| Matter of Bethpage Water Dist. v Daines |
| 2009 NY Slip Op 07902 [67 AD3d 1088] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Bethpage Water District, Appellant, v Richard F.Daines, as Commissioner of Health, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Victor Paladino of counsel), for Richard F.Daines, respondent. Lorna B. Goodman, County Attorney, Mineola (Anthony F. Cardoso of counsel), for MariaTorroella Carney, respondent.
Spain, J.P. Appeal from a judgment of the Supreme Court (Connolly, J.), entered February12, 2009 in Albany County, which dismissed petitioner's application, in a combined proceedingpursuant to CPLR article 78 and action for declaratory judgment, to review a determination ofthe Department of Health denying petitioner's chlorination waiver request.
Dating back to the early 1970s, petitioner—the operator of a public water system inthe Town of Bethpage, Nassau County—was consistently granted waivers by the NassauCounty Department of Health (hereinafter NCDH) from the State Sanitary Code requirement ofdisinfecting its groundwater supply through chlorination (see 10 NYCRR 5-1.30 [a],[e]). In 2007, to protect the public from biological terrorism, NCDH adopted a policy whichwould disallow any waivers for public water systems serving communities with populationslarger than 3,300 people. As a result, when petitioner—which serves over 3,300people—applied for a chlorination waiver for the years 2008 to 2011, NCDH denied theapplication.[*2]
In February 2008, petitioner commenced a proceedingagainst NCDH and the Department of Health (hereinafter DOH) challenging the denial of itswaiver application on the basis that NCDH lacked authority to deviate from the six criteria listedin the Sanitary Code for making waiver determinations (see 10 NYCRR 5-1.30 [e]).Subsequently, a stipulation of discontinuance was entered into by all parties with a provision thatNCDH would forward petitioner's waiver application to DOH for it to review and determine.After DOH concluded that it was within NCDH's authority to supplement the Sanitary Codecriteria for a chlorination waiver with additional requirements, petitioner commenced thiscombined CPLR article 78 proceeding and declaratory judgment action alleging, among otherthings, that NCDH's waiver criteria were preempted by state law. Supreme Court dismissed thepetition/complaint against respondent Commissioner of Health (hereinafter Commissioner) onthe ground that petitioner lacked capacity to sue the state and further held that NCDH possessedthe requisite authority to add to the chlorination waiver criteria found in the Sanitary Code. Onpetitioner's appeal, we now affirm.
Initially, we agree with Supreme Court that petitioner's claims against the Commissionerwere properly dismissed because petitioner lacks capacity to bring suit against the state.Municipal entities such as petitioner generally "cannot contest the actions of the state whichaffect them in their governmental capacity or as representatives of their inhabitants" (Matter of County of Oswego v Travis,16 AD3d 733, 735 [2005]; see NewYork State Assn. of Small City School Dists., Inc. v State of New York, 42 AD3d 648,649 [2007]). We hold—and petitioner does not directly dispute—that DOH's actionhere directly affects petitioner in its governmental capacity because the administration ofchlorination waivers is inextricably related to the health, safety and welfare of the community(see County of Nassau v South Farmingdale Water Dist., 62 AD2d 380, 390 [1978],affd 46 NY2d 794 [1978]; St.Andrew v O'Brien, 45 AD3d 1024, 1026-1027 [2007], lv denied and dismissed10 NY3d 929 [2008]; Matter of County of Oswego v Travis, 16 AD3d at 735; cf. D & D of Delhi, Inc. v Village ofDelhi, 47 AD3d 1117, 1118 [2008]). Hence, unless petitioner can demonstrate that oneof the recognized exceptions to the rule exists, it lacks legal authority to commence a suit againstthe state.
Petitioner argues that it has "an express statutory authorization to bring such a suit," creatingan exception (City of New York v State of New York, 86 NY2d 286, 291[1995]).[FN1]Specifically, petitioner relies on the fact that its Board of Commissioners is authorized by statuteto "sue and be sued" (Nassau County Civil Divisions Act § 255.4 [L 1939, ch 273, asadded by L [*3]1949, ch 270])—authorization madenecessary because municipal entities like petitioner have no inherent right to sue; "their right tosue, if it exists at all, must be derived from the relevant enabling legislation or some otherconcrete statutory precedent" (Community Bd. 7 of Borough of Manhattan v Schaffer,84 NY2d 148, 156 [1994]). However, a statutory grant of a general right to sue such as this "isinsufficient to imply authority to bring suit against the state itself" (Matter of Town of Riverhead v New YorkState Bd. of Real Prop. Servs., 7 AD3d 934, 935 [2004], affd 5 NY3d 36[2005]; see City of New York v State of New York, 86 NY2d at 293). Further,petitioner's contention that its right to sue the state is inferable from its "statutory functions orresponsibilities," by virtue of the fact that it enjoys a general right to sue, is unpersuasive (Matter of Graziano v County ofAlbany, 3 NY3d 475, 479 [2004]).
Indeed, petitioner acknowledges some limitation on its capacity to sue the state, but arguesthat its capacity is only restricted in suits challenging state legislation or "other [s]tate action thataffects or restricts" its municipal powers. We previously have held that a municipality lacks thecapacity to challenge a state agency's interpretation of statutes and regulations where, as here,the result impacts the municipality in its governmental capacity (see City of Utica v Daines, 53 AD3d922, 923-924 [2008]; Matter of County of Oswego v Travis, 16 AD3d at 735).Petitioner's reliance on several cases where municipalities have successfully challenged stateaction and the issue of capacity was not addressed is misplaced. As it is not a jurisdictionaldefect, unless capacity is raised as a defense, as it was here, it will not prevent a court fromreaching the merits (see CPLR 3211 [a] [3]; [e]; City of New York v State of NewYork, 86 NY2d at 292).
Turning to petitioner's claim against NCDH, we are unpersuaded that NCDH's regulation ofchlorination waivers is preempted by Public Health Law § 1100. Preemption occurs "incases of express conflict between local and [s]tate law and in cases where the [s]tate hasevidenced its intent to occupy the field" (Albany Area Bldrs. Assn. v Town ofGuilderland, 74 NY2d 372, 377 [1989]; see Matter of Village of Lacona v New York State Dept. of Agric. &Mkts., 51 AD3d 1319, 1320-1321 [2008]). Here, NCDH's additional criterion does notconflict with the existing criteria for obtaining a chlorination waiver. The relevant regulation inthe Sanitary Code provides that the Commissioner (or his or her designated representative)"may grant a waiver" upon a public water system meeting the six requirements found inthe Sanitary Code (10 NYCRR 5-1.30 [e] [emphasis added]; see 10 NYCRR 5-1.1). Assuch, NCDH, as the designated representative for DOH, is not required to grant the chlorinationwaiver every time a particular applicant meets all of the criteria in the Sanitary Code. Moreover,more stringent sanitary standards are not considered inconsistent with the existing Sanitary Code(see Matter of Bri-Mar Corp. v Town Bd. of Town of Knox, 74 NY2d 826, 827-828[1989]).
Petitioner asserts instead that preemption exists because DOH has exclusive authority toregulate the public water supply (see Public Health Law § 1100). Public HeathLaw § 1100 gives DOH broad authority to protect "public supplies of potable waters andwater supplies of the state or United States, institutions, parks, reservations or posts and theirsources within the state" (Public Health Law § 1100 [1]; see 10 NYCRR parts100-157; Matter of Thompson Water Works Co. v Diamond, 44 AD2d 487, 491[1974]).[FN2]However, although the statute addresses [*4]DOH's authority inmaking rules and regulations for public water supplies and their sources, it does not expresslycover public water systems, such as that at issue here.[FN3]As chlorination is treatment of the water system, rather than the supply, Public Health Law§ 1100 is not relevant (see 10 NYCRR 5-1.30).
Further, Public Health Law § 228 expressly permits counties, cities and towns to"enact sanitary regulations not inconsistent with the sanitary code" (Public Health Law §228 [2]). Public Health Law § 347 also states that each county health board may"formulate, promulgate, adopt and publish rules, regulations, orders and directions for thesecurity of life and health in the health district which shall not be inconsistent with theprovisions of this chapter and the sanitary code" (Public Health Law § 347 [1]; seeSuffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613, 618 [1979]). Thus, NCDHis not precluded from supplementing the criteria for chlorination waivers but, rather, is expresslyauthorized to do so.
Accordingly, Public Health Law § 1100 does not preempt NCDH from supplementingthe requirements of the Sanitary Code concerning chlorination waivers, and the petition wasproperly dismissed.
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: The four exceptions are: "(1) anexpress statutory authorization to bring such a suit; (2) where the [s]tate legislation adverselyaffects a municipality's proprietary interest in a specific fund of moneys; (3) where the [s]tatestatute impinges upon 'Home Rule' powers of a municipality constitutionally guaranteed underarticle IX of the State Constitution; and (4) where 'the municipal challengers assert that if theyare obliged to comply with the [s]tate statute they will by that very compliance be forced toviolate a constitutional proscription' " (City of New York v State of New York, 86 NY2dat 291-292 [citations omitted], quoting Matter of Jeter v Ellenville Cent. School Dist., 41NY2d 283, 287 [1977]).
Footnote 2: This statute further grants to theNew York City Commissioner of Environmental Protection and the Board of Water Supply inNew York City the right to make rules and regulations regarding the protection of said watersources and supplies, subject to DOH approval (see Public Health Law § 1100 [1];Matter of Town of Hunter v City ofNew York, 46 AD3d 1197, 1198 [2007]; see also Ryder v City of New York, 32 AD3d 836, 838 [2006],lv dismissed 8 NY3d 896 [2007]; City of New York v Mancini-Ciolo, Inc., 188AD2d 633, 634 [1992]).
Footnote 3: The Sanitary Code defines a"public water system" as a "water system which provides water to the public for humanconsumption through pipes or other constructed conveyances" (10 NYCRR 5-1.1 [ay]) and a"source of water supply" as "any ground water aquifer or watercourse from which water is takeneither periodically or continuously for drinking, culinary or food-processing purposes" (10NYCRR 5-1.1 [bj]). Further, an Attorney General Opinion regarding the precursor to PublicHealth Law § 1100 (see Public Health Law former § 70) stated that amunicipality may make regulations regarding the "construction and preservation of the waterworks system" while the Commissioner has the exclusive power to create regulations regarding"the protection [of] the reservoirs or sources of supply from contamination" (1906 Ops Atty Gen628).