Opinion
Dated: August 20, 1976
Applicability of land use restrictions to a county solid waste disposal system.
Operation of a solid waste disposal system by a county is a governmental function. Town land use restrictions, if any, should be considered by the county in determination of the location thereof but any such restrictions are not binding upon the county.
HON. MYRON C. DASCOMB County Attorney, Steuben County
We acknowledge receipt from Assistant County Attorney Kuhl of a letter stating that your county proposes to provide for the collection and disposition of solid wastes in the county pursuant to the provisions of County Law, § 226-b. He inquires whether the solid waste disposal system will constitute a governmental function free from limitation of land use ordinances of the town in your county where the solid waste disposal site, plant or facility will be located.
County Law, § 226-b, subdivision 4, states that a county, acting within its boundaries pursuant to that section, shall be deemed to be acting in its governmental capacity. Subdivision 1 of that section provides, in part:
"* * * In selecting a location for any solid waste disposal site, plant or facility the county legislative body shall take into consideration the present and any proposed land use character of the area of any proposed location and the zoning regulations, if any, applicable to such area."
In interpreting a similar statutory provision applicable to the New York State Environmental Facilities Corporation it was held in City of Rochester v. Town of Rush, 67 Misc.2d 328 (unan. aff'd. w/o op. 37 A.D.2d 795): "* * * The only limitations in site location require that the EFC take into consideration the character of the area and the zoning regulations applicable thereto. (Public Authorities Law, § 1285, subd. 6.) This requirement is not equivalent to a direction that the EFC either comply with such regulations or be subject thereto."
In our opinion, creation of a solid waste disposal system in your county and the location of the necessary waste disposal site, plant or facility in a town within the county constitute acts in the county's governmental capacity; the location of the disposal site, plant or facility is not subject to restrictions on land use imposed by the town and which would prevent the establishment and operation of the system, Nehrbas v. Lloyd Harbor, 2 N.Y.2d 190 (1957); Village of Larchmont v. Town of Mamaroneck, 239 N.Y. 551 (1924); County of Tomkins v. Powers, 43 Misc.2d 736 (1964), but the county should take into consideration such land use restrictions, if any, before reaching its decision and making its determination. (See 1974 Atty. Gen. [Inf.] 58.)