Industrial Refuse Systems, Inc. v. O'Rourke, 1
| Decision Date | 24 November 1986 |
| Docket Number | No. 1,1 |
| Citation | 509 N.Y.S.2d 988,134 Misc.2d 45 |
| Parties | INDUSTRIAL REFUSE SYSTEMS, INC. and Nello Carting Corp., Plaintiffs, v. Andrew P. O'ROURKE, Westchester County Executive, Calvin E. Weber, Deputy Commissioner for Solid Waste for the County of Westchester, Westchester County Refuse Disposal District, the County of Westchester, and the Westchester County Board of Legislators, Defendants. Salvatore PELLICCIO and George A. Frank as Trustees of the Westchester District Council Joint Apprenticeship Fund, Plaintiffs, v. David AXELROD, New York State Commissioner of Health, Andrew P. O'Rourke, Westchester County Executive, Calvin E. Weber, Deputy Commissioner for Solid Waste for the County of Westchester, Westchester County Refuse Disposal District, the County of Westchester, and the Westchester County Board of Legislators, and Anita Curran, Westchester County Commissioner of Health, Defendants. |
| Court | New York Supreme Court |
Henry J. Logan, Westchester Co. Atty. by Brian J. Powers, and Paul D. Sirignano, Deputy Co. Attys., White Plains, for defendants.
Lovett & Gould by Jonathan Lovett, White Plains, for plaintiff Pelliccio.
Mariano & Wolman, New York City, for plaintiff Industrial Refuse.
In these actions, which the court has previously joined for purposes of trial, the defendants move to dismiss the complaints. The plaintiffs cross-move for pre-answer summary judgment.
In 1981, Westchester County resolved to establish a refuse disposal district pursuant to County Law Article 5-A. In 1982, this proposal was approved by the electorate. Thereafter, the State Comptroller issued his authorization and an order establishing the district was duly recorded in 1982.
In 1985 the County Legislature authorized the County to enter into a disposal agreement with the Intercounty Solid Waste Cooperative, Inc. ("Cooperative") pursuant to which Cooperative members (including the two Industrial plaintiffs) would obtain access to County refuse facilities subject to available capacity at rates of $17.92 or $21.92 per ton. However, in June of 1986, upon receiving an opinion from the New York State Attorney General to the effect that this agreement violated anti-trust laws, the County rescinded the agreement.
Pursuant to a request from the County Executive, the Board of Legislators adopted Act 34-1986 which provides in relevant part as follows:
"Sec. 2. a. As soon as practical, the head of County Refuse Disposal District No. 1 () shall develop a recommended rate and terms of service for disposal of solid waste ... Prior to the transmittal of such rate and terms of service to this Board, such head or his designee shall conduct a public hearing at such time and place selected by such head ... At such hearing, oral and written comments upon the rates and terms of service shall be received. Matters not covered in this Act in respect to the public hearing shall be determined by the head of County Refuse Disposal District No. 1.
Sec. 3. The following interim rate and terms of service shall apply as of July 1, 1986 until a final rate and terms of service are established:
a. The interim user fee to dispose of solid waste in the County Solid Waste Management System for waste collected within County Refuse Disposal District No. 1 which is not subject to disposal under an inter-municipal agreement with the County shall be the market rate per ton for disposal as determined by the head of County Refuse Disposal District No. 1 ...
c. The head of County Refuse Disposal District No. 1 shall develop and use an equitable system to provide to private carters on a short term basis available disposal capacity for solid waste collected within county Refuse Disposal District No. 1 that is not subject to disposal under an inter-municipal agreement with the County."
(Emphasis added).
As a result thereof on June 23, 1986, Calvin E. Weber, Deputy Commissioner for Solid Wastes for the County of Westchester, unilaterally published a set of rules, regulations, procedures and an interim user fee. There had been no public hearing, and implementation of the rules, regulations, procedures and fees on July 1, 1986 was not preceded by any legislative confirmation. Moreover, the Weber rules provided that private carters would be issued permits for an unspecified and daily changing allocation of refuse disposal in the refuse district. If the County could not accept any of the refuse of the private carters, it was the carters' obligation to "shed" the excess tonnage.
In their cross-motion, the plaintiffs in Pelliccio (joined in with one exception by the Industrial Waste plaintiffs) seek declaratory and injunctive relief declaring secs. 2, 3 and 5 of Act 34-1986 null and void, vacating the interim user fees and ordering a refund of all monies collected thereunder, declaring Weber's rules null and void, declaring that the County and/or District is required to collect, directly or by contract, all refuse generated within the County and forbidding the County from refusing to accept such refuse into its refuse disposal system for disposal at County expense, declaring the County's ad valorem tax imposed pursuant to County Law sec. 270 null and void unless and until user charges are abandoned (the Industrial Refuse plaintiffs disagree on this point only as hereinafter discussed), and declaring that plaintiffs' rights to Due Process and Equal Protection were violated by the County.
The defendants move to dismiss the complaints, urging that the plaintiffs are without standing to bring the action, that the proceeding was not timely brought, that necessary parties have not been named and that the plaintiffs failed to file a notice of claim. The court finds defendants' motion to be without merit.
The parties have standing inasmuch as their taxpayer status has been established. Moreover, the Industrial Refuse plaintiffs are directly affected by the legislative and administrative action herein attacked and it would be a perversion of justice to deny them access to this Court.
Additionally, the proceeding is not untimely. It does not fall within the purview of sec. 260 as the action sought to be annulled is not a "final determination or order made by the board of supervisors establishing the district or authorizing the increase and improvement of facilities" therefor. Consequently the thirty day statute of limitations contained therein has no application to this action.
Also, the Court rejects defendants' assertion that necessary parties have not been named. This assertion is based on the Court's rejection of a preliminary injunction application wherein it was stated on the record that the Court was concerned lest the rights of non-parties be adversely affected. However, the reference concerned the application for affirmative injunctive relief wherein the plaintiffs were seeking to require the County to absorb all county generated waste whether it was contractually obligated to do so or not. Since the finite capacity of the County System, which, parenthetically, is the practical genesis of these lawsuits, could not accept all waste not previously contracted for without requiring a shedding of refuse which the County had agreed by prior contract to take, it was the parties to these prior contracts for whom the Court was concerned. However, the Court's language was intended to convey the equitable considerations underlying its rejection of the extraordinary temporary relief sought. It was not designed to convey any idea that the ultimate relief sought by plaintiffs could not be granted within the context of the existing parties. In any event, this particular issue has been mooted as will hereinafter appear.
Finally, as regards the motion to dismiss, there is no necessity, in this action primarily seeking injunctive and declaratory relief, for plaintiffs to have filed a notice of claim. Reliance on Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 is misplaced. While it is true that the Mills case held that a suit alleging violation of federal rights is not immune to state notice of claim requirements, there is no need to file a notice of claim where the suit seeks to vindicate a public interest. It is clear that this is such a suit. Consequently, plaintiffs' claim pursuant to 42 U.S.C. §§ 1983 and 1988, wherein they seek attorney's fees for violation of Constitutional rights, is not subject to the notice of claim prerequisite.
The Court now turns to the substantive issues raised by the cross-motion for summary judgment.
Plaintiffs attack the propriety of the County's delegation to Commissioner Weber of the right to determine interim user fees and to determine hearing procedures. Their argument is based on County Law sec. 266 which states in relevant part as follows:
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