A Suffolk Supreme Court Justice has upheld Southold Town’s “yellow bag” law which requires residents to place refuse in Town issued yellow garbage bags. Proceeds from the sale of the yellow bags are used to operate a transfer station located in Cutchogue.
In March 2012, Go-Green Sanitation, a garbage carter, was hauled into Justice Court by the Town for operating without the proper permit and for failing to comply with the yellow bag law. The Town also obtained a short-lived restraining order from Suffolk County Supreme Court prohibiting the private carter from collecting trash from its residents not contained in the required yellow bags.
In response to the Town’s claims, and without opposition from the Town, in July 2012, Go-Green removed the state court action to federal court alleging five counterclaims, including: (1) that the Town violated its due process rights by effectively barring it from conducting business in the Town; (2) that Go-Green did not dispose of its trash at the Cutchogue transfer station, as such, it should not be subject to the yellow bag fees and (3) the yellow bag fees constituted an illegal user fee or tax and as a result thereof, Go-Green sought to add an additional Southold Town resident defendant in an effort to establish a taxpayer claim against the Town.
On June 12, 2015, in a well-reasoned fifteen (15) page opinion, Eastern District Court Judge Arthur Spatt, declined to exercise federal jurisdiction over Go-Green’s counterclaims holding (1) that Go-Green failed to plead and/or establish a federal claim and (2) although Go-Green alleged that it envisioned filing an amended pleading to assert a proper party and proper taxpayer claim; the Court noted that the pleading before the court, did not, in fact, contain a proper party or a properly pled taxpayer claim. As such, the federal court lacked subject matter jurisdiction and the matter was remanded back to State Supreme Court for a final determination.
On remand, in a recent July 2016 decision, Supreme Court Justice Paul Baisley, Jr., found that the Town’s controversial law bears a reasonable relation to the public good as it was enacted to promote recycling. Judge Baisley further found that the Town did not exceed its authority because the yellow bag law is not an illegal tax. So, for now, and perhaps until a properly pled taxpayer action is asserted, residents and carers alike should refer to the Town of Southold’s website to determine what their respective yellow bags fees will be.