Town of Islip v. Cuomo

• Decision Date: 15 May 1989
• Citation: 541 N.Y.S.2d 829,147 A.D.2d 56
• Parties: TOWN OF ISLIP, et al., Appellants-Respondents, v. Mario M. CUOMO, etc., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 829

541 N.Y.S.2d 829

147 A.D.2d 56

TOWN OF ISLIP, et al., Appellants-Respondents, v. Mario M. CUOMO, etc., et al., Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

May 15, 1989.

Meyer, Suozzi, English & Klein, P.C., Mineola (Jeffrey G. Stark and Michael A. Ciaffa, of counsel), for appellants-respondents.

Robert Abrams, Atty. Gen., New York City (Stuart Miller and Ezra I. Bialik, of counsel), for respondents-appellants.

Before MOLLEN, P.J., and THOMPSON, BRACKEN and KUNZEMAN, JJ.

BRACKEN, Justice.

In an order and judgment (one paper) dated July 7, 1987, the Supreme Court, Suffolk County, declared that certain provisions of ECL 27-0704 are unconstitutional; however, other provisions of that law were upheld. The plaintiffs appeal from so much of the order and judgment as upheld provisions of that statute, and the defendants cross-appeal from so much of the order and judgment as declared ECL 27-0704(2) to be unconstitutional.

I

The instant action was commenced in April 1984. In September 1984 the Supreme Court, Suffolk County, declared ECL 27-0704 unconstitutional, holding its enactment to be violative of N.Y. Constitution, article IX, § 2(b)(2). On direct appeal to the Court of Appeals (see, CPLR 5601[b][2], that judgment was reversed, and partial summary judgment was granted to the defendants (see, Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 484 N.Y.S.2d 528, 473 N.E.2d 756).

The complaint has now been amended so as to assert 13 separate causes of action. The constitutionality of ECL 27-0704 is again challenged, but on grounds different from those addressed in Matter of Town of Islip v. Cuomo, supra. Upon the plaintiffs' motion for partial summary judgment, the Supreme Court, Suffolk County, in the order and judgment appealed from, declared that ECL 27-0704(2) is unconstitutional insofar as it empowers the Commissioner of the New York Department of Environmental Conservation (hereinafter the DEC) to make changes in the scope of the "deep flow recharge area" (see, ECL 27-0704[1][b]. The defendants' notice of cross appeal is limited to this provision of the order and judgment. The court also declared that ECL 27-0704(4)(a) is not violative of N.Y. Constitution, article III, § 1, and that ECL 27-0704 is not violative of N.Y. Constitution, article III, § 16, and the plaintiffs' notice of appeal is limited to those provisions of the order and judgment.

II

The plaintiffs argue that ECL 27-0704, to the extent that it incorporates the Long Island Comprehensive Waste Treatment Management Plan of 1978, violates N.Y. Constitution, article III, § 16 which states as follows "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act".

ECL 27-0704(3) places significant limitations on the ability of local governments to build new landfills, or to expand existing landfills, within any geographic area designated as "a deep flow recharge area". This term is defined in ECL 27-0704(1)(b) as follows:

"A 'deep flow recharge area' shall mean a sensitive recharge area within the counties of Nassau and Suffolk within the boundaries of hydrogeologic zones I, II and III as defined in the Long Island Comprehensive Waste Treatment Management Plan of nineteen hundred seventy-eight".

ECL 27-0704(1)(f) and 27-0704(2) further provide:

"f. 'Long Island Comprehensive Waste Treatment Management Plan of nineteen hundred seventy-eight' shall mean the study prepared by the Long Island Regional Planning Board pursuant to section two hundred eight of the federal water pollution control act.

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"2. The Long Island Comprehensive Waste Treatment Management Plan of nineteen hundred seventy-eight shall be kept on file in the office of the commissioner. The hydrogeologic zones and their attendant boundaries as specified in the aforementioned plan are hereby adopted. Any changes made in the boundaries and accepted by the commissioner shall be considered as automatically adopted for the purposes of this section".

The plaintiffs contend that the Long Island Comprehensive Waste Treatment Management Plan of 1978, enacted pursuant to Federal Water Pollution Control Act § 208 (see, 33 U.S.C. § 1288), and referred to by the parties as the 208 Plan, was, at the time of the enactment of ECL 27-0704, an "existing law" which, pursuant to the terms of N.Y. Constitution, article III, § 16, could not be "made or deemed part of" that statute. The basic flaw in this argument is that the 208 Plan cannot be characterized properly as a "law"; rather, it is a scientific study which contains certain geological data, including that which is most relevant to this case, i.e., a map delineating certain hydrogeologic zones.

It is therefore apparent that the terms of N.Y. Constitution, article III, § 16, construed literally, do not apply (see, People v. Halpern, 79 Misc.2d 790, 794, 361 N.Y.S.2d 578 [holding that an industrial code, which was not a "law", could properly be incorporated by reference into statute]. ECL 27-0704 does not incorporate a pre-existing "law", and thus does not violate N.Y. Constitution, article III, § 16, unless, by "liberal" judicial interpretation its scope were expanded beyond the limits to which, by the clear and unambiguous definition of its terms, it is confined. A review of the relevant precedent indicates that far from indulging in such a "liberal" interpretation, the courts have exhibited a pragmatic and relatively restrictive approach in applying this provision to particular cases. Only those statutes which violate both the letter and the spirit of this constitutional provision have been invalidated; ECL 27-0704 violates neither.

It has been held that the major purpose of the constitutional requirement that a statute contain an explicit recitation of its terms, rather than an indirect expression of them through the incorporation of another law, is to assist all persons concerned--such as the lawmakers themselves or those to be affected by the law--to easily and readily comprehend what the law actually means (see, People ex rel. Everson v. Lorillard, 135 N.Y. 285, 31 N.E. 1011; People ex. rel. Board of Commrs. of Washington Park v. Banks, 67 N.Y. 568; North Shore Child Guidance Assn. v. Incorporated Vill. of East Hills, 110 A.D.2d 826, 829, 487 N.Y.S.2d 867). The need to refer to extrinsic documents in order to discover the meaning of a statute was evidently thought by the drafters of this provision of our State Constitution to be an undesirable burden upon those persons interested in knowing precisely what a particular law provides. This burden is considerably lessened, however, when the particular statute in question, like the one now under review, not only refers to another document, but expressly states where that document may be found (see, ECL 27-0704[2].

A more compelling justification for the constitutional prohibition against statutory incorporation by reference is that certain practical difficulties in determining the content of the law may result when a statute which has been incorporated into another law is amended without a corresponding amendment in the law into which the incorporation was made. This is a particularly valid concern when the incorporation is accomplished by reference to a particular statute's numerical designation, and that designation is later changed as part of a recodification. These concerns are likewise inapplicable in this case.

While the scope of the hydrogeologic zones may be changed by administrative action, it is difficult to foresee how such a change would lead to a result inconsistent with the Legislature's intent in enacting ECL 27-0704, or how such a change would cause any uncertainty regarding the actual scope of the law. There is no evidence in the record that the hydrogeologic zones as delineated in the 208 Plan have ever undergone revision. Whether the automatic incorporation of a revised 208 Plan into ECL 27-0704 would violate N.Y. Constitution, article III, § 16 is essentially an academic question (see, People v. Mobil Oil Corp., 101 Misc.2d 882, 422 N.Y.S.2d 589; cf., People v. Shore Realty Corp., 127 Misc.2d 419, 486 N.Y.S.2d 124).

Perhaps the best example of an application of N.Y. Constitution, article III, § 16 which resulted in the nullification of a legislative enactment is furnished in the case of Darweger v. Staats, 267 N.Y. 290, 196 N.E. 61. In that depression-era case, the Court of Appeals, by a divided court, invalidated Laws of 1933 chapter 781 which provided, among other things, that it would constitute a misdemeanor under State law for any person to violate any of the regulations adopted pursuant to the National Industrial Recovery Act (48 U.S.Stat. 195). The majority of the court in Darweger v. Staats, supra, 267 N.Y. at 309, 196 N.E. 61 stated:

"Surely an act which provided that any regulation of Congress hereafter made when filed with the Secretary of State would be enforceable in this State, and a violation thereof would be a misdemeanor, would be a violation of the spirit and letter of this our constitutional provision. The Codes above referred to, when once approved, are designed to have the effect of the law; they are made law by act of congress so far as they affect interstate commerce, and now they are proposed to be made law by incorporating them bodily into our statute by reference. It is too narrow a construction of this wise constitutional provision to say that it only applies to State laws and not to the Codes, because they are not laws in the strict sense of the word. The Codes became laws with heavy sanctions for an infraction. Their embodiment into chapter 781 of the Laws of 1933 by reference was unconstitutional".

The court's holding that the law in question violated N.Y. Constitution, article III, § 16 was...