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STATE OF NEW YORK
SUPREME COURT
COUNTY OF SCHENECTADY

DECISION/ORDER
Index No. 97-1113
RJI No 46-1-97-0707

In the Matter of MOHAWK ENVIRONMENTAL
SERVICES, INC., ROBERT GERHARD, III,
Individually and d/b/a Gerhard/ALCEN, ALTON
MAHR, JOHN B. BATTAGLIA, Individually and
d/b/a ENVIROMENTAL SOLUTIONS, ANN
FARRAR-BARTONIK and LEWIS KLIM, SR.,

Petitioners-Plaintiffs

For a Judgment Pursuant to Article 78 and
Section 3001 of the Civil Practice Law and Rules,

-against-

TOWN OF ROOT, TOWN BOARD OF THE TOWN
OF ROOT, and JOHN VANKERSEN, as Town
Supervisor of the Town of Root, EVELYN LINDLEY,
HOWARD CROSBY, JAMES HERRICK, JR., and
GARY KAMP, in their official capacity as
Town of Root Town Board Members,

Respondents-Defendants


SUPREME COURT: Motion Returnable: July 28, 1997

APPEARANCES:

Whiteman, Osterman & Hanna
Co-counsel for Petitioners-Plaintiffs
One Commerce Plaza
Albany, NY 12260

Wollman & Wollman
Co-counsel for Petitioners-Plaintiffs
41 Market Street
Amsterdam, NY 12010

Peter Doherty, Esq.
for Respondents-Defendants
193 Willow Street
RD 1, Box 33O
Sharon Spnngs, NY 13459

The following papers were considered on this motion: (1) Notice of petition dated June 4, 1997; (2) Verified Petition and Complaint dated June 4, 1997; (3) Supporting Affidavits of John B. Battaglia sworn to June 2, 1997 with Exhibits A-H; Bradley G. Allen sworn to June 4, 1997 with Exhibits A-S; Alton Mahr sworn to June 2, 997 with Exhibit A; Lewis Kilin, Sr. sworn to June 2, 1997; Ann Farrar-Bartonik sworn to June 3, 1997 with Exhibit A and Lydia Alvarado Berrios sworn to June 3,1997 with Exhibit A; (4) Verified Answer dated July 12, 1997; (5) Opposing Affidavits of Barbara Kruppenbacher sworn to July 12, 1997 with Exhibits A-O and John Van Kersen sworn to July 8, 1997; (6) Amended Verified Answer dated July 18, 1997.

CARUSO, J.

This is a combined CPLR Article 78 proceeding/declaratory judgment action by petitioners(1) to annul Local Laws Nos. 1 and 3 of respondent Town of Root (the Town). These laws are identical. The first, Local Law No.1 of 1997, was adopted on February 5, 1997. The second, Local Law No.3 of 1997, was adopted on February 28, 1997. Apparently, Local Law No.3 was intended to be a re-adoption of Local Law No.1 of 1997 and was done due to a belief that there that there may have been some procedural flaws in the enactment of Local Law No.1 of 1997. The laws are entitled "Waste Management Facilities Law of the Town of Root". They ban anyone from operating a solid waste management facility (as that term is defined in Title 6 of the New York Code of Rules and Regulations) within the Town. Respondents Town and the Town Board of the Town of Root (the Board) oppose the petition.

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(1)Petitioners Alton Mahr and Ann Farrar-Bartonik each own property in the Town. Petitioner Robert Gerhard, III, d/b/a Gerhard/ALCEN has an option to purchase the property of Mahr and Farrar-Bartonik and another with a view towards siting a landfill there. Petitioner John B. Battaglia is a principal in petitioner Mohawk Environmental Services, Inc., the corporation which intends to operate the landfill. Petitioner Lewis Klim, Jr. is a landowner whose property is located near the now closed Randall landfill.



FACTS

The uncontroverted evidence shows that in July 1996, petitioner Robert A. Gerhard, III, d/b/a Gerhard/ALCEN (Gerhard) obtained from petitioner Alton Mahr and his wife Harriet Mahr, an option to purchase 240 acres of their property on Mahr Road in the Town for the purpose of determining its suitability as a landfill (the Mahr Road landfill). Shortly thereafter, Gerhard obtained similar options for an additional 230 acres from two other contiguous landowners. In all, the proposed private dump would be 150 acres in size with a 250 acre buffer area. It was intended to be able to accept 2,500 tons of municipal solid waste per day from Montgomery County and the surrounding region.

At the same time Gerhard was obtaining options, the Town, which previously had been, selected for three possible full landfills and two partial sites to be constructed by the Montgomery, Otsego, Schoharie Solid Waste Authority, was in the middle of reviewing a proposed dump/junkyard law. The proposal was adopted as Local Law No. 1 of 1996 by the Board on October 9, 1996 (hereinafter the Dump and Refuse Law of 1996). The law provided that no refuse (including solid or liquid waste) was to be stored, accumulated, deposited, recycled or abandoned in the Town without a valid dump permit. It established an administrative process whereby new landfills could seek a permit from the Board in order to operate in the Town.

By late 1996, public opposition to the proposed Mahr Road landfill was growing. During this time, a working copy of a waste management facilities law (the precursor of Local Laws Nos. 1 and 3 of 1997) was introduced to the Town of Root Planning Board (the Planning Board). On January 16, 1997, the Planning Board unanimously recommended that the Board consider adopting the proposal as a local law. On January 23, 1997 a special meeting of the Board was convened and at that meeting it was determined to hold a public hearing on the waste management facilities law on February 5, 1997. Viewing the new law as an "action" within the meaning of the State Environmental Quality Review Act (SEQRA), the Board designated itself as lead agency and directed Town Attorney Peter Doherty (Doherty) to complete an environmental assessment form (EAF) for the proposed law.

On January 29, 1997, notice of the February 5, 1997 meeting was published in the official Town newspaper. The notice read as follows:

The full Board along with approximately 90 Town residents attended the hearing. In addition to hearing comments on the law, during the hearing Doherty addressed SEQRA. He classified the action as Type I and reviewed the long form EAF he had completed. Near the close of the hearing, some of those in attendance urged the Town Board to vote immediately on the law and this was met with a ground swell of support for such a vote from the others in attendance. The Board agreed to vote and immediately after the public hearing was closed, a special meeting was convened. At the meeting, the Board first voted to accept the findings in the EAF as a negative declaration. Following a discussion, a motion was then made to accept the Waste Management Facilities Law as Local Law No.1 of 1997, albeit "with the provision that the [Dump and Refuse Law of 1996] will remain in affect [sic] except the portions that deal with solid waste management facilities." It passed unanimously.

After this, a question evidently arose about whether the adoption of Local Law No 1 of 1997 was procedurally proper because it occurred during a special Board meeting which had not been announced. Hence, a special meeting of the Town Board was called for February 28,' 1997. At that meeting, the waste management facilities law was adopted as Local Law No. 3 of 1997.

A subsequent request by petitioners Gerhard, Mohawk Environmental Services, Inc. and John B. Battaglia that the Board consider their application for a permit under the Dump and Refuse Law of 1996 was denied. By resolution passed on May 14, 1997, the Board found that a permit under the Dump and Refuse Law of 1996 could only be granted by an amendment or repeal of Local Laws Nos. I and 3 of 1997.



ARGUMENTS

This combined action/proceeding followed. The petition alleges various procedural and substantive violations, in particular, noncompliance with SEQRA; inconsistency with State law; and violations of various statutes, including Municipal Home Rule Law 20 and 22(1), Public Officers Law 107 and General Municipal Law 239-m. Each of the arguments are addressed separately below.


I. SEQRA

Petitioners initially claim that Local Laws Nos. 1 and 3 of 1997 are invalid because the Board failed to comply with the procedural and substantive requirements of SEQRA. Procedurally, they alege that the Board failed to issue a negative determination in writing as required under 6 NYCRR 617.7(b) and improperly used an EAF as a negative declaration. Substantively, they claim that the Board failed to take the requisite "hard look" at the relevant areas of environmental concern and failed to set forth a "reasoned elaboration" of the basis for its negative declaration.

On the particular facts of this case, the Court is unpersuaded by petitioner's procedural arguments. Contrary to petitioners' assertions, the courts have not struck down every action in which there has been literal noncompliance with SEQRA's procedural requirements. In Matter of Har Enter. v Town of Brookhaven (74 NY2d 524), the Court of Appeals upheld as adequate a negative declaration which consisted solely of a short form EAF. In Webster Assoc. v Town of Webster (59 NY2d 220, 227-229), the Court held that the lead agency's failure to include a discussion of an alternative proposal in a draft environmental impact statement was not fatal. In Town of Victory v Flacke (101 AD2d 1016), the Fourth Department held that failure to use a long form EAF in a Type 1 action was excusable where it appeared the agency used the same analysis that would have been used had the long form been submitted. As these cases indicate, the mere fact that there has been literal noncompliance with a particular procedure is not controlling; what is dispositive is what the lead agency did and whether that was sufficient to satisfy the purpose for which the procedure was enacted.

The obvious purpose of requiring the lead agency to issue and file a written negative declaration is to apprise members of the public as well as other involved and interested agencies of the determination and the reasons for it and also to provide a basis for the Court, if called upon to rule on the adequacy of the SEQRA review, to make a determination of whether the lead agency complied with SEQRA. Seeing as this EAF clearly indicates that the proposed law would not result in any significant, environmental impact and it identifies the reasons for that conclusion, the Court finds that the Board's failure to repeat those reasons in a separate writing is not a fatal defect (cf., Matter of Har Enters. v Town of Brookhaven, supra).

The substantive arguments also lack merit. In reviewing the issuance of a negative declaration, the Court's task is to determine whether the agency "made a thorough investigation of the problems involved and reasonably exercised [its] discretion" (Matter of Cohalan v Carey, 88 AD2d 77, 79 [2d Dept., 1982], appeal dismissed 57 NY2d 672). As the Court of Appeals noted recently, the extent of the investigation required to be undertaken is subject to a rule of reason and "the degree of detail with which each environmental factor must be discussed will necessarily vary and depend on the nature of the action under consideration" (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688). Here, the waste management facilities law, which proposed to ban all solid waste management facilities from the Town, would have nothing but a positive impact on all the areas of environmental concern identified in the EAF (i.e., land, water, air quality, plants and animals, agricultural land resources, aesthetic resources, historic and archaeological resources, open space and recreation, transportation, energy, noise, odor and public health), and the comments included on the Board's EAF indicated as much. In light of this, the Board's alleged quick review of the EAF and issuance of a negative declaration cannot be said to be arbitrary or capricious (id., at 690). Furthermore, there is nothing in the record to suggest that the Board did not give the required "hard look" to environmental issues or that a longer or more detailed study was necessary or would have led to a different result. Copies of the EAF were distributed to the persons who attended the hearing and the conclusions arrived at in Part 2 were reviewed in some detail during both the public hearing and the Board meeting. No objections or additions to the EAF were proposed. It is also significant that the proposed law was enacted in response to what appears from the hearing transcript to have been an overwhelming community demand to benefit and preserve the environment, a goal which, in and of itself, is in keeping with the purposes of SEQRA (see, Matter of Har Enters. v Town of Brookhaven, 145 AD2d 562, 563 [2d Dept., 1988], affd 74 NY2d 524).

Nor is the Court persuaded by petitioners' claim that the Board failed to take the requisite hard look because it failed to consider other concerns beyond those identified in the EAF (e.g., the effect of banning recycling facilities, the potential adverse impacts on other municipalities which may contain less desirable sites for landfills but may nonetheless be chosen because no sites in the Town are available; and the environmental effects of having to transport waste out of the Town), or because it failed to balance the environmental benefits of the law with the economic hardship imposed upon the landowners who granted the options. As was noted in Matter of Niagara Recycling v Town Board of the Town of Niagara (83 AD2d 335, 341 [4th Dept., 1981], affd 56 NY2d 859), "[t]o construe SEQRA as requiring the consideration of such [economic] factors as a condition precedent to the enactment by a town board of legislation of the type in question would, in our opinion, amount to a curtailment of the powers granted by the Legislature to local governments to adopt and amend laws relating to their property, affairs or governments".




II. MUNICIPAL HOME RULE LAW 20

A.

Petitioners' first argument in this category is that Local Law No.1 of 1997 was not properly enacted because the notice of public hearing was ambiguous and not readily intelligible to the public at large. In particular, they claim the notice was insufficient because it failed to define the term "solid waste management facility". According to them, the average Town citizen with no technical expertise would not ,understand the scope and extent of the proposed ban without including in the notice a complete definition of that term as it is defined in the Environmental Conservation Law and its implementing regulations. They also argue that the notice was misleading because it failed to alert the public to the scope and extent of the proposed ban.

These arguments lack merit. Both Municipal Home Rule Law 20 and Town Law 30(2) require that the enactment of a local law or ordinance must be preceded by a notice of public hearing which generally describes the proposal. The sufficiency of the notice is tested by whether it fairly apprises the public of the "fundamental character" of the proposed law (Matter of Gernatt Prods. v Town of Sardinia, 87 NY2d 668, 678, supra). It Is to be tested through the eyes of a layperson who is presumed to lack the technical knowledge of an expert (see, Matter of Gardiner v LoGrande, 92 AD2d 610 [2d Dept., 1983], affd on other grounds 60 NY2d 673).

In the Court's view, the subject notice clearly passes this test. Initially, the Court sees nothing ambiguous about the term "solid waste management facility". In this era where the issue of waste disposal and the siting of landfills is a frequent and hotly debated municipal issue, even if the Court were to assume, for argument's sake, that tbe public in general or the rural public in particular does not know what a solid waste management facility is, the record evidence shows that this precise term had been consistently used in the Town when referring to the Mahr Road landfill. Significantly, petitioners themselves expressly referred to the proposed landfill a solid waste management facility in promotional mailings sent to each Town resident. Against this backdrop, it is difficult to see how the same term petitioners themselves used and obviously thought was self-explanatory is somehow ambiguous when used by the Town in its public notice.

Nor is the Court persuaded that the notice is misleading. As noted above. a notice will pass muster if it apprises the public of the fundamental character of the proposed law In this case, the fundamental character of the new law is succinctly stated in Section VIII, which provides that "[n]o solid waste management facility shall hereafter be constructed, allowed to commence operation or continue operation within the Town of Root" The public notice tracks this language almost verbatim. Moreover, other than items of sheer speculation advanced by petitioners, for example, that the "implications of the Board's misleading notice are even greater in a rural community like Root where activities such as... fertilizing with sludge could be a common practice", they have failed to come forward with any evidence that residents were actually misled about the fundamental character of the proposed law and did not attend the hearing because of it. The large turnout at the hearing further erodes the force of this argument.

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(2) Petitioners cite both the Town Law (which governs the adoption of ordinances) and the Municipal Home Rule Law (which governs the adoption of local laws) throughout these arguments because they believe that it is unclear whether the two challenged laws were intended to be local laws or ordinances.




B.

The second argument in this category is that Local Law No.3 of 1997 is invalid because it was adopted without first conducting a public hearing. This argument is also unpersuasive. As noted previously, Local Law No.3 of 1997 is identical to Local Law No.1 of 1997 and an exhaustive public hearing was held on Local Law No.1 of 1997 prior to the adoption of either law. Other than arguing semantics and pointing out technical noncompliance, petitioners fail to demonstrate substantively what purpose is to be achieved from conducting another public hearing on the same exact law. They do not allege that there is any new information they would have presented to the Town Board at the subsequent meeting which was not presented at the original hearing. Viewing Municipal Home Rule Law 20(5) liberally, as it must be (see Municipal Home Rule Law 51), the Court finds that Local Law No.3 of 1997 was adopted in substantial compliance with the statutory requirements.(3)

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(3) Interestingly, if the special Board meeting on February 5, 1997 is treated as a nullity (as petitioners claim it should), the Court is left with the following procedural time line: a public hearing on the waste management facilities law was validly noticed for February 5, 1997; an exhaustive and lengthy public hearing concerning that law occurred on, that date; thereafter, a properly noticed Board meeting was called for February 28, 1997 and during that meeting the law was adopted. Viewed in this context, the law was enacted in a procedurally proper manner.



III. OPEN MEETINGS LAW

Petitioners third claim is that Local Law No. 1 of 1997 is invalid because the Board failed to give public notice of the meeting at which it was enacted. Respondents concede that the February 5, 1997 public notice did not include notice that the Board would hold a special meeting following the hearing. They claim, however, that under Public Officers Law 107 the court can void actions taken at the meeting only upon a showing of good cause by an aggrieved party. They argue that petitioners are neither aggrieved nor have they demonstrated good cause.

Both the statute itself (Public Officers Law 107) and the caselaw interpreting it recognize that not every breach of the Open Meetings Law triggers its enforcement sanctions (see, Matter of New York Univ. v Whalen, 46 NY2d 734). Rather, discretion is vested in the courts to grant remedial relief only upon good cause shown (id.; see, Matter of Gordon v Village of Monticello, 207 AD2d 55, 59 [3d Dept., 1994]). The burden is on, the petitioners to show such good cause (see, Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d at 686, supra; Matter of New York Univ. v Whalen, supra).

In the Court's view, petitioners have failed to satisfy this burden. Significantly, they make no claim that the Board's action was intentionally designed to circumvent the Open Meetings Law (interestingly, other than alleging the open meeting violation. the petition itself also contains no specific allegations of prejudice). In their reply memorandum of law, petitioners claim good cause exists because, while Gerhard and Battaglia were present at the hearing and at the subsequent special meeting (both on behalf of themselves individually and as principals in Mohawk), they were denied an opportunity to participate in the public hearing and to comment on matters raised at the hearing. This argument is unpersuasive While it is apparent from reviewing the hearing transcript that opponents of the landfill were quite vocal and comments in favor of the landfill were not well received, there is simply nothing to support the claim that landfill supporters were actually prevented from voicing their views, either by the other attendees or by the Board itself. What the record does reflect is that several comments were made by, landfill supporters which did not receive a favorable response and they made no further effort to be heard. There is no indication that either Battaglia or Gerhard asked the Board's assistance in allowing them to be heard. Moreover, neither raised their alleged inability to comment during the subsequent Board meeting or asked that the meeting be postponed in order to allow them an opportunity to submit written comments responding to the concerns raised by Town residents during the hearing. At no point did they object to the Board holding its meeting, either. In light of this, their claims of prejudice fall short of establishing the required good cause for annulling Local Law No. 1 of 1997. The allegations of prejudice attributed to petitioner Ann Farrar-Bartonik are similarly insufficient since they are not set forth in affidavit form but are contained only in petitioners' reply memorandum of law which obviously lacks any probative value.




IV. GENERAL MUNICIPAL LAW 239-m

Insofar as is relevant here, General Municipal Law 239-m(3) requires that a town refer to the County Planning Board for its review, recommendation and report, any proposal to adopt or amend "a zoning ordinance or local law" which applies to "real property within 500 feet of... the boundary of any city, village or town". Failure to refer a law to a county planning board when required invalidates the law. Petitioners claim that section 239-m applies in this case because Local Law Nos. 1 and 3 of 1997, if not zoning laws per se, are so similar to zoning in quality that zoning procedures must be followed. Respondents dispute this and claim that the subject laws are not zoning laws, but are an exercise of the Town's police power, and exercises of the police power are not subject to referral under section 239-m.

While petitioners' arguments are interesting, the Court is constrained to agree with respondents that resolution of this issue is governed by the Third Department decision in Matter of Pete Drown Inc. v Town Board of Town of Ellenburg (188 AD2d 850 [3d Dept., 1992]). At issue in Drown (supra) was whether a local law passed by the respondent Town Board of Ellenburg which, in addition to banning a medical waste incinerator, prohibited "associated landfills, dumps and dumping ground intended to contain, store or stock pile solid, liquid, medical or other kinds of waste", was invalid because it had not been referred to the County Planning Commission prior to its enactment The Third Department held it was not invalid, reasoning as follows:

Here, Section III(4) of both Local Law Nos. 1 and 3 of 1997 expressly provides that the laws were enacted pursuant to the Town's police powers under the Municipal Home Rule Law and the Town Law. There is no reference whatsoever to the Town's zoning power, much less that the laws were enacted pursuant to that power. Further, as in Drown, Sections II and III of the subject laws articulate many public health and safety concerns that formed the basis for the legislation. Under the Drown analysis, then, it appears that because these laws were adopted pursuant to the Town's police power as opposed to its zoning power, neither were subject to section 239-m.

The Court is also unpersuaded by petitioners arguments that Drown has since been, superseded by the 1993 amendment of General Municipal Law 239-m. Among other things, the 1993 amendments added "local laws" relating to zoning as well as zoning "regulations" to those actions required to be referred. While petitioners' argument might have some appeal if the Drown court upheld the challenged legislation on the basis that it was a "local law", not a "regulation" and thus not subject to section 239-m, this was not the case. As the above-quoted language shows, the challenged law was upheld on the ground that it was a valid exercise of the police power and exercises of the police power, unlike exercises of the zoning power, do not require referral under section 239-m. Petitioners do not argue that any of the subsequent amendments to section 239-m altered the distinction the Third Department drew between the police power and the zoning power and made both subject to referral.

While it may be, as petitioners' claim, that Drown renders section 239-m essentially meaningless, this Court sees no basis for distinguishing Drown from the facts of this case or concluding that it has been superseded by subsequent statutory amendments. As a result, it remains binding precedent on this Court.




V. MUNICIPAL HOME RULE LAW 22(1)

Municipal Home Rule Law 22(l) provides, in pertinent part:

Section X of Local Laws No. 1 and 3 of 1997, entitled "REPEALER: EFFECT ON OTHER LAWS", reads as follows:


Petitioners argue that because the texts of Local Law Nos. 1 and 3 of 1997 make no specific reference to any prior law(s) as being repealed, superseded or amended, the laws fail to comply with the formal requirements of Municipal Home Rule Law 22(1) and must be annulled. Respondents argue that the general statement of supersession contained in the repealer clause constitutes substantial compliance with section 22(1) or, alternatively, that resort to the Board minutes provides the required clarity as to what prior local laws were intended to be superseded.

In interpreting Municipal Home Rule Law 22(1), the Court of Appeals has recognized that failure to "comply punctiliously" with the specificity requirements will not necessarily invalidate a local law (Khami v Town of Yorlrtown, 74 NY2d 423, 435). However, in cases where the challenged local law was alleged to be inconsistent with a State law and the local law "reveal[ed] nothing about the Town's intention to amend or supersede" (id.), the Court has invoked section 22(1) to invalidate it (see, id.; Turnpike Woods v Town of Stony Point, 70 NY2d 735; see also, Walker v Town of Hempstead, 190 AD2d 364, 373 [2d Dept., 1993], affd 84 NY2d 360).

Initially, the Court agrees with respondents that there is a distinction between the above cases and the one at bar. The cited cases all involve instances where the challenged law was claimed to have superseded a State law. In this case, petitioners are not arguing that Local Law Nos. 1 and 3 of 1997 are in conflict with a State law, but that they are inconsistent with a prior local law, in particular, the Dump and Refuse Law of 1996. Accordingly, the overriding State interest recognized by the Court of Appeals in situations involving the supersession of State law by local enactment, which interest evidently prompted it to essentially eliminate the last clause of section 22(1)'s first sentence, is not present here. Whether this distinction renders these cases inapplicable, while an interesting question, is unnecessary to address because on this record the Court finds that the challenged laws substantially comply with both the letter and spirit of Municipal Home Rule Law 22(1).

Local Law Nos. 1 and 3 of 1997 lie in between the two extremes identified by the Court of Appeals in Khami v Town of Yorktown (supra) - on the one hand, they do not "comply punctiliously" with Municipal Home Rule Law 22(l) because they fail to identify the Dump and Refuse Law of 1996 by name and do not specify the portions of it intended to be superseded. On the other hand, they are not completely silent on the issue, either, but do contain a repealer clause which expressly states that all prior local laws or ordinances are repealed to the extent they are inconsistent. Viewing this case in light of section 22's purpose, which it to assure definiteness and avoid confusion as to what is the governing law (see, Turnpike Woods v Town of Stony Point, supra, at 738) and applying it with a rule of reason the Court finds that the challenged laws are in substantial compliance. Undoubtedly, the repealer clause puts a reader on notice that any local law or ordinance relating to waste management facilities adopted prior to the effective date of the challenged laws is not valid. In addition, petitioners have failed to demonstrate that there has been any confusion, either to themselves or to the public at large. They were physically present during the public hearing and the Board meeting and, seeing as the Board expressly stated on the record its intent to repeal those portions of the Dump and Refuse Law of 1996 to the extent it dealt with solid waste management facilities, obviously were aware of the Board's express intent. Moreover, because the repealer is expressly limited to prior local laws or ordinances, and the only prior law alleged to have any applicability is the Dump and Refuse Law of 1996, there also is little possibility of confusion to the public at large. Significantly, no such confusion is alleged.




VI. INCONSISTENCY WITH STATE LAW

Petitioners final argument is that the challenged laws are invalid because they are inconsistent with the waste management and recycling provisions of Environmental Conservation Law Article 27. This argument also lacks merit.

As petitioners correctly concede, Article 27 of the Environmental Conservation Law has been held not to pre-empt the area of waste management, but, instead, has been interpreted as including local government "in the planning and control of problems endemic to waste management" (Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683-684). This is consistent with a town's express powers under Municipal Home Rule Law l0(l)(ii)(a)(11) to regulate in the area of environmental protection and Town Law l3O(6) which allows a town to adopt laws "[p]rohibiting and/or regulating the use of any lands within the town as a dump or dumping ground". In light of this, any argument that the challenged laws are inconsistent because they prohibit that which State law permits lacks merit. It is clear that except in cases where the State has evidenced an intent to pre-empt the field, a law will not be found inconsistent merely because it prohibits that which State law permits. The following excerpt from People v Cook (34 NY2d 100, 109) is instructive on this point:

Finally, it is of note that the very inconsistency argument raised here, namely, that a local law which prohibited commercial solid waste transfer stations from the schedule of permitted uses contained in a town zoning ordinance was inconsistent with ECL 27-0711, was considered and rejected by the Second Department in Town of LoGrange v Giovennetti Enters. (123 AD2d 689 [2d Dept., 1986]). New York courts have also rejected similar claims of inconsistency in analogous situations (see, Monroe-Livingston Sanitary Landfill v Town of Caledonia, supra, at 683 [local law which prohibited refuse generated outside the Town from being landfilled within the Town]; cf., Matter of Gernatt Asphalt Prods. v Town of Sardinia, supra; Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126).



Accordingly, for the foregoing reasons, it is ORDERED that the petition is dismissed, without Costs, and it is further DECLARED that Local Law No. 1 of 1997 and Local Law No 3 of 1997 are valid.

THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT.

THE ATTORNEY FOR THE RESPONDENTS SHALL ENTER THIS ORIGINAL DECISION/ORDER WITHIN 20 DAYS OF ITS DATE AND PROVIDE A COPY WITH PROOF OF ITS ENTRY ON THE OPPOSING ATTORNEY(S) OR THE PRO SE LITIGANT(S), AS THE CASE MAY BE.

ENTER.

Dated at Schenectady, New York this 16th day of October, 1997


HON. VITO C. CARUSO
Supreme Court Justice



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