| Matter of Village of Lacona v New York State Dept. of Agric. &Mkts. |
| 2008 NY Slip Op 04597 [51 AD3d 1319] |
| May 22, 2008 |
| Appellate Division, Third Department |
| In the Matter of Village of Lacona, Appellant, v New York StateDepartment of Agriculture and Markets et al., Respondents. |
—[*1] John F. Rusnica, New York State Department of Agriculture and Markets, Albany, for NewYork State Department of Agriculture and Markets, respondent. Andrew M. Cuomo, Attorney General, Albany (Lawrence A. Rappoport of counsel), for NewYork Department of Environmental Conservation, respondent. Mentor, Rudin & Trivelpiece, Syracuse (Thomas J. Fucillo of counsel), for Timothy Alfordand another, respondents. Elizabeth C. Dribusch, New York Farm Bureau, Inc., Albany, for New York Farm Bureau,Inc., amicus curiae.
Cardona, P.J. Appeal from an amended judgment of the Supreme Court (Sackett, J.), enteredFebruary 21, 2007 in Albany County, which dismissed petitioner's application, in a combinedproceeding pursuant to CPLR article 78 and action for a declaratory judgment, to review adetermination of respondent Department of Agriculture and Markets finding that Local Law No.3 (2002) of Village of Lacona was unreasonably restrictive.[*2]
Concerned with the protection of its water supply,petitioner enacted Local Law No. 4 (2000) of theVillage of Lacona which, among other things,prohibited the use of liquified manure on property, including farmsteads, located within theVillage of Lacona, Oswego County. Respondent Department of Agriculture and Markets(hereinafter the Department) found that law to be in violation of Agriculture and Markets Law§ 305-a[FN*] because it "unreasonably restrict[ed] . . . farm operations." Accordingly, petitionerrepealed that law and began drafting a new proposed Local Law. In doing so, the Departmentworked with petitioner, respondent Department of Environmental Conservation and theDepartment of Health in an attempt to resolve perceived problems with the restrictions that LocalLaw No. 4 placed upon farm operations. Despite various concerns from the state agencies,petitioner enacted Local Law No. 3 (2002) without any substantial revisions. Among otherthings, Local Law No. 3 purported to regulate field applications of nutrients, including fertilizersand manure, on the soils in the recharge area over petitioner's water supply aquifer. It alsorequired farmstead operators within that area to apply to petitioner for approval of their plan toaddress farming operations such as the housing and feeding of animals, the storage of crops andfeed, the storage and handling of fertilizer and manure and the mixing, handling and storage ofpesticides. The law further imposed specific requirements for the field application of nutrientsand provided petitioner with the right to review the use of pesticides in the recharge area.Additionally, Local Law No. 3, along with providing for civil and criminal penalties fornoncompliance, imposed a $250 fee on the farmstead operator to defray petitioner's cost ofreviewing the field application plan and pesticide use records.
Respondents Timothy Alford and Renee Alford contacted the Department and requested aformal review of Local Law No. 3, asserting that it placed an undue financial and regulatoryburden on their farmstead. Following such review, the Commissioner of Agriculture and Marketsordered, in March 2006, petitioner to abstain from applying Local Law No. 3 to any farmslocated within a state-certified agricultural district "insofar as such law has been found to beunreasonably restrictive." Petitioner then commenced the instant combined CPLR article 78proceeding and declaratory judgment action seeking review of that order. Supreme Court, amongother things, upheld the March 2006 order and also declared that the provisions in Local Law No.3 authorizing petitioner to review records of pesticide use were preempted by ECL article 33.The court dismissed the petition, prompting this appeal.
Initially, we conclude that Supreme Court correctly held that ECL article 33 preempts thepesticide provisions in Local Law No. 3. Significantly, the Commissioner of EnvironmentalConservation has exclusive "[j]urisdiction in all matters pertaining to the distribution, sale, use[*3]and transportation of pesticides" (ECL 33-0303 [1]). Suchexclusive jurisdiction reveals the state's intent to occupy the field where matters of pesticide useand control are concerned (see generally Matter of Ames v Smoot, 98 AD2d 216 [1983],appeal dismissed 62 NY2d 804 [1984]). Where the state enacts a comprehensiveregulatory scheme that implicitly occupies a field such as pesticide use and control, it mustsupercede any local regulation pursuant to the preemption doctrine (see Albany Area Bldrs.Assn. v Town of Guilderland, 74 NY2d 372, 377-378 [1989]; Matter of Ames vSmoot, 98 AD2d at 218). Here, ECL article 33 strives to conform with pesticide lawsestablished by other states and the federal government and provides that the Commissioner ofEnvironmental Conservation "may cooperate" with any other agency or political subdivision "forthe purpose of carrying out the provisions of this article and of securing uniformity ofregulations" (ECL 33-0303 [6], [4]). Accordingly, Supreme Court correctly determined thatLocal Law No. 3 was an attempt by petitioner to regulate pesticide use and, therefore, was invalidto the extent that it had been preempted by state statute.
Next, we do not agree that the March 2006 determination was arbitrary and capricious.Clearly, where local governments enact laws which "unreasonably restrict or regulate farmoperations within agricultural districts" and cannot demonstrate that such ordinance is necessaryto preserve the public health and safety, the Department and its Commissioner are vested withthe authority to take action against such local laws (Agriculture and Markets Law § 305-a[1] [a]; see Matter of Inter-Lakes Health,Inc. v Town of Ticonderoga Town Bd., 13 AD3d 846, 847-848 [2004]).
Here, petitioner's proof did not establish that Local Law No. 3 was necessary to address anythreat posed to its water supply by the application of liquid manure in the subject area. Notably,petitioner submitted studies and a report from its consultant expressing concern that, although"the practice of manure application has been safely employed in the past without significantenvironmental detriment," proposed manure usage in watershed areas could endanger publicdrinking water supplies. However, after reviewing this information, the Department of Healthdisagreed, noting that, for example, the amounts of liquid manure necessary for the Alfords' farmwould not pose any public health risk and the "farm had operated previously with minimalimpact on [petitioner's] wells." Moreover, the Department concluded that the compliance offarms with the general permit regulations already in place would sufficiently address any publichealth and safety concerns related to the application of liquid manure. Given this and other proofin the record and according deference to the Department's interpretation and application ofAgriculture and Markets Law § 305-a, we conclude that the determination that variousprovisions of Local Law No. 3 were unreasonably restrictive in violation of the statute wasrational and need not be disturbed (see Town of Lysander v Hafner, 96 NY2d 558,564-565 [2001]; Matter of Inter-Lakes Health, Inc. v Town of Ticonderoga Town Bd., 13AD3d at 848).
Petitioner's remaining arguments, including its claim that Supreme Court improperlyexcluded from its review evidence submitted after the administrative record had been closed(see Matter of Lippman v Public Empl. Relations Bd., 296 AD2d 199, 203 [2002], lvdenied 99 NY2d 503 [2002]), have been examined and found unpersuasive.
Carpinello, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the amended judgment isaffirmed, without costs.
Footnote *: As relevant herein, Agricultureand Markets Law § 305-a (1) (a) provides: "Local governments, when exercising theirpowers to enact and administer comprehensive plans and local laws, ordinances, rules orregulations, . . . shall not unreasonably restrict or regulate farm operations withinagricultural districts in contravention of the purposes of this article unless it can be shown thatthe public health or safety is threatened."