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Gary D. Peake Excavating Inc. v. Town Bd. of Hancock

ELR Citation: 26 ELR 21620
Nos. 95-9280, 93 F.3d 68/(2d Cir., 08/22/1996)

The court holds that under New York law, an unconstitutional section in a local waste flow-control ordinance is severable from the constitutionally valid remaining provisions of the ordinance. The court first holds that plaintiffs' claims are ripe for adjudication. Plaintiffs do not have to obtain a permit under the ordinance to use their property as a disposal facility in order to challenge its validity. The court next holds that the district court's severance of the unconstitutional section from the rest of the ordinance was permissible. By including a severability clause, the town board indicated that it intended that the ordinance be enforced without the unconstitutional section. Further, the ordinance's purpose—to prohibit the operation of landfills and the dumping of waste in the town to protect the residents' health and safety—will still be served if the unconstitutional section is severed. The court then holds that the remaining portions of the ordinance, which prohibit waste from being dumped in the town unless it is sent to a town-operated transfer station or landfill, do not violate the Commerce Clause of the U.S. Constitution. The record indicates that the ordinance was enacted to protect the health and safety of the town's residents, and there is nothing in the minutes of the board's meetings indicating the purpose of the ordinance was to discriminate against out-of-state waste. Moreover, the ordinance is not discriminatory in its effect because it does not treat out-of-state waste differently from waste generated in the town. It does not prevent town residents from disposing of waste at any out-of-town facility, nor does it deny any out-of-town competitor access to the town's waste market. And the ordinance does not impose any incidental burdens on interstate commerce.

Counsel for Plaintiffs
Thomas S. West
LeBoeuf, Lamb, Greene & MacRae
One Commerce Plaza
90 Washington, Ave., Ste. 2020, Albany NY 12210
(518) 465-1500

Counsel for Defendant
John Hudanich
Hartjen, Hudanich & Root
15 Ozalid Rd., Johnson City NY 13901
(607) 797-9476

Before: MINER, JACOBS, and PARKER, Circuit Judges.