Town of Islip v. Zalak

Decision Date11 February 1991
Citation165 A.D.2d 83,566 N.Y.S.2d 306
PartiesTOWN OF ISLIP, Appellant, v. Carl ZALAK, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Robert J. Cimino, Islip (Kevin T. Oliver and Richard Hoffman, of counsel), for appellant.

Shlimbaum and Shlimbaum, Islip (Lark J. Shlimbaum, of counsel), for respondents.


BRACKEN, Justice Presiding.

In invalidating certain local laws contained in Islip Town Code chapter 21, the Supreme Court held that the local laws in question were inconsistent with a State law of general applicability, and that the Town of Islip had failed to comply with the formalities which are required whenever a local government purports to enact a law which is inconsistent with a State law (see, Municipal Home Rule Law § 22). Because we find no inconsistency between the State law and the local laws which are at issue in this case, we reverse the order and judgment under review.


Islip Town Code chapter 21 is entitled "Solid Waste". This local law contains numerous provisions which regulate the collection and disposal of solid waste within the Town of Islip. One such provision is that "[n]o person shall operate a transfer station/recycling center without a permit therefor as hereinafter provided" (Islip Town Code § 21-5[B].

The process by which a "transfer station/recycling center" permit may be obtained is set forth in Islip Town Code § 21-6. Pursuant to § 21-6(B)(9), applications for such permits must be reviewed and approved by the "Planning Division of the Town of Islip". Islip Town Code § 21-6(B)(9)(a) provides for the submission of "site plans" to the Planning Division, and defines what information such site plans should contain.

Such site plans are to be approved or disapproved with reference to several express criteria. Among these is the requirement that the site for the proposed transfer station/recycling center consist of at least two acres (Islip Town Code § 21-6[B][9][b]. However, the Code also provides that an applicant may obtain "variances from the requirements governing minimum lot area" (Islip Town Code § 21-6[B][9][o]. Applications for such "variances" are to be made to the "Planning Board", rather than to the "Planning Division".

The plaintiff Town of Islip brought the instant action based on allegations that the defendants were operating an illegal transfer station/recycling center. The complaint alleges, inter alia, that the defendants were operating their facility without the permit required pursuant to Islip Town Code § 21-5(B). The complaint also states that the defendants were in violation of Islip Town Code § 68-338, which governs the uses of land permitted within an "Industrial I District". Islip's Town Code § 68-338(D) specifies that a "Transfer station/recycling center" is a permitted use within such districts, subject, however, to the terms of Islip Town Code chapter 21.

The defendants interposed an answer, which included a counterclaim in which they sought a declaration that "Plaintiff's transfer station/recycling center permit procedures and zoning regulations are * * * invalid". According to the allegations contained in the defendants' first counterclaim, the plaintiff's permit procedures are "invalid" because "they purport to delegate jurisdiction over final zoning variances to the Planning Division, which is contrary to law."

Thereafter, the defendants moved for summary judgment in their favor, declaring Islip Town Code §§ 21-6(B)(a)(o) and 68-338(D) "illegal * * * on the ground that their provisions are contrary to law". After the plaintiff submitted opposition papers, the defendants, in a reply affidavit by the defendant Carl Zalak, averred for the first time that "Islip Town Code § 21-6(B)(9)(a) is also invalid". The defendants' argument was, in essence, that the provisions of the Islip Town Code cited above which delegate to either the "Planning Division" (Islip Town Code §§ 68-338[D], 21-6[B][9][a] or to the "Planning Board" (Islip Town Code § 21-6[B][9][o] the power to grant "variances" was in contravention of Town Law § 267(5), which vests that power in a zoning board of appeals.

In the order and judgment appealed from, the court granted the defendants' motion for summary judgment on their first counterclaim, declared that Islip Town Code §§ 21-6(B)(9)(a), 21-6(B)(9)(o) and 68-338(D) "invalid and unenforceable", and dismissed the plaintiff's complaint "insofar as it is premised upon the subject sections", on the ground that those provisions were inconsistent with State law of general applicability, because they delegated either to the "Planning Division" or to the "Planning Board" powers which are reserved under State law exclusively to a zoning board of appeals. We disagree with this rationale, and, therefore, reverse.


The Town of Islip unquestionably has the power to regulate the operation of any "transfer station/recycling center" located within its jurisdiction. These centers are defined as facilities "used for the off-loading of solid waste from collection vehicles, the recovery of recyclables from said solid waste and the reloading of nonrecyclable solid waste into vehicles for disposal" (Islip Town Code § 21-2). In more explicit terminology, these facilities are places where garbage is brought, dumped, and sorted, and where the garbage which can somehow be processed for future use is culled from the garbage which is disposable. This disposable garbage may include "sludge, rubbish, ashes, incinerator residue, street cleanings, dead animals, offal, abandoned vehicles, agricultural waste, industrial waste, commercial waste and construction and demolition debris" (Islip Town Code § 21-2).

The State Constitution allows local governments to adopt laws relating to the "safety, health and well-being of persons or property therein" (N.Y. Const. art. 9 § 2[c][ii][10], provided that such local laws are "not inconsistent with the provisions of this constitution or any general law" (N.Y. Const., art. 9, § 2[c][ii]; see generally, Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 96-97, 524 N.Y.S.2d 8, 518 N.E.2d 903). In addition, the general law of New York State expressly provides that a town board may "provide by ordinance for the licensing and otherwise regulating of * * * the collection of garbage" (Town Law § 136[8]. Also, Town Law § 130(6) provides that a town board may enact laws "[p]rohibiting and/or regulating the use of any lands within the town as a dump or dumping ground." Furthermore, the provisions of the New York State Environmental Conservation Law which govern, among other things, "solid waste management facilities" (including transfer stations) (see, ECL 27-0701[2] include an express authorization permitting local governments to enact consistent local laws (see, ECL 27-0711).

It is therefore beyond any reasonable dispute that the Town of Islip may regulate the "transfer station/recycling center" at issue in this case. This court, in full accordance with the statutes outlined above, has held that a local government may even go so far as to ban such facilities from its territorial limits altogether (see, Town of LaGrange v. Giovenetti Enters., 123 A.D.2d 688, 507 N.Y.S.2d 54). This determination is consistent with a line of cases which holds that, in the exercise of its police powers, a town may completely prohibit the dumping of garbage which originated outside its borders (see, e.g., Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 435 N.Y.S.2d 966, 417 N.E.2d 78; Wiggins v. Town of Somers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 149 N.E.2d 869; Town of Plattekill v. Dutchess Sanitation, 43 N.Y.2d 662, 400 N.Y.S.2d 816, 371 N.E.2d 534, affg. 56 A.D.2d 150, 391 N.Y.S.2d 750). "In today's society, it can hardly be doubted that municipalities may regulate the disposal of refuse materials" (Moran v. Village of Philmont, 147 A.D.2d 230, 234, 542 N.Y.S.2d 873.)

The Supreme Court invalidated certain sections of the Islip Town Code on the basis that these sections were inconsistent with either one of two provisions of general State law, i.e., Town Law §§ 261 or 267. Town Law § 261 simply authorizes town boards to regulate "the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land". This statute further provides that a town board "may provide that a board of appeals may determine and vary [the] application [of such laws]." Town Law § 267 provides for the composition of zoning boards of appeals, and establishes the procedures pursuant to which such boards should function.

The Supreme Court held that because Islip has established a zoning board of appeals pursuant to Town Law § 267, that agency is the only one authorized by State law to review requests for "variances" from local zoning provisions governing, for example, "the size of yards" (Town Law § 261). The court reasoned that the two-acre minimum lot size requirement contained in Islip Town Code § 21-6(B)(9)(b) relating to "transfer station/recycling centers", was such a law, and that the Zoning Board of Appeals of the Town of Islip had exclusive jurisdiction to decide whether to permit a variance from its application. The court therefore concluded that Islip Town Code § 21-6(B)(9)(o), which confers the authority to issue such variances on the Planning Board of the Town of Islip, as well as Islip Town Code §§ 21-6(B)(9)(a) and 68-338(D) were invalid.

We must emphasize that, even if these provisions were invalid as a result of their alleged inconsistency with provisions of the Town Law, it would in no way follow that the permit requirement itself (Islip Town Code § 21-5) or the two-acre minimum lot size requirement (Islip Town Code § 21-6[B][9][b] are similarly...

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