West Bronx Auto Paint Shop, Inc. v. City of New York
| Decision Date | 14 December 1961 |
| Citation | 223 N.Y.S.2d 984,33 Misc.2d 29 |
| Parties | WEST BRONX AUTO PAINT SHOP, INC. and Earl Scheib of Queens, Inc., Plaintiffs, v. The CITY OF NEW YORK and Arthur J. Benline as Commissioner of the Department of Air Pollution Control and as Chairman of the Board of Air Pollution Control, Defendants. |
| Court | New York Supreme Court |
Grete Gluck, New York City, for plaintiffs.
Leo A. Larkin, Corp. Counsel, New York City (Rose Schneph and Joseph Entel, New York City, of counsel), for defendants.
BIRDIE AMSTERDAM, Justice.
Defendants move for an order pursuant to Rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act for judgment on the pleadings dismissing the complaint for insufficiency . Plaintiffs have moved for an order granting judgment on the pleadings pursuant to Rule 112 of the Rules of Civil Practice for the relief demanded in the complaint upon the ground that the denials raised by the answer and amended answer and the first defense as to chapter 47 of the City Charter and the second defense as to chapter 47, Title A, of the Administrative Code and the third defense as to the Rules and Regulations of the Department of Air Pollution Control and the fourth defense as to the alleged complaint and inspection of the premises of the plaintiff West Bronx Auto Paint Shop, Inc. are insufficient.
Plaintiffs are engaged in the auto painting business. Used cars are painted within a metal spray booth, one at a time, with a spray gun operated by air pressure. Such equipment and ventilating system are installed in accordance with the Rules of the Board of Standards and Appeals and of the New York State Labor Board. Plaintiffs dispute that the matter of overspray and vapors which may escape into the outer air as a source of air pollution is within the province and jurisdiction of the Department of Air Pollution, or that the Department may require the filing of applications for approval of equipment, and they request that the court so declare. More specifically, the plaintiffs seek a judgment pursuant to section 473 of the Civil Practice Act, declaring that chapter 47 of the City Charter and the Administrative Code and the Rules and Regulations promulgated under the authority of chapter 47 are unconstitutional and invalid as far as they are claimed to be applicable to the plaintiffs' paint spraying operation, and that the plaintiffs are not subject to the jurisdiction of the defendant Commissioner in any respect in that the Statutes and Regulations under which he claims jurisdiction are not binding upon the plaintiffs.
The Department of Air Pollution Control was established in 1952 (Local Laws 114 and 115 of 1952, New York City Charter § 1071 et seq ., Administrative Code, § 1072-1.0 et seq.) and was so established pursuant to the Home Rule provision of the New York State Constitution, article 9, section 12, the City Home Rule Law, § 11 and the New York City Charter, § 21. It is not disputed that the Legislature may delegate to the municipality the power to deal with the control of air pollution. The predecessor of the Department was the Bureau of Smoke Control established by Local Law 5 of 1949 which, in turn, superseded the provisions on the subject then existing in the Sanitary Code (Consolidated Edison Co. of New York, v. Murtagh, 280 App.Div. 221, 112 N.Y .S.2d 681). Plaintiffs do contend that the Local Laws and Regulations are almost exclusively concerned with air pollution resulting from fuel burning equipment and other combustion processes . In so far as they may refer and apply to the spraying operation they are too vague and indefinite to satisfy constitutional requirements and this is, so they say, because in the transfer by succession of the powers of the Bureau of Smoke Control to the Department of Air Pollution Control there was no substantial change in the language of the enacting Law and Regulations promulgated pursuant to conferred authority.
The Department is headed by the Commissioner of Air Pollution Control who has
'jurisdiction to regulate and control the emission into the open air of harmful or objectionable substances, including but not limited to smoke, soot, fly ash, dust, fumes, gas, vapors, odors and any products of combustion or incomplete combustion resulting from the use of fuel burning equipment or from the heating of fuels or refuse. * * *' (New York City Charter, § 1072)
The quoted portion of that section is what plaintiffs rely on and they assert that jurisdiction is thus limited 'to emissions quoted excerpt should have been, for better understanding, as follows: emissions of 'any products of combustion or incomplete combustion resulting from the use of fuel burning equipment or from the heating of fuels or refuse'. By so doing it becomes manifest that combustion relates to and modifies only 'any products' and not any of the preceding enumerated substances, smoke, soot, fly ash, dust, fumes, gas, vapors, odors. 'Any' covers all; the listed substances are either distinct and apart from 'any products' or the listing is wholly redundant. Even the specific substances are not limited to those listed. An incomplete list of 'any products' is an absurd result reached by the unwarranted reference of combustion created products back to the emission of the listed substances into the air. The absurdity is further demonstrated by plaintiffs' reference to the fact that the coverage of the Commissioner's jurisdiction was an enlargement of the jurisdiction of the predecessor director of the Bureau of Smoke Control since added thereto were 'dust, fumes, gas, vapors and odors'. What need to add these as 'further products of combustion' if as already listed the emissions are not thereby limited and the products of combustion are in any event 'any products'? Apart therefrom, plaintiffs contend that the local Laws and Regulations, in so far as it is claimed they apply to paint-spraying operation, are invalid on the ground that no standards are supplied for the installation and operation of spraying equipment, that they do not provide sufficient procedural safeguards, that the collection of filing fees for spraying installation is illegal on the ground that such fees are not provided in the Statutes or in the Rules and Regulations of the department, and that the local Laws and Regulations claimed to apply to the paint-spraying operation are invalid in that they are not co-ordinated with existing regulations of other agencies.
As already indicated, it is not disputed that delegation of legislative authority to the municipality to deal with the control of air pollution is a proper exercise of legislative power under the Constitution. It was so held in People ex rel. Doscher v. Sisson, 222 N.Y. 387, 118 N.E. 789, 792, where the Court stated:
'It is established law that a Legislature may delegate to an executive officer the power to determine facts and conditions upon which the operation of a statute depends, without violating the constitutional prohibition against the delegation of legislative function.'
Under such conferred authority such control is of ancient vintage antedating by decades the inclusion of such supervision in the Sanitary Code as early as 1902 (see Department of Health v. The Philip & William Ebling Brewing Co., 38 Misc. 537, 78 N.Y.S. 13; People v. New York Edison Co., 159 App.Div. 786, 144 N.Y.S. 707). As with the explosion of water pollution, air pollution has become an increased menace. The power exercised by the Department of Health under the Sanitary Code was transferred to the Bureau of Smoke Control within the Department of Buildings created by Local Law No. 5 of 1949 (Administrative Code, § D26-1.0). The declaration of policy as contained in that section, subdivision a thereof, is as follows:
* * *.'
It is to be noted that products of combustion and other emissions are not one and the same thing. Rather, they are separate, distinct and cumulative and arise from any source. However, by subdivision g of section D26-1.0, it was provided
* * *.'
The power to control was thus limited to contaminants coming from any source, but resulting from the use of fuel burning equipment. Such limitation was, however, removed by the adoption of Charter sections 1071-1075, effective November 23, 1952, and to the Commissioner was given
'jurisdiction to regulate and control the emission into the open air of harmful or objectionable substances, including but not limited to smoke, soot, fly ash, dust, fumes, gas, vapors, odors and any products of combustion or incomplete combustion resulting from the use of fuel burning equipment or from the heating of fuels or refuse. * * *' (§ 1072)
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