Niagara Recycling, Inc. v. Town Bd. of Town of Niagara

• Decision Date: 13 November 1981
• Citation: 83 A.D.2d 335,443 N.Y.S.2d 951
• Parties: In the Matter of the Application of NIAGARA RECYCLING, INC., Newco Waste Systems, Inc., Cecos International, Inc., and W. L. R. Chemical Waste Realty, Respondents, v. The TOWN BOARD OF the TOWN OF NIAGARA and The Town of Niagara, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 951

443 N.Y.S.2d 951

83 A.D.2d 335

In the Matter of the Application of NIAGARA RECYCLING, INC.,

Newco Waste Systems, Inc., Cecos International,

Inc., and W. L. R. Chemical Waste

Realty, Respondents, v. The TOWN BOARD OF the TOWN OF NIAGARA and The Town of

Niagara, Appellants.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 13, 1981.

Robert P. Merino, Niagara Falls, for appellants; Rita Hager, Niagara Falls, of counsel.

Duke, Holzman, Yaeger & Radlin, Buffalo, for respondents; Emanuel Duke, Buffalo, of counsel.

Before DILLON, P.J., and HANCOCK, CALLAHAN, DOERR and SCHNEPP, JJ.

HANCOCK, Justice:

Was the enactment of the Town of Niagara of a local law to regulate the siting and operation of waste disposal and management facilities an action requiring the filing of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA)? We must decide this question in the town's appeal from a judgment in a CPLR article 78 proceeding invalidating Local Law No. 8, 1980, entitled: "Solid Waste Management Facility, Incineration, Recycling, and Landfills Law of the Town of Niagara." 108 Misc.2d 277, 437 N.Y.S.2d 560. The Town Board passed the local law without preparing and filing an EIS after filing a Determination of Nonsignificance (negative declaration) ¹ pursuant to 6 NYCRR 617.10(b) stating, among other things, that the legislation would cause none of the adverse effects illustrated by the criteria in 6 NYCRR 617.11. ² Relying on our decisions in Matter of Town of Henrietta v. Department of Environmental Conservation of State of N. Y., 76 A.D.2d 215, 226, and H. O. M. E. S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 418 N.Y.S.2d 827, on two decisions at nisi prius, Bliek v. Town of Webster, 104 Misc.2d 852, 429 N.Y.S.2d 811 and Matter of Tuxedo Conservation & Taxpayers Assn. v. Town Bd. of Town of Tuxedo, 96 Misc.2d 1, 408 N.Y.S.2d 668, affd. 69 A.D.2d 320, 418 N.Y.S.2d 638, and on its interpretation of SEQRA (ECL art. 8) and the implementing regulations adopted thereunder (6 NYCRR Part 617), Special Term held that the adoption of the legislation "must be deemed to have such 'significant environmental effect' as to have required an EIS" under ECL 8-0109. It rejected the town's chief argument: viz., that no EIS was required because the local law is general legislation establishing conditions and criteria for the granting of siting permits for waste disposal facilities which neither implements nor authorizes any project or program and that, therefore, its enactment could not be an action having any effect on the environment. For reasons hereinafter stated, we are of the opinion that the filing of the negative declaration was proper, that the preparation and filing of an EIS was not necessary and that the judgment should, therefore, be reversed.

Petitioners Newco Waste Systems, Inc. and Cecos International, Inc. maintain extensive commercial facilities in the Town of Niagara as sanitary landfill areas and for operations in connection with scrap metal recycling and the treatment and disposal of hazardous industrial wastes for which they hold valid operating permits issued by the Department of Environmental Conservation pursuant to ECL article 27, title 7, and 6 NYCRR Part 360. The operations are conducted on lands leased from petitioners Niagara Recycling, Inc. and W.L.R. Chemical Waste Realty. (For a more detailed explanation of petitioners' operations and of the provisions of Local Law No. 8 see Niagara Recycling, Inc. v. Town of Niagara, 83 A.D.2d 316, 443 N.Y.S.2d 939.)

Local Law No. 8 was unanimously adopted by the Town Board on November 25, 1980. Its declared purpose is to protect the inhabitants of the town through the exercise of its police power from the adverse effects of facilities for waste disposal and management. To that end, the legislation establishes a comprehensive administrative framework for the licensing and regulating of various types of solid and industrial waste facilities within the town. Permits are required for the continued operation of and the enlargement or modification of existing facilities as well as for the approval of new facilities. The permit application procedures require, among other things, the submission of detailed engineering and technical information and the payment of an application fee of $500. The Town Board is given the discretion to appoint an on-site monitoring agent and to require an applicant to post various bonds and to obtain liability insurance in amounts satisfactory to the town. Before a permit is issued, the application must be approved by several town officials, the applicant must have complied with SEQRA, ³ and a public hearing must be held.

We note preliminarily that respondents, as well as petitioners, have proceeded on the unquestioned premise that the enactment of Local Law No. 8 comprises an "action" as defined in ECL 8-0105 (subd. 4) and 6 NYCRR 617.2(b) which would require the town to "determine whether the actions they directly undertake, fund or approve may have a significant effect on the environment" (6 NYCRR 617.1, subd. c) ⁴ (cf. Matter of Rye Town/King Civic Ass'n v. Town of Rye, 82 A.D.2d 474, 442 N.Y.S.2d 67, 1981, holding that an amendment of a zoning ordinance to provide for "Planned Unit Development" districts was an "action" requiring the filing of an Environmental Impact Statement). The town concluded (and, indeed, conceded in its brief and during the argument) that although the legislation authorizes no project or activity, it nevertheless constitutes one of the Type I actions listed under 6 NYCRR 617.12 which are more likely to require the preparation of an EIS. Accordingly, the Town Board directed the completion of Environmental Assessment Forms (EAF's) by various town officials in accordance with 6 NYCRR 617.6 (subd. b), designated itself as the lead agency pursuant to 6 NYCRR 617.6 (subd. c) and approved and published its Determination of Nonsignificance (negative declaration) in accordance with 6 NYCRR 617.10. In view of the posture in which this case is presented, we do not reach the underlying question of whether the legislature intended a local law of the type before us to be an action requiring compliance with SEQRA and a determination of environmental significance as a condition precedent to its enactment.

We turn then to the precise question presented: Assuming the local law to be an action of Type I, was the Town Board's Determination of Nonsignificance proper? The Board's conclusion that the proposed action "will have no significant effect on the environment" is based primarily on its finding that the legislation "will not cause any of the adverse effects" described in 6 NYCRR 617.11.

In making a determination of significance under SEQRA, the responsible governmental unit (lead agency) is directed under the regulations (6 NYCRR 617.11to compare "the impacts which may be reasonably expected to result from the proposed action" with the several criteria listed in 6 NYCRR 617.11(a)(1-11). Each of these criteria is descriptive of a different category of consequence, change or effect which (if reasonably expected to result from the proposed action) is deemed to be an indication that the proposed action "may have a significant effect on the environment" (as, for example, "a substantial adverse change in existing air quality, water quality or noise levels; a substantial increase in solid waste production; a substantial increase in potential for erosion, flooding or drainage problems", 6 NYCRR 617.11 In our opinion, the Town Board as lead agency here properly concluded that the proposed action, legislation of a regulatory nature which does not authorize or implement any activity or project, could not have an impact of the sort exemplified by the criteria in 6 NYCRR 617.11. Moreover, the local law imposes conditions and permit requirements for conducting environmentally related activities in addition to those already in force and thus, its effect if anything would necessarily be beneficial rather than detrimental to the environment.

It is beyond dispute, as pointed out by Special Term and as emphasized by petitioners, that legislative actions are within the purview of SEQRA (see, e. g., Matter of Rye Town/King Civic Ass'n v. Town of Rye, supra; Matter of Tuxedo Conservation & Taxpayers Assn. v. Town Bd. of Town of Tuxedo, 96 Misc.2d 1, 408 N.Y.S.2d 668, affd. 69 A.D.2d 320, 418 N.Y.S.2d 638, supra, in which the Town Board gave legislative approval to a special permit for a 3,900 unit planned development; Bliek v. Town of Webster, 104 Misc.2d 852, 429 N.Y.S.2d 811, supra, involving a proposed amendment to the zoning ordinance to permit an enclosed shopping center). Indeed, it is apparent from a review of the listed Type I actions considered "more likely to require the preparation of EIS's than those not so listed" (6 NYCRR 617.12) that many would entail legislation (e. g., "the adoption of a municipality's land use plan or zoning regulations"; "authorizing industrial or commercial uses within a residential or agricultural district"; legislation "authorizing residential...