Westchester County v. Village of Mamaroneck

• Decision Date: 31 January 1964
• Parties: The COUNTY OF WESTCHESTER, Plaintiff, v. VILLAGE OF MAMARONECK, Defendant.
• Court: New York Supreme Court

Page 770

246 N.Y.S.2d 770

41 Misc.2d 811

The COUNTY OF WESTCHESTER, Plaintiff, v. VILLAGE OF MAMARONECK, Defendant.

Supreme Court, Westchester County.

Jan. 31, 1964.

Francis J. Morgan, County Atty., White Plains, for plaintiff; (Arthur T. Connick, Ardsley, and George S. Donaldson, Bronxville, of counsel).

Anthony Sansone, Mamaroneck, for defendant.

FRANK S. McCULLOUGH, Justice.

This is an application for a temporary injunction restraining and enjoining the Village of Mamaroneck, its officers, agents, servants and employees from interfering with the construction of the dual sludge force main from the Village of Mamaroneck to the City of New Rochelle and the expansion of the sewage disposal plant for the Mamaroneck Valley Sanitary Sewer District in the Village of Mamaroneck.

On or about August 28, 1952, the Interstate Sanitation Commission issued an order directing the County of Westchester to take necessary steps to abate and control pollution in the Hudson River and Long Island Sound areas into which sewage effiuent was being discharged.

Between the years 1952 and 1959, the Department of Public Works of the County of Westchester was engaged in major sewer projects in the City of Yonkers and the City of New Rochelle. Because of the limited engineering staff of the Department of Public Works of the County and because of the enormity of these projects, the Mamaroneck Valley Sewer Project was delayed until the completion of the other sewer projects. The Interstate Sanitation Commission advised the County by letter dated July 14, 1960, that it would permit no further delays on the Mamaroneck Project and that construction must commence not later than August 1, 1961.

In order to reconstruct the Mamaroneck Sanitary Sewer Plant in the Village of Mamaroneck it was necessary to comply with Section 1230 of the Public Health Law which requires that the County obtain the approval of the State Commissioner of Health of the plans for such reconstruction prior to the commencement of the work.

The proposition for the financing of the reconstruction project was approved by the Board of Supervisors of the County of Westchester by resolution adopted the 7th day of May, 1962, and the project was approved by the electorate of the County in the November 1962 election by authorization of a bond issue of $4,520,000.00 to finance the project.

On November 9, 1962, an application for a permit, together with detailed plans and specifications, was submitted, through the Health Department of the County of Westchester, to the Commissioner of Health of the State of New York for his approval.

Thereafter the Village of Mamaroneck requested a formal hearing relative to the issuance of the permit. The Commissioner of Health granted a hearing which was held before the Hearing Officer designated by the Commissioner, over a three-day period in January, 1963. As a result, findings of fact, conclusions and recommendations were made to the Commissioner of Health which resulted in an order being issued by the Commissioner, dated April 19, 1963, approving the County's plans for the enlargement of the sewage treatment plant at the Harbor Island site in the Village of Mamaroneck.

The Village of Mamaroneck filed an appeal from the order of the Commissioner of Health dated April 19, 1963, with the Water Resources Commission. That appeal was argued on September 11, 1963. A decision was rendered by the said Board on November 14, 1963 affirming the order of the Commissioner of Health. However, no formal written opinion reciting the affirmance of the Commission of Health's order was available until January 23, 1964. A certified copy of the decision has now been submitted to the Court by the County Attorney. The decision states that the order of the Commissioner of Health is 'confirmed in all respects'.

Subsequent to the approval by the State Commissioner of Health, the Department of Health, Education and Welfare, Public Health Service, of the United States Government, on June 27, 1963, approved the plans and specifications and authorized the taking of bids for the construction. The construction work, pursuant to the general contract, was commenced by the prime contractor, Vanguard Construction Corp. on August 26, 1963.

Apparently a conference was held between representatives of the Village of Mamaroneck and the County of Westchester wherein the discussion included references to building permits for the construction and reconstruction of the sewage plant at the Harbor Island site in the Village of Mamaroneck. The County of Westchester has taken the position that a sewage treatment plant being constructed for the benefit of the Sanitary Sewer District is subject neither to zoning ordinances nor building codes of local subordinate municipalities. Thus no application has been made by the County of Westchester to the Village of Mamaroneck for either a zoning variance or a building permit.

As a result of the County's refusal to obtain approval from the Village, the Board of Trustees of the Village of Mamaroneck by resolution adopted August 22, 1963, authorized the Village Attorney to forward a notice of intention to sue the County and its general contractor for $100.00 for each day's violation of its building ordinance for failure to obtain a building permit. Thereafter two independent civil actions were commenced against the general contractor for the recovery of $500.00 and $600.00 respectively.

Subsequently the County of Westchester commenced an action for a permanent injunction against the Village to prevent the Village from interfering and hindering the County and its contractors on the subject project.

The defendant Village alleges the right to enforce its building ordinance, Local Law #2, 1952, of the Village of Mamaroneck, claiming that the County must obtain a building permit for the reconstruction of the Mamaroneck Valley Sanitary Sewage District Treatment Plant at Harbor Island.

A somewhat similar situation arose in Village of Larchmont v. Town of Mamaroneck, 239 N.Y. 551, 147 N.E. 191, where the Village successfully enjoined the defendant Town from enforcing its zoning ordinance against the construction of the water works building on property owned by the Village, but situated outside of its territorial limits and within the Town. There, the Town had threatened to arrest Village employees working on the construction of the building on the water works property.

In support of its position, the County of Westchester cites the rule that if one municipality is engaged in an activity determined to be governmental, rather than proprietary, then that municipality is exempt from complying with the zoning ordinance of the other municipality. Nehrbas v. Incorporated Village of Lloyd Harbor, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241, 61 A.L.R.2d 965. There, the court stated (2 N.Y.2d pp. 193-194, 159 N.Y.S.2d p. 147, 140 N.E.2d p. 242): 'In the very nature of things, a municipality must have the power to select the site of buildings or other structures for the performance of its governmental duties. Accordingly, it necessarily follows, a village is not subject to zoning restrictions in the performance of its governmental, as distinguished from its corporate or proprietary, activities. See, e. g., Village of Larchmont v. Town of Mamaroneck, 239 N.Y. 551, 147 N.E. 191, modifying 208 App.Div. 812, 203 N.Y.S. 957; Stiger v. Village of Hewlett Bay Park, 283 App.Div. 827, 129 N.Y.S.2d 38; Sunny Slope Water Co. v. City of Pasadena, 1, Cal.2d 87, 98, 33 P.2d 672; City of Cincinnati v. Wegehoft, 119 Ohio St. 136, 162 N.E. 389; 2 Metzenbaum on Law of Zoning (2d ed., 1955), p. 1280; cf. Hewlett v. Town of Hempstead, 3 Misc.2d 945, 133 N.Y.S.2d 690, affirmed 1 A.D.2d 954, 150 N.Y.S.2d 922, motion for...