OPINION OF THE COURT
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.
I
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 plan[s]” 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]X Applications for such "variances” are to be made to the "Planning Board”, rather than to the "Planning Division”.
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) (9) (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 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” (NY Const, art IX, § 2 [c] [ii] [10]), provided that such local laws are "not inconsistent with the provisions of this constitution or any general law” (NY Const, art IX, § 2 [c] [ii]; see generally, Jancyn Mfg. Corp. v County of Suffolk,
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.,
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 invalid. The only inconsistency that might be said to exist between local law and State law in this case
Returning to this central issue, we agree with the town’s argument that Islip Town Code chapter 21 was not enacted pursuant to Town Law § 261, and that it is not, therefore, what is commonly referred to as a "zoning” law. True, it contains provisions which require, for example, a certain minimum lot size. However, this alone does not transform the local law under review into one governed by Town Law article 16 (Town Law § 261 et seq.), where it is clear from a reading of the local law as a whole that it is intended to regulate a particular occupation, rather than to regulate the general uses of land. There are enabling statutes which specifically authorize town boards to regulate the collection and dumping of garbage (see, Town Law § 130 [6]; § 136 [8]), and to establish agencies for the enforcement of such laws (Town Law § 130). Therefore, Islip need not rely on the general zoning provisions of Town Law article 16 as the source of its power either to enact laws governing transfer stations or to create administrative agencies responsible for the enforcement of such laws. Since Islip need not regard Town Law article 16 as the source of its power to regulate the defendants’ property, it is not bound by the procedural aspects of that article.
This principle is well illustrated in the case of Niagara Recycling v Town of Niagara (
In the Niagara case, both parties apparently treated the issue as one involving "zoning”. This is not surprising, since the local law under review did implicate what are generally viewed as "zoning” concerns. However, Justice (now Judge) Hancock, writing for the court, noted that the characteriza
The distinction between local laws which are purely "zoning” laws, so as to be controlled by Town Law article 16, on the one hand, and local laws which, while affecting the use of land, are not strictly speaking "zoning” laws, on the other, was recognized anew in the case of Matter of Hill v Town of Elbridge Zoning Bd. of Appeals (
Decisional authority from other jurisdictions supports the view that compliance with statutory zoning procedures is needed only when the local law in question represents an exercise of the local government’s general "zoning” powers, rather than an exercise of a more specific "police” power. For example, in American Sign & Indicator Corp. v Town of Framingham (9 Mass App 66,
In Township of Howell v Sagorodny (46 NJ Super 182,
In accordance with the rule reflected in these cases, we conclude that Islip Town Code chapter 21 is not a zoning law merely because it touches the use of land. The chapter applies to a particular activity (the operation of "transfer station/ recycling centers”), and it applies to that activity wherever it is carried out in the town. It does not suspend or limit in any way the application of Islip’s zoning laws, nor does it curtail in any way the powers of the town’s Zoning Board of Appeals. Town Code § 21-6 (B) (10), in fact, explicitly states that "[nothing in this section shall exempt an applicant or facility from compliance with zoning * * * requirements of the Islip Town Code”. More precisely, Islip Town Code chapter 21 should be regarded as having been enacted pursuant to the town’s specific power to regulate garbage collection (Town Law § 136 [8]; § 130 [6]; see also, Matter of All Weather Carting Corp. v Town Bd.,
For these reasons, Islip Town Code §21-6 (B) (9) (o) is not inconsistent with any part of Town Law article 16, or with any other provision of the general law of New York. The delegation to the Planning Board of the power to vary the standards set forth in Islip Town Code chapter 21 (see, Islip Town Code § 21-6 [B] [9] [o]) is not inconsistent with the delegation to the Zoning Board of Appeals of the power to vary the standards set forth in that portion of the Islip Town Code which expressly deals with zoning (see, Town Law § 267) because Town Code chapter 21 is not a zoning law. Islip Town
The Supreme Court also invalidated Islip Town Code §68-338 (D) which may properly be treated as a "zoning” provision: it provides that a "transfer station/recycling center” is a permitted use within an Industrial 1 District, subject to the provisions of Islip Town Code chapter 21. However, in light of our determination with respect to Islip Town Code chapter 21, the determination of the Supreme Court with respect to section 68-338 (D) likewise must fall.
Because the Town of Islip did not attempt to supersede State law by enacting an inconsistent local law (see, Kamhi v Town of Yorktown,
Ill
On appeal, the defendants assert alternative grounds for affirmance of the order and judgment under review. They contend that "Islip Town Code § 21-6 (B) (9) and § 68-338 (D) amount to an unconstitutional summary termination of an existing nonconforming use because [the Town] has not provided a reasonable amortization period”. The defendants rely on the doctrine that "[a] zoning ordinance in order to be validly applied cannot * * * serve to prohibit use to which the property is devoted at the time of the enactment of the ordinance” (Lutheran Church v City of New York,
Acceptance of the defendants’ alternative argument with respect to their alleged right to continue a nonconforming use would not warrant the relief actually granted by the Supreme Court, to wit, a declaration that Islip Town Code chapter 21 is invalid, which was the only relief expressly requested by the defendants in their motion papers, and which is the only relief expressly requested by the defendants on appeal. Since acceptance of this alternative argument would warrant relief altogether different from that which was explicitly requested in the defendants’ notice of motion, and altogether different from that which was granted by the Supreme Court, it is not an argument which may serve as an alternative ground for affirmance of the order and judgment appealed from (cf., Town of Massena v Niagara Mohawk Power Corp.,
On appeal, the defendants inform us that their application for a permit to operate a transfer station is still pending. We infer that the town’s delay in processing this application,
Under these circumstances, the defendants’ argument that the local laws under review are invalid because they fail to provide for a reasonable amortization period is not ripe for judicial review. In general, a landowner may not seek judicial review of a local government’s land use laws until the local agency responsible for the administration of such laws takes a "definitive position 'that inflicts an actual, concrete injury’ ” (Church of St. Paul & St. Andrew v Barwick,
In accordance with this general rule, it has been held that a claim that a local government’s land use laws are unconstitutional as applied, in that they constitute an illegal "taking” of property without just compensation, is not ripe for judicial review until administrative relief has been sought and denied (see, Matter of Parkview Assocs. v City of New York,
The defendants’ claim that portions of Islip Town Code chapter 21 may not constitutionally be applied to them is premature for the additional reason that their administrative remedies have not been exhausted. Although the doctrine which precludes judicial review of controversies until after available administrative remedies have been exhausted is distinct from the doctrine which precludes judicial review of controversies not yet "ripe” (see, Church of St. Paul & St. Andrew v Barwick, supra, at 521; Petosa v City of New York,
These cases are to be distinguished from those in which the plaintiff challenged legislation on the grounds of facial invalidity, for which exhaustion of administrative remedies may not necessarily be required (see, e.g., Loretto v Teleprompter Manhattan CATV Corp., supra; McGowan v Cohalan,
For the foregoing reasons, the defendants’ alternative argument concerning their right to continue a nonconforming use is not reviewable on this appeal.
IV
We must address a third argument made by the defendants, i.e., that the plaintiff failed to define the criteria by which the Planning Board is to be guided when deciding whether to grant a variance application pursuant to the power delegated to it by Islip Town Code § 21-6 (B) (9) (o). The defendants argue that given the absence of such criteria, the delegation to the Planning Board of the power to grant variance applications constitutes an invalid delegation of legislative power.
If accepted, this argument would serve as an alternative basis for the affirmance of at least part of the order and judgment under review, i.e., so much of it as invalidated Islip Town Code § 21-6 (B) (9) (o), which delegates to the Planning Board the power to issue variances. Further, since the acceptance of this argument would result in a declaration of the facial invalidity of that provision of the Town Code, the failure of the defendants to have exhausted their administrative remedies would present no barrier to judicial review. It would be anomalous to suggest that the defendants must seek a variance from this agency when it is their legal contention that this agency has no legal authority to grant a variance at all. A legal challenge to a local government’s delegation of its land use regulatory powers to an administrative agency may properly be reviewed before the complaining party has sought relief from the agency (see, e.g., Dur-Bar Realty Co. v City of Utica,
The defendants’ argument in this respect is, therefore, reviewable. One might question whether it is wise for the defendants to make such an argument, since its acceptance
We conclude that the defendants’ argument concerning the plaintiffs alleged failure to specify the criteria to be applied by the Planning Board in reviewing variance requests is without merit. The courts have repeatedly held that local governments may properly delegate the discretionary power to vary the application of zoning laws, provided that there are standards "stated in general terms, 'are capable of reasonable application’ ” (Matter of Torsoe Bros. Constr. Corp. v Architecture & Community Appearance Bd. of Review,
Town Code § 21-6 (B) (9) (b), which establishes the two-acre minimum lot size, states that this requirement "will be based on the scale of operation as measured by the size of the buildings proposed for the site, the volume of solid waste handled on a daily basis and the requirements for vehicle parking and movement or a finding that the operation cannot be adequately screened from adjoining property”. These considerations are those which are to govern the Planning Divi
Although general, these standards are no more general than others which, in the context of similar cases, have been found by the courts to have sufficient specificity. For example, in Matter of Aloe v Dassler (
V
For all of the foregoing reasons, the order and judgment appealed from is reversed, and the defendants’ motion for partial summary judgment denied. Because we have passed only on the facial validity of Islip Town Code § 21-6 (B) (9) (a); § 21-6 (B) (9) (o) and § 68-338 (D), and because we have not addressed the issue of their validity as applied to the defendants, it is appropriate to find, at this stage, only that the provisions under review were validly enacted. The defendants are free to reassert their argument that these provisions cannot be validly applied to them at such time as this argument might become ripe for judicial review (see Town of Islip v Cuomo,
Ordered that the judgment is reversed, on the law, with costs, and the defendant’s motion is denied.