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READ AND LANIADO, IXP ATTORNEYS AT LAW
25 EAGLE STREET ALBANY, NEW YORK 12207-1901
ORIGINAL
KEVIN R. BROCKS
CRAIG M. INDYKE
DAVID B. JOHNSON SAM M. LANIADO
HOWARD J. READ
JEFFREY B. DUROCHER
STEVEN D. WILSON
(518) 465-9313 MAIN (516) 465-9315 TAX
Via Hand Delivery
December 19,2005
RICHARD C.KING
OF COUNSEL
Hon. Jaclyn A. Brilling Secretary New York State Board on Electric
Generation Siting and the Environment Three Empire State Plaza Albany, NY 12223
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Re: Case 01 -F-1276 - Application of TransGas Energy Systems LLC for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a Natural Gas Fired, Cogeneration Plant Facility in the Borough of Brooklyn, New York City - Amendment filed November 15, 2004.
Dear Secretary Brilling:
In its September 15,2004 "Order Concerning Submission of Amendment to Application" (the "Amendment Order"), the New York State Board on Electric Generation Siting and the Environment ("Siting Board") directed TransGas Energy Systems LLC ("TransGas") to file an amendment to the captioned application if it wanted its proposed underground design evaluated in its pending Article X proceeding. TransGas filed the amendment on November 12, 2004. Parties were then offered the opportunity to comment on the filing including the ability to request additional information.
Comments by parties were filed on December 15, 2004. In particular, the staff of the Department of Public Service ".. .determined from its review of the information contained in the Amendment, in conjunction with the underlying application, that the Amendment generally meets the minimum filing requirements of Public Service Law § 164(1) and applicable regulations (16 NYCRR Part 1001) governing applications to construct major electric generating facilities [footnote omitted]. In addition. Staff believes that the filing contains the information required by the Siting Board's September 2004 Order [footnote omitted]."' TransGas replied to
Letter to Secretary Brilling from David R. Van Ort, Assistant Counsel dated December 15, 2004.
Hon. Jaclyn A. Brilling December 19,2005 Page 2
the parties' comments on January 27, 2005. To supplement the Amendment, the Examiners also issued several rulings directing the submission of additional information to which TransGas responded.2
The Amendment Order provides that the Examiners would make a recommendation to the Siting Board concerning the holding of further hearings on the Amendment (p. 12). TransGas respectfully requests that the necessary administrative steps be taken and that an issues conference be scheduled in the near future to identify the interested parties, issues to be adjudicated and a schedule for discovery, the filing of additional testimony, as well as evidentiary hearings, concerning the Amendment and the filings made by TransGas subsequent thereto.
In addition to the significant amount of information filed by TransGas, and the opportunity afforded parties to comment, several studies have been issued or are in progress that are relevant to the resumption of evidentiary hearings. The Draft Reliability Needs Assessment (dated November 22, 2005), prepared by the New York Independent Systems Operator ("NYISO"), as part of the development of a Comprehensive Reliability Plan, forecasts a violation of resource adequacy criteria beginning in 2008. "The compensatory MW needed to meet the .1 days per year reliability criterion for the NYCA through 2010 would be 1,750 MW" (Draft RWA p. 5). Earlier in the year, the NYISO issued its Power Trends 2005, finding that the City could need additional generating capacity as early as 2008 or sooner (p. 6).
On the steam side, the New York Public Service Commission ("Commission") recently acknowledged a finding in the Steam Business Development Plan, filed on August 29, 2005 that the Con Edison steam system is nearing capacity during the winter season and ".. .unless the production of steam is increased, this seasonal consumption pattern constrains the growth of the steam system." (SBDP Order p. 4). The Commission also endorsed, inter alia, the following recommendations in the Steam Business Development Plan:
Ameliorating Capacity Constraints
To achieve certain business goals discussed in the Plan, e.g., increased steam sales, Con Edison should explore obtaining cost- effective and economic (including accounting for stranded investment risk) production capacity from Con Edison-owned or merchant central cogeneration facilities and/or demand side actions, such as peak load reduction and increased efficiency.
2 Ruling Directing Submission of Additional Information dated May 3, 2005; Submission of Additional Information In Response to May 3, 2005 Ruling, dated June 17, 2005; Ruling Directing Submission of Additional Information, issued July 12, 2005; Letter dated August 22, 2205 from TRC to the Examiners Submitting Revisions to Section 16 of the Amendment; Interlocutory Appeal filed by TransGas dated July 27, 2005; Rulings Directing Submission of Additional Information issued August 29, 2005 and September 24, 2005; Withdrawal of Ruling issued September 23, 2005.
Hon. Jaclyn A. Brilling December 19,2005 Page 3
consistent with the findings in the Production Cost Study and any subsequent PSC action related to that Study.
Explore Alternative Business Model Options
Con Edison Steam should examine economic and engineering analyses of potential for technologies that could be deployed either on or beyond the existing steam network to meet loan demands competitively. Such technologies may include but not be limited to centralized chilling or cold water, CHP, or campus style district energy (SBDP, pp. 143-144).
Similarly, the Commission stated that the ".. ..need for, and economics of, increasing production capacity are beyond the scope of the Plan but are being evaluated in the steam production study now underway" (SBDP Order, p.5, FN6).
In the Steam Production Cost Study, the cost of repowering certain Con Edison facilities as well as purchasing steam capacity from merchant suppliers will be evaluated. TransGas will be offering cost information to the consultants preparing the study as a possible option for Con Edison to require increased steam production capacity. Accordingly, it makes sense to proceed with the Article X proceeding so that if TransGas is selected as a future supplier to Con Edison, its certification proceeding will be nearly or finally completed. The more competitive options with whom Con Edison may negotiate, the better for ratepayers.
Finally, the City's attempts to condemn TransGas' proposed site were stayed by Supreme Court, Kings County pending a determination by the Siting Board in the instant Article X proceeding. In the decision (copy attached), the Court stated, inter alia, that:3
3 In the Matter of the Application of the City of New York relative to acquiring title in fee simple where not heretofore acquired for the Bushwick Inlet Phase I- Index No. 222 46/05, Decision and Order, Hon. Abraham Gerges, dated December 14, 2005.
Hon. Jaclyn A. Brilling December 19,2005 Page 4
Finally, although not argued by either party, the court further finds that movants' status as the applicant in a proceeding pending before the Siting Board is sufficient, in and of itself, to confer standing upon them. In this regard, it is counterintuitive to find that a party who expended $1,500,000 to acquire the right to purchase Property on which to construct an electric plant, who applied to the Siting Board for permission to do so, and who expended over $10,000,000 in development costs does not have an equitable interest in the subject Property sufficient to entitle that party to be heard in a condemnation proceeding, (p. 15)
* * *
As is established by the Legislative intent, the comments made by Governor Rockefeller and Governor Cuomo in enacting Article X and its predecessor, and Consolidated Edison Co. (60 NY2d 99), the statute is intended to vest the Siting Board with exclusive jurisdiction to determine where major electric generating facilities will be located, the law was intended to pre-empt local legislation with regard to such sitings, and local laws or legislation inconsistent with the State's scheme will not be permitted. Herein, the City's actions are admittedly the result of the City's determination that a major electric generating facility should not be located at the Site, an issue thoroughly argued by the City in the Article X proceeding and addressed in detail by the Hearing Examiners in their Recommended Decision. In applying Article X to the facts at issue herein, this court concludes that the City's proceeding to condemn the Site is intended to circumvent the Siting Board's jurisdiction over the determination by taking the Property for use as a park. Such a result cannot be permitted, (p. 28)
* * *
Similarly, the City's action in seeking to prevent movants from constructing the Facility is prohibited by that portion of Public Service Law § 166(l)(h) which provides that "any municipality entitled to be a party herein and seeking to enforce any local ordinance, resolution or other action or regulation otherwise applicable shall present evidence in support thereof or shall be barred from the enforcement thereof." In so holding, the court finds that the City's commencement of the instant
Hon. Jaclyn A. Brilling December 19,2005 Page 5
condemnation proceeding is an "action" that must be approved by the Siting Board pursuant to the express language of this provision in order to be enforced by this court, (p. 30)
CONCLUSION
Probably more than any other Article X applicant, TransGas has attempted to address and mitigate the legitimate environmental concerns of interested stakeholders. Its proposed underground design is supported on a technical basis by leading structural and environmental engineers. As a matter of law and fairness, TransGas is entitled to a full hearing on its Amendment.
For the foregoing reasons, TransGas requests that an issues conference be scheduled for the purpose of setting a schedule for the resumption of evidentiary hearings for the review of the Amendment to its Article X Application.
Respectfully submitted,
READ AND LANIADO, LLP Attorneys for TransGas Energy Systems LLC
By: /<I>^ /o^^^^ Sam Laniado
SML/jlr Attachment
cc: Hon. Robert Garlin (Via Electronic and Regular Mail) Hon. Kevin Casutto (Via Electronic and Regular Mail) Active Parties (Via Electronic and Regular Mail)
12/15/22e5 29:2= :a3£ 32
At an IAS Term, Part 74C. of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn. New York, on the H'" day of December, 200S
PRESENT;
HON. ABRAHAM GERGES. Justice.
In the Matter of the Application of the CITY OF NEW YORK relative to acquiring title in fee simple, where not heretofore acquired for the
Index No. 22246/05
BUSHWICK INLET PHASE 1 -X
^r kUgwjgg naoers nurrhrrp^ ] to 4^ p*d m ^ giotion:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Amrmations) Annexed , —
Papers Numbered
Opposing Affidavits (Affiimatioos)_
Supporting Affidavits (Affinnations)_
Reply Affidavits (Affinnaiions)_
Affidavit (Affinnation),
Other P^p^; Memnraada of Law
Riting Board Rssonuaffidgd Peg'Sion
App^llafp Division € 207 Proccffdinp Pffltion
r^n^tpondence —
Ttftnspripts of oral argument
Miscellaneous Submissions .
1 - 3
^ - fi
f - if
16
17
18 -40
-1 -42
43 .48
Upontheforegoingpapera.movantsTransGasEnergySyatemsLLC (TransGas LLC),
TransGas Energy Services Corporation (TESC) and Gas Alternative Systems. Inc (Gas)
(collectively referred to as TransGas or movants), seek an order: (1) dismissing the petition
filed herein for failure to comply with the provisions of Article 2 of the Eminem Domain
:2/:5/222S 39:2: 71334323^0 M =A;£ i
Procedure Law (EDPL), (2) dismissing the petition for failure to comply with EDPL 402;
(3) dismissing or staying the petition pursuant to CPLR 3211 (a) (4) by reason of the
pendency of a prior proceeding;1 (4) dismissing the petition on the grounds that the taking
is not for a public purpose and constitutes an excess taking; or. in the alternative,
(5) peraiitting TransGas to intervene pursuant to CPLR 1012 and/or 1013 and
EDPL 402 (B) (4).2
Facts and Procedural Background
The instant dispute concerns the proposed construction by TransGas of an electric
' Although the order to show cause requests an order dismissing the petition on this ground, movants' request the alternative relief of a slay in their affirmation in support and extensively addressed the issue during oral argument and in their subsequent submissions.
3 By letter dated November 30,2005, accompanied by an affirmation from counsel, the Greenpoint Watcrfiont Association of Parks & Planning, Inc. (the Association), a coalition of 42 religious institutions, community organizations and advocacy groups in Brooklyn, seeks to address both legal and Jkctual issues "in an amicus capacity." The court declinss to consider the submission.
Most significantly, as is discussed more fully herein, as a community group having no ownership interest in the subject Property, die Association lacks standing to appear as a party herein pmsuant to East Thirteenth Street Communify Association v New York State Urban Development Corporation (84 NY2d 287,29211994], motion denied 84 KY2d 974 [1994]). To allow it to nonetheless submit papers would vitiate the intent of the holding therein, which limits the challenges made to a proposed taking in eminent domain by limiting standing to parties who possess an interest in the subject property. In addition, a request to fils a bnsf amicus cunae should be made by motion, so that any party opposing consideration of the papers submitted is afforded an opportunity to object (see generally Poughkeepsie Professional Firefighters' Assn. v New York State Pub. Empl. Rels. Bd, NY3d , 2005 KY LEXIS 324g [2005J; Xiao Yang Chen v Fischer, NTVBd , 2005 NY LEXIS 2647 [2005]; Coalition Against Lincoln W., v Weinshall, 11 AD3d 215 [2005]; appeal denied KY3d , 2005 NY LEXIS 3223 [2005]). Finally, the Association fails to raise any issues or arguments that would cause the court to reach a different conclusion.
.2/:3/22E5 29:2= ?::54;229i
generating plant on the WiJliamsburg/Greenpoint waterfront (the Facility) at 1 North 12,J,
Street in Brooklyn, Block 2277, Lot 1 (the Site or the Property). By verified petition dated
July 19,2005, the City commenced the instant eminent domain proceeding seeking to acquire
title to Property for the creation of a park.
The Proposed Facility
Gas. a Delaware corporation, holds an option dated March 13,2001 to purchase the
Site from Bayside Fuel Oil Depot Corporation (Bayside) (the Option); thereafter, title to the
Site was transferred to a related entity. North 12* StreetPropertiesLLC (North 12* Street).
To date. Gas has paid approximately 51,500,000 under the Option.
On September 13, 2001, TransGas LLC, also a Delaware corporation, submitted a
Preliminary Scoping Statement (PSS) in accordance with Article X of the Public Service
Law, which statement described the project and its potential impacts. Over the next year, the
New York State Department of Public Services held public forums and TransGas circulated
proposed stipulations to interested parties, including the City. On December 24, 2002,
TransGas filed an application with the NewYork State Board on Electric Generation Siting
and the Environment (the Siting Board) requesting approval to construct and operate an
electric plant and seeking to obtain a Certificate of Environmental Compatibility and pjblic
Need (the Certificate). To date, TransGas has spent approximately SI0,000.000 in
development costs, in addition to the payments made under the Option.
The proposed Facility is described by movants as an electric and steam, natnrai gas-
12,'lo/23e= 59:2: 7:55422C^
fired, combined cycle and cogeneration plant thai could generate up to 1100 megawatts of
electric power and up to two million pounds of steam per hour. It is further claimed that the
Facility would foster a more competitive market and would produce low cost electricity for
New York State consumers; would operate with a higher thermal efficieocy than most older
generating plants cmrently in operation; and would reduce crude oil imports, since it would
be fueled by natuial gas. As a result, the Facility would likely displace older and less
efficient plants. The Facility would also have "blackstart capability," which would allow it
to restart on its own, without receiving electricity from another source; followmg the August
14,2003 blackout, the steam system in New York City could not be restarted for at least four
days, a result that could be avoided with blackstart capability. The project is further
projected to inject $250,000,000 into the local economy during constiuctioa; to increase
economic output significantly, to create in excess of 1.668 construction jobs and 40
permanent jobs; and to continue to generate tax revenue, since the Property would be
privately owned. Movants also explain that the Site was chosen because it was zoned for
heavy industry and was close to existing gas and steam lines.
On June 5, 2003. the Chairman of the Siting Board determined that TransGas'
application met the minimum requirements of Public Service Law § 164 (1) and Public
Statement Hearings were held on July 17.2003; eight days of evidentiary bearings followed
between November 12 and 20, 2003, which hearings resulted in over 2,000 pages of
testimony. At the hearings, the City alleged that the proposed Facility would inhibit the
?,'15/222: 39:2E 7:55422390
residential build-out planned for the area, which contention was refuted by TransGas.
On April 1,2004, a Recommend Decision was issued by the Hearing Bcaroiners in
which they recommended that the proposed Facility should not be certificated due to the
alleged visual and land use impacts that could not be mitigated. More specifkally, the
Hearing Examiners noted that the proposed Facility would not adversely affect current land
uses. They furtbernoted, however, that the City had been involved in a planning process that
spanned more than a decade and that the proposed Facility would be incompatible with the
future land uses envisioned by the resulting rezoning plan, which was a significant factor
weighing against approval of the project. In an effort to address these concerns, TransGas
submitted an amendment to its application on November 12,2004 in which it proposed that
the Facility be built underground so that seven of the parcel's eight acres would be available
for use as a park above the Facility. TransGas would fund the cost of creating the park and
has entered into an agreement with the New York State Department of Environmental
Conservation to remediate conditions at the Site.
Review of the amended applicatioh is currently pending before the Siting Board
(Siting Board Case No, 01-F-1276). The City has actively participated in the approval
proceedings, including reviewing the pre-application study, stipulations, original application
and amended application. In addition, the City has replied to many of the filings, presented
expert witnesses at the evidentiary bearings and cross-examined TransGas' witnesses.
3 It is undisputed that the Site and the adjacent area is heavily contaminated from more than 100 years use by pctroleuni related businesses and hence needs extensive remediation.
:2/:S/'2325 29:25 7:E:j432e,w
Zoning Issues
Movants allege that at the time that TransGas acquired the Option, the Site was zoned
M3, so that construction of the Facility was a permissible use. They further aver that when
rezoning for the area was first proposed, the Site was located in an industrial sanctuary; it
was not until June 2003, on the eve of the commencement of the Anicle X proceeding, that
the City altered its plan and proposed to use the Site for a park.
In contrast, the City contends that planning for the rezoning began as early as 1989
and in December 2001, it approved the WiUiamsburg and Greenpoint Waterfront 197-A
Plans. It further avers that the Plans were prepared pursuant to New York City Charter
§ 197-A and proposed the rezoning of large sections of the area away from heavy industrial
use and rezoned them for residential, light industrial and commercial use, along with the
creation of a 28 acre public park on the waterfront, where the Site is located. The Ciiy
thereafter commenced the approval process required pursuant to the State Environmental
Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR). On
March 14, 2005, the New York City Planning Commission (the Planning Commission)
approved the application and on May 11.2005, the City Council approved the action of the
Planning Commission by adopting Resolution No. 964.
TESC's Condemnation Proceeding
Because die City stated during the proceedings before the Siting Board that it intended
to commence a proceeding seeking to condemn the Site for use as a park, TESC, an electric
corporation organized pursuant to the Transportation Corporation Law, commenced a
L2/:5/2?e5 39:2= 7:5543269: H condemnation proceeding pursuant to Transportation Corporation Law § 33 (3-a).
Accordingly, it published notices in the Daily News from June 22, 2005 through June 26.
2005; a public hearing was held on July 7, 2005; an environmental assessment form was
prepared, which deteimined that the project would not produce any significant adverse
environmental impacts; and a negative declaration was issued. The determination and
finding were published in the Daily News on July 30 and 31, 2005, as required pursuant to
EDPL205.
On August 30. 2005. the City commenced a proceeding in the Appellate Division,
Second Department, pursuantto EDPL 207, seeking relief including a judgment rejecting the
findings and determinations issued by TransGas and enjoining TransGas from acquiring the
Property by means of condemnation. By notice of motion dated September 30, 2005, the
City sought a preliminary injunction enjoining TransGas from commencing a proceeding
under the EDPL pending a final judgment by the Appellate Division in the § 207 proceeding.
On October 24,2005, TESC commenced a proceeding seeking to file an acquisition map and
to acquire title to the Property; the application was on this court's calendar on December 9,
2005 and was adjourned pending resolution of the issues raised herein, By decision dated
November 4, 2005, the Appellate Division denied the City's motion for a preliminary
injunction.
The City's Condemnation Proceedings
On July 20,2005, approximately two weeks after TransGas bsld a public hearing on
its condemnation proceeding, the Deputy Mayor approved the acquisition of the Property and
12/16/2325 39:2= ?1354-20i.- M r^GE 23
the City filed its petition and notice of pendency herein.
The Article 78 Proceeding
On September 2,2005, TransGas LLC. Gas and Baysidc commenced an Article 78
proceeding against the City, the Planning Commission, the New York City Department of
City Planning and the New York City Council (TransGas LLC, et ai v The Council of the
City of New York, et ai, New York County Sup Ct, Index no. 112360/05).* Therein,
petitioners' seek, among other things, to set aside resolutions adapting the Planning
Commission's actions and to challenge the City's Uniform Land Use Review Procedure
(ULURP), SEQRA and CEQR process, arguing, inter alia, that the City failed to disclose or
discuss the significant adverse impacts on air quality associated with the proposed rezoning;
failed to recognize the improvcincms in air quality that the Facility would provide by
displacing emissions of older plants in the City, and failed to disclose that the City would not
fully remediate the Site, while TransGas would.
TransGas' Contentions
In support of its instant application, TransGas argues that the Siting Board is
legislatively charged with the sole discretion and authority to site major electric generating
facilities pursuant to the procedures set forth in Article X of the Public Service Law. Hence,
the proposed condemnation of the Site by the City would impioperly divest the Siting Board
of jurisdiction, thereby frustrating the legislative mtenL North U* Street joins in this
4 Although the possibility of consolidating the Article 78 proceeding with the instant condemnation action was addressed during oral argioncnr, movants chose not to do SO.
8
L2/:o/2225 23:2= 71^422235
argurocnt.
In addition, TransGas argues that the City failed to comply with the hearing
requirements set forth in Article 2 of the EDPL. More specifically, TransGas asserts that the
Planning Commission's hearings, which were purportedly offered as the basis of an
exemption for the hearing required pursuant to EDPL 206. axe inadequate to satisfy the
statutory requirements, since none of the resolutions that were passed au±orized the taking
of the Property for the proposed park pursuant to eminent domain. TransGas further
contends that the City failed to comply with E0PL 402 in that it did not properly notice
movanis in either the notice of pendency or in the petition filed herein. In support of this
contention, movants argue that they are condemnees pursuant to EDPL 105 as the holder of
a right, title or interest in the Property that is subject to the instant proceeding by virtue of the
Option, their participation in the proceedings before the Siting Board, and/or the
commencement of condemnation proceedings by TESC.
TransGas further argues that the acquisition is not for a public purpose in that the
proposed park can be created as part of the construction of the underground generating plant
by acquiring an easement over the Facility. Also, since TransGas has proposed to bear the
cost of S340 million to remediate the Site, the public purpose is not served by the City taking
title. Finally, TransGas contends that the instant eminent domain proceeding is premature,
since the court should allow for resolution of the pending Article X proceeding before the
Siting Board, the City's EDPL 207 petition in the Appellate Division, and the Article 78
proceeding challenging the underlying land use resolutions before rendering its determination
12/15/222; 25:25 713543223:; M PASE :
herein. In the alternative, movants ask the court to allow them to intervene in the instant
proceeding and deem their proposed answer interposed.
The City's Contentions
In opposition, the City argues that movants do not have standing to challenge the
taking of the subject Property, since they are not condenmees; since movants lack standing,
they should not be permitted to intervene in this proceeding; no prior proceeding exists that
would necessitate dismissing or staying the petition herein; and the City's proposed taking
of the Property to create a park constitutes a valid public purpose. The City thus concludes
that it is entitled to an order of condemnation, since it has complied with all of the
requirements of the EDPL.
Movants as Condemnees Pursuant to the EDPL
TheLaw
Pursuant to EDPL 103 (c), a condemnee is defined as "the holder of any right, title,
interest, hen, charge or encumbrance in real property subject to an acquisition or proposed
acquisition." Hence, it is well setded that "[i]n order to have any standing in a condemnation
proceeding one must show an ownership interest in the property" {In re Port of New York
Auth., 12 ADld 18, 20 [1960], citing Matter of City of Ne* York [Jefferson
Houses-Lombardi], 306 NY 27S [1954]).
In discussing the question of who was an ''owner" who had some fonn of recognizable
interest in the real property involved in a condemnation proceeding, the Court of Appeals
stated that:
10
12,'15/2 32:; 29:2^ 7135432395 y =*3£ :2
"With the passage of years, the statutes have been renumbered, revised and amended but h has not been made to appear that the interests cognizable by the Supreme Court sitting in condemnation proceedings have been limited thereby. Rather it would appear that, by the very language used in defining the interests which make one an 'owner' of 'real property', the Legislature intended to include as many of those different interests in real property affected by the condenmation proceedings as possible."
{In re New York, 306 NY 278, 282 [1954]). Accordingly, the court held that the vendee
under an executory contract to purchase land was an owner.
In further defining the nature of an interest sufficient to satisfy the requirements of
EDPL103 {C), the Appellate Division, Second Department found that "a claimant seeking
compensation for condemned property may, in appropriate circumstances, seek recovery by
demonstrating an equitable interest therein, as opposed to legal title" {Johnson v State, 10
AD3d 596,597 [2004], citing ^V/a^r^Cfiy o/New York [Jefferson Houses-Lombardi] ,106
NT 278; Vinciguerra v State of New York, 22 AD2d 93; accord tillage of Port Chester v
Sono, 14 AD3d 570. 571 [2005] [a finding that appellant had operated a restaurant on the
subjcctparcelforsevcralyearspriorto the "condemnation, with the knowledge and consent
of his brother-in-law (who held the lease for the parcel in his name) and the landlord (who
maintained an office on the property), and had made and paid for signiilcant improvements
to the restaurant, including the installation of valuable fixtures taken in the condemnation,
would be sufficient to support a finding that the appellant was a condemnee within the
meaning of EDPL 103 [c] as to the fixtures; the Village's focus on the fact that appellant was
not the named tenant and did not have a written assignment or sublease was misplaced in
II
12/15/2;05 :• 34 FAX 2^2 BIB sb:> iJA'•rr.it b;'tK—Si' bSri £*• irc-i* 12/15/7655 14:18 JieStf' 35 M p^jr i2
light of the broad and inclusive definition of condemnce]). In this regard, the Appellate
Division, Third Department, recently held that "fajs holder of an equitabl? interest under its
purchase contract for the property, petitioner is a' co^dcInnee, within the mctuung of EDPL
103 ( c) and is thus entitled to standing" [Faith Temple Church v Town of Brighton, 17 AD3d
1072,1072-1073 [2Wi5]tcit3nzMatter of East Thirteenth St. Community Assn., 84NY2dat
293; Matter of City of New York [Jefferson Houses LombardiJ, 306 }*Y 278. 281 -282).
As is also relevant to the issues presented herein, the court also recognizes that an
option has been held to be an interest is real property. More specifically, ,l*"[a]n option
contract is an agreement to hold an offer open; it confers upon the optionee, for consideration
paid, ihe right to purchase at a later date'"" (Jorecki v SkungMoo Louie, 95 NTY2d 665,668
[2001], quoting ATajp/an vLippnum, 75 NY2d320,324 [1990], cithiS Leonard vlckovic, 79
AD2d 603 [1980], ajfd 55 KVld 727 [1981). "This sort of an agreement constitutes the
creation and grant of an interest in real property, and must be is writing to be valid under the
[Statute of Frauds]" (Kaplan, 75 NY2d at 325, citing Casoh v Nardefla, 275 App Div 502,
504 [1949]).
Discussion
Applying the above general principals of law, the court finds that movaots' interest
in the subject Property pursuant to the Option to purchase is a sufficient ownership interest
to characterize them as condemnees, particularly in view of the fact that they have already
expended $1,500,000 towards the purchase price. As such, movants have jurisdiction to
challenge the taking of the Site by die City. The cases relied upon the City in aijuing that i i
12
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SA'TES.iE S'EP-iNS 3»t! ' £•*'ifiii
TransGas is not a conderonce do not compel a different result. For example, in In re Port of
New York Authority (12 AD2d 18), the court held that the holder of an uuexercised option
was not entitled to share in the net proceeds of the condenmatian award paid to ths fee
owner, since it did not have the requisite ownership interest in the real property sufficient to
warrant the disposition of its claim in the condemnation proceeding. Similarly, in In re
Water Front on Upper New York Jiay(246NY\ [1927], r€hdented246K\S49 [19271 cert
denied 276 US 626 [1928J}, the court held that the holder of an unexercised option was not
entitled to share in the compensation paid in an eminent domain proceeding.
In addition, the court finds that TESC has an interest in the Site as the condemnor in
the proceeding commenced pursuant to Transportation Law § 33 (3-A). Li this regard, the
couit first notes that in its petition in the § 207 proceeding that the City commenced in the
Appellate Division to challenge TESC's eminent domain proceeding, die City claims that it
is "the holder of a right, interest or incumbrancc" with respect to the Property because the
City commenced a condemnation proceeding to acquire the parcel. In addition, it is clear that
the City was aware that TESC bad commenced a cooderananon proceeding when it filed the
petition herein, since it had already challenged TESC's determination in the Appellate
Division. Also significant is the fact that the Appellate Division denied the City's motion
to enjoin TESC and prevent it from going forward with its condemnation proceeding. In so
holding, the court inhcrcotly rejects the City's contention that the fact that no condemnation
proceeding had been commenced because TESC had not yet filed a court action seeking to
obtain title when the instant proceeding wajj commenced compels a contrary conclusion.
13
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1 • • .... \
12/:b/2iZS 39:2: 713543263^ M =fi.3£ ::•
Thus, as the above discussion of the law makes clear, the clear intent of the EDPL is to allow
any part)- having an interest in property- sought to be condemned, whether legal or equitab le,
an opportunity to be heard in the condemnation proceeding. The court accordingly finds that
TESC's status as a condemnor confers upon movants a sufficient interest in the Property to
characterize them as condemnees having standing to challenge the proposed taking.
The court also rejects the City's contention that it was not aware that movants held an
interest in the Site because movants did not record their Option. In the first instance,
contrary to the City's conteniion, there is no requirement that a party record an interest in
property' in the Office of the City Register to be entitled to standing. Further, the court
recognizes that the Recording Act (Real Property Law § 291) was enacted to establish a
public record which would furnish potential purchasers with notice, or at least constructive
notice, of previous conveyances and encumbrances that might affect their interests (see e.g.
AndyAssocs. v Bankers Trust Co.. 49NY2d 13,20 [1979]). In this case, however, the City
had actual knowledge of the Option because it had been actively participating in the Article
X proceeding before the Siting Board. As is relevant to this argument, the Public Service
Law requires that every applicant for a Certificate must serve a copy of the PSS (Public
Service Law § 163 [2])5 and a copy of the application (Public Service Law § 164 [2] [a])*
5 Public Service Law § 163 (2) provides dial "[s]uch persons shall serve copies of Hie prehminaxy scoping statement on persons enumerated in paragraph (a) of subdivision two of section one hundred sixty-four of this article ..."
* Public Service Law § 164 (2) (a) provides that:
"Each application shall be accompanied by proof of service, in such
14
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upon the municipality in which a proposed facility is located. Since the statute provides for
sen-ice upon the municipality, the City's assertion that notice given to an employee is not
notice to the City is specious (c/ Martinez v New York City Hous. Auth., 250 AD2d 686,687
[1998] [the fact that the police had knowledge of an occurrence could not be imputed to
another municipal agency]). Further, even if the City's assertion that it was unaware that
movants had an interest in the Site is accepted, they have since been made aware by movants'
appearance herein. As is accordingly relevant, in directing the court to accept the answer of
an appellant who claimed an equitable interest in the property at issue therein, the court held
that "[i]f a petitioner in condemnation proceedings knows that one is an equitable owner of
property sought to be condemned it must treat him as owner" {Champlain & S. R. Cc v
Ostrander> 151 App Div 752, 755 [1912]).
Finally, although not argued by either party, the court further finds that movants'
status as the applicant in a proceeding pending before the Siting Board is sufficient, in and
of itself, to confer standing upon them. In this regard, it is counterintuitive to find that a
party who expended $1,500,000 to acquire the right to purchase Property on which to
construct an electric plant, who applied to the Siting Board forpermission to do so, and who
manner as the board shall prescribe, of:
"A copy of such application on each municipality va which any portion of such facility is to be located as proposed or in any alternative location listed. Such copy to a mtwicipality shall be addressed to the chief executive office thereof and shall specify the date on or about which the application is to be filed."
(emphasis added).
15
12/:S/23BE 10; 3J 713;'532bJj .V rAGE Si
expended over 510,000,000 in development costs does not have an equitable interest in the
subject Property sufficient to entitle that party to be heard in a condemnation proceeding.
In so holding, the court notes that its finding that TransGas has standing herein is not
contrary to East Thirteenth Street Community Association (84 NY2d at 292), as argued hy
the City. In that case, the court held that condominium boards, tenants and residents of
buildings near a parcel of property that the Urban Development Corporation was seeking to
take by eminent domain did not have standing to challenge the taking pursuant to EDPL 207.
Therein, the court held that petitioners did not have a proprietary interest in the subject
property in that they were not "the holders] of any right, title, interest, lien, charge or
encumbrance in real property subject to an acquisition or proposed acquisition," as EDPL
103 ( c) defined those commonly recognized as aggrieved parties. As discussed above,
however, movants TransGas and TESC are clearly distinguishable from a neighboring
condominium board and tenants. Significantly, movants are the holderof an option, pursuant
to which $1,500,000 has been paid; a condemnor of the Site; and the applicant who proposes
to construct an electric plant pursuant to Article X of the Public Service Law, for which
development costs in excess of SI 0,000,000 have been incurred. In contrast, petitioners in
East Thirteenth Street Community Association (id.) had no ownership interest or financial
stake in the property being condemned.
Movants' Application to Intervene
Intervention
Even assuming, arguendo, that TransGas is not a condemnee, the court concludes thai
16
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it has the right to intervene in this proceeding pursuant to CPLR 1012 and/or 1013.
Intervention may be as of right (CPLR 1012), or with the permission of the court
(CPLR 1013). In addressing an application to intervene, it has been recognized that:
"Intervention is a joinder device that enables a person to 'take the initiative' to become a plaintiff or defendant in a suit pending between other persons. Intervention may be either as of right, underCPLR 1012. or by permission, under CPLR 1013. Whether as of right or by permission, the proposed intervenor must make a timely motion for a court order to intervene."
(3 Weinstein-Kom-Miller, NY Civ Pracf 1012.01).
CPLR 1012 (a) (2)
Pursuant to CPLR 1012 (a) (2), a party will be granted leave to intervene as of right
"when the representation of the person's interest by the parties is or may be inadequate and
the person is or may be bound by the judgment." Whether a person seeking to intervene win
be bound by a judgment within the meaning of CPLR 1012 (a) (2) is determined by its res
judicata effect (Vantage Petroleum v Board of Assessment Review, 61 NY2d 695 [1984]).
Pursuant to the doctrine of res judicata, a judgment on the merits by a court of competent
jurisdiction is conclusive upon parties in a litigation and those in privity with them in any
subsequent action with regard to issues of fact and questions of law necessarily decided in
the earlier action (see e.g. Gramatan Home Investors v Lopez, 46 NY2d 481, 485 [1979];
Watts v S-viss Bank, 27 NY2d 270 [1970]). "[P]rivity is '"an amorphous concept not easy
of application"... and "includes those who are successors to a property interest, those who
control an action although not formal parties to it, those whose interests are represented by
17
a party to the action, and [those who are] coparties to a prior zctionn,n(Buechel v Bain, 97
NY2d 295, 304 [2001], cert denied 535 US 1096 [2002], quoting Matter of Juan C. v
Cortines, 89 NY2d 659, 667-668 [1997] [citations omitted]; accord Molino v County of
Putnam, 29 NY2d 44, 51 [1971] [privity is merely a word used to say that the relationship
between the one who is a party on the record and another is close enough to include that
other within the coverage of res judicata]).
Herein, TransGas, as the holder of the Option, is clearly in privity with the owner of
the Property. Similarly, movants will be bound by any judgment awarding title of the Site
to the City. In addition, the interests of TransGas will not be adequately protected by the
owner, since North 12* Street is presumably interested in maximizing the compensation that
it can receive for (he Site, whether by the purchase price to be paid under the Option or by
the award received in the instant condemnation proceeding; it has no interest in advocating
TransGas' desire to construct an electric generating facility at the Site.
CPLR1012 (a) (3)
CPLR 1012 (a) (3) authorizes intervention in an action as of right "when the action
involves the disposition or distribution of, or the title or a claim for damages for injury to,
property and the person may be affected adversely by the judgment."
For the above discussed reasons, the City's assertion that a judgment entered in its
favor in this proceeding will not adversely affect TransGas is specious, since movants will
not realize the value of the S1,500,000 that they paid on the Option, the S10.000,000 that they
invested in development costs, and the opportunity to construct the proposed Facility {see
18
i2/:6/2ee5 :e:i: 7:5i432Q95 y. FASE 35
generally Capita! Resources Co v Prewitt, 266 AD2d 176, 176-177 [1999] [motion by
defendant's former wife to intervBne should have been granted where although her half
interest in the property was not directly subject to the plaintiffs mortgage, she demonstrated
a rcaJ and substantial interest in the outcome of the foreclosure action lo warrant her
intervention, since plaintiffs ultimate goal was to force the partition and sale of her home];
30 Realty Dev. v Oehler, 82 AD2d 913 [1981] [in a proceeding by a developer who sought
lo compel a planning board and a highway superintendent to sign final copies of plans for the
developer's proposed subdivision and to declare that a certain street was a town road so as
lo enable him to connect a street in his development to it, owners of land that bordered on
the street were entitled to intervenE, since the proceeding involved title to property and the
landowners would be affected adverselyby the judgment]; Zevme v Oyster Bay, 40 Misc 2d
605 [1963] [purchaser of realty on the condition that it be rezoned was sufficiently affected
by the action by other property owners to declare the zoning change void so as to be
permitted to intervene therein]).
CPLR1013
As is also relevant here, CPLR1013 authorizes intervention "when the person's claim
or defense and the main action have a common question of law or fact. In exercising its
discretion, the court shall consider whether the intervention will unduly delay the
determination of the action or prejudice the substantial rights of any party."
For the same reasons discussed above in finding that movants should be permitted to
intervene in this proceeding 35 of right, the court finds, in the alternative, that they are
J9
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entitled to intervene pursuant to CPLR 1013.
The Siting Board's Jurisdiction over the Siting of the Facility
Pre-emption
The doctrine of preemption represents a fundamental limitation on a municipality's
broad power to enact local legislation consistent with the Stale Constitution and general State
laws relating to the welfare of its citizens {see e.g. Ba Afar v County ofRockhnd, 164 AD2d
605, 612 [1991], appeal dismissed, appeal denied 78 N'Y2d 877 [1991]). "Under this
doctrine, even in the absence of an express tonflid, a local law which regulates subject
matter in a field which has been preempted by State legislation is deemed inconsistent with
'the State's transcendent interest' and is thus invalid" {id. at 612 [1991], quoting y<^fl«v>i wo
Bldrs. Assn. v Town ofGuilderland, 74 NY2d 372, 377 [1989]).
Hence. "[w]here the State has demonstrated its intent to preempt an entire field and
preclude any further local regulation, local law regulating the same subject matter is
considered inconsistent and will not be given effect" {NyackvDaytop Village, 78 Ny2d 500,
505 (1991 ]; accord City of New York v Town of Blooming Grove Zoning Bd. of.Appeals, 305
AD2d 673 [2003). appeal dismissed 100 NY2d 614 [2003]). "The intent to occupy an entire
field of regulation need not be express. Rather, 'that desire may be inferred from a
declaration of State policy by the Legislature or from the legislative enactment of a
comprehensive and detailed regulatory scheme in a particular area'" (/ZC Data Device v
County of Suffolk, 182 AD2d 293, 301 [1992], appeal dismissed 81 NY2d 952 [1993],
quotingAVv YorkState Club Assn. v City of New York, 69 NY2d 211.217 [1986], affdAZl
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US 1 [1988]; accord Aetna Cos. & Sur. Co. v County of Nassau, 221 AD2d 107,119 [1996],
appeal dismissed 88 NY2d 1015 [1996], lvdenied 89 NY2d 804 [ 1996], reh denied 89 NY2d
1015 [1996] [the Legislature's decision to preempt a particular area of law may be inferred
from the nature of the subject matter being regulated and from the purpose and scope of the
State legislative scheme, including the need for State-wide uniformity in a given field]).
"Even if the Legislature had not pre-empted the field of regulations, [a municipality's]
authority to enact local laws under the Constitution or the Municipal Home Rule Law is
conditioned on the exercise of such authority not being inconsistent with any State
enactment" {Consolidated Edison Co. v Red Hook, 60 NY2d 99,107 [1983], citing Peop/e
v De Jesus, 54 NY2d 465, 468 [1981]; McMillen v Brcwne, 14 XY2d 326, 331 [1964]).
Inconsistency:
"has been found where local laws prohibit what would be permissible under State law {Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327,329-330,18 AD2d 968. affd 11 NY2d 998, on opn at 17 AD2d 327), or impose 'prerequisite "additional ^estrictions',, on rights under State law {F.T.B. Realty v Goodman, 300 NY 140.147-148). so as to inhibit the operation of the State's genera] laws."
(ConsolidatedEdison Co.. 60 NY2d at 108).
21
12/16/2365 iB-.Zz 7:36<J32(3d5 M PAQE 25
In enacting .Article VIII of the Public Sen'icc Law,7 the predecessor to Article X,* the
Legislature noted that "there is a need for the state to control determinations regarding the
proposed siting of major steam electric generating facilities within Ae State" (L 1972, ch
385, § I). "Public Service Law fonner article VIII has been characterized as a 'one-stop
certiScation' statute (Governor's Mem, 1978 McKinncy's Session Laws of NY, at 1838) and
was designed to 'provide for the expeditious resolution of all matters concerning the location
of major steam electric generating facilities [within the State] in a single proceeding"
(Massachusetts, 197 AD2d at 101, citing L 1972, ch 385, § 1).
In approving the legislation, Governor Nelson Rockefeller's memorandum stated that
7 As was explained in Massachusetts v New York State Board on Electric Generation Siting and the Environment (197 AD2d 97,100. n 2 [1994], appeal dismissed 83 XY2d 999 [1994]):
"In 1972, ;he Legislature enacted Public Service Law fonner article VTH, which established the Siting Board and created a unifbim procedure for decisionmaking concerning the siting and approval of major steam electric generating facilities in the State {see, L 1972, ch i&5\ see also. Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99,103; Koch v Dyson, 85 AD2d 346, 358-359). This initial enactment of Public Service Law fonner article VUI was to expire on January 1,1979 {see, L 1972, ch 385, § 8), and in i 978 the Legislature reenacted Public Service Law former article VUI, which was set to expire again on January 1, 1989 {see, L 1978. ch 708. § 4, as amended by L 1983, ch 721, § 2)."
' Although Article X expired as of December 31, 2002, ail applications filed pnor thereto shall continue lo be reviewed pursuant to the law as it existed on the date of filing and "[njothing in this act shall be construed to limit any administrative authority with respect to matters included in this act, which existed prior to the effective date of this act" {see L 1992, ch 519: L 1999, ch 636).
22
.2/:D/29e5 :s:2; 7:35432Bg5 V. FAGE 2:
"the establishment of a unified certificating Focedure under thejurisdictionofthenew'State
Board [was to] replace the current uncoordinated welter of approvals, procedures and
agencies that have virtually paralyzed the construction of needed new power plants"
(McKJnneys' 1972 Session Laws of N^ at 3391). Similarly, in approving Article X,
Governor Mario M. Cuomo stated that the law was intended to provide a "comprehensive
review of the benefits and impacts anticipated from proposed facilities without unreasonable
delay" and that "one of the primary means by which the Legislature sought to ensure the
State's control over siting decisions was in its grant of authorily to the Situtg Board to waive
municipal laws or regulations that could hinder the development of electric generating
facilities*' (Memorandum of Governor Mario M. Cuomo approving Laws 1992, ch 519,
McKinneys' 1992 Session Laws of NY at 2898).
Hence, Public Service Law § 163 requires an applicant wishing to construct a "major
electric generating facility"9 to file a PSS describing the facility and its potential
environmental impacts with the Siting Board; § 164 requires the filing of an application with
the Chaiiman of the Siting Board; and § 165 et seq. requires a public hearing. As is also of
particular relevance herein, pursuant to Public Service Law § i 66 (1) (h). "any municipal ity
entitled to be a party herein and seeking to enforce any local ordinance, resolution or other
action or regulation otherwise applicable shall present evidence irv support thereof or shall
be barred from the enforcement thereof.*' Public Service Law § 168 (1) provides that the
' Public Service Law § 160 (2) defines a major electric generating facility as "an electric genciaring facility with a generating capacity of eight thousand kilowatts or more. . .".
23
:2/:5/23e5 12:2; 71^22^5 y =i.<3E :;
Siting Board "shall make the final decision on an application under this article for a
certificate...". In addition, pursuant to Public Service Law § 168 (2) (d), the Siting Board
must determine:
"[t]hat the facility is designed to operate in compliance with applicable slate and local laws and regulations issued thereunder . , . except that the board may refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement which would be otherwise applicable if it finds that as applied to the proposed facility such is unreasonably restrictive in view of the exiting technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. The board shall provide the municipality an opportunity to present evidence in support of such ordinance, law, resolution, regulation or other local action issues thereunder."
Further, Public Service Law § 170 (1) provides that an applicant may apply to the
Siting Board for a rehearing if its application is denied, and may thereafter seek judicial
review of the Board's deiermination. Public Service Law § 170 (2) limits the grounds for
judicial review to a detenninadon of whether the Board's decision is in conformity with the
constitution; is supported by substantial evidence in the record; is within.the Board's
statutory jurisdiction; is made in accordance with the procedures set forth in Article X; and
is not arbitrary, capricious or an abuse of discretion (see generally Massachusetts, 197 AD2d
at 104 [after the court determined that the Siting Board had not lost jurisdiction over the
matter, judicial review of its determination was limited to, inter alia, whether the Siting
Board's determination [1] was supported by substantial evidence in the record, [2] was
within the Siting Board's statutory jurisdiction or authority, [3] was made in accordance with
24
L2/:&/238£ :e:55 7:3:.43289G M ?ASE I!
Public Service Law fonner article vm and the applicable rules and regulations, and [4] was
not arbitrary, capricious or an abuse of discretion]; Abe/* vDyson, 85 Al>2d 346,364 [1982]
[the scope of the court's review of decisions of the Siting Board was limited to whether the
determinations, inter alia, were supported by substantial evidence in the record; were made
in accordance with proper procedure; and were not arbitrary, capricious or an abuse of
discretion]).
Also relevant to the instant dispute is Public Service Law § 171. which expressly
limits the jurisdiction of a court over a matter pending before the Siting Board:
"Except as expressly set forth in section one hundred seventy of this article and except for review by the court of appeals of a decision of the appellate division of the supreme court as provided for therein, no court of this state shall have jurisdiction to hear or determine any matter, case or controversy concerning any matter which was or could have been deteimined in a proceeding under this article or to stop or delay the construction or operation of a major electric generating facility except to enforce compliance with this article or the terms and conditions thereunder."
Finally, Public Service Law § 172 (i)Iimits the action thatalocal or state agency may
take to interfere with a proceeding before the Siting Board by providing that;
"[njotwithstanding any other provision of law, no state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed."
25
:2,':6/222= IB: 35 7l3ii:2S'3-s M PAGE li
In applying Article Mil and addressing the issue of whether a local law passed by Red
Hook which provided that no person could begin or allow a site study for a power plant in
the town without first obtaining a license from the town Board was "invalid, either because
the State Legislature, by article VIII of the Public Service Law, has pre-empted the field of
regulation concerning the siting of major steam power plants, or because the local law is
inconsistent with the State statute" {Consolidated Edison Co., 60 NY2d at 103), the Court
of Appeals noted that:
"Article Mil of the Public Service Law ('Siting of Major Steam Electric Generating Facilities'), enacted in 1972, sets up a Slate board on electric generation siting and the enviroiunent (the Siting Board), which must certify all new major steam electric generating facilities. Generally, article Mil provides that all interests involved in the decision as to where such facilities should be located (including the interests of localities such as Red Hook) are to be balanced by one decision-maker, the Siting Board, in one proceeding, an application before that board. Specifically, the statute provides that no person is to prepare a site for or construct a major steam electric generating facility without obtaining a certificate from the board (Public Service Law. § 141); that a person proposing to apply for a certificate may consult with State agency staffs as to preapplication procedures, including studies of prospective sites (Public Service Law, § 141-a); that a detailed application must be filed with the Siting Board, describing the proposed site, the proposed facility, and studies conducted on die site (Public Service Law, § 142); that the Siting Board will conduct a hearing on an application at which various interests, including those of municipalities, may be represented (Public Service Law, §§ 143-145); that the board will render a fmal decision and issue an opinion stating the reasons for any action taken (Public Service Law, § § 146-147); that an aggrieved party may apply for rehearing or judicial review (Public Service Law, §§ 148-149); and that no municipality may require any approval or other condition for the construction or operation of a major steam
26
12/:5/23ZS IS:?: 7:55422695 Y. =ASE
facility where an application for a certificate has been filed (Public Service Law, § 149-a)."
(id. at 103).
As is relevant to tbe issues to be determined herein, the court found the local law to
be invalid, holding thai it:
"is invalid because the Legislature has pre-empted such local regulation in the field of siting of major steam electric generating plants. The intent to pre-empt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so. {People v New York Trap Rock Corp., 57 NY2d 371, 378; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 Ny2d 679, 683; People v Cook, 34 NY2d 100, 109.) A desire to pre-empt may be implied from a declaration of Stale policy by the Legislature (Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351) or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area. (People v De Jesus, 54 NY2d 465. 469.) Here both apply....
"Thus, the history and scope of article VIII. as well as its comprehensive regulatory scheme, evidence the Legislature's desire to pre-empt further regulation in the field of major steam electric generating facility siting, a desire that would be frustrated by laws such as Local Law No. 2. 'Such State policy being expressed, a village or other municipality lacks authority to deal with the matter "'unless it is specifically empowered so to do in terms clear and explicit. ""(Robin vIncorporated Vil. of Hempstead, 30 NY2d 347, 350-351, supra; Jewish Consumptives' Relief Soc. v Town ofWoodbury, 230 App Div 228,234, affd 256 NY 619.) There has been no such authority delegated to defendants to ignore the State policy here. In light of this pre-emption, defendants had no power to adopt additional requirements or require additional permits relating to such siting, (Matter of Kress dc Co. v Department of Health, 283 NY 55, 59)."
(id. at 105-107).
In the altcanativc, the court found that even if the Legislature had not pre-empted the
field, the local law would be invalid for the additional reason that it was inconsistent with
State law in that it added furtbci restrictions to an applicant's ability to conduct the site
studies required by Article VIII and allowed the town to prohibit such studies altogether,
which would inhibit the operation of the State's general law (id. at 107-108).
Similarly, in the case of Citizens for the Hudson Valley v New York State Board on
Electric Generation Siting (281 AD2d 89 [2001 ]), the Appellate Division, ThirdDepartment,
approved the Siting Board's waiver, pursuant to Public Service Law § 168 (2) (d), of certain
requirements of the zoning ordinance enacted by the town of Athens {id. at 95).
Discussion
As is established by the Legislative intent, the comments made by Governor
Rockefeller and Governor Cuomo in enacting Article X and its predecessor, and
ConsolidatedZdison Co. (60 NY2d 99), the statute is intended to vest the Siting Board with
exclusive jurisdjetjon to deteimine where major electric generating facilities will be located,
the law was intended to pre-empt local legislation with regard to such sitings, and local laws
or legislation inconsistent with the State's scheme will not be permitted. Herein, the City's
actions are admittedly the result of the City's determination that a major electric generating
facility should not be located at the Site, an issue throughly argued by the City in the Article
X proceeding and addressed in detail by the Hearing Examiners in their Recommended
Decision. In applying Article X to the facts at issue herein, this court concludes that the
City's proceeding to condemn the Site is intended to circumvent the Siting Board's
28
jurisdiction over the detennination by taking the Property for use as a park. Such a result
cannot be permitted.
Although Article X does not specifically address the issue of whether the statute was
intended to prohibit a mumcipahty or local agency from utilizing a condemnation proceeding
to frustrate an applicant's ability to build an electric plant at a site deemed appropriate by the
Siting Board, the clear intent of the statute, as is further illustrated by the broad language
utilized and by the comprehensive and detailed regulatory scheme enacted, must be construed
to have so intended.'0 This holding also finds support in Public Service Law § 15S (2) (d),
which allows the Siting Board to "refuse to apply any local ordinance, law, resolution or
other action or any regulation issued thereunder or any local standard or requirement which
would be otherwise applicable if it finds that as applied to the proposed facility such is
unreasonably restrictive."1'
In addition, Public Service Law § 171 compels the conclusion that this court is
without jurisdiction to resolve the issues raised herein at this stage of the proceedings. As
is relevant in this regard, § 171 provides thatthe court lacks jurisdiction "to hear or determine
any matter, case or controversy concerning any matter which was or could have been
w Although the City states that one of the Hearing Exaroiaers suggested at a preliminary conference that it seek to obtain the Site by eminent domain, this opinion was not incorporated into a final determination by the Siting Board, nor would it be binding upon this court m rendering its decision on the issues raised herein.
:: While the City relies upon the argument daat Article X does not provide that the Shiag Board can ovenide a judgment issued in a condemnation proceeding that awards it title to Property, it fails to acknowledge that in order to obtain such a judgment, it passed numerous resolutions and amended its zoning ordinances, which provisions the Siting Board can refuse to apply.
29
L2/:S/2225 12:2Z 7:354322^
detennined in a proceeding under this article or to stop or delay the constmction or operation
of a major electric generating facility." As noted above, throughout the Article X
proceeding.theCitybas opposed theconstiuctionof an electric generatingfacility by arguing
that such use is inconsistent with the City's rezoning. Thus, the City does not, and indeed
cannot, argue that the Siting Board is without authority to determine that the amended plan
to construct the Facility underground is inconsistent with the City's project to revitalize the
waterfront area, and hence refuse to issue a Certificate on this ground. Similarly, it cannot
be disputed that the entry of a judgment of condemnation herein will have the effect of
stopping or delaying the construction of the Facility.
Similarly, the City's action in seeking to prevent raovants from constructing the
Facility is prohibited by thaipoition of Public Service Law § 166 (1) (h) which provides that
"any municipality entitled to be a party herein and seeking to enforce any local ordinance,
resolution or other action or regulation otherwise applicable shall present evidence in support
thereof or shall be barred from the enforcement thereof." In so holding, the court finds that
the City's commencement of the instant condemnation proceeding is an "action" that must
be approved by the Siting Board pursuant to the express language of this provision in order
to be enforced by this court.
Conclusion
Accordingly, the court finds that movants have standing to challenge the proposed
taking herein and grants their application to the extent of staying the instant proceeding
pending a detennination by the Siting Board. All further relief requested herein is denied
30
ii/_LJ/AtJ(J-J ^tJ.Uw
with leave to renew, on notice, following the issuance of such determination.
The foregoing shall constitute the order and decision of this court.
ENTER
J. s. c ftOM ABRAHAM G, QERGES
Mr, 2xU!lta 4._,f.
31
