Swan Lake Water Corp. v. Water Resources Commission

• Decision Date: 26 November 1968
• Citation: 31 A.D.2d 44,295 N.Y.S.2d 83
• Parties: In the Matter of SWAN LAKE WATER CORP., Petitioner, v. WATER RESOURCES COMMISSION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 83

295 N.Y.S.2d 83

31 A.D.2d 44

In the Matter of SWAN LAKE WATER CORP., Petitioner, v. WATER RESOURCES COMMISSION et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Nov. 26, 1968.

Melvyn Tanenbaum, Huntington, for petitioner.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Dunton F. Tynan, Albany, Julius Feinstein and Stanley Fishman, Albany, of counsel), for respondent Water Resources Commission.

Van Nostrand & Martin, Amityville (L. Van Nostrand, Jr., Amityville, of counsel), for respondent Suffolk County Water Authority.

Before GIBSON, P. J., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

STALEY, Justice.

This is a proceeding under CPLR, article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review two determinations of the Water Resources Commission of the State of New York, (1) which approved the application of the Suffolk County Water Authority to supply water service to the Brookhaven Memorial Hospital, and (2) which denied the application of Swan Lake Water Corp. to provide such service.

The respondent, Suffolk County Water Authority (hereinafter called the Authority), is a public benefit corporation authorized to supply water service to all of Suffolk County except those areas specifically assigned to private water corporations. The petitioner, Swan Lake Water Corp., is a domestic private water corporation organized pursuant to the Transportation Corporations Law and authorized to supply water service to a limited area of 188 acres, the easterly boundary of which is the westerly side of Hospital Road, Patchogue, Suffolk County.

In August, 1965 the Authority entered into a contract with the Brookhaven Memorial Hospital to extend its water lines within its service area to provide water service to the hospital, which was situated on the easterly side of Hospital Road. The petitioner, objecting to such extension, sought an injunction against the extension of the Authority's water mains to the hospital on the ground that there had been no compliance with section 450 of the Conservation Law which required that maps and plans for such extension should first be approved by the Water Resources Commission. Petitioner's motion for a temporary injunction was granted by the Appellate Division, Second Department, and affirmed by the Court of Appeals. (Swan Lake Water Corp. v. Suffolk Co. Water Auth., 25 A.D.2d 542, 267 N.Y.S.2d 584, affd. 20 N.Y.2d 81, 281 N.Y.S.2d 775, 228 N.E.2d 773.)

In 1949 the Water Power and Control Commission, predecessor of the present Water Resources Commission, made an order purporting to authorize the Authority without future approval to extend its distribution mains to persons residing in Suffolk County 'provided, however, that nothing in this decision contained shall be held * * * to authorize said authority to enter into competition with or to parallel the distribution mains of any waterworks system, either publicly or privately owned, now legally established in this county or which hereafter legally may be established therein.'

The Court of Appeals, affirming the order which granted to petitioner the temporary injunction, held that it was a matter for the commission to determine which water corporation should serve the hospital, and whether or not the Authority's mains would parallel the existing mains of the petitioner, and quoted from Matter of Suffolk County Water Auth. v. Water Power & Control Comm. of State of New York, 12 A.D.2d 198, 202, 209 N.Y.S.2d 978, 981, as follows:

'The problem of allocation of authority to serve a given territory is one involving an advised and specialized administrative judgment which must take into consideration a balancing of the needs of existing areas served, the contiguous or remote relationship of facilities to service; the geographic symmetry and arrangement of the territory in the light of...