Staminski v. Romeo

• Decision Date: 22 April 1970
• Citation: 62 Misc.2d 1051,310 N.Y.S.2d 169
• Court: New York Supreme Court
• Parties: , 18 Rad. Reg. 2d (P & F) 2038, 19 Rad. Reg. 2d (P & F) 2081, 86 P.U.R.3d 105 Josephine STAMINSKI, Petitioner, v. Thomas ROMEO, Salvatore Shortino, Hugo Surdi, William Reid, Andrew Muller and Harold Steuerwald, as members of the Board of Appeals of the Town of Brookhaven, Jack Rogers and Suffolk Cable Corp., Respondents, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Page 169

310 N.Y.S.2d 169

62 Misc.2d 1051, 18 Rad. Reg. 2d (P & F) 2038,

19 Rad. Reg. 2d (P & F) 2081, 86 P.U.R.3d 105

Josephine STAMINSKI, Petitioner, v. Thomas ROMEO, Salvatore Shortino, Hugo Surdi, William Reid Andrew Muller and Harold Steuerwald, as members of the Board of Appeals of the Town of Brookhaven, Jack Rogers and Suffolk Cable Corp., Respondents, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court, Special Term, Suffolk County, Part I.

April 22, 1970.

Bass & Weisberg, Patchogue, for petitioner.

C. Francis Giaccone, Lake Ronkonkoma, for respondent Board of Appeals.

Mars & Burton, Patchogue (Bernard Burton, Patchogue, of counsel), for respondent Suffolk Cable Corp.

THOMAS M. STARK, Justice.

In this Article 78 proceeding petitioner seeks a judgment reversing and annulling two determinations made by respondent Board of Appeals on December 5, 1968. The first was a grant of a special permit for the erection of an antenna mast or pole by respondent Suffolk Cable Corp. on premises leased by it from respondent Jack Rogers, and the second was a grant of a height variance authorizing a maximum antenna height of 185 feet.

The premises in question are located in an area classified 'J' Business 1 District (Neighborhood Business) by the Brookhaven Town Zoning Ordinance and Map. The structure erected on the premises consists of a tall pole or mast upon which is mounted the master antenna for a community antenna television (CATV) system operated by respondent Suffolk Cable Corp. This particular structure is not an unconditionally or conditionally permitted use in a 'J' Business 1 District (Section 85--97), and, in addition, structures in such districts are limited in height to 35 feet (Section 85--98).

Section 85--234 of the ordinance provides that public utility buildings or structures (with certain exceptions) shall be permitted in any district when authorized by special permit from the Board of Appeals. It was under this section that respondents sought the special permit upon the ground that the CATV system operated by Suffolk Cable Corp. is a 'public utility' and that the master antenna mast was a 'public utility structure' within the meaning of the zoning ordinance. Although it did not specifically so find, the Board of Appeals apparently concluded that the master antenna mast was a 'public utility structure' for which it could grant a special permit under Section 85--234.

Petitioner, who appeared before the Board of Appeals at hearings conducted on November 7, 1968 and November 14, 1968, asserts in this proceeding (as she did before the Board of Appeals) that Suffolk Cable Corp. is not a 'public utility' nor is the antenna mast a 'public utility structure' within the meaning of the ordinance, and that the Board of Appeals was therefore without authority to grant the special permit under Section 85--234.

The ordinance itself contains no definition of either 'public utility' or 'public utility structure'.

Practically all local zoning ordinances in this state contain provisions permitting public utility uses to be maintained in various use districts, customarily conditioned upon the granting of special exceptions or special permits by a Board of Appeals. Public utility structures serving the entire community have historically been recognized as reasonable and proper uses in all types of use districts because of technical and engineering requirments peculiar to such structures and the areas served. It does not appear however, from the research conducted by this court, that the meaning and scope of the term 'public utility' as such term is used in local zoning ordinances has been the subject of judicial determination in this state. More particularly, there apparently have been no reported cases concerning the Status of CATV companies in regard to local or state laws or regulations affecting the legal rights or obligations of public utility companies.

Accordingly the court's determination in this proceeding must rest on an analysis of the legal structure of CATV companies, their rights, powers and franchises, any existing public regulation, and their functions and operations as such affect the public interest.

A public utility is defined in Black's Law Dictionary as 'A business or service which is engaged in regularly supplying the public with some commodity or service which is of public consequence or need, such as electricity, gas, water, transportation or telephone or telegraph service'.

Since their inception within the last twenty years, CATV companies in New York State have been required to incorporate as telegraph and telephone corporations under the provisions of the Transportation Corporations Law. 1952 Op.Atty.Gen. 166, Harper v. City of Kingston, 17 Misc.2d 627, 188 N.Y.S.2d 577. This requirement is predicated on the transmission of television signals by wire being a form of telephony or telegraphy.

Section 27 of the Transportation Corporations Law gives telegraph and telephone corporations broad powers to construct their lines and fixtures over or under public highways, and to utilize private lands for their purposes, with the right to condemn such lands if necessary. The section requires however that telegraph and telephone corporations must obtain the permission of city, village or town authorities to use local streets for the construction of its lines.

This latter requirement has resulted in CATV companies having to obtain local 'franchises' when they sought to construct their own coaxial cable system either above or below the public highways. (See Section 362, New York City Charter, Section 64(7) Town Law, and Section 89(39) Village Law. See also Harper v. City of Kingston, supra).

Where a CATV company, however, did not attempt to lay and utilize its own lines under city streets, but rather leased New York Telephone Company lines for the transmission of its signal, it has been held that no city franchise is required. City of New York v. Comtel, Inc., 57 Misc.2d 585, 293 N.Y.S.2d 599, aff'd 30 A.D.2d 1049, 294 N.Y.S.2d 981, aff'd 25 N.Y.2d 922, 304 N.Y.S.2d 853, 252 N.E.2d 285.

One test as to the status of CATV companies as public utilities is their regulation by local, state or federal authorities. The law in this area is still in a state of development (See comments of Special Term in City of New York v. Comtel, Inc., supra, 57 Misc.2d page 616, 393 N.Y.S.2d 599. Also Burton, 'Cable Television--Tomorrow's Television--Ready or Not', New York State Bar Journal, Vol. 41, No. 7, Page 580).

In this state the Public Service Commission has been the traditional agency exercising regulatory powers over public utilities. Section 90 of the Public Service Law provides that the regulatory provisions of article 5 of that law shall apply to Every telegraph corporation and telephone corporation. The latter terms, as defined in Section 2 of the Public Service Law, include companies owning, operating or managing telephone or telegraph...