Jancyn Mfg. Corp. v. Suffolk County

• Citation: 509 N.Y.S.2d 855,125 A.D.2d 641
• Parties: JANCYN MANUFACTURING CORP., Appellant, v. COUNTY OF SUFFOLK, Respondent.
• Decision Date: 31 December 1986
• Court: New York Supreme Court Appellate Division

Page 855

509 N.Y.S.2d 855

125 A.D.2d 641

JANCYN MANUFACTURING CORP., Appellant, v. COUNTY OF SUFFOLK, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 31, 1986.

Jaspan, Ginsberg, Ehrlich, Reich & Levin, Garden City (A. Thomas Levin, of counsel), for appellant.

Martin Bradley Ashare, Co. Atty., Hauppauge (Marion T. McNulty, of counsel), for respondent.

Patrick Henry, Dist. Atty., Hauppauge (Frederick Eisenbud, of counsel), amicus curiae.

Before LAZER, J.P., and BRACKEN, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT

In an action for a judgment declaring Suffolk County Local Laws, 1980, No. 12 of the County of Suffolk to be invalid, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Balletta, J.), dated January 18, 1985, which denied its motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint (see, Jancyn Mfg. Corp. v. County of Suffolk, 126 Misc.2d 463, 482 N.Y.S.2d 676).

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment is granted and the defendant's cross motion for summary judgment denied, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate judgment declaring Local Laws, 1980, No. 12 of the County of Suffolk to be invalid (see, Hirsch v. Lindor Realty Corp., 63 N.Y.2d 878, 881, 483 N.Y.S.2d 196, 472 N.E.2d 1024; Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed, 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163).

The plaintiff, the manufacturer of a cesspool additive known as "Drainz", commenced this action for a judgment declaring Local Laws, 1980, No. 12 of the County of Suffolk (hereinafter Local Law No. 12) to be invalid. That law, which became effective on or about August 13, 1980 (Local Law No. 12, § 9), prohibits the sale of cesspool additives without prior approval by the Suffolk County Commissioner of the Department of Health Services (Local Law No. 12, § 3). To secure such approval, the person seeking to offer a particular additive for sale must submit scientific data demonstrating to the satisfaction of the commissioner that the product "will not adversely affect the groundwaters" (Local Law No. 12, § 4).

On September 28, 1980, less than two months after the effective date of Local Law No. 12, ECL article 39 became law (L.1980, ch. 732, § 5). In substance, the State statute prohibits the sale and use of sewage system cleaning additives containing any of certain specified restricted chemical materials in concentrations in excess of one part per 100 by weight (see, ECL 39-0103 39-0105) in restricted geographical areas, which areas are defined to mean Suffolk County and Nassau County (see, ECL 39-0103). In addition, the statute empowers the New York State Commissioner of Environmental Conservation (see, ECL 1-0303), to promulgate regulations requiring manufacturers of these products to submit information regarding their chemical components and the nature and extent of research concerning their effects, if any, on groundwater (ECL 39-0107); the commissioner is further empowered to prohibit or restrict the sale and use of a product containing any ingredient other than one of the specified restricted chemical materials, where the commissioner finds, after investigation and public hearing, that such ingredient "is likely to have a dangerous, deleterious or injurious effect upon the public health or environment" in the restricted geographical area (ECL 39-0107).

In the instant case, the plaintiff sought the approval of the New York State Commissioner of Environmental Conservation for the sale of its products, Drainz and Super Drainz, in Suffolk County and Nassau County. By letter dated October 23, 1980, the department replied, in pertinent part, as follows:

"Article 39 places the basic responsibility, for determining whether sale of a sewage system cleaner or additive is or is not prohibited in Nassau or Suffolk County, on the manufacturer. Based on information you have supplied to this Department, and Nassau County Department of Health analysis of one can of your product, it would appear that your new formulations of Drainz and Super Drainz are not prohibited from sale under Article 39. However, these products have not yet been approved for sale in Suffolk County in accordance with Local Law 12-1980.

"You have indicated that the new formulations will be identified by a 'sunburst' symbol on each can. Therefore, barring future Department findings to the contrary, the new formulations of Drainz and Super Drainz may be sold in Nassau County (and in Suffolk County, if and only if approved for sale by that County in the future), if the containers are identified by the 'sunburst' symbol. Containers of Drainz and Super Drainz found without the 'sunburst' symbol will still automatically be considered prohibited products in both counties."

Pursuant to the authority conferred by Local Law No. 12, Suffolk County prohibited the sale of both Drainz and Super Drainz, although the county did approve the sale of another of the plaintiff's products, Drainz Mark II.

Upon the foregoing facts, Special Term granted summary judgment in favor of the defendant, thereby impliedly sustaining the validity of the local law. The court found that the plaintiff had failed to meet its burden of establishing that the subject law had been preempted by the State legislation.

Because we conclude that Local Law No. 12 is inconsistent with ECL article 39 and therefore invalid, we do not reach the question of whether such a local law is preempted by the state legislation. Although it is interrelated with preemption, inconsistency is a separate infirmity which, standing alone, provides a legally sufficient basis for the invalidation of a local law (see, Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 105, 468 N.Y.S.2d 596, 456 N.E.2d 487; Long Is. Light. Co. v. County of Suffolk, 119 A.D.2d 128, 505 N.Y.S.2d 956; Matter of Zagoreos v. Conklin, 109 A.D.2d 281, 292-293, 491 N.Y.S.2d 358). In determining whether a local law is inconsistent with a State statute, we are mindful that the police power is derived from the sovereign State and can be exercised by local governments only to the extent that the State has delegated to them the authority to do so (see, Matter of Marcus v. Baron, 57 N.Y.2d 862, 456 N.Y.S.2d 39, 442 N.E.2d 437, revd. 84 A.D.2d 118, 134-139, 445 N.Y.S.2d 587, on dissenting opn. at App.Div.; People v. DeJesus, 54 N.Y.2d 465, 468, 446 N.Y.S.2d 207, 430 N.E.2d 1260; Matter of Ames v. Smoot, 98 A.D.2d 216, 217, 471 N.Y.S.2d 128, appeal dismissed, 62 N.Y.2d 804, 477 N.Y.S.2d 1028, 465 N.E.2d 1271). Thus, the authority of a local government to enact local laws "is conditioned on the exercise of such authority not being inconsistent with any State enactment" (Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra, 60 N.Y.2d at p. 107, 468 N.Y.S.2d 596, 456 N.E.2d 487; Matter of Ames v. Smoot, supra, 98 A.D.2d at p. 218, 471 N.Y.S.2d 128). The term "inconsistency" is not readily defined, but it is clear that its application is not limited to those instances where a local law expressly conflicts with a State statute (see, Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra, 60 N.Y.2d at p. 108, 468 N.Y.S.2d 596, 456 N.E.2d 487; People v. DeJesus, supra, 54 N.Y.2d at p. 468, 446 N.Y.S.2d 207, 430 N.E.2d 1260):

"It has been found where local laws prohibit what would be permissible under State law (Wholesale Laundry Bd. of Trade v. City of New York, 17 AD2d 327, 329-330, 18 AD2d 968, affd 12 NY2d 998, on opn at 17 AD2d 327 ), or impose 'prerequisite "additional restrictions" ' on rights under State law (F.T.B. Realty Corp. v. Goodman, 300 NY 140, 147-148 ), so as to inhibit the operation of the State's general laws. (Matter of Marcus v. Baron, 57 NY2d 862 Floyd v. New York State Urban Dev. Corp., 33 NY2d 1, 7 (Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra, 60 N.Y.2d at p. 108, 468 N.Y.S.2d 596, 456 N.E.2d 487).

In the present case, Suffolk County Local Law No. 12-1980 does not expressly conflict with the provisions of ECL article 39 but we are nevertheless constrained to conclude that the local law is inconsistent with its State counterpart and is, therefore, invalid. First, although the local law extends rather than contravenes the express provisions of ECL article 39 by permitting further limitations upon the use of sewage system cleaning products, it does, in effect, create "a situation where what would be permissible under the State law becomes a violation of the local law" (Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 330, 234 N.Y.S.2d 862, 18 A.D.2d 968, affd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623, on opn. at 17 A.D.2d 327, 234 N.Y.S.2d 862). Indeed, although the sale and use of the plaintiff's products was permitted in Suffolk County under ECL article 39, the county, acting pursuant to Local Law No. 12, proscribed the sale and use of those products, thereby creating a situation where the local law prohibited that which was permissible under State law. In this regard, we are not persuaded by the contention that the local law cannot be inconsistent with the State's statute because the latter is merely silent and does not expressly permit the sale and use of the plaintiff's products and the chemicals contained therein. Although ECL article 39 does not expressly authorize or prohibit the sale and use of specific products by name, it does preclude the sale and use of any product containing certain quantities of any of several enumerated ingredients, and it also authorizes the banning of products containing other ingredients that are found to pose a threat to the groundwater. This regulatory scheme cannot be construed as being silent on the subject of the plaintiff's products or their contents (cf. Council for Owner...