Town of Hoosick v. Eastern Rensselaer County Solid Waste Management Authority

182 A.D.2d 37, 592 N.Y.S.2d 472, 1992 N.Y. App. Div. LEXIS 10153

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 1992
• Status: Published

Opinions

OPINION OF THE COURT

Harvey, J.

Defendant is a public benefit corporation organized pursuant to Public Authorities Law, article 8, title 13-H for the purpose of dealing with the management of solid waste. Defendant was created pursuant to Public Authorities Law § 2050-cc (4), which provided that plaintiff and 16 other designated Rensselaer County municipalities (see, Public Authorities Law § 2050-bb [18]) could become members of defendant by filing a certificate of approval by the municipality with the Secretary of State on or before December 31,1990. The statute specifically provided that unless the certificate was filed by six or more municipalities by this deadline, defendant’s corporate existence would terminate and it would be dissolved (see, Public Authorities Law § 2050-cc [4]). Once defendant included six members, however, it would be "perpetual in duration”. Ultimately, 13 members joined. Plaintiff became a member of defendant when it filed its certificate on December 22, 1989.

Thereafter, on October 14, 1991, plaintiff’s Town Board passed a resolution to withdraw its membership in defendant. A second resolution was passed in December 1991, and apparently filed with the Secretary of State, purporting to rescind both the 1989 resolution to join defendant and the certificate filed pursuant to Public Authorities Law § 2050-cc (4). Plaintiff also commenced this declaratory judgment action in December 1991 seeking declarations that it had properly and lawfully withdrawn from defendant and that any expenses and obligations incurred by defendant after the October 1991 resolution of withdrawal was passed were not obligations of plaintiff. Plaintiff also moved, by order to show cause, to enjoin defendant from incurring any debt or expenses which would obligate plaintiff pending a resolution of the action. Following joinder of issue, defendant moved for summary judgment declaring that plaintiff could not withdraw its membership until such time as the Legislature may enact specific procedures setting forth the requirements for such a withdrawal. Plaintiff cross-moved for summary judgment. Supreme Court denied defendant’s motion and granted plaintiff’s cross motion (— Mise 2d —). The court declared, inter alia, that plaintiff’s December 23, 1991 resolution of withdrawal was valid and that its membership in defendant terminated as of the date the resolution was filed with the Secretary of State. This appeal by defendant ensued.

It is our view that Supreme Court incorrectly held that plaintiff’s withdrawal from its membership in defendant was valid. There is no question that Public Authorities Law § 2050-cc (4) contains no language allowing members to unilaterally withdraw from defendant. Supreme Court took the position that the absence of language either specifically providing for or prohibiting the withdrawal of a municipality was an "oversight” or "unintended omission” which rendered the statute flawed and allowed plaintiff the option of withdrawing from defendant. We cannot adopt that viewpoint. Instead, we agree with defendant that the absence of withdrawal language "was an intended omission based upon prior precedent and the fact that under the Constitution, the Legislature alone has the power to create, modify and dissolve public corporations” (see, NY Const, art X, § 5). Our examination of the enabling statutes of other public corporations created to deal with the management of solid waste (particularly those created prior to defendant’s creation) convinces us that the absence of unilateral withdrawal language in Public Authorities Law § 2050-cc (4) was intentional and not just an oversight on the Legislature’s part (see, e.g., Matter of Alonzo M. v New York City Dept, of Probation, 72 NY2d 662, 665; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 363).

For instance, one enabling statute enacted in 1984 makes the waste management authority created therein "perpetual in duration * * * except, further, that the authority and its corporate existence may be terminated by law or by resolution of the town board” which must be filed with the Secretary of State (Public Authorities Law § 2049-c [4] [b] [Town of North Hempstead Solid Waste Management Authority]). As this language indicates, the Legislature specifically provided for unilateral withdrawal by a member municipality when it intended that such a power be conferred. In contrast, authorities such as defendant and the Oneida-Herkimer Solid Waste Management Authority (see, Public Authorities Law § 2049-cc [4]) do not similarly provide a method for unilateral withdrawal. We note that other enabling acts establishing similar entities do not allow for unilateral withdrawal but state that, once created, the authorities shall exist until "terminated by law” (see, e.g., Public Authorities Law § 2045-c [4] [b] [Onondaga County Resource Recovery Agency]; § 2046-c [5] [Town of Islip Resource Recovery Agency]; § 2041-b [4] [b] [Montgomery, Otsego, Schoharie Solid Waste Management Authority]). Accordingly, it appears only logical that plaintiff in this case could only withdraw from membership in defendant through an act of the Legislature.

*

Our finding that the Legislature did not intend to authorize unilateral withdrawal is further supported by the fact that the statute itself provides that defendant’s existence would be terminated automatically if at least six municipalities did not become members by the deadline (see, Public Authorities Law § 2050-cc [4]). It can be logically inferred from this requirement that the Legislature determined that in order to justify its creation, defendant required at least six members. This inference finds some support in the legislative history which indicates that defendant was created to implement the goal of building a regional co-composting facility and that the ability to finance such a project would be enhanced if several of the municipalities joined together (see, Mem of Senator Bruno, Governor’s Bill Jacket, L 1989, ch 726). As a result, if members were permitted to unilaterally withdraw their membership, defendant could, contrary to legislative intent, be left as nothing more than a "perpetual” empty shell with fewer than six members. In contrast to this possibility, requiring municipalities to obtain legislative permission to withdraw from defendant would allow the Legislature to reexamine defendant’s viability if a number of members wished to withdraw their membership. In this way there would be no possibility of allowing member municipalities to in effect usurp the Legislature’s plenary power to create public corporations on its own terms (see, NY Const, art X, § 5; City of Rye v Metropolitan Transp. Auth., 24 NY2d 627, 633-635).

Plaintiff’s remaining contentions have been examined and found unpersuasive. We reject plaintiff’s contention that Public Authorities Law, article 8, title 13-H is unconstitutional because it allegedly interferes with plaintiff’s rights under the Municipal Home Rule Law and the State Constitution (see, NY Const, art IX, §2 [c] [ii] [10]; Municipal Home Rule Law § 10) by impermissibly limiting plaintiff’s power to adopt laws for the benefit of its citizens. There can be no unconstitutional limitation of defendant’s powers in this case because the creation of public authorities and their powers is wholly within the Legislature’s purview (see, City of Rye v Metropolitan Transp. Auth., supra) and plaintiff’s powers do not extend that far. The State has clearly preempted the field as it relates to public authorities. Therefore, plaintiff’s resolution attempting to unilaterally change its membership status in defendant is "inconsistent with the State’s transcendent interest” regardless of whether the terms of the resolution actually conflict with Public Authorities Law § 2050-cc (4) (Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372, 377; see, Incorporated Vil. of Nyack v Day top Vil., 78 NY2d 500, 505). Finally, as for defendant’s claim that Supreme Court improperly engaged in judicial legislation when it approved of plaintiff’s method of withdrawing its membership, it is unnecessary for us to reach this issue due to our resolution of this case.

Along those lines we note past instances in which municipalities wishing to withdraw their membership in similar arrangements received legislative authorization to do so (see, L 1981, ch 267 [municipality obtained legislative permission to withdraw from the Multi-Town Solid Waste Management Authority]; L 1991, ch 427 [municipality given permission, "through a certified resolution of its governing board”, to withdraw from a refuse and garbage disposal district that had been enacted by the Laws of 1985, ch 771]).