Preemptive Strike

Follow Progress For Westhampton Beach

By:  Progress for Westhampton Beach

The work session was called to order promptly at 7:00.

The Town of Southampton recently adopted a local law banning plastic bags and Town Councilman  Brad Bender has asked the Village of Westhampton Beach to do the same.  It was on the work session agenda tonight for a presentation by Councilman Bender and Dieter von Lehsten, the co-chair of the Southampton Town sustainability committee.  The presentation focused on the benefits of using durable bags for re-use rather than the single use plastic bags.  In addition to the town law, Councilman  Bender offered to provide the SEQRA determination made by the Town Board.

The State of New York has adopted legislation regulating plastic bags:  NYS Plastic Bag Reduction, Reuse and Recycling Law.

This state law focuses on recycling plastic bags and authorizes the State Department of Environmental Conservation to adopt regulations to implement the law.  The State law also includes language specifically preempting local laws relating to the recycling and reuse of plastic bags.

When Mr. Bender was asked about whether the Town attorney had rendered an opinion that the local law was, in fact, legal and not preempted by the State law, he could not make that representation.  He simply said Southampton has not been sued yet.

There is important language in this state law that should not be ignored…




The state law provides for recycling of the single use plastic bags.  But there is an important preemption provision in that law.

§ 27-2713. Preemption.

Jurisdiction in all matters pertaining to plastic bag and film plastic recycling is by this article vested exclusively in the state. Any provision of any local law or ordinance, or any rule or regulation promulgated thereto, governing the recycling of plastic bags shall, upon the effective date of this title, be preempted. Provided however, nothing in this section shall preclude a person from coordinating for recycling or reuse the collection of plastic bags or film plastic.

Local governments are constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, but they are prohibited from exercising that power through the adoption of local laws that are inconsistent with any general law of the State. The preemption doctrine embodies the “untrammeled primacy of the State Legislature” to act with respect to matters of State concern.1)People v. Diack, 24 NY3d 674 – Feb. 2015

Inconsistency is not limited to cases of express conflict between State and local laws. It has been found where local laws prohibit what would be permissible under State law…”2)Consol. Edison Co. v. Town of Red Hook, 60 N.Y.2d 99 at 108 –1983.

Preemption of local governments by the State Legislature happens when a local law is inconsistent with the state law.

Preemption of local governments by the State Legislature also occurs when the State Legislature includes preemption language expressly in its legislation.

Here, we arguably have both forms of preemption at at work.

Nonetheless, Mr. Bender urged that this is a matter that must be addressed at the grass roots level, and this would ultimately “force” the State Legislature to act.  Mr. Bender proposed that adoption of a local law is part of such a movement.

The State Legislature adopted the preemptive recycling law in 2008, and the Legislature is continuing to work/struggle with this problem. The most recent amendment to the state law became effective on March 1st of this year. There are also currently pending in the state senate and/or assembly bills that:

  • require a 5 cent deposit per plastic bag;  
  • ban plastic bags and mandates provision of paper bags by merchants; and another that
  • taxes the use of plastic bags3)taxes are only authorized at the state level of government.  unless specific taxing authority has been delegated to the local level of government.  See New York State Constitution Art. XVI § 1and transfers the revenues to park funding.

The State Legislature together with the DEC ultimately will be best suited to provide a comprehensive uniform solution and implement it.  Residents can call our state representatives, Assemblyman Thiele and Senator LeValle

If the Board of Trustees is seriously entertaining a local bag ban, it should make sure any local law on the topic is carefully vetted by counsel.

In the meantime, while the State Legislature continues to work on this law, we can each individually lead by example.  If that fails, those who are of a mind can resort to the time tested strategy of giving people who use these plastic bags the stink eye

* * *

Other matters on the agenda were:

  • the use of village property by the Rotary Club for its annual flea market fundraiser on the Great Lawn; and
  • the use of village property application for “inspirational music” on the village green from Michael Brunetti.  Mr. Brunetti did not attend the work session but sent Ira Cohen in his place.  The applicant sought permission to use the village green on a weekly basis for music that he said would be expected to attract between 100 and 200 people each week.  There was a shortage of details. It was not disclosed whether the music would be amplified or acoustic and the requirements for additional police for traffic control were not addressed.  No specific schedule of events was provided.  Mr. Cohen agreed to furnish the Board with more information in the coming days.
  • The village planner, Kyle Collins, spoke about a request for zoning change from the owner of 91 Old Riverhead Road to make the subject property part of the B3 zoning district rather than the HD (hotel district).  Mr. Collins did not recommend any particular course of action at this time, but did suggest that the Board consider the two other neighboring parcels as well.   Given the size of the three parcels, the owners are not in a position to take advantage of the HD zoning.  The Board agreed to consider the application, and plans to respond to the applicant in a timely fashion.  All are agreed that it is time to revisit the master plan as this demonstrates past conceits are sometimes lost in the actual implementation.  The general concepts of the Master Plan remain valid, but because its last update was in March of 2007, the Board has scheduled a work session for May 26th at 7:00 pm to review a proposal from Nelson, Pope and Voorhis for such an update.
  • The Hampton Jitney is looking for a home for a stop to serve passengers who would like to begin or end their Jitney travels here in the Village. With the development of Gabreski by Rechler equity partners the Jitney lost that site.  The Jitney relocated to Cassa Basso, but space for parking is limited. Andrew Lynch, Vice President of the Hampton Jitney came to advise the Board of his needs, but it was generally agreed that there were no locations that would accommodate the buses turning radius and offer the associated parking for the patrons of the Jitney.  The entire Board of Trustees expressed the Village’s desire to be accommodating.   Perhaps such an accommodation will be facilitated by the village together with a private property owner, and all agreed to give thought to a workable solution.  It is a worthwhile transportation service that helps to keep Westhampton Beach on the map.
  • The Village Attorney explained a technical code amendment that would expressly authorize the Building Inspector and Code Enforcement Officer to issue appearance tickets.  Right now the only legal invitation to appear in court is issued by the Court itself in the form of a summons.  A public hearing on this code amendment will take place at the Board’s June meeting.
  • The Board of Trustees considered an amendment to the sign law that would slightly increase the size of real estate signs from 12″x18″ to 18″x18″, and would allow for the inclusion of website addresses and other relevant information currently prohibited. Mr. Houlihan pointed out that signs indicating that the property is in contract or has been sold remain malum in se because, at that point it is merely advertising the real estate brokerage, and not serving the purpose of selling the property.  A public hearing on this code amendment will take place at the Board’s June meeting.
  • The Board of Trustees began the process of reviewing the village’s peddler’s law.  This relates to everything from door-to-door solicitations to ice cream trucks.
  • The Mayor reviewed a Worker’s Compensation Board’s underwriting survey that recommended modest changes in training and practices which will be implemented.

At 9:00 the Board moved to enter executive session to discuss personnel matters.

References   [ + ]

1. People v. Diack, 24 NY3d 674 – Feb. 2015
2. Consol. Edison Co. v. Town of Red Hook, 60 N.Y.2d 99 at 108 –1983.
3. taxes are only authorized at the state level of government.  unless specific taxing authority has been delegated to the local level of government.  See New York State Constitution Art. XVI § 1

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