SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
TOWN OF CORTLANDT, a municipal corporation,
TOWN OF YORKTOWN, a municipal corporation
VILLAGE OF BUCHANAN, a municipal corporation, and
VILLAGE OF CROTON, a municipal corporation,
THE CITY OF PEEKSKILL, a municipal corporation, Index No.
THOMAS F. WOOD, affirms the following to be true under the penalties of perjury:
1. That I am duly admitted to practice law in the Courts of record of the State of New York and that I am the Town Attorney of the Town of Cortlandt and that I make this Affirmation on behalf of the Plaintiffs herein and their request for preliminary and injunctive relief.
2. That for approximately 25 years, the Plaintiffs herein have individually and collectively been delivering their municipally collected waste to the RESCO burn plant which is located on John Walsh Boulevard in the City of Peekskill.
3. That the Plaintiffs herein deliver the municipally collected waste to that site as members of and participants in the Westchester County Solid Waste District. The Solid Waste District includes all municipalities in Westchester County who are taxed in order for the County to pay for the cost of disposal of solid waste.
4. All of the member municipalities deliver the waste to the County contractor in Peekskill and at said site the waste is then burned or otherwise disposed of.
5. That approximately sixty (60) days ago, certain Plaintiffs received a notification verbally and by letter from the Defendant, CITY OF PEEKSKILL, indicating the they intended to enforce the provisions of their Local Law 11-2003 which seeks to regulate private haulers and their vehicles within the City Limits.
6. That the Plaintiffs who received said notice orally advised the Defendant that they did not feel that said ordinance was applicable to them.
7. That on October 28, 2003, October 30, 2003, and other tickets, Appearance Tickets were issued by police officers of the Defendant, CITY OF PEEKSKILL, to the operators of vehicles owned by the Plaintiffs that were in the City of Peekskill on a direct route to the RESCO Plant.
8. The VILLAGE OF CROTON vehicle was issued a ticket. The VILLAGE OF CROTON purchased four (4) permits for $1,000.00 and the CITY OF PEEKSKILL has indicated it will now dismiss the ticket. The VILLAGE OF CROTON had not other choice due to drivers union issues.
9. That a clear reading of Local 11-2003 indicates that it applies only to private haulers. None of the vehicles that were ticketed and owned by the Plaintiffs are private vehicles. They are all municipally owned vehicles which were participating in a municipal function of the delivering municipally collected waste to the burn facility in Peekskill.
10. That on October 31, 2003, your Affirmant wrote to the City Manager of the City of Peekskill demanding that the City cease and desist all activities with respect to the enforcement of Local Law No. 11-2003 against vehicles owned by the Plaintiffs.
11. That, to this date, the City has failed to respond to said demand.
12. That because of the issuance of these tickets directly to the individual drivers who are all employees of the Plaintiffs, they labor unions representing said drivers have now indicated that they are going to direct their drivers not to operate the vehicles in the City of Peekskill so as to prevent them from being issued any further Appearance Tickets.
13. That, obviously, if the drivers will not operate because of the fear of the actions of the Defendant in citing them under the provisions of Local Law 11-2003, the public health of the Plaintiff municipalities will be put a risk.
14. That the statute in question, being in the nature of a criminal statute, is required to contain a clear and concise statement of its intent.
15. That a clear reading of the statute reveals that it does not provide for the regulation of municipal vehicles while they are in the City of Peekskill.
16. That the Local Law, as adopted by the City Council, was clearly meant to regulate private haulers from operating within the City of Peekskill.
17. That it is additionally submitted to this Court, that the Plaintiffs while operating under the Intermunicipal Agreement between themselves and the County of Westchester, on behalf of the Westchester County Solid Waste District, would be exempt from any regulation by the Defendant, CITY OF PEEKSKILL.
18. The City of Peekskill and other communities in Westchester County are all members of the Westchester County Solid Waste District, which is a District formed by the County Legislature pursuant to the provisions of County Law and the Westchester County Charter.
19. As a County District, the activities of said District are exempt from regulation by any town, city or village within Westchester County.
20. That the City’s actions in attempting to further regulate the activities of the Plaintiffs while in the furtherance of their activities pursuant to the Westchester County Solid Waste District, are ultra vires.
21. That Vehicle and Traffic Law § 1604 expressly prohibits the enforcement of Peekskill Local Law #11-2003 against vehicles using public highways within the City.
22. That Vehicle and Traffic Law § 1640 does not authorize the licensing of vehicles by a city using public highways.
23. That all of the Plaintiffs will be irreparably harmed should the City of Peekskill continue in this attempt to regulate their activities inasmuch as the public health will be impacted should the refuse of the communities not be able to be delivered to the plant due to the refusal of union drivers to operate vehicles when they are being subjected to Summons’ by the City of Peekskill Police Department.
24. That no other application has been made to any Court with respect to this matter.
25. That simultaneously with the service of this Order to Show Cause, a Summons and Complaint seeking a Declaratory Judgment and Permanent Injunction will be served upon the City of Peekskill (a copy of which is annexed hereto).
26. That it is respectfully requested that this Court enjoin the City of Peekskill and direct that they no longer enforce Local Law No. 11-2003 against the Plaintiffs herein pending the full determination of this Court of the Declaratory Judgment action.
27. That it is respectfully requested that pending the return date of this Order to Show Cause, that the City of Peekskill be stayed and enjoined from enforcing the Local Law as against the Plaintiffs.
28. It is respectfully requested that a copy of this Order to Show Cause, together with the papers upon which it is based, be allowed to be served upon Corporation Counsel’s Office of the City of Peekskill, and the City Manager of the City of Peekskill.
WHEREFORE, your Affirmant respectfully requests that a stay be entered prohibiting the City of Peekskill, its Officers and Courts from enforcing the aforesaid Local Law pending a hearing and determination of this application, and upon a return date hereof, that a preliminary injunction be granted enjoining the City of Peekskill from enforcing said Local Law pending the determination of the declaratory judgment action and request for a permanent injunction be fully determined by this Court; and for such other and further relief as to the Court may seem just and proper.
THOMAS F. WOOD
Town of Cortlandt
Attorney for Plaintiffs
3153 Albany Post Road
Buchanan, New York 10511
Affirmed this day
of November, 2003