Weirich v County of Allegany
Annotate this CaseDecided on November 7, 2005
Supreme Court, Allegany County
Walter D. Weirich, JR., KLAUS WUERSIG, FLOYD MERRIAM, NANCY JO PULLEN, CHERYLL A. WICKARD, TRACEY E. PARKS, and EDWARD L. GILBERT, Plaintiffs
against
County of Allegany, Defendant
30460
DAVID T. PULLEN, ESQ.
21 Minard Street
P. O. Box 182
Fillmore, New York 14735
For the Plaintiffs
TODD C. BUSHWAY, ESQ.
2000 Liberty Building
424 Main Street
Buffalo, New York 14202
For the Defendant
Larry M. Himelein, J.
Defendant Allegany County operates a solid waste landfill and has adopted different identification systems over the years to limit use of the landfill to Allegany County residents and businesses. From 1989 to 1991, the county used a bumper sticker system to identify those who could use the landfill. Each sticker cost only $2. In 1991, the County switched to red tags, which were hung from a vehicle's rear-view mirror. Each tag, which was good for ten years, cost $10. In 2000, the County switched to green tags, again costing $10, and the tags were good until December 31, 2007. [*2]
The tag fees defrayed the cost of the identification system but they were not intended to pay the cost of disposing of solid waste. The County, instead, bore the cost of disposing of solid waste out of its general tax levy. In 2003, however, the County foresaw a looming fiscal crisis and amended its rules and regulations for the operation of its solid waste system to create an annual fee that would be applied to the costs of disposal. By Resolution No. 276-2003, the green tags were to expire early, on December 31, 2003, and individuals holding tags at that time had until April 1, 2004 to purchase a new permit for $50. Anyone who did not already hold a valid green tag would be charged $60 for the permit. In subsequent years, the tags would cost $60 annually for every applicant.
Plaintiffs, who all held green tags as of December 2003, sued the County claiming, with unwarranted hyperbole, that the County's actions were arbitrary and capricious and violated plaintiffs' contractual and constitutional rights to continue dumping solid waste using their existing tags. Plaintiffs do not want to purchase new tags until December 31, 2007, when the green permits were originally scheduled to expire.
Plaintiffs' causes of action, specifically, are for breach of contract, impairment of contractual obligations, illegal tax, deprivation of substantive due process, unconstitutional governmental taking of property, deprivation of procedural due process, and arbitrary and capricious governmental action. As to all causes of action, Allegany County now moves for summary judgment. Plaintiffs concede that they do not have an action for illegal tax but otherwise oppose the County's motion. Plaintiffs also cross-move for summary judgment and seek attorney's fees and $5,000 in damages for violation of their rights.
The first issue is whether plaintiffs have a valid contractual interest in their green permit tags. They do not. "[T[he filing of an application [for a permit] and the paying a fee for same does not create a contractual relationship, either express or implied, between the parties" (Interior by Mussa, Ltd. v. Town of Huntington, 174 Misc 2d 308, 664 NYS2d 970 [Sup.Ct., App. Term, 2d Dept. 1997]). Plaintiffs do not have an enforceable contract or the right to continue disposing of their garbage until December 31, 2007 simply because they were issued green tags.
The green tags were a means to identify the individuals allowed to use the county landfill; the $10 fee did not pay the cost of disposal. Thus, while plaintiffs would not have to pay a new registration fee, they could still be charged a separate fee for dumping their garbage. Indeed, section 14 of the local law for the County's landfill operation provides: "The Board of Legislators may establish fees for permits and [emphasis supplied] for the disposal of solid waste at any County Facility." This provision existed when plaintiffs were issued their green tags and the County has simply exercised its right to establish fees to use the landfill.
Plaintiffs contend that because they paid for the permits, they should be entitled to rely on them until 2007. However, the permits were simply a means of identifying County residents so that only authorized people could use the landfill. County residents were not charged to actually use it. Even if we assume that the permits allowed the holders to dump rather than simply identifying those entitled to use the landfill, plaintiffs could not prevail. While the courts have not examined this issue in the context of solid waste permits, the issue has been examined as it relates to building permits. For example, a municipality may issue a building permit, amend the law, and thereby revoke the building permit. The permit holder will have a vested right to [*3]complete his project only if he "demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development" and his actions are "so substantial that the municipal action results in serious loss rendering the improvements essentially valueless" (Town of Orangetown v. Magee, 88 NY2d 41, 47-48, 643 NYS2d 21 [1996]; see also Ranieri v. Argust, 254 AD2d 771, 679 NYS2d 765 [4th Dept. 1998] [expenses under $1,000 deemed not substantial]). Here, the $10 fee for the green permit is miniscule, and the additional yearly costs are also too insubstantial to create a vested right in the green permits. Further, anyone who possessed a $10 green tag received a $10 reduction in the price of the new permit.
Without a vested property right, plaintiffs do not have a claim for violation of due process or a taking without compensation (see Apple Food Vendors Assoc. v. City of New York, 168 Misc 2d 483, 638 NYS2d 540 [S.Ct. New York County 1995], aff'd 228 AD2d 282, 644 NYS2d 216 [1st Dept. 1996], appeal dismissed 88 NY2d 1064, 651 NYS2d 407). Further, the county's actions in changing the permit period and increasing fees were rationally related to the legitimate governmental interest of regulating and funding the program for solid waste disposal. Finally, Allegany County's decision was not arbitrary and capricious.
Accordingly, defendant's motion is granted and plaintiffs' motion is denied, with costs on both motions. Defendant Allegany County is to submit an order on notice.
Dated: Little Valley, New York
November 7, 2005
_________________________
HON. LARRY M. HIMELEIN
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