Final Neighbor Notification Ruling Handed Down In Nassau County

John Zaher, spokesman for the Nassau County Executive’s Office responded to the judge’s decision stating, "The county attorney’s office is reviewing the decision to determine if it is appropriate to appeal."

Despite the win in Nassau County, the coalition was dealt a blow when Justice Ralph Costello in Suffolk County ruled just a day earlier to let the law stand there. The judge in Westchester County had previously issued the same decision.

"We’ll be going up to the appellate division to fight Suffolk and Westchester Counties now," Eisenbud continued.

The state pesticide notification law was passed in August 2000 and applies only in counties that chose to adopt it. In addition, state lawmakers included a provision that the law must be adopted "as is," barring counties from making modifications. To date, Suffolk, Nassau, Westchester and Albany Counties have adopted the law and legal challenges are pending in three of the four counties.

"We haven’t filed in Albany yet," Eisenbud stated, "but we will shortly. I am hoping to have arguments filed there by the end of next week."

The Industry Coalition is moving forward with these lawsuits because those counties did not complete an environmental impact study in compliance with the State Environmental Quality Review Act (SEQRA), which requires such a study before any legislation of this type can be enacted. The counties’ attorneys, however, are arguing that because the counties were forced to adopt the law "as is" no impact study was necessary.

But, the Coalition refutes that argument, saying that where there is discretion, SEQRA requirements must be followed. "If the law is enacted as a blanket action and each county must adopt it, then SEQRA doesn’t apply," Eisenbud advised. "It’s only when you’re exercising discretion that SEQRA applies."

Eisenbud explained that he is hopeful they can win in Albany County because the legislature adopted the law in February, a month after the deadline if the county wanted it to go into effect on March 1, 2001.

"By any common sense reading of the law, it shouldn’t have gone into effect until January 2002," he asserted. "There’s language that says any law passed after Jan. 1 goes into effect the following January. But they’re treating it as being in effect now."

In addition to that discrepancy, Eisenbud explained that Albany County has a sunset provision on its books that requires the measure to be readopted before Dec. 31, otherwise the neighbor notification law in that county will expire, making it void.

"If they’re wrong [about the language of the law], and they don’t readopt it, they’ve accomplished nothing," he declared.

In Suffolk County, Eisenbud hopes to win on appeal because of a modification that county legislators made to the state law. The state law was written to require written notification plus two alternative spraying dates, but in Suffolk County, the language was changed to require that the alternative spraying dates be consecutive business days.

"That’s not in the state law," he maintained. "I thought that would be a no-brainer to get that knocked out, but obviously that’s another issue that will have to be resolved on appeal."

Until the cases are final, the law will stand in Westchester and Suffolk Counties, meaning that enforcement measures must be in place. Although the New York State Department of Environmental Conservation (DEC) is charged with enforcing the law, Peter Constantakes, a DEC spokesman, said the department will depend heavily on local authorities, such as the health department, to investigate complaints and issue violations. Violation of the neighbor notification law carries a penalty of a $10,000 fine and the possibility of jail time.

Despite the complicated legal battle, Eisenbud related that he is aware of other counties in the state that are discussing adopting the law. "I suppose they’ll wait until this litigation is over to decide if they want to adopt the law," he said.