New York Coalition of Recycling Enterprises, Inc. v. City of New York
| Citation | 158 Misc.2d 1,598 N.Y.S.2d 649 |
| Court | New York Supreme Court |
| Decision Date | 01 September 1992 |
| Parties | NEW YORK COALITION OF RECYCLING ENTERPRISES, INC., All City Paper Fibers Corp., Allied Sanitation Inc., Conover Transfer Station & Recycling Corp., JDF Transfer Station Inc., Nekboh Recycling Inc., New York Carting Co. Inc., Star Recycling Inc., Village Carting Inc., Mat of Staten Island Inc., P & F Trucking Inc., Red Ball Interior Demo Inc., Regal Recycling Inc., Stokes Waste Paper Co. Inc., Tiffany Carting Corp., Louis Venosa, Jr., Vigliotti and Sons Container Service Inc., Waste Services Inc., Star Sand & Gravel Corp., 20th Century Recycling Inc., Casalino Interior Demolition Corp., BQE Services Inc., Hunts Point Recycling Inc., 5 Counties Carting Corp., Plaintiffs-Petitioners, v. The CITY OF NEW YORK, Defendant-Respondent. |
Stillman, Friedman & Shaw, P.C., New York City (Julian W. Friedman and Valerie J. Watnick of counsel), for plaintiffs-petitioners.
Lawrence B. Goldberg, Gen. Counsel of NYCORE, Victor A. Kovner, Corp. Counsel by Gabriel Taussig and Julian Bazel, Asst. Corp. Counsels, for defendant-respondent City of New York.
When T.S. Eliot asked, in "The Waste Land":
"What are the roots that clutch, what branches grow
Out of this stony rubbish? ...
he was obviously not referring to the waste at dump sites and disposal facilities. The words are apt, however, for in this case, those who operate such facilities contend that their ability to metamorphize "stony rubbish" and to create new life from waste is being impeded, in contravention of law and constitutional principles.
This proceeding is a challenge to New York City's Local Laws 1990, No. 40 dealing with the regulation of commercial waste. Plaintiff-petitioner New York Coalition of Recycling Enterprises, Inc. ("NYCORE"), an industrial trade association made up of the owners and operators of solid waste management and recycling facilities, together with individual operators, challenge the validity of the law and seek a preliminary injunction restraining the City from implementing the Statute, and a declaratory judgment that the law is unconstitutional. The City has cross-moved, pursuant to CPLR 3211, to dismiss the complaint and petition (hereinafter referred to as the "petition") in its entirety. Since the City has requested an adverse declaration that the enactment was lawful and proper and not in violation of any constitutional provisions, the court has, pursuant to CPLR 3211(c) converted the motion to one for summary judgment and has so advised the parties, who were permitted to submit and did submit additional papers.
In the City of New York private sanitation companies collect all commercial waste, including recyclable materials. Upon collection the waste material is delivered to transfer stations located throughout the five boroughs where the waste material is sorted, separated, recovered and/or prepared for re-use, re-sale or disposal. These transfer stations are divided into two types--"putrescible" transfer stations and "non-putrescible" transfer stations.
Putrescible transfer stations handle waste products from facilities such as restaurants, stores, office buildings and factories. These materials are mostly either biodegradable or recyclable. Non-putrescible stations handle non-biodegradable materials consisting primarily of construction and demolition waste, which is for the most part recyclable. Such materials include dirt, stone, rock, brick, wood, steel, wallboard and metal. Both types of stations receive large amounts of other recyclable resources such as paper, cardboard, wood, glass and plastics, which are segregated and then sold in secondary markets. These recycling efforts have the commendable goal of conservation of diminishing resources and an increased useful life for existing landfill.
Thus, as the New York City Council Committee on Government Operations noted, transfer stations are "[a] vital component of the city's management of its solid waste, especially in the area of recycling" (Supplemental Report of Committee on Governmental Operations Int. No. 464-A p. 1332 [June 27, 1990]. Almost two-thirds of the daily tonnage of solid waste generated by commercial property owners in the City is processed by members of NYCORE.
Local Law 40 amends Administrative Code of the City of New York § 16-130 et seq. in its regulation of putrescible and non-putrescible waste transfer stations. Jurisdiction of putrescible waste transfer stations was transferred by the law from the Department of Health ("DOH") to the Department of Sanitation ("DOS"). Permit fees were increased, as were the penalties to be imposed in enforcement proceedings. DOS was given enhanced regulatory authority, including the right to promulgate regulations with regard to siting specifications and the power to issue subpoenas.
Local Law 40 was first introduced on June 22, 1990 in the City Council by Councilmembers Gerges and Robles at the request of the Mayor. Simultaneously therewith a resolution was offered declaring an emergency to the health and safety of the City with regard to the operations of waste transfer stations. Both Resolution 444 and the proposed legislation, Intro 464, were referred by the Council Speaker to the Government Operations Committee. The regular weekly agenda of committee meetings was distributed prior to the introduction of Intro 464. A committee meeting was scheduled for Wednesday, June 27, 1990. An addendum agenda was issued on June 26, 1990 notifying councilmembers and the public that the Government Operations Committee would be considering the bill and the resolution at the following day's meeting.
The language of the proposed law had been revised and at the committee meeting the proposed amendments were read out and discussed. The Committee heard testimony in favor of and in opposition to new Intro 464-A and Resolution 444. Witnesses were questioned. Appearing before the Committee were representatives of the City Departments of Sanitation, Law, and Office of Management and Budget, as well as a representative of the Brooklyn Borough President, various community board officials, residents of areas affected by transfer stations, individual station owners and petitioner NYCORE, which opposed the enactment and the declaration of an emergency.
Upon conclusion of the hearing the Committee unanimously voted to approve Intro 464 as amended and forwarded it to the Council with a report recommending its adoption. Resolution 444 was also unanimously approved and forwarded to the Council with a favorable recommendation.
The Council's next scheduled session was on Saturday, June 30, 1990. The Mayor certified the necessity for immediate passage of Intro 464-A and the full Council then passed the bill along with Resolution 444 by a vote of 34-0.
Thereafter notice was given in the City Record on July 6, 1990 and in the New York Post on July 7, 1990 that a public hearing would be held on July 12, 1990 at City Hall with regard to Intro 464-A. At the mayoral hearing no opposition to the proposed legislation was presented. The Mayor signed the bill into law and Intro 464-A became Local Law 40.
After the passage of Local Law 40 and following the statements made at the hearings, the City undertook a review of the Law to identify any environmental effects. The Department of City Planning and the Department of Environmental Protection after inquiring found that Local Law 40 would have no significant effect on the environment and issued a negative declaration, which was then forwarded to the City Council for review and approval. On December 20, 1990, Resolution No. 689 to adopt the negative declaration was considered and approved unanimously by both the Government Operations Committee and the full Council.
Petitioners raise both procedural and substantive objections to Local Law 40. The procedural challenge may be found in the first, second, third, fifth, sixth, ninth and sixteenth causes of action, which are at the heart of the CPLR Article 78 proceeding. Petitioners allege that the City did not follow appropriate procedures under the State Environmental Quality Review Act ("SEQRA") (ECL art 8), City Environmental Quality Review ("CEQR"), the Uniform Land Use Review Procedure ("ULURP") and that the Municipal Home Rule Law and City Council Rules as to notice, hearings and committee assignment were violated. The remaining causes of action are the basis on which a declaratory judgment is sought that the statute is unconstitutional for violation of due process, equal protection, vagueness and improper delegation and excessive punishment.
Applying the ruling of the Court of Appeals in Society of Plastics Industry Inc. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034, in assessing standing to sue under SEQRA, a party must show that the adverse effect upon it falls within the "zone of interests" sought to be promoted. Applying this test, the court finds that none of the petitioners have standing to sue thereunder. The perceived environmental harms claimed are not different in kind or degree from those affecting the general community. Mobil Oil Corp. v. Syracuse Industrial Development Agency, 76 N.Y.2d 428, 433, 559 N.Y.S.2d 947, 559 N.E.2d 641. The concerns which impact on the individual petitioners are economic, not environmental, serving to increase their costs of doing business. This does not create standing to raise SEQRA or CEQR claims.
The court further finds that enactment of Local Law 40 was an emergency action exempt from the requirements under State and City environmental review statutes. Matter of Bd. of Visitors-Marcy Psychiatric Center v. Coughlin, 60 N.Y.2d 14, 466 N.Y.S.2d 668, ...
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