Consolidated Edison Co. of New York, Inc. v. Town of Red Hook

• Decision Date: 25 October 1983
• Citation: 468 N.Y.S.2d 596,60 N.Y.2d 99,456 N.E.2d 487
• Parties: , 456 N.E.2d 487 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant, v. TOWN OF RED HOOK et al., Respondents, and Mid-Hudson Nuclear Opponents, Inc., et al., Intervenors-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 596

468 N.Y.S.2d 596

60 N.Y.2d 99, 456 N.E.2d 487

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant, v. TOWN OF RED HOOK et al., Respondents and Mid-Hudson Nuclear Opponents, Inc., et al., Intervenors-Respondents.

Court of Appeals of New York.

Oct. 25, 1983.

Garrett E. Austin, Ernest J. Williams, New York City, and Michael A. Wilcken, New Rochelle, for appellant.

James R. Loeb and Donald H. McCann, Newburgh, for respondents.

Richard I. Cantor and Noel Tepper, Poughkeepsie, for intervenors-respondents.

David E. Blabey, and Jonathan D. Feinberg, Albany, for the Department of Public Service of the State of New York, amicus curiae.

OPINION OF THE COURT

KAYE, Judge.

In March, 1978, after more than a year of preliminary investigation, plaintiff, Consolidated Edison, announced that its engineers had recommended two sites in the mid-Hudson region for new major power plant facilities. One of the proposed sites was partly within the Town of Red Hook. In swift response to the announcement, defendants, the Town of Red Hook and its town board, in May, 1978 enacted Local Law No. 2, requiring a license from the town board to begin a site study. License applicants were required to pay a fee and submit detailed data, and their applications could in any event be rejected if their contemplated activities were detrimental to town property, residents, wild life or ecology, or simply inconsistent with the town's land use plan and zoning regulations.

The question on this appeal is whether Local Law No. 2 is 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. The issue arises in the context of an action for a judgment declaring Local Law No. 2 invalid insofar as it applies to major steam electric generating facilities as that term is defined in the Public Service Law, and enjoining defendants from enforcing the local law.

I

Article VIII of the Public Service Law ("Siting of Major Steam Electric Generating Facilities"), enacted in 1972, ¹ sets up a State board on electric generation siting and the environment (the Siting Board), which must certify all new major steam electric generating facilities. Generally, article VIII 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 the 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 final 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 facility where an application for a certificate has been filed (Public Service Law, § 149-a).

Under defendants' Local Law No. 2 ("Power Plant Site Study Law of the Town of Red Hook"), no person can begin or allow a site study for a power plant within the Town of Red Hook without first obtaining a license from the town board. An applicant must pay a fee and, pursuant to subdivision (A) of section 5, submit a detailed application including information related to the proposed site study and operating facility, and the effect of each upon property values. Even if such information requirements are satisfied, however, in section 6 the town reserves the unfettered right to deny the application where the activities contemplated by the applicant are "detrimental to the affected properties, landowners, residents * * * wild life and the general ecology of the proposed site area to be studied," or are "inconsistent with, the overall comprehensive plan for land use previously formulated by the town and its current zoning law and regulations."

II

On plaintiff's motion for summary judgment, Special Term found the local law a valid exercise of the town's authority under the New York State Constitution and the Municipal Home Rule Law, and the Appellate Division, 90 A.D.2d 803, 455 N.Y.S.2d 668 affirmed. ² Both courts relied for their conclusion on section 149-a of the Public Service Law, reasoning that, since section 149-a only precludes a municipality from imposing conditions on the construction or operation of a major steam facility with respect to which an application for a certificate has been filed, the regulatory scheme of article VIII does not come into play until an application is actually filed with the Siting Board.

We do not agree that this mechanical division can be made.

As applied to site studies for major steam electric generating plants, Local Law No. 2 is invalid for two reasons. First, it imposes an additional layer of regulation in an area where the Legislature has evidenced its intent to pre-empt the field of regulation. Second, it is inconsistent with article VIII of the Public Service Law, a general law. While these two infirmities are often interrelated, each is in itself a sufficient basis for invalidating a local law (Myerson v. Lentini Bros. Moving & Stor. Co., 33 N.Y.2d 250, 255, 351 N.Y.S.2d 687, 306 N.E.2d 804), and each is applicable here.

III

Local Law No. 2 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 N.Y.2d 371, 378, 456 N.Y.S.2d 711, 442 N.E.2d 1222; Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 683, 435 N.Y.S.2d 966, 417 N.E.2d 78; People v. Cook, 34 N.Y.2d 100, 109, 356 N.Y.S.2d 259, 312 N.E.2d 452.) A desire to pre-empt may be implied from a declaration of State policy by the Legislature (Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 350-351, 334 N.Y.S.2d 129, 285 N.E.2d 285) or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area. (People v. De Jesus, 54 N.Y.2d 465, 469, 446 N.Y.S.2d 207, 430 N.E.2d 1260.) Here both apply.

In its declaration accompanying the original enactment of article VIII, the Legislature stated that the existing practice of un-co-ordinated regulation had resulted in "delays in new construction and increases in cost which are eventually passed on to the people of the state in the form of higher utility rates", and that "there is a need for the state to control determinations regarding the proposed siting of major steam electric generating facilities within the state". (L.1972, ch. 385, § 1.) The purpose of article VIII was expressly "to provide for the expeditious resolution of all matters concerning the location of major steam electric generating facilities presently under the jurisdiction of multiple state and local agencies, including all matters of state and local law, in a single proceeding". (L.1972, ch. 385, § 1.) In approving the bill, Governor Rockefeller noted that "the establishment of a unified certificating procedure under the jurisdiction of the new 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." (McKinney's Session Laws of N.Y., 1972, p. 3391.)

When article VIII was re-enacted in 1978, the Legislature again asserted that its purpose was to have the Siting Board balance all interests, including local interests, on a State-wide basis in a single proceeding. (L.1978, ch. 708, § 1.) In approving re-enactment of article VIII, Governor Carey stressed the importance of a "one-stop certification" procedure, to expedite the licensing process yet insure maximum public participation in the determination of steam facility siting. (McKinney's Session Laws of N.Y., 1978, p. 1838.)

This purpose is further reflected in the provisions of article VIII, which reach beyond the date an application is filed and beyond the Siting Board. Prospective applicants are encouraged to consult State agency staffs regarding preapplication site studies (Public Service Law, § 141-a). Applicants are instructed to request exceptions or variances from municipal regulations (Public Service Law, § 142, subd. 1, par. [c] ). The Siting Board is required to determine whether any municipal laws or regulations governing the construction or operation of a proposed generating facility are unreasonably restrictive, and has the power to waive compliance with such municipal regulations (Public Service Law, § 146, subd. 2, par. [d] ). Legislative intent to pre-empt further regulation is also borne out by the detailed nature of the regulatory scheme under article VIII and the regulations promulgated thereunder (16 NYCRR parts 72-80), which require information to be gathered in carefully prescribed site studies prior to the filing of an application.

Thus, the history and scope of article VIII, as well as its comprehensive regulatory scheme,...