SCHUYLER COUNTY

OFFICE OF THE COUNTY ATTORNEY

Steven J. Getman 105 Ninth Street, Unit 5
County Attorney Watkins Glen, NY 14891

Kristin E. Hazlitt Tel. (607) 535-8121

Assistant County Attorney Fax. (607) 535-8123

Vinton Bovier Stevens http://www.schuylercounty.us

Assistant County Attorney

Memorandum of Law
To: Mark Rondinaro, Chair, CDNR Committee

Cc: Tim O’Hearn, County Administrator

Kristin VanHorn, Planning Director
Stacy Husted, Clerk of the Legislature

From: Steven J. Getman

Date: September 28, 2020

Re: County Line Materials Recovery Facility, Town of Cayuta

Questions presented.
1. Whether legal authority exists for the County Legislature to adopt a moratorium on waste
operations in Schuyler County and, if so, the procedures and related issues involved in doing
so.

2. Whether legal authority exists for the County Legislature to adopt a resolution opposing a
certain proposed materials recovery and solid waste transfer facility in Schuyler County and,
if so, the procedures and related issues involved in doing so.

Statement of facts. 1

According to a recent article in the Ithaca Journal:

1
It should be noted that the news articles, blog posts, websites, emails and similar materials cited herein would, in the
event of litigation, likely be considered hearsay (see, e.g., Rombom v Weberman, 2002 NY Slip Op 50245(U) [2002],
affd, 309 AD2d 844 [2003]) and of no evidentiary value (Trieger v Kinsella, 309 AD2d 1223 [2003]). They are cited
herein simply to acknowledge and/or illustrate the public controversy that exists in relation to this proposed facility
which might be instructive to the county in the event it desires to take action in this matter, as well as possible fact
patterns that might arise.
September 28, 2020
Page 2

Bob Mente of Newfield's Alternative Waste Services Inc. is proposing a materials recovery
and garbage transfer facility in Schuyler County…

The 10,575-square-foot complex, called the County Line Materials Recovery Facility, would
be located at 1313 Recycle Lane in Cayuta, next to the Schuyler County and Tompkins
County line, according to documents from the state Department of Environmental
Conservation.

It would accept municipal solid waste, construction and demolition debris, and source-
separated recyclables, with a maximum daily output of 500 tons per day.

The facility would include waste storage areas, a truck-weighing scale, trailer staging area and
an onsite wastewater storage tank, plus a building for handling and storage of waste materials
that will also have areas for office space. From the facility, waste would then be hauled by
trash trucks, primarily to Seneca Meadows Landfill2.

The application for the project states over 90 trucks and vehicles would enter and exit the
facility for 185 trips daily six days per week.

A state environmental quality review determined the project would not have a significant
effect on the environment.

However, an environmental group has expressed its concerns about potential adverse effects
the facility would have on nearby towns and areas.

(https://www.ithacajournal.com/story/news/local/2020/09/17/garbage-transfer-materials-recovery-
facility-proposed-cayuta/5814676002/ [last accessed 09/23/20 at 11:06 am).

The New York State Department of Environmental Conservation (DEC) is currently considering
Mente’s application. DEC describes the project as follows:

The applicant… proposes to build a 10,575 square foot materials recovery facility that would
accept municipal solid waste (MSW), construction and demolition debris (C&D) and source-
separated recyclables, with a maximum daily thoughput of 500 tons per day. The facility will
include waste storage areas, a truck weighing scale, trailer staging area and an onsite
wastewater storage tank, and a building for handling and storage of waste materials that will
also have areas for office space.

(https://www.dec.state.ny.us/enb/20200909_reg8.html [last accessed 09/23/20 at 11:52 am]).

2
In an email to multiple parties (Monday, September 21, 2020 @ 9:16 PM), including the Clerk of the Schuyler
County Legislature, the Cayuta Town Supervisor has disputed that waste will be taken to Seneca Meadows, stating
“Seneca Meadows has been removed from the application, it was placed on the application originally in error.” In
other emails the supervisor has disputed some of the other allegations made against the facility.
September 28, 2020
Page 3

Pursuant to the New York State Environmental Quality Review Act (SEQR), DEC has determined
that the project is “an Unlisted Action and will not have a significant impact on the environment. A
Negative Declaration is on file. A coordinated review was not performed” (Id.).

DEC has indicated the public comments on this project were to be submitted in writing no later than
September 24, 2020 (Id.).

The proposed project is located with the Town of Cayuta, County of Schuyler, State of New York.
Upon information and belief, the source of same being discussions with the County Planning
Director, the Town of Cayuta has no zoning or land use law, nor a comprehensive plan. The town
does issue building permits and has done so in this case.

In response to the above situation, the County Legislature has received several emails, asking it to
oppose the project. Some of these emails, as well as a public “Seneca Lake Guardian” Facebook
post (https://www.facebook.com/SenecaLakeGuardian/posts/1260419227624105 [last accessed
09/23/20 at 11:35 am]), have requested that the County Legislature “immediately adopt a
moratorium on moving forward with any waste operations in Schuyler County while the public has
an opportunity to review the … proposal.” Others have suggested that, at the very least, the legislature
make its formal opposition, if any, known to the DEC.

Discussion.
Moratoria.

New York State law recognizes two general types of moratoria:

(1) land use moratoria; and
(2) general police power moratoria.
(State of New York, Dept. of State, James A. Coon Local Government Technical Series, Land Use
Moratoria [2010])

Land use moratoria are designed to preserve the status quo while planning or zoning changes are
made. These moratoria are often known as “stopgap” or “interim” zoning. These enactments are
appropriate mechanisms for addressing long range community planning and zoning objectives.
Moratoria can also be imposed on other land use controls including subdivision plat review and
issuance of building permits (Id.).

In contrast, where immediate health and safety problems are at issue, a municipality’s general police
power, rather than zoning or land use, may be an appropriate source of authority for a moratorium.
“The police power is the authority possessed by municipal governments to take action to advance
the public health, safety and welfare. While land use regulation itself is an exercise of the police
power, the term is more commonly employed in reference to other forms of municipal laws or
ordinances” (Id.).

A “duly enacted local law is clothed with the presumption of constitutionality,” and “a heavy burden,
at the threshold [is placed] on the party challenging the local law” ( 41 Kew Gardens Rd. Assoc. v
Tyburski, 70 NY2d 325 [1987]; Lighthouse Shores v Town of Islip, 41 NY2d 7 [1976]).
September 28, 2020
Page 4

Several important limits must be observed for a moratorium to be upheld, however: (1) it must be
rationally related to a valid public purpose; (2) it must not amount to a taking of property without
just compensation; (3) it must comply with the statutory procedures for enacting local laws; (4) it
must not be preempted by state law; and (5) it must be limited to a definite and reasonable term.
Additionally, a moratorium may be found inapplicable to certain property owners if they can
establish vested rights to build under the prior regulations. (11 NO. 1 New York Zoning Law and
Practice Report 1 ).

A three-prong test must be met to determine “whether necessity limits have been exceeded” (Id.;
see, also, Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507 [1974] ). The municipality
“must establish that it has acted in response to a dire necessity, that its action is reasonably calculated
to alleviate or prevent the crisis condition, and that it is presently taking steps to rectify the problem”
(Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507 [1974] ). Moreover, with respect to
regulation of a business by the adoption of a local law, “there must be (1) some ‘real or substantial
evil’ (not necessarily a dire emergency) that the regulation is designed to cure, and (2) a ‘reasonable
relation between such menace and the remedy proposed’” (Louhal Props. v Strada, 191 Misc.2d
746 [2003] ).

Under this test, “there is no authority for a moratorium serving no other purpose than to delay the
development of property” (1989 Ops Atty Gen (Inf) 73 [1989] ). In addition, a municipality may
not invoke its police powers solely as pretext to assuage strident community opposition (Belle
Harbor Realty Corp. v Kerr, 35 NY2d 507 [1974] ).

The application of the above to the two different types of moratoria will be discussed separately
below.

Land use moratoria.

In order for a municipality to authorize a land use moratorium on the establishment of a particular
facility, it is necessary that the action be part of the consideration of a plan to establish zoning or land
use regulations with respect to that use (1989 Ops Atty Gen (Inf) 73 [1989] ). Otherwise, “such a
measure would have no relationship to the health, safety and welfare and would constitute an
unconstitutional taking of property” (Id .).

As noted above, land use moratoria are a form of “stopgap” or “interim” zoning (1 NY Zoning Law
& Prac. § 4:17 ). The power to enact zoning or land use regulations, including stopgap zoning, must
be founded upon a delegation of power by the state (Lake Illyria Corp. v Town of Gardiner, 43
AD2d 386 [1974] ).

While counties have planning power under the Statute of Local Governments (Statute of Local
Government § 10 [7] ), including the power to adopt a master plan, to prepare and adopt a county
map, and to coordinate the land-use control of municipalities within the county, counties do not
have the power to enact zoning regulations (1 NY Zoning Law & Prac. § 2:09 ). “No enabling
legislation has been adopted which delegates zoning power to counties, and no such power was
September 28, 2020
Page 5

delegated to counties in the Statute of Local Governments” (1 NY Zoning Law & Prac. § 2:04, citing
Statute of Local Governments, § 10[6]).

Accordingly, because a county lacks the legal authority to establish zoning or land use regulations, it
lacks the authority to impose moratoria in connection with consideration of adopting zoning or land
use laws. Therefore, any land use moratoria would seem unrelated to a lawful county objective and
would likely constitute an unconstitutional taking of property.

Police Power Moratoria.

Counties have power to adopt and amend local laws consistent with the Constitution and general
State laws in relation to the government, protection, order, conduct, safety, health and well-being of
persons or property therein (Municipal Home Rule Law § 10[1][ii][a][12]). This is the grant of the
police power to counties (People v Cook, 34 NY2d 100 [1974]). Under this power, a county by
local law may regulate occupations or businesses located outside of any villages, towns or cities that
might be at the time regulating the particular occupation or business in question (1981 Ops Atty Gen
[Inf] 245 [1981]). The police power has been defined generally as the power to regulate persons
and property for the purpose of securing the public health, safety, welfare, comfort, peace and
prosperity of the municipality and its inhabitants (Village of Carthage v Frederick, 122 NY 268
[1890]).

“The power is as old as is the organization of municipalities. In fact, some courts have said that the
State imparts police power to the municipality by the mere organization of it. It is implied in the
grant to govern” (State of New York, Dept. of State, James A. Coon Local Government Technical
Series, Adopting Local Laws in New York State [1998]).

This power is subject to the limitations that the local laws must not be inconsistent with nor
contravene laws of the state and that they bear a reasonable relation to the objective sought to be
achieved (Whitestone Bridge Drive-In Theatre, Inc. v O'Connell, 14 AD2d 51[1961]; Dibble v
Town of Ripley, 124 Misc2d 951 [1984]).

The validity of such a local law depends on circumstances of each case (Wulfsohn v Burden, 241
NY 288 [1925]). Generally, however, in order for a local law to be a valid exercise of police power,
as required to satisfy due process, it must survive a two-part test: (1) it must have been enacted in
furtherance of a legitimate governmental purpose; and (2) there must be a reasonable relation
between the end sought to be achieved by the regulation and the means used to achieve that end
(People v Novie, 41 Misc3d 63 [2013]). As noted above, a municipality may not invoke its police
powers solely as pretext to assuage strident community opposition (25 NY Jur2d Counties, Etc. §
285).

There is no specific statutory authorization for the adoption and implementation of countywide
moratoria in New York. Nevertheless, the authority of a local government to enact moratoria as
police power regulations has been recognized by the New York courts (11 NO. 1 New York Zoning
Law and Practice Report 1, citing Hasco Elec. Corp. v Dassler, 143 NYS2d 240 [1955]; People ex
rel. St. Albans-Springfield Corporation v Connell, 257 NY 73 [1931]).
September 28, 2020
Page 6

There is authority that, while it cannot engage in zoning or land use legislation, a county may, via
exercise of police power, regulate certain activities in relation to the disposal of waste or the siting or
expansion of solid waste management facilities within their jurisdictions (9 NY Prac, Environmental
Law and Regulation in New York § 8:13). For example, the New York State Attorney General has
advised that, pursuant to Municipal Home Rule Law § 10, a county may, by local law, exercise its
police power to prohibit the importation of out-of-county solid waste or to regulate private landfills
(1981, Op.Atty.Gen. [Inf] 245). Similarly, a county may properly enact a local law creating a
permitting system or licensing system related to solid waste activities, such as waste hauling or
recyclables brokers (see, e.g., Chapter 826–a of the Laws of Westchester County, upheld by MVM
Constr., LLC v Westchester County Solid Waste Commn., 162 AD3d 1036 [2018])3. These local
laws must be consistent with the applicable provisions of the Environmental Conservation Law and
rules and regulations thereunder (1981 Ops Atty Gen [Inf] 245 [1981]). However, the
Environmental Conservation Law article on collection, treatment, and disposal of refuse and other
solid waste does not preempt local regulation of issues related to solid waste management (ECL §
27-0101 et seq.; MVM Constr., LLC v Westchester County Solid Waste Commn., 162 AD3d 1036
[2018]).

If, as discussed above, a county has authority to regulate certain activities in relation to the disposal
of waste or the siting or expansion of solid waste management facilities within its jurisdiction, it would
seem that it also has authority to enact moratoria in relation to same4.

However, as noted above this authority would not be absolute. Most notably, the county would
need to demonstrate that the enactment was in response to a dire necessity, must be considered an
emergency measure and be circumscribed by exigencies of that emergency (Belle Harbor Realty
Corp. v Kerr, 35 NY2d 507 [1974]). The county may not, as noted above, invoke its police powers
solely as a pretext to assuage strident community opposition, nor may it do so merely to delay the
development of property. The county would be required to demonstrate that that its action is
reasonably calculated to alleviate or prevent a crisis condition, and that it is presently taking steps to
rectify the problem. Absent such a showing, any such moratoria would likely be struck down, if
challenged. Accordingly, if the county wishes to enact a moratorium, it is recommended that it
thereafter undertake in good faith effort the consideration and/or development of necessary
regulations, licensing schemes, etc.

3
In addition, it has been reported that in 2019 Rensselaer County passed a moratorium on solid waste facilities
(Local Law No. 2 of 2019) in response to a proposed trash-processing plant
(https://www.timesunion.com/news/article/Rensselaer-county-lawmakers-look-to-solid-waste-14085990.php [last
accessed 09/23/20 at 4:08 pm]). This moratorium was later amended to include nearly the entire county instead of
just the area within a mile of the Hudson River (https://www.timesunion.com/news/article/Rensselaer-County-
extends-moratorium-on-solid-14302276.php[last accessed 09/23/20 at 4:09 pm]). I can find no indication this
moratorium was challenged or otherwise set aside.
4
Indeed, Schuyler County previously enacted what it termed a “conditional moratorium” on the development of solid
management facilities in the county, under Local Law No. 1 of 1989. The intent of that local law was to regulate the
establishment or expansion of solid waste management facilities during the preparation and approval of a solid waste
management plan to assure that any future facilities were consistent with said plan (Local Law 1989-1[2]). However,
said local law provided, at Sections 4 and 10, that the moratorium would expire upon the completion of the preparation
and approval by DEC of such plan (Local Law 1989-1[4] and [10]). Upon information and belief, the source of same
being conversations with the Clerk of the Legislature and the Planning Director, such completion and approvals appear
to have occurred long ago and, as such, this particular local law has expired. Further, the clerk has not located any
continuing prohibition in the county’s unexpired local laws.
September 28, 2020
Page 7

Other considerations with moratoria.

Local law adoption process.

While it has been suggested that a moratorium be enacted immediately in this situation, as noted
above, a county’s police powers are generally required to be exercised through the adoption of local
laws, pursuant to the New York State Constitution, the Statute of Local Governments and the
Municipal Home Rule Law.

Accordingly, the county would be required to adopt the moratorium as a local law and follow the
procedural notice and hearing requirements for adopting same (see, generally, Municipal Home
Rule Law § 20) 5. Further, prior to adoption of a moratorium, a municipality must comply with the
required referral to the county planning agency or regional planning council (General Municipal
Law § 239-m), and a failure to do so would nullify and void the moratorium (Roanoke Sand & Gravel
Corp. v Town of Brookhaven, 24 AD3d 783 [2005]). Finally, it has been recommended that local
governments should also ensure that moratoria are enacted only after a process that provides
opportunities for all interested stakeholders to engage (State of New York, Dept. of State, James A.
Coon Local Government Technical Series, Land Use Moratoria [2010])6.

Duration of moratorium.

The duration of a moratorium must be “reasonable.” Moratoria are inherently temporary tools, and
“[a] municipality may not use a ‘moratorium’ as a de facto means of achieving a desired legislative
purpose” (Ecogen, LLC v Town of Italy, 438 FSupp2d 149 [2006]). Case law does not establish a
bright-line test regarding moratoria time frames. Instead, reasonableness considers the length of
time necessary for good faith efforts to resolve the problem that triggered the moratorium (Lakeview
Apartments of Hunns Lake, Inc. v Town of Stanford, 108 AD2d 914 [1985]; Lake Illyria Corp. v
Town of Gardiner, 43 AD2d 386 [1974]). For example, under various circumstances, the courts
have held that moratoria lasting for 90 days (Dune Associates, Inc. v Anderson, 119 AD2d
574[1986]), six months (Noghrey v Acampora, 152 AD2d 660 [1989]), eight months [Laurel Realty,
LLC v Planning Bd. of Town of Kent, 40 AD3d 857 [2007]) or longer (Chevere v City of New York,
31 Misc 3d 337 [2010], judgment entered sub nom. Chevere v the City of New York [2011]) were
reasonable. However, particularly long moratoria and multiple extensions thereof may trigger a
closer examination by the courts and run the risk of being considered unreasonable and
unconstitutional under Constitutional substantive due process or takings grounds (Lake Illyria Corp.
v Town of Gardiner, 43 AD2d 386 [1974]).

Landowner’s potential defense or claim of a “vested right.”

5
While certain minimum time requirements may be waived via an “Emergency Message” from the Chief Elected Officer
and a two-thirds majority vote for passage of the law, this waiver does not necessarily dispense with other statutory
requirements, such as a required referral to a state or county agency (State of New York, Dept. of State, James A. Coon
Local Government Technical Series, Adopting Local Laws in New York State [1998] ).
6
There is some authority that moratoria are “Type II Actions” under the SEQR regulations, which would mean that
SEQR does not apply to the enactment of moratoria (6 NYCRR 617.5[c][30]; State of New York, Dept. of State, James
A. Coon Local Government Technical Series, Land Use Moratoria [2010]).
September 28, 2020
Page 8

A property owner's detrimental reliance may in certain circumstances establish a “vested right” to
proceed under the law as it existed prior to a moratorium (Temkin v Karagheuzoff, 34 NY2d 324
[1974]). This can occur when all necessary approvals were received from the governing authorities
and construction began, or significant investments were made, before the moratorium was enacted
(Pokoik v Silsdorf, 40 NY2d 769 [1976]).

The application of this “substantial construction, substantial expenditures” test is largely fact specific.
For example, in one case, it was held the landowners had a vested right to construct a nursing home
where they had received all necessary approvals and had nearly completed the building's foundation
work when the city enacted a moratorium suspending the construction of nursing homes (Temkin v
Karagheuzoff, 34 NY2d 324 [1974]). Conversely, in another case, it was held that a landowner had
not accomplished substantial completion of his building before a moratorium went into effect, even
though there was evidence that he had made some expenditures. In that case, the court sustained a
finding that the construction which occurred was of the "most basic and impermanent nature with
rudimentary detailing and flimsy and inexpensive materials" and therefore insubstantial (Matter of
Steam Heat, Inc. v Silva, 230 AD2d 800 [1996]).

In the matter at hand, one of the controversies surrounding this project has been allegations that the
applicant began construction of a building upon the subject property without a DEC permit (see,
e.g., https://outline.com/gT9v5x [last accessed 09/28/20 @ 4:30 pm])7. The applicant has allegedly
acknowledged construction but argued that said building in question is a storage building and only
a small part of his project (Id.). If so, this might tend to demonstrate that any current construction
is not “substantial” and does not create a vested right.

In addition, the fact that a landowner has a vested right in an existing use, does not, per se, mean he
or she has a vested right in new or different uses of the property (Matter of Exeter Bldg. Corp. v
Town of Newburgh, 114 AD3d 774 [2014], affd 26 NY3d 1129 [2016]).

Here, one of the concerns expressed by some members of the public is that the applicant might later
turn the proposed materials recovery facility into a landfill. According to published reports DEC
says that a potential landfill is not in the current application
(https://www.weny.com/story/42653278/proposed-materials-recovery-and-garbage-transfer-facility-
in-schuyler-county [last accessed 09/28/20 @ 2:44 pm]). Similarly, the Cayuta Town Supervisor, in
emails discussing the town’s support of the project, has stated “this will never a landfill” (Email,
Monday, September 21, 2020 @ 9:16 PM), and has described the applicant’s intent as running “a
glorified dumpster business” (Email, Tue 9/22/2020 @ 2:44 PM). If true, this would seem to
indicate that the applicant, at least as might pertain to a landfill, has not acted in detrimental reliance
which might serve to support his claim that he has acquired vested rights (see, e.g., Ronsvalle v
Totman, 303 AD2d 897, 899 [2003]).

Resolution of the legislature in opposition.

7
Again, such news articles and/or blog posts may be deemed “unreliable hearsay” (CPLR 4518 [a]; Matter of
Georgian Motel Corp. v New York State Liq. Auth., 184 AD2d 853 [1992]; McBryant v Pisa Holding Corp., 110 AD3d
1034 [2013]) and are only cited herein for illustrative purposes related to the fact patterns and/or controversies
potentially at issue herein.
September 28, 2020
Page 9

In the alternative to a moratorium, some individuals have suggested that the County Legislature pass
a resolution in opposition to the facility, which resolution might be transmitted to the DEC, the
Town of Cayuta and/or other entities.

A power of the county, whether in terms vested in the county or in county legislature shall, except
as otherwise expressly provided, be exercised through a local law or resolution duly adopted by the
legislature (County Law § 153[1]).

The form of enactment largely depends on the county’s goals and intent. A local law or ordinance
is a legislative act (City of Troy Unit of Rensselaer County Chapter of Civil Service Emp. Assn v City
of Troy, 36 AD2d 145 [1971], affd, 30 NY2d 549 [1972]). It is intended as a permanent rule of
government (Appeal of Model Taxi Corp., 263 AD 776 [1941]), as well as a continuing regulation
(Collins v City of Schenectady, 256 AD 389 [1939]) affecting matters arising subsequent to its
adoption (Jewett v Luau-Nyack Corp., 31 NY2d 298 [1972]). A resolution, on the other hand, while
legislative, is not legislation in the strictest sense (City of Troy Unit of Rensselaer County Chapter of
Civil Service Emp. Assn v City of Troy, 36 AD2d 145 [1971], affd, 30 NY2d 549 [1972]) but is an
act of the governing body where the action taken generally involves findings of fact and may be
characterized as administrative (Jewett v Luau-Nyack Corp., 31 NY2d 298 [1972]). A resolution
/has been held to be merely declaratory of the will of the legislature in a given matter (Hess v Board
of Ed. of Central School Dist. No. 1 of Townships of Liberty, et al., 41 AD2d 151 [1973]).

Consistent with the above, lesser formality is required for the enactment of a resolution than for a
local law (25 NY Jur2d Counties, Etc. § 326). Generally, the requirement would be simply that the
legislature pass the resolution in a manner consistent with its own rules of procedure (County Law §
153[8]).

It is not uncommon for a local legislature, including our own, to pass resolutions on state and federal
issues that are relevant to its citizens. As noted by the New York City Council, such resolutions allow
a local government to express a collective voice of the municipality, and can play an important role
in the development of law and public policy throughout New York State and across the nation
(https://council.nyc.gov/legislation/ [last accessed 09/23/20 at 8:01 pm]).

In terms of what particular findings the legislature might choose to make, it is suggested that the
county exercise some sort of due diligence or due process prior to passage. While, generally, public
officials may be afforded absolute immunity from liability for defamation “with respect to statements
made during the discharge of [their] responsibilities about matters which come within the ambit of
those duties” (Enviroventures, Inc. v Wingert, 171 AD3d 1290 [2019]), public officials may be sued
for defamation if subject of communication is unrelated to any matters within their competence or
if form of communication is totally unwarranted (Hull v Town of Prattsville, 145 AD3d 1385 [2016]).

Accordingly, it is suggested that any contemplated resolution in opposition be prepared with input
from the County Planning Director and any other entity or body having responsibility to advise the
legislature on environmental matters. Upon information and belief, the source of same being review
of draft materials prepared by the planning department and other county officials, this process has
commenced and produced a draft resolution in opposition.
September 28, 2020
Page 10

Conclusions and recommendations.

• The County Legislature is without authority to enact a moratorium on use of a particular

parcel under zoning or land use principles.

• The County Legislature appears authorized to enact a moratorium under its general police
powers to regulate certain activities in relation to the disposal of solid waste or the siting or
expansion of solid waste management facilities within its jurisdiction.

• Any such moratorium would need to comply with the requirements for validly enacting a
local law, including introduction, public notice and public hearings, as well as referral to the
county planning agency and/or regional planning council. It must be reasonably calculated
to alleviate or prevent the potential menace to the county and in good faith consideration of
a permanent remedy to such problem. The moratorium must be reasonable in duration.

• The County Legislature may not enact a moratorium solely as a pretext to assuage
community opposition, nor merely to delay the development of a particular property.

• The County Legislature may, if the legislature so chooses, pass a resolution in opposition to
the proposed facility, consistent with its rules of procedure, as an expression of findings of
fact and/or a collective comment on the proposed facility. It is suggested that, to the extent
still necessary, any such resolution be drafted and proposed following appropriate
consultation with appropriate planning entities.

If the members of the committee or other county officials have any questions, or require anything
further, please do not hesitate to contact me. Thank you for your courtesy and kindness in this
matter.