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HAMBURG OVERRULED ON GARBAGE BAGS

John Dobrzenski will put his garbage out as usual today -- in black plastic bags -- and said he believes that "it is less likely someone will mess with it again."

The Village of Hamburg resident won a victory in State Supreme Court Thursday when Justice Frank A. Sedita Jr. struck down the village code requiring clear plastic garbage bags as an unconstitutional exercise of its police powers and not the only method it could use to comply with state recycling laws.

The village plans to appeal.

Dobrzenski, who was joined by 13 other residents in the suit, said he was pleased that "the judge saw the validity of our cause."

Sedita's order, which stresses privacy rights protected under the Constitution, did not deal with potential financial penalties against the village. Dobrzenski had sought $10,000 plus legal fees.

His attorney, Marla DePan Brown, said she is still seeking a court order that would direct the village to pay all fees.

Village Attorney Robert G. Walsh said the village will appeal and seek a stay of enforcement during the appeal.

Mayor John Thomas said: "Right from the beginning, we had a strong feeling (Sedita) had already made a decision, so (the ruling) comes as no surprise. We were basically planning right along to appeal. We feel very strongly that what we are doing is correct."

Walsh said that if the ruling is allowed to stand, hundreds of municipalities statewide -- including Cheektowaga -- will be saddled with increased costs of dumping solid waste and loss of revenue from recycling.

But a Cheektowaga official said Thursday that the town, which has required clear plastic bags for years without a complaint, anticipated the ruling and already is working on plans for recyclables to be placed in closed containers rather than in clear plastic bags.

"We anticipated we might have to change, and (coincidentally) brochures are going out (today) to inform residents," Highway Superintendent Christopher Kowal said.

Sedita faulted village officials for failing to demonstrate that use of clear bags is the only method that meets recycling requirements.

He said the dispute involved "the right of citizens to keep private the essence of their daily living activities."

"The right of citizens to be free from unreasonable interference with their daily activities should not be lightly disturbed, and it is incumbent upon the government to show an overriding need to interfere before such action can receive judicial approval," he said.

Privacy was always the issue, Dobrzenski said, adding that he makes "a good effort to recycle."

He said he is prepared to continue the fight if the village appeals.

"We'll take it as far as we're physically and financially able," Dobrzenski said.

Thomas said that the village thinks the privacy issue was dealt with in previous rulings by the U.S. Supreme Court and that the issue was saving money. He said that in seven months, the village saved $20,500 by requiring the clear bags.

On Dec. 13, Sedita temporarily halted the village's required use of clear bags and then came close to holding village officials in contempt of court for what he called their "cutesy" way of getting around his ban several weeks later.

That was when a special village crew picked up Dobrzenski's garbage at his East Union Street home and took it to a secret place for examination. That led to Sedita's threat to jail village officials if he learned that they were trying to circumvent his order.

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