Niagara Mohawk Power Corp. v. Public Service Commission

• Decision Date: 25 January 1979
• Citation: 412 N.Y.S.2d 485,67 A.D.2d 802
• Parties: In the Matter of NIAGARA MOHAWK POWER CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 485

412 N.Y.S.2d 485

67 A.D.2d 802

In the Matter of NIAGARA MOHAWK POWER CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION of the State of New York, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 25, 1979.

Melvin & Melvin, Syracuse (Roger W. Bradley, Syracuse, of counsel), Herman B. Noll, Syracuse, for appellant.

Peter H. Schiff, Albany (Howard J. Read, Albany, of counsel), for respondent Public Service Commission.

Gould & Wilkie, New York City (Davison W. Grant, New York City, of counsel), for Central Hudson & Gas Co., amicus curiae.

Before GREENBLOTT, J. P., and STALEY, MAIN, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term entered June 22, 1978 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, seeking to annul orders of the Public Service Commission dated October 21, 1977 and January 10, 1978.

This proceeding had its genesis in complaints from the New York State Builders' Association and several of its members regarding Niagara Mohawk's practice of requiring blanket easements outside the public right of way in which to place its underground electric facilities. By a letter dated October 21, 1977, the Commission notified Niagara Mohawk Power Corporation that it had concluded that petitioner's policies were too inflexible and directed the utility to use the public right of way, particularly in the case of developments of family homes, except where special circumstances prevailed. The request for a rehearing, reconsideration, or modification of the Commission's directive on the ground that it contravened existing regulations was denied by order issued on January 10, 1978. In dismissing the petition, Special Term held that respondent's order constituted an interpretation of existing regulations which the Commission is empowered to make by statute (citing Public Service Law, § 5, subd. 2; § 66) and not in conflict with them. The determinations of the Commission were found to be reasonable and rational.

Petitioner contends that the respondent's orders restricting installation of electric lines in new residential subdivisions to the public right of way, absent special circumstances, are beyond its statutory authority and jurisdiction. We disagree. The Public Service Commission is authorized generally to prescribe the terms and conditions under which utilities shall extend their lines (Matter of Sleepy Hollow Lake v. Public Serv. Comm. of State of N. Y., 43 A.D.2d 439, 352 N.Y.S.2d 274, mot. for lv. to app. den. 34 N.Y.2d 519, 359 N.Y.S.2d 1026, 316 N.E.2d 884; see also, Public Service Law, § 65, subd. 1; § 66, subd. 2; § 5, subd. 2). Respondent considered numerous factors and found that petitioner's policy created increased difficulties and unnecessary expense for developers. The Commission concluded that the use of the public right of way was preferable to use of private easements. Such findings prompted the present orders. These obviously relate to the duties and responsibilities delegated to the Commission by statutory law. The Commission acted within its grant of power to protect the public interest by minimizing costs associated with the installation of new utility facilities.

Petitioner contends that the orders constitute a new rule and regulation because they contravene sections 99.1 and 100.3 of title 16 of the Official Compilation of Codes, Rules and Regulations of the State of New York and that the Commission was consequently required to promulgate them in conformity with the law before they became effective. We reject this argument. Parts 99 and 100 of title 16 refer to undergrounding on both private and public land. The present orders attempt to interpret the meaning of limiting language in the regulations...