Atwell v. Power Authority

• Decision Date: 19 April 1979
• Docket Number: No. 1,No. 3,No. 2,1,2,3
• Citation: 415 N.Y.S.2d 476,67 A.D.2d 365
• Parties: Merlin ATWELL et al., Appellants, v. POWER AUTHORITY of the State of New York et al., Respondents. (Proceeding) In the Matter of UPSET, INC., Petitioner, v. PUBLIC SERVICE COMMISSION et al., Respondents. (Proceeding) In the Matter of POWER AUTHORITY of the State of New York, Petitioner, v. PUBLIC SERVICE COMMISSION of the State of New York, Respondent. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 476

415 N.Y.S.2d 476

67 A.D.2d 365

Merlin ATWELL et al., Appellants, v. POWER AUTHORITY of the State of New York et al.,

Respondents. (Proceeding No. 1.)

In the Matter of UPSET, INC., Petitioner, v. PUBLIC SERVICE COMMISSION et al., Respondents. (Proceeding No. 2.)

In the Matter of POWER AUTHORITY of the State of New York, Petitioner, v. PUBLIC SERVICE COMMISSION of the State of New York,

Respondent. (Proceeding No. 3.)

Supreme Court, Appellate Division, Third Department.

April 19, 1979.

The Clements Firm, Canton (Mahlon T. Clements, Canton, of counsel), for Merlin Atwell and others, appellants.

Lewis R. Bennett, New York City (Vito J. Cassan, New York City, of counsel), for Power Authority of the State of New York, petitioner in Proceeding No. 3 and Power Authority and others, respondents in Proceedings No. 1 and No. 2.

Peter H. Schiff, Albany, for Public Service Commission of the State of New York and another, respondents.

Louis J. Lefkowitz, Atty. Gen., Albany, for William C. Hennessy and another, respondents.

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.

GREENBLOTT, Justice.

PROCEEDING NO. 1

On August 24, 1977, plaintiffs commenced an action seeking declaratory and injunctive relief against the continued construction of a 765 kV transmission line. The first cause of action ¹ alleges that the resolution of need of the Power Authority of the State of New York (PASNY), dated July 11, 1973, was without statutory authority. The gravamen of this action is that the resolution's declared intention to use the proposed lines to transmit energy from Quebec to New York State disclosed a purpose not authorized by the Public Authorities Law.

Before discussing the merits of plaintiffs' first cause of action it is necessary that we note that the complaint does not challenge PASNY's right to declare a need for transmission facilities (Public Authorities Law, § 1005) comprising a single circuit 765 kV line between Canada and New York State, but, rather, challenges its statutory authority to construct and transmit through such a line power that is not generated in this State. Accordingly, we conclude that in this proceeding (unlike Proceeding Nos. 2 and 3 hereinafter discussed) plaintiffs are not confined to a proceeding initiated in this court by petition in accordance with the provisions of section 128 of the Public Service Law. It follows, therefore, that plaintiffs' action was properly commenced below and this appeal must be determined on the merits of the issue raised by the pleadings.

Review of the applicable provisions of the Public Authorities Law persuades us to the view that Special Term's dismissal of the first cause of action of the complaint must be affirmed. Section 1005 of the Public Authorities Law grants to PASNY power to contract with and cooperate with Canadian authorities to effectuate the development and enhancement of hydroelectric power and projects related thereto. Plaintiffs' contention that section 1001 of the Public Authorities Law confines the development of power and energy by PASNY solely to the natural resources of the Niagara and St. Lawrence Rivers is meritless when section 1001 is juxtaposed to paragraph 7 of section 1005 of the same law, which specifically authorizes PASNY "to undertake the construction of any project in one or more steps as it may find economically desirable or advantageous, and as it may Agree with the appropriate Canadian and/or United States authorities " (emphasis added). Further, the third unnumbered paragraph in section 1005 of the Public Authorities Law specifically authorizes PASNY to construct and/or acquire transmission facilities which would assist in the supply of electricity to Metropolitan New York City. While some limitation is imposed by section 1005 as to PASNY's employment of power generated from Acquired facilities in Metropolitan New York City and its environs, no such proscription is stated or can be inferred on PASNY's right to Construct transmission lines anywhere in the State for the purpose of maintaining an adequate energy supply in New York City. Patently, no statutory limit is placed on the location of the energy source that shall energize Constructed transmission lines. Next, even though the July 11, 1973 resolution of need predated the enactment of the third unnumbered paragraph of section 1005 of the Public Authorities Law (L.1974, ch. 370, § 1, eff. May 17, 1974), said enactment effectively ratified the administrative determination of July 11, 1973 (cf. Matter of the City of Albany v. McMorran, 16 A.D.2d 1021, 230 N.Y.S.2d 438). Accordingly, the order should be affirmed.

PROCEEDING NO. 2

Resolution of the merits of this proceeding pursuant to section 128 of the Public Service Law, preliminarily requires disposition of several procedural issues raised in PASNY's application to dismiss the proceeding as jurisdictionally defective. ²

PASNY initially contends that the review mechanism described in section 128 is, in actuality, a special proceeding commenced in this court under article 78 of the CPLR. We disagree. This position ignores subdivision 3 of section 128 which succinctly states that "(e)xcept as herein provided article seventy-eight of the civil practice law and rules shall apply to appeals taken hereunder." (Emphasis added.) Such an exception for review by aggrieved parties in this court of Public Service Commission (Commission) orders relating to the construction of power transmission lines is definitively set forth in subdivision 1 of section 128. Consequently, there was no need for petitioner UPSET, Inc. (UPSET) to personally serve a verified petition or follow any of the other requirements of article 78 with regard to commencement of a section 128 proceeding in this court. Petitioners filed a petition, together with proof of service of a demand upon the commission to file with this court a copy of a written transcript of the record of the proceedings before it and a copy of its order and opinion. A copy of all papers so filed was served by mail on the Commission and PASNY, and both filing and service were completed within 30 days of the Commission's denial of reargument on October 13, 1978. Nothing more is required by section 128.

The second procedural issue is novel and presents a matter of first impression, the resolution of which is important to future efforts by PASNY to upgrade the generation and transmission of power in this State to meet what presently appears to be ever increasing needs. In this proceeding, UPSET named PASNY as an additional party respondent in an attempt to have this court review PASNY's initial determination of need dated July 11, 1973. Since that determination of need is conclusive as to the Commission (Public Service Law, § 126, subd. 1, par. (g)), PASNY contends that review of that which is "conclusive" and "binding" makes no sense. Such a review, the argument continues, would be more appropriate prior to an application to the Commission for a certificate. Such a preliminary review, PASNY insists, should have been obtained in an article 78 proceeding timely commenced at nisi prius after PASNY's declaration of need pursuant to section 1005 of the Public Authorities Law. We find this reasoning unpersuasive.

The four-month statute of limitations (CPLR 217) only begins to run after the determination to be reviewed becomes final and binding, i. e., when the decision or action has an actual impact on the person allegedly aggrieved (8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7804.02; 24 Carmody-Wait 2d, N.Y.Prac., § 145:239; Matter of Gargiul v. Board of Educ. of Liverpool Cent. School Dist., 54 A.D.2d 1085, 1086, 389 N.Y.S.2d 504, 505, mot. for lv. to app. den. 41 N.Y.2d 802, 393 N.Y.S.2d 1026, 362 N.E.2d 626). The determination of need by PASNY in July, 1973 had no impact on UPSET or any of its individual members, nor could it have had any "impact" or have been "final" and "binding" until the proposed route had been approved, easements obtained and construction of the line authorized. Further, since there are no requirements in section 1005 of the Public Authorities Law that PASNY must give any type of notice regarding its determination of need, a conclusion that UPSET is barred from bringing this proceeding because it did not challenge PASNY's determination within four months of the declaration thereof raises serious due process constitutional questions. However, we need not discuss constitutional requirements of an administrative body with respect to the giving of adequate notice to those affected by its determination, it only being necessary to refer to article VII of the Public Service Law, wherein it is declared to be a State purpose to provide a forum in which a single proceeding, open to citizens, groups, municipalities and other public agencies, can be conducted. It would be violative of that purpose to infer that the Legislature intended to countenance delay by permitting each facet of the location and construction of electric and gas transmission facilities to be challenged in article 78 proceedings (see L.1970, ch. 272, § 1).

Next, PASNY's contention that section 128 of the Public Service Law does not permit review of any agency determination other than those of the Commission, and that, accordingly, its determination of need is nonreviewable and, therefore, absolute, is without merit. Analysis of section 128, with the legislative purpose in mind, persuades us to the view that PASNY's position is at war with that purpose. In an application for a certificate by any utility other than PASNY, the Commission "shall find and determine the basis of the need for the facility" (Public Service Law, § 126, subd. 1, par. (a)). It follows, therefore, that such determination of need is reviewable in a section 128 proceeding. The exception where PASNY is the applicant is doubtlessly premised on the fact that PASNY, unlike most other power utilities across ...