Beveridge & Diamond
 

Beveridge & Diamond Secures Dismissal of Challenge to Solid Waste Facility Operating Agreement in New York Supreme Court

Beveridge & Diamond, P.C., May 4, 2012

In an issue of first impression for New York’s courts, litigators in Beveridge & Diamond’s New York office secured a dismissal of a petition seeking an annulment of a resolution adopted by the Town of Colonie, which authorized the town to enter into a 25-year operating agreement with a private entity. Conners et al. v. Town of Colonie et al., N.Y. Supreme Court, Albany County, Index No. 6312-2011, Decision/Order/Judgment (April 5, 2012). Beveridge & Diamond represented the company that entered the operating agreement to provide solid waste services for the Albany region.  The agreement was the culmination of a thorough RFP process that was undertaken pursuant to NYS General Municipal Law (“GML”) §120-w and sought proposals from qualified waste management companies to manage and operate the Town’s solid waste management facilities, including an active landfill. 

The petitioners claimed that the agreement was the functional equivalent of a lease, and therefore subject to NYS Town Law permissive referendum requirements.  The petition asserted that Colonie failed to provide notice that the resolution was subject to a permissive referendum.  Previously, only one reported decision squarely raised the question of whether an operating agreement entered into by a town under Section 120-w should be considered a lease subject to a permissive referendum.  In that case however, the court did not reach the question, as it concluded that the agreement at issue did not constitute a lease.  In the Colonie case, the court assumed, for purposes of deciding several motions to dismiss, that the Colonie agreement was a lease, but then rejected the petition on several grounds. 

First, the court noted that GML § 120-w explicitly authorizes a municipality to enter into leases pertaining to solid waste management resource recovery facilities “[n]otwithstanding the provisions of any other law, general, specific or local relating to the length, duration and terms of contracts a municipality may enter into.”  Applying the rule that an apparent conflict between two statutes must be resolved in favor of the more specific statute, the court ruled that the Colonie agreement was not subject to the Town Law’s permissive referendum requirements.  Second, the Court ruled that because Colonie followed the rigorous procedural requirements of Section 120-w, any challenge was strictly limited to the bases set forth in GML § 120-w itself.  Since none of the bases permitted a challenge based on an alleged violation of procedure outside of Section 120-w, the court found that petitioners’ Town Law claim could not proceed.

A copy of the decision may be found here.  For more information, please contact Michael Murphy at mmurphy@bdlaw.com or John Paul at jpaul@bdlaw.com.   

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