Beveridge & Diamond

Beveridge & Diamond Obtains Affirmance of Dismissal of Challenge to Client’s Solid Waste Facility Operating Agreement in New York Appellate Court

Beveridge & Diamond, P.C., July 17, 2013

A panel of the New York State Appellate Division, Third Department has unanimously affirmed a trial court’s dismissal of a petition seeking an annulment of a client’s 25-year operating agreement with the Town of Colonie, New York.  Conners v. Town of Colonie, __ A.D.2d __, 2013 N.Y. App. Div. Lexis 4944 (3d Dept. July 3, 2013).  Michael Murphy, a Principal in Beveridge & Diamond’s New York Office, represented the client in the trial court and on appeal. The published decision establishes important law in New York that landfill operating agreements are not leases and are therefore not subject to state permissive referendum requirements, allowing municipalities greater flexibility for solid waste management planning.

The agreement upheld by the decision 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 trial 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 trial court found that there was a conflict between the two statutes that must be resolved in favor of the more specific statute – GML, and that the Colonie agreement therefore was not subject to the Town Law’s permissive referendum requirements.  Second, the trial court ruled that the petitioners’ challenge did not fall within the permitted bases to challenge an agreement entered into pursued to GML § 120-w. 

On appeal, the Third Department tackled the threshold issue and was swayed by our client’s argument that the  operating agreement could not be construed as a lease: “In view of the significant restrictions on [the company’s] authority and control of the landfill and the rights and powers retained by the Town, the agreement does not convey ‘absolute control and possession’ to [the company] and is not a lease as a matter of law.”  

A copy of the appellate court’s decision may be found here.   To read the lower court’s decision, please click here.  Press coverage of the decision includes this article in Albany Times Union.  

Mr. Murphy was assisted by associates Nicole Weinstein and John Paul and by James Slaughter, a Principal in the Firm’s Washington office.  For more information, please contact Michael Murphy at   




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