Matter of City of New York

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[*1] Matter of City of New York 2005 NY Slip Op 52047(U) [10 Misc 3d 1060(A)] Decided on December 14, 2005 Supreme Court, Kings County Gerges, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2005
Supreme Court, Kings County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple, where not heretofore acquired for the Bushwick Inlet Phase 1


Abraham Gerges, J.

Upon the foregoing papers, movants TransGas Energy Systems LLC (TransGas LLC), TransGas Energy Services Corporation (TESC) and Gas Alternative Systems, Inc. (Gas) (collectively referred to as TransGas or movants), seek an order: (1) dismissing the petition filed herein for failure to comply with the provisions of Article 2 of the Eminent Domain Procedure Law (EDPL); (2) dismissing the petition for failure to comply with EDPL 402; (3) dismissing or staying the petition pursuant to CPLR 3211 (a) (4) by reason [*2]of the pendency of a prior proceeding;[FN1] (4) dismissing the petition on the grounds that the taking is not for a public purpose and constitutes an excess taking; or, in the alternative, (5) permitting TransGas to intervene pursuant to CPLR 1012 and/or 1013 and EDPL 402 (B) (4).[FN2]

Facts and Procedural Background

The instant dispute concerns the proposed construction by TransGas of an electric generating plant on the Williamsburg/Greenpoint waterfront (the Facility) at 1 North 12th Street in Brooklyn, Block 2277, Lot 1 (the Site or the Property). By verified petition dated July 19, 2005, the City commenced the instant eminent domain proceeding seeking to acquire title to Property for the creation of a park.

The Proposed Facility

Gas, a Delaware corporation, holds an option dated March 13, 2001 to purchase the Site from Bayside Fuel Oil Depot Corporation (Bayside) (the Option); thereafter, title to the Site was transferred to a related entity, North 12th Street Properties LLC (North 12th Street). To date, Gas has paid approximately $1,500,000 under the Option.

On September 13, 2001, TransGas LLC, also a Delaware corporation, submitted a [*3]Preliminary Scoping Statement (PSS) in accordance with Article X of the Public Service Law, which statement described the project and its potential impacts. Over the next year, the New York State Department of Public Services held public forums and TransGas circulated proposed stipulations to interested parties, including the City. On December 24, 2002, TransGas filed an application with the New York State Board on Electric Generation Siting and the Environment (the Siting Board) requesting approval to construct and operate an electric plant and seeking to obtain a Certificate of Environmental Compatibility and Public Need (the Certificate). To date, TransGas has spent approximately $10,000,000 in development costs, in addition to the payments made under the Option.

The proposed Facility is described by movants as an electric and steam, natural gas-fired, combined cycle and cogeneration plant that could generate up to 1100 megawatts of electric power and up to two million pounds of steam per hour. It is further claimed that the Facility would foster a more competitive market and would produce low cost electricity for New York State consumers; would operate with a higher thermal efficiency than most older generating plants currently in operation; and would reduce crude oil imports, since it would be fueled by natural gas. As a result, the Facility would likely displace older and less efficient plants. The Facility would also have "blackstart capability," which would allow it to restart on its own, without receiving electricity from another source; following the August 14, 2003 blackout, the steam system in New York City could not be restarted for at least four days, a result that could be avoided with blackstart capability. The project is further projected to inject $250,000,000 into the local economy during construction; to increase economic output significantly; to create in excess of 1,668 construction jobs and 40 permanent jobs; and to continue to generate tax revenue, since the Property would be privately owned. Movants also explain that the Site was chosen because it was zoned for heavy industry and was close to existing gas and steam lines.

On June 5, 2003, the Chairman of the Siting Board determined that TransGas' application met the minimum requirements of Public Service Law § 164 (1) and Public Statement Hearings were held on July 17, 2003; eight days of evidentiary hearings followed between November 12 and 20, 2003, which hearings resulted in over 2,000 pages of testimony. At the hearings, the City alleged that the proposed Facility would inhibit the residential build-out planned for the area, which contention was refuted by TransGas.

On April 1, 2004, a Recommend Decision was issued by the Hearing Examiners in which they recommended that the proposed Facility should not be certificated due to the alleged visual and land use impacts that could not be mitigated. More specifically, the Hearing Examiners noted that the proposed Facility would not adversely affect current land uses. They further noted, however, that the City had been involved in a planning process that spanned more than a decade and that the proposed Facility would be [*4]incompatible with the future land uses envisioned by the resulting rezoning plan, which was a significant factor weighing against approval of the project. In an effort to address these concerns, TransGas submitted an amendment to its application on November 12, 2004 in which it proposed that the Facility be built underground so that seven of the parcel's eight acres would be available for use as a park above the Facility. TransGas would fund the cost of creating the park and has entered into an agreement with the New York State Department of Environmental Conservation to remediate conditions at the Site.[FN3]

Review of the amended application is currently pending before the Siting Board (Siting Board Case No. 01-F-1276). The City has actively participated in the approval proceedings, including reviewing the pre-application study, stipulations, original application and amended application. In addition, the City has replied to many of the filings, presented expert witnesses at the evidentiary hearings and cross-examined TransGas' witnesses.

Zoning Issues

Movants allege that at the time that TransGas acquired the Option, the Site was zoned M3, so that construction of the Facility was a permissible use. They further aver that when rezoning for the area was first proposed, the Site was located in an industrial sanctuary; it was not until June 2003, on the eve of the commencement of the Article X proceeding, that the City altered its plan and proposed to use the Site for a park.

In contrast, the City contends that planning for the rezoning began as early as 1989 and in December 2001, it approved the Williamsburg and Greenpoint Waterfront 197-A Plans. It further avers that the Plans were prepared pursuant to New York City Charter § 197-A and proposed the rezoning of large sections of the area away from heavy industrial use and rezoned them for residential, light industrial and commercial use, along with the creation of a 28 acre public park on the waterfront, where the Site is located. The City thereafter commenced the approval process required pursuant to the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR). On March 14, 2005, the New York City Planning Commission (the Planning Commission) approved the application and on May 11, 2005, the City Council approved the action of the Planning Commission by adopting Resolution No. 964.

TESC's Condemnation Proceeding

Because the City stated during the proceedings before the Siting Board that it intended to commence a proceeding seeking to condemn the Site for use as a park, TESC, an electric corporation organized pursuant to the Transportation Corporation Law, commenced a condemnation proceeding pursuant to Transportation Corporation Law § 33 (3-a). Accordingly, it published notices in the Daily News from June 22, 2005 through [*5]June 26, 2005; a public hearing was held on July 7, 2005; an environmental assessment form was prepared, which determined that the project would not produce any significant adverse environmental impacts; and a negative declaration was issued. The determination and finding were published in the Daily News on July 30 and 31, 2005, as required pursuant to EDPL 205.

On August 30, 2005, the City commenced a proceeding in the Appellate Division, Second Department, pursuant to EDPL 207, seeking relief including a judgment rejecting the findings and determinations issued by TransGas and enjoining TransGas from acquiring the Property by means of condemnation. By notice of motion dated September 30, 2005, the City sought a preliminary injunction enjoining TransGas from commencing a proceeding under the EDPL pending a final judgment by the Appellate Division in the § 207 proceeding. On October 24, 2005, TESC commenced a proceeding seeking to file an acquisition map and to acquire title to the Property; the application was on this court's calendar on December 9, 2005 and was adjourned pending resolution of the issues raised herein. By decision dated November 4, 2005, the Appellate Division denied the City's motion for a preliminary injunction.

The City's Condemnation Proceedings

On July 20, 2005, approximately two weeks after TransGas held a public hearing on its condemnation proceeding, the Deputy Mayor approved the acquisition of the Property and the City filed its petition and notice of pendency herein.

The Article 78 Proceeding

On September 2, 2005, TransGas LLC, Gas and Bayside commenced an Article 78 proceeding against the City, the Planning Commission, the New York City Department of City Planning and the New York City Council (TransGas LLC, et al. v The Council of the City of New York, et al., New York County Sup Ct, Index no. 112360/05).[FN4] Therein, petitioners' seek, among other things, to set aside resolutions adapting the Planning Commission's actions and to challenge the City's Uniform Land Use Review Procedure (ULURP), SEQRA and CEQR process, arguing, inter alia, that the City failed to disclose or discuss the significant adverse impacts on air quality associated with the proposed rezoning; failed to recognize the improvements in air quality that the Facility would provide by displacing emissions of older plants in the City; and failed to disclose that the City would not fully remediate the Site, while TransGas would.

TransGas' Contentions

In support of its instant application, TransGas argues that the Siting Board is legislatively charged with the sole discretion and authority to site major electric generating facilities pursuant to the procedures set forth in Article X of the Public Service Law. Hence, the proposed condemnation of the Site by the City would improperly divest [*6]the Siting Board of jurisdiction, thereby frustrating the legislative intent. North 12th Street joins in this argument.

In addition, TransGas argues that the City failed to comply with the hearing requirements set forth in Article 2 of the EDPL. More specifically, TransGas asserts that the Planning Commission's hearings, which were purportedly offered as the basis of an exemption for the hearing required pursuant to EDPL 206, are inadequate to satisfy the statutory requirements, since none of the resolutions that were passed authorized the taking of the Property for the proposed park pursuant to eminent domain. TransGas further contends that the City failed to comply with EDPL 402 in that it did not properly notice movants in either the notice of pendency or in the petition filed herein. In support of this contention, movants argue that they are condemnees pursuant to EDPL 103 as the holder of a right, title or interest in the Property that is subject to the instant proceeding by virtue of the Option, their participation in the proceedings before the Siting Board, and/or the commencement of condemnation proceedings by TESC.

TransGas further argues that the acquisition is not for a public purpose in that the proposed park can be created as part of the construction of the underground generating plant by acquiring an easement over the Facility. Also, since TransGas has proposed to bear the cost of $340 million to remediate the Site, the public purpose is not served by the City taking title. Finally, TransGas contends that the instant eminent domain proceeding is premature, since the court should allow for resolution of the pending Article X proceeding before the Siting Board, the City's EDPL 207 petition in the Appellate Division, and the Article 78 proceeding challenging the underlying land use resolutions before rendering its determination herein. In the alternative, movants ask the court to allow them to intervene in the instant proceeding and deem their proposed answer interposed.

The City's Contentions

In opposition, the City argues that movants do not have standing to challenge the taking of the subject Property, since they are not condemnees; since movants lack standing, they should not be permitted to intervene in this proceeding; no prior proceeding exists that would necessitate dismissing or staying the petition herein; and the City's proposed taking of the Property to create a park constitutes a valid public purpose. The City thus concludes that it is entitled to an order of condemnation, since it has complied with all of the requirements of the EDPL.

Movants as Condemnees Pursuant to the EDPL

The Law

Pursuant to EDPL 103 ( c), a condemnee is defined as "the holder of any right, title, interest, lien, charge or encumbrance in real property subject to an acquisition or proposed acquisition." Hence, it is well settled that "[i]n order to have any standing in a condemnation proceeding one must show an ownership interest in the property" (In re Port of New York Auth., 12 AD2d 18, 20 [1960], citing Matter of City of New York [*7][Jefferson Houses-Lombardi], 306 NY 278 [1954]).

In discussing the question of who was an "owner" who had some form of recognizable interest in the real property involved in a condemnation proceeding, the Court of Appeals stated that: "With the passage of years, the statutes have been renumbered, revised and amended but it has not been made to appear that the interests cognizable by the Supreme Court sitting in condemnation proceedings have been limited thereby. Rather it would appear that, by the very language used in defining the interests which make one an owner' of real property', the Legislature intended to include as many of those different interests in real property affected by the condemnation proceedings as possible."

(In re New York, 306 NY 278, 282 [1954]). Accordingly, the court held that the vendee under an executory contract to purchase land was an owner.

In further defining the nature of an interest sufficient to satisfy the requirements of EDPL 103 ( C), the Appellate Division, Second Department found that "a claimant seeking compensation for condemned property may, in appropriate circumstances, seek recovery by demonstrating an equitable interest therein, as opposed to legal title" (Johnson v State, 10 AD3d 596, 597 [2004], citing Matter of City of New York [Jefferson Houses-Lombardi], 306 NY 278; Vinciguerra v State of New York, 22 AD2d 93; accord Village of Port Chester v Sorto, 14 AD3d 570, 571 [2005] [a finding that appellant had operated a restaurant on the subject parcel for several years prior to the condemnation, with the knowledge and consent of his brother-in-law (who held the lease for the parcel in his name) and the landlord (who maintained an office on the property), and had made and paid for significant improvements to the restaurant, including the installation of valuable fixtures taken in the condemnation, would be sufficient to support a finding that the appellant was a condemnee within the meaning of EDPL 103 [c] as to the fixtures; the Village's focus on the fact that appellant was not the named tenant and did not have a written assignment or sublease was misplaced in light of the broad and inclusive definition of condemnee]). In this regard, the Appellate Division, Third Department, recently held that "[a]s holder of an equitable interest under its purchase contract for the property, petitioner is a condemnee' within the meaning of EDPL 103 ( c) and is thus entitled to standing" (Faith Temple Church v Town of Brighton, 17 AD3d 1072, 1072-1073 [2005], citing Matter of East Thirteenth St. Community Assn., 84 NY2d at 293; Matter of City of New York [Jefferson Houses Lombardi], 306 NY 278, 281-282).

As is also relevant to the issues presented herein, the court also recognizes that an option has been held to be an interest is real property. More specifically, " "[a]n option contract is an agreement to hold an offer open; it confers upon the optionee, for [*8]consideration paid, the right to purchase at a later date"'" (Jarecki v Shung Moo Louie, 95 NY2d 665, 668 [2001], quoting Kaplan v Lippman, 75 NY2d 320, 324 [1990], citing Leonard v Ickovic, 79 AD2d 603 [1980], affd 55 NY2d 727 [1981). "This sort of an agreement constitutes the creation and grant of an interest in real property, and must be in writing to be valid under the [Statute of Frauds] " (Kaplan, 75 NY2d at 325, citing Casolo v Nardella, 275 App Div 502, 504 [1949]).


Applying the above general principals of law, the court finds that movants' interest in the subject Property pursuant to the Option to purchase is a sufficient ownership interest to characterize them as condemnees, particularly in view of the fact that they have already expended $1,500,000 towards the purchase price. As such, movants have jurisdiction to challenge the taking of the Site by the City. The cases relied upon the City in arguing that TransGas is not a condemnee do not compel a different result. For example, in In re Port of New York Authority (12 AD2d 18), the court held that the holder of an unexercised option was not entitled to share in the net proceeds of the condemnation award paid to the fee owner, since it did not have the requisite ownership interest in the real property sufficient to warrant the disposition of its claim in the condemnation proceeding. Similarly, in In re Water Front on Upper New York Bay (246 NY 1 [1927], reh denied 246 NY 549 [1927], cert denied 276 US 626 [1928]), the court held that the holder of an unexercised option was not entitled to share in the compensation paid in an eminent domain proceeding.

In addition, the court finds that TESC has an interest in the Site as the condemnor in the proceeding commenced pursuant to Transportation Law § 33 (3-A). In this regard, the court first notes that in its petition in the § 207 proceeding that the City commenced in the Appellate Division to challenge TESC's eminent domain proceeding, the City claims that it is "the holder of a right, interest or incumbrance" with respect to the Property because the City commenced a condemnation proceeding to acquire the parcel. In addition, it is clear that the City was aware that TESC had commenced a condemnation proceeding when it filed the petition herein, since it had already challenged TESC's determination in the Appellate Division. Also significant is the fact that the Appellate Division denied the City's motion to enjoin TESC and prevent it from going forward with its condemnation proceeding. In so holding, the court inherently rejects the City's contention that the fact that no condemnation proceeding had been commenced because TESC had not yet filed a court action seeking to obtain title when the instant proceeding was commenced compels a contrary conclusion. Thus, as the above discussion of the law makes clear, the clear intent of the EDPL is to allow any party having an interest in property sought to be condemned, whether legal or equitable, an opportunity to be heard in the condemnation proceeding. The court accordingly finds that TESC's status as a condemnor confers upon movants a sufficient interest in the Property to characterize them as condemnees having standing to challenge the proposed taking. [*9]

The court also rejects the City's contention that it was not aware that movants held an interest in the Site because movants did not record their Option. In the first instance, contrary to the City's contention, there is no requirement that a party record an interest in property in the Office of the City Register to be entitled to standing. Further, the court recognizes that the Recording Act (Real Property Law § 291) was enacted to establish a public record which would furnish potential purchasers with notice, or at least constructive notice, of previous conveyances and encumbrances that might affect their interests (see e.g. Andy Assocs. v Bankers Trust Co., 49 NY2d 13, 20 [1979]). In this case, however, the City had actual knowledge of the Option because it had been actively participating in the Article X proceeding before the Siting Board. As is relevant to this argument, the Public Service Law requires that every applicant for a Certificate must serve a copy of the PSS (Public Service Law § 163 [2])[FN5] and a copy of the application (Public Service Law § 164 [2] [a])[FN6] upon the municipality in which a proposed facility is located. Since the statute provides for service upon the municipality, the City's assertion that notice given to an employee is not notice to the City is specious (cf. Martinez v New York City Hous. Auth., 250 AD2d 686, 687 [1998] [the fact that the police had knowledge of an occurrence could not be imputed to another municipal agency]). Further, even if the City's assertion that it was unaware that movants had an interest in the Site is accepted, they have since been made aware by movants' appearance herein. As is accordingly relevant, in directing the court to accept the answer of an appellant who claimed an equitable interest in the property at issue therein, the court held that "[i]f a petitioner in condemnation proceedings knows that one is an equitable owner of property sought to be condemned it must treat him as owner" (Champlain & S. R. Co. v Ostrander, 151 App Div 752, 755 [1912]). [*10]

Finally, although not argued by either party, the court further finds that movants' status as the applicant in a proceeding pending before the Siting Board is sufficient, in and of itself, to confer standing upon them. In this regard, it is counterintuitive to find that a party who expended $1,500,000 to acquire the right to purchase Property on which to construct an electric plant, who applied to the Siting Board for permission to do so, and who expended over $10,000,000 in development costs does not have an equitable interest in the subject Property sufficient to entitle that party to be heard in a condemnation proceeding.

In so holding, the court notes that its finding that TransGas has standing herein is not contrary to East Thirteenth Street Community Association (84 NY2d at 292), as argued by the City. In that case, the court held that condominium boards, tenants and residents of buildings near a parcel of property that the Urban Development Corporation was seeking to take by eminent domain did not have standing to challenge the taking pursuant to EDPL 207. Therein, the court held that petitioners did not have a proprietary interest in the subject property in that they were not "the holder[s] of any right, title, interest, lien, charge or encumbrance in real property subject to an acquisition or proposed acquisition," as EDPL 103 ( c) defined those commonly recognized as aggrieved parties. As discussed above, however, movants TransGas and TESC are clearly distinguishable from a neighboring condominium board and tenants. Significantly, movants are the holder of an option, pursuant to which $1,500,000 has been paid; a condemnor of the Site; and the applicant who proposes to construct an electric plant pursuant to Article X of the Public Service Law, for which development costs in excess of $10,000,000 have been incurred. In contrast, petitioners in East Thirteenth Street Community Association (id.) had no ownership interest or financial stake in the property being condemned.

Movants' Application to Intervene


Even assuming, arguendo, that TransGas is not a condemnee, the court concludes that it has the right to intervene in this proceeding pursuant to CPLR 1012 and/or 1013.

Intervention may be as of right (CPLR 1012), or with the permission of the court (CPLR 1013). In addressing an application to intervene, it has been recognized that: "Intervention is a joinder device that enables a person to take the initiative' to become a plaintiff or defendant in a suit pending between other persons. Intervention may be either as of right, under CPLR 1012, or by permission, under CPLR 1013. Whether as of right or by permission, the proposed intervenor must make a timely motion for a court order to intervene."

(3 Weinstein-Korn-Miller, NY Civ Prac ¶ 1012.01).

[*11]CPLR 1012 (a) (2)

Pursuant to CPLR 1012 (a) (2), a party will be granted leave to intervene as of right "when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment." Whether a person seeking to intervene will be bound by a judgment within the meaning of CPLR 1012 (a) (2) is determined by its res judicata effect (Vantage Petroleum v Board of Assessment Review, 61 NY2d 695 [1984]). Pursuant to the doctrine of res judicata, a judgment on the merits by a court of competent jurisdiction is conclusive upon parties in a litigation and those in privity with them in any subsequent action with regard to issues of fact and questions of law necessarily decided in the earlier action (see e.g. Gramatan Home Investors v Lopez, 46 NY2d 481, 485 [1979]; Watts v Swiss Bank, 27 NY2d 270 [1970]). "[P]rivity is "an amorphous concept not easy of application" . . . and "includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and [those who are] coparties to a prior action"'"(Buechel v Bain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002], quoting Matter of Juan C. v Cortines, 89 NY2d 659, 667-668 [1997] [citations omitted]; accord Molino v County of Putnam, 29 NY2d 44, 51 [1971] [privity is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the coverage of res judicata]).

Herein, TransGas, as the holder of the Option, is clearly in privity with the owner of the Property. Similarly, movants will be bound by any judgment awarding title of the Site to the City. In addition, the interests of TransGas will not be adequately protected by the owner, since North 12th Street is presumably interested in maximizing the compensation that it can receive for the Site, whether by the purchase price to be paid under the Option or by the award received in the instant condemnation proceeding; it has no interest in advocating TransGas' desire to construct an electric generating facility at the Site.

CPLR 1012 (a) (3)

CPLR 1012 (a) (3) authorizes intervention in an action as of right "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment."

For the above discussed reasons, the City's assertion that a judgment entered in its favor in this proceeding will not adversely affect TransGas is specious, since movants will not realize the value of the $1,500,000 that they paid on the Option, the $10,000,000 that they invested in development costs, and the opportunity to construct the proposed Facility (see generally Capital Resources Co. v Prewitt, 266 AD2d 176, 176-177 [1999] [motion by defendant's former wife to intervene should have been granted where although her half interest in the property was not directly subject to the plaintiff's mortgage, she demonstrated a real and substantial interest in the outcome of the foreclosure action to [*12]warrant her intervention, since plaintiff's ultimate goal was to force the partition and sale of her home]; 30 Realty Dev. v Oehler, 82 AD2d 913 [1981] [in a proceeding by a developer who sought to compel a planning board and a highway superintendent to sign final copies of plans for the developer's proposed subdivision and to declare that a certain street was a town road so as to enable him to connect a street in his development to it, owners of land that bordered on the street were entitled to intervene, since the proceeding involved title to property and the landowners would be affected adversely by the judgment]; Levine v Oyster Bay, 40 Misc 2d 605 [1963] [purchaser of realty on the condition that it be rezoned was sufficiently affected by the action by other property owners to declare the zoning change void so as to be permitted to intervene therein]).

CPLR 1013

As is also relevant here, CPLR 1013 authorizes intervention "when the person's claim or defense and the main action have a common question of law or fact. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party."

For the same reasons discussed above in finding that movants should be permitted to intervene in this proceeding as of right, the court finds, in the alternative, that they are entitled to intervene pursuant to CPLR 1013.

The Siting Board's Jurisdiction over the Siting of the Facility


The doctrine of preemption represents a fundamental limitation on a municipality's broad power to enact local legislation consistent with the State Constitution and general State laws relating to the welfare of its citizens (see e.g. Ba Mar v County of Rockland, 164 AD2d 605, 612 [1991], appeal dismissed, appeal denied 78 NY2d 877 [1991]). "Under this doctrine, even in the absence of an express conflict, a local law which regulates subject matter in a field which has been preempted by State legislation is deemed inconsistent with the State's transcendent interest' and is thus invalid" (id. at 612 [1991], quoting Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989]).

Hence, "[w]here the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, local law regulating the same subject matter is considered inconsistent and will not be given effect" (Nyack v Daytop Village, 78 NY2d 500, 505 [1991]; accord City of New York v Town of Blooming Grove Zoning Bd. of Appeals, 305 AD2d 673 [2003], appeal dismissed 100 NY2d 614 [2003]). "The intent to occupy an entire field of regulation need not be express. Rather, that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area'" (ILC Data Device v County of Suffolk, 182 AD2d 293, 301 [1992], appeal dismissed 81 NY2d 952 [1993], quoting New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1986], affd 487 US 1 [1988]; accord Aetna Cas. & Sur. Co. v County of Nassau, 221 [*13]AD2d 107, 119 [1996], appeal dismissed 88 NY2d 1015 [1996], lv denied 89 NY2d 804 [1996], reh denied 89 NY2d 1015 [1996] [the Legislature's decision to preempt a particular area of law may be inferred from the nature of the subject matter being regulated and from the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given field]).

"Even if the Legislature had not pre-empted the field of regulations, [a municipality's] authority to enact local laws under the Constitution or the Municipal Home Rule Law is conditioned on the exercise of such authority not being inconsistent with any State enactment" (Consolidated Edison Co. v Red Hook, 60 NY2d 99, 107 [1983], citing People v De Jesus, 54 NY2d 465, 468 [1981]; McMillen v Browne, 14 NY2d 326, 331 [1964]). Inconsistency: "has been found where local laws prohibit what would be permissible under State law (Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327, 329-330, 18 AD2d 968, affd 12 NY2d 998, on opn at 17 AD2d 327), or impose prerequisite "additional restrictions"' on rights under State law (F.T.B. Realty v Goodman, 300 NY 140, 147-148), so as to inhibit the operation of the State's general laws."

(Consolidated Edison Co., 60 NY2d at 108).

Article X

In enacting Article VIII of the Public Service Law,[FN7] the predecessor to Article X,[FN8] [*14]the Legislature noted 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). "Public Service Law former article VIII has been characterized as a one-stop certification' statute (Governor's Mem, 1978 McKinney's Session Laws of NY, at 1838) and was designed to provide for the expeditious resolution of all matters concerning the location of major steam electric generating facilities [within the State] in a single proceeding" (Massachusetts, 197 AD2d at 101, citing L 1972, ch 385, § 1).

In approving the legislation, Governor Nelson Rockefeller's memorandum stated 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" (McKinneys' 1972 Session Laws of NY, at 3391). Similarly, in approving Article X, Governor Mario M. Cuomo stated that the law was intended to provide a "comprehensive review of the benefits and impacts anticipated from proposed facilities without unreasonable delay" and that "one of the primary means by which the Legislature sought to ensure the State's control over siting decisions was in its grant of authority to the Siting Board to waive municipal laws or regulations that could hinder the development of electric generating facilities" (Memorandum of Governor Mario M. Cuomo approving Laws 1992, ch 519, McKinneys' 1992 Session Laws of NY at 2898).

Hence, Public Service Law § 163 requires an applicant wishing to construct a "major electric generating facility"[FN9] to file a PSS describing the facility and its potential environmental impacts with the Siting Board; § 164 requires the filing of an application with the Chairman of the Siting Board; and § 165 et seq. requires a public hearing. As is also of particular relevance herein, pursuant to Public Service Law § 166 (1) (h), "any municipality entitled to be a party herein and seeking to enforce any local ordinance, resolution or other action or regulation otherwise applicable shall present evidence in [*15]support thereof or shall be barred from the enforcement thereof." Public Service Law § 168 (1) provides that the Siting Board "shall make the final decision on an application under this article for a certificate. . .". In addition, pursuant to Public Service Law § 168 (2) (d), the Siting Board must determine: "[t]hat the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder . . . except that the board may refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement which would be otherwise applicable if it finds that as applied to the proposed facility such is unreasonably restrictive in view of the exiting technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. The board shall provide the municipality an opportunity to present evidence in support of such ordinance, law, resolution, regulation or other local action issues thereunder."

Further, Public Service Law § 170 (1) provides that an applicant may apply to the Siting Board for a rehearing if its application is denied, and may thereafter seek judicial review of the Board's determination. Public Service Law § 170 (2) limits the grounds for judicial review to a determination of whether the Board's decision is in conformity with the constitution; is supported by substantial evidence in the record; is within the Board's statutory jurisdiction; is made in accordance with the procedures set forth in Article X; and is not arbitrary, capricious or an abuse of discretion (see generally Massachusetts, 197 AD2d at 104 [after the court determined that the Siting Board had not lost jurisdiction over the matter, judicial review of its determination was limited to, inter alia, whether the Siting Board's determination [1] was supported by substantial evidence in the record, [2] was within the Siting Board's statutory jurisdiction or authority, [3] was made in accordance with Public Service Law former article VIII and the applicable rules and regulations, and [4] was not arbitrary, capricious or an abuse of discretion]; Koch v Dyson, 85 AD2d 346, 364 [1982] [the scope of the court's review of decisions of the Siting Board was limited to whether the determinations, inter alia, were supported by substantial evidence in the record; were made in accordance with proper procedure; and were not arbitrary, capricious or an abuse of discretion]).

Also relevant to the instant dispute is Public Service Law § 171, which expressly limits the jurisdiction of a court over a matter pending before the Siting Board: "Except as expressly set forth in section one hundred seventy of this article and except for review by the court of appeals of a decision of the appellate division of the supreme [*16]court as provided for therein, no court of this state shall have jurisdiction to hear or determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article or to stop or delay the construction or operation of a major electric generating facility except to enforce compliance with this article or the terms and conditions thereunder."

Finally, Public Service Law § 172 (1) limits the action that a local or state agency may take to interfere with a proceeding before the Siting Board by providing that: "[n]otwithstanding any other provision of law, no state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed."

In applying Article VIII and addressing the issue of whether a local law passed by Red Hook which provided that no person could begin or allow a site study for a power plant in the town without first obtaining a license from the town Board was "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" (Consolidated Edison Co., 60 NY2d at 103), the Court of Appeals noted that: "Article VIII of the Public Service Law ( Siting of Major Steam Electric Generating Facilities'), enacted in 1972, 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 [*17]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)."

(id. at 103).

As is relevant to the issues to be determined herein, the court found the local law to be invalid, holding that it: "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 NY2d 371, 378; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; People v Cook, 34 NY2d 100, 109.) A desire to pre-empt may be implied from a declaration of State policy by the Legislature (Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351) or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area. (People v De Jesus, 54 NY2d 465, 469.) Here both apply. . . ."Thus, the history and scope of article VIII, as well as its comprehensive regulatory scheme, evidence the Legislature's desire to pre-empt further regulation in the field of major steam electric generating facility siting, a desire that would be frustrated by laws such as Local Law No. 2. Such State policy being expressed, a village or other municipality [*18]lacks authority to deal with the matter " unless it is specifically empowered so to do in terms clear and explicit.'"'(Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351, supra; Jewish Consumptives' Relief Soc. v Town of Woodbury, 230 App Div 228, 234, affd 256 NY 619.) There has been no such authority delegated to defendants to ignore the State policy here. In light of this pre-emption, defendants had no power to adopt additional requirements or require additional permits relating to such siting. (Matter of Kress & Co. v Department of Health, 283 NY 55, 59)."

(id. at 105-107).

In the alternative, the court found that even if the Legislature had not pre-empted the field, the local law would be invalid for the additional reason that it was inconsistent with State law in that it added further restrictions to an applicant's ability to conduct the site studies required by Article VIII and allowed the town to prohibit such studies altogether, which would inhibit the operation of the State's general law (id. at 107-108).

Similarly, in the case of Citizens for the Hudson Valley v New York State Board on Electric Generation Siting (281 AD2d 89 [2001]), the Appellate Division, Third Department, approved the Siting Board's waiver, pursuant to Public Service Law § 168 (2) (d), of certain requirements of the zoning ordinance enacted by the town of Athens (id. at 95).


As is established by the Legislative intent, the comments made by Governor Rockefeller and Governor Cuomo in enacting Article X and its predecessor, and Consolidated Edison Co. (60 NY2d 99), the statute is intended to vest the Siting Board with exclusive jurisdiction to determine where major electric generating facilities will be located, the law was intended to pre-empt local legislation with regard to such sitings, and local laws or legislation inconsistent with the State's scheme will not be permitted. Herein, the City's actions are admittedly the result of the City's determination that a major electric generating facility should not be located at the Site, an issue throughly argued by the City in the Article X proceeding and addressed in detail by the Hearing Examiners in their Recommended Decision. In applying Article X to the facts at issue herein, this court concludes that the City's proceeding to condemn the Site is intended to circumvent the Siting Board's jurisdiction over the determination by taking the Property for use as a park. Such a result cannot be permitted.

Although Article X does not specifically address the issue of whether the statute was intended to prohibit a municipality or local agency from utilizing a condemnation proceeding to frustrate an applicant's ability to build an electric plant at a site deemed [*19]appropriate by the Siting Board, the clear intent of the statute, as is further illustrated by the broad language utilized and by the comprehensive and detailed regulatory scheme enacted, must be construed to have so intended.[FN10] This holding also finds support in Public Service Law § 168 (2) (d), which allows the Siting Board to "refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement which would be otherwise applicable if it finds that as applied to the proposed facility such is unreasonably restrictive."[FN11]

In addition, Public Service Law § 171 compels the conclusion that this court is without jurisdiction to resolve the issues raised herein at this stage of the proceedings. As is relevant in this regard, § 171 provides that the court lacks jurisdiction "to hear or determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article or to stop or delay the construction or operation of a major electric generating facility." As noted above, throughout the Article X proceeding, the City has opposed the construction of an electric generating facility by arguing that such use is inconsistent with the City's rezoning. Thus, the City does not, and indeed cannot, argue that the Siting Board is without authority to determine that the amended plan to construct the Facility underground is inconsistent with the City's project to revitalize the waterfront area, and hence refuse to issue a Certificate on this ground. Similarly, it cannot be disputed that the entry of a judgment of condemnation herein will have the effect of stopping or delaying the construction of the Facility.

Similarly, the City's action in seeking to prevent movants from constructing the Facility is prohibited by that portion of Public Service Law § 166 (1) (h) which provides that "any municipality entitled to be a party herein and seeking to enforce any local ordinance, resolution or other action or regulation otherwise applicable shall present evidence in support thereof or shall be barred from the enforcement thereof." In so holding, the court finds that the City's commencement of the instant condemnation proceeding is an "action" that must be approved by the Siting Board pursuant to the express language of this provision in order to be enforced by this court.


Accordingly, the court finds that movants have standing to challenge the proposed [*20]taking herein and grants their application to the extent of staying the instant proceeding pending a determination by the Siting Board. All further relief requested herein is denied with leave to renew, on notice, following the issuance of such determination.

The foregoing shall constitute the order and decision of this court.


J. S. C. Footnotes

Footnote 1: Although the order to show cause requests an order dismissing the petition on this ground, movants' request the alternative relief of a stay in their affirmation in support and extensively addressed the issue during oral argument and in their subsequent submissions.

Footnote 2: By letter dated November 30, 2005, accompanied by an affirmation from counsel, the Greenpoint Waterfront Association of Parks & Planning, Inc. (the Association), a coalition of 42 religious institutions, community organizations and advocacy groups in Brooklyn, seeks to address both legal and factual issues "in an amicus capacity." The court declines to consider the submission. Most significantly, as is discussed more fully herein, as a community group having no ownership interest in the subject Property, the Association lacks standing to appear as a party herein pursuant to East Thirteenth Street Community Association v New York State Urban Development Corporation (84 NY2d 287, 292 [1994], motion denied 84 NY2d 974 [1994]). To allow it to nonetheless submit papers would vitiate the intent of the holding therein, which limits the challenges made to a proposed taking in eminent domain by limiting standing to parties who possess an interest in the subject property. In addition, a request to file a brief amicus curiae should be made by motion, so that any party opposing consideration of the papers submitted is afforded an opportunity to object (see generally Poughkeepsie Professional Firefighters' Assn. v New York State Pub. Empl. Rels. Bd., ___ NY3d ___, 2005 NY LEXIS 3248 [2005]; Xiao Yang Chen v Fischer, ___ NY3d ___, 2005 NY LEXIS 2647 [2005]; Coalition Against Lincoln W., v Weinshall, 21 AD3d 215 [2005]; appeal denied ___ NY3d ___, 2005 NY LEXIS 3223 [2005]). Finally, the Association fails to raise any issues or arguments that would cause the court to reach a different conclusion.

Footnote 3: It is undisputed that the Site and the adjacent area is heavily contaminated from more than 100 years use by petroleum related businesses and hence needs extensive remediation.

Footnote 4: Although the possibility of consolidating the Article 78 proceeding with the instant condemnation action was addressed during oral argument, movants chose not to do so.

Footnote 5: Public Service Law § 163 (2) provides that "[s]uch persons shall serve copies of the preliminary scoping statement on persons enumerated in paragraph (a) of subdivision two of section one hundred sixty-four of this article . . ."

Footnote 6: Public Service Law § 164 (2) (a) provides that: "Each application shall be accompanied by proof of service, in such manner as the board shall prescribe, of: "A copy of such application on each municipality in which any portion of such facility is to be located as proposed or in any alternative location listed. Such copy to a municipality shall be addressed to the chief executive office thereof and shall specify the date on or about which the application is to be filed." (emphasis added).

Footnote 7: As was explained in Massachusetts v New York State Board on Electric Generation Siting and the Environment (197 AD2d 97, 100, n 2 [1994], appeal dismissed 83 NY2d 999 [1994] ): "In 1972, the Legislature enacted Public Service Law former article VIII, which established the Siting Board and created a uniform procedure for decisionmaking concerning the siting and approval of major steam electric generating facilities in the State (see, L 1972, ch 385; see also, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 103; Koch v Dyson, 85 AD2d 346, 358-359). This initial enactment of Public Service Law former article VIII was to expire on January 1, 1979 (see, L 1972, ch 385, § 8), and in 1978 the Legislature reenacted Public Service Law former article VIII, which was set to expire again on January 1, 1989 (see, L 1978, ch 708, § 4, as amended by L 1983, ch 721, § 2)."

Footnote 8: Although Article X expired as of December 31, 2002, all applications filed prior thereto shall continue to be reviewed pursuant to the law as it existed on the date of filing and "[n]othing in this act shall be construed to limit any administrative authority with respect to matters included in this act, which existed prior to the effective date of this act" (see L 1992, ch 519; L 1999, ch 636).

Footnote 9: Public Service Law § 160 (2) defines a major electric generating facility as "an electric generating facility with a generating capacity of eight thousand kilowatts or more. . .".

Footnote 10: Although the City states that one of the Hearing Examiners suggested at a preliminary conference that it seek to obtain the Site by eminent domain, this opinion was not incorporated into a final determination by the Siting Board, nor would it be binding upon this court in rendering its decision on the issues raised herein.

Footnote 11: While the City relies upon the argument that Article X does not provide that the Siting Board can override a judgment issued in a condemnation proceeding that awards it title to Property, it fails to acknowledge that in order to obtain such a judgment, it passed numerous resolutions and amended its zoning ordinances, which provisions the Siting Board can refuse to apply.