. Hodson, 289 N.Y. 842, 47 N.E.2d 442, the commissioner of the Department of Welfare promulgated rules which prohibited any employee from engaging in any other occupation, profession or business while an employee of the Department of Welfare. Although such rule was directly concerned with the internal operation of the Department of Welfare, the Court of Appeals held that the commissioner exceeded his powers.

Two cases strongly parallel to the present one are Small v. Moss, 279 N.Y. 288, 18 N.E.2d 281 and Goelet v. Moss, 248 App.Div. 499, 290 N.Y.S. 573;, aff'd. 273 N.Y. 503, 6 N.E.2d 425. In issue in the Small case was whether the license commissioner, who was empowered to issue licenses for the operation of theatres, including 'the power to pass upon the location of the theatre,' could deny a license for a theatre on the ground that the theatre proposed would bring increased traffic and create a traffic danger for travelers in the street. The Court of Appeals unanimously held that the commissioner could not deny such license. The following quotation from the court's opinion in that case illustrates the reasoning of the court:

'. . . The question is not whether the Council might confer such power upon the Police Department or even upon the Commissioner of Licenses with appropriate directions for its exercise. The question before us is the narrow one: whether in fact such power has been conferred upon the Commissioner.

'Certainly there is nothing in the provisions of the charter itself which indicates any intention to...