ML20153D211
| ML20153D211 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/25/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Moore T, Rosenthal A, Wilber H Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-7001 OL-3, NUDOCS 8809020102 | |
| Download: ML20153D211 (7) | |
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8368 BY FEDERAL EXPRESS Thomas S.
Moore, Yhairman Mr. Howard A. Wilber Atomic Safety and Atomic Safety and Licensing Appeal Board Licensing Appeal Board U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Wasniniten, D.C.
20555 Washington, D.C.
20555 Alan S.
Rosenthal, Esq.
Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Long Island Light.ing Company (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 (Emergency Planning)
Gentlemen:
Enclosed for your information is the recent decision Town of_
Hempstead v. Long Island Lighting Company, Index No. 23779/87 (N.Y. Sup. Ct. Aug. 22, 1988), by Justice ;ollins of the Supreme Court of Nassau County, New York.
It addresses LILCO's plan to use its Bellmore Operation Center as a reception center for evacuees in a Shoreham emergency.
Yours very truly,
'??t Y w
James N. Christman 126/6205 Enclosure cc:
Service List 8809020102 00001.5 PDR ADOCK 05000322 jO o
N.h 44 ' 00 A&*Lo r. c.
MEM0RANDDM o
SUPREME CODRT NASSAU COUNTY IAS PART 22
....................................--x TOWN OF HEMPS M s BERT A. MAYER, Com-missioner of the, Department of Buildings BY COLLINS, J.
Plaintiff, 8
Index 923779/87
- against -
- Motion Date: June 20, 1988 LONC ISLAND LIGHTING COMPANY, and any of its agents, officers, servants, employees, successors e assigns a anyone acting by, through or under the Long Islimd Lighting e
- Cogany, Defendants
x W. Kenneth Chave, Jr., Esq.
Hunter & Williams, Esq.
Hegstead Town Attorney Attorney for Defendant Town Hall Plaza, 100 Park Avenue, Hogstead, N.Y.
11550 New York, N.Y.
10017 The Town of Hegatead and Bert A.
Mayer, Cotamissioner of Buildings of the Town of Nampstead, hereinaf ter referred to as "Town" have commenced an action against the Long Island Lighting Cog any, hereinaf ter referred to as "LILCo", seeking a permanent injunction to restrain certain alleged building and zoning violations.
Subsequent to this action having been instituted, the Town f
has moved for, summag judgment in its favor.
The facts are as follows:
LILCO owns a parcel, acquired in 1961 for utility
- purposes, located at,the southwest corner of Newbridge Road and Sunrise Highway, Bellmore, known as 2400 sunrise Highway, Bellmore, New York.
This is known as the "LILCO Bellmore Operation Centers".
The Building Zone ordinance of the Town places the parcel in two difforent use districts.
The frontage along sunrise Highway up to a depth of 100~ feet is in "Article XVI
-X B,usiness Districts (X)" and the balance of the parcel is in "Article VII B Residence District (B)".
LI5CO admits that the Bellmore Operations Center.has been identified in. its nuclear emergency plan for the purpose and uses set forth by the; Town in its complaint (General Population Reception for evacuees in the evsnt of radiological emergency at the Shoreham Nuclear Power Station; the reception to be for Suffolk County rasidents for the purpose of radiological assessment and the deconta.~ination of persons and vehicles) but denies the plans include L
M 24 '68 w i6 e.3 Town of Hampstead v, Lilco, Etc.
$23779/37 and have incluqed drills and exercises and the storage of related equipment, structure and supplies.
The Town alleges:
that. prior to July 27,
- 1987, LILCO installed or caused to be installed on the
- property, near the southerly property line (in a "B"
Residence tone) a Trailer with stabiliser bars and with connections to electrical and water supplises with said utilities being intermittently connected or disconnected by LILCO.
This LILCO denies; that the trailer contains decontamination facilities consisting of nine sinks and twenty showers.
LILCO denies that the trailers are to be used exclusively for' decontamination purposes.
By inuendo, therefor, it admits that the proposed use is such as charged by the Towns that this activity should not take place "until a permit has been duly issued therefor".
LILCO states this allegation is, in fact, a legal conclusion, requiring no response but is nonetheless denied.
LILCO admits that no building permits have been issued to them pursuant to the Town code.
LILc0 denies having knowledge or information as to whether the property is zoned as alleged by the Town or the Building Zone ordinance.
Consistently, therefore, LILCO denies that the activity at their premises should not have taken pla,ce until a permit had been duly issued and is, therefore, illegal.
LILCO pro forma denies the Code of the Town was, and is, in full force and effect on the dates complained of by the Town.
As well, LILCO denies that the siting' of the trailer, the addition of stabilizing bars and the utility connections constitute the commencement of work for the erection of a structure within the neaning of the Zoning Code.
The Town alleges:
that LILCO has installed plumbing and/or drainage and a water supply in connection with the siting of the trailer.
LILCO denies this and admits that no plu=bing permits have I
been issued to it.
l The Town, in substance, alleges that the installa' tion of l
utilities without a permit and the placement of the trailer and its proposed use as a decontamination unit is not an expressly provided use and armiillegal.
In sum, LILCO denies that any of its conduct is illegal on-the premise that no special permission, or permits, are l
l required of'it for what has been done at the site, l
The Town permits public utility buildings and/or structures i
I in any residence or business district when permitted by the Board of l
Zoning Appeals _, LILCO holds a Special Exception permit for its entire Tnwn of Hampstand v. LILCO, Et A1 923779/87 I
parcel under Zoning Board Case No. 553 of 1961 which permits.
6 "construction and maintenance of an operations headquarter cont,isting of an office and assembly room, warehouse, garage, storsgu platforms, i
storage rocas, truck parking, and storage areas" to be "constructed 1
.in cecordance with the plot plan received by the Board of Zoning
.Appeals"."
This proposed use was never presented to nor passed upon by the Board 'oT~ toning Appeals and, thereferd, the Town maintains such use is beyond the scope of the permit.
Further, the use is neither an expressly permitted use in a e
"Business District" nor is it provided for within the special
. F.xception issued in 1961.
The Town seeks an order frees this Courts (1) permanently restraining and enjoining LILCO or anyone acting under, or through, LILC0 from using this trailer or permitting it to be used in violation of the laws and ordinances of the Towns (2) directing LILCO to permanantly remove the trailer and connections thereto as well as any 'other equipment, supplies or structures relating to the evacuation, reception, radiological assessment and decontamination uses:
(3) restraining LILCO from using che area for drill exercisest the storage of equipment and supplies and the installation of and/or the capability to introduce the trailer structurer (4) directing LILCO to remove the Bellmore Operations Center from its planning documents and 'frca, in anyway, representing l
that the present and proposed reception-evacuation, radiological assesament and decontamination uses are permitted and lawful.
i LILC0 admits that it has identified the Bellmore Operations Center in its nuclear emergency plan for the proposed uses set forth in the Town's complaint.
LILCO admits that it has a Special Use permit for its entire parcel of land but denies that consideration by the Board of. Zoning Appeals wasy or is, required.
Further, LILCO seeks to have the cc::rplaint dismissed for I
failure to set forth a cause of actions and alleges that the action is that barred by estoppel, laches, doctrine of unclean hands and waivert the claims of the Town are nonjusticiable for lack of ripeness and I
some have been rendered :r. cot.
P5 Town of Hempstead v. LILCO, Et Al 423779/67
%2LCO dontende the application of the local zoning ordinances invoked by the Town is preengted by Federal regulatien in the area of nucisar safetyr and that the State of New York, the County of Nassau and the Town of Neapstead have each abdicated their responsibility to devise a nuclear emergency plan under Federal Law and have had a full and fair opportunity to voice objections to LILCO's nuclear emergency plan in hearings before the Nuclear Regulatory Commission, scene of the dafenses raised by LILCO are sophistical, wheras, all are without legal merit.
1.
The complaint meets all of the criteria set forth in 4
the CPLR and does, indeed, set forth a viable cause of action, i.e.,
the allegation that the admitted installation and proposed use are not permitted as a matter og right and without a permit and are not contemplated and/or included within the special Exception granted by
~
the Town to LILCO in 1961.
The Town has submitted avidentiary facts to support the of the cosiplaint.
LILCO has not denied either the i
allegations installation or any proposed use and rests its case on untenable legal
.f arguments individually addressed by this Court within this decision.
The Town has a duty pursuant to. Sections 261 and 268 of the l
Town Law to commence this litigation.
When a use has been commenced and its continuance is projected and admitted, injunctive relief is the proper remedy.
l LILCO has been notified of the alleged violations and there l
is nothing before this court to indicate that there has been an abatement of the violation.
2.
' The equitable defensas prof fered by LILCO of estoppel, JJ 1 aches, unclean hands and waiver cannot be asserted against a
Insofar as the defense 1
governmental body seeking to pexform its duty.
of "estoppel" is concerned, LILCO was, notified promptly as to the Town's position.
This eliminates a factor of "reliance", which, if present. could perhaps create an exception of the doctrine that estoppel cannot be errectively applied eo a municipality exercising its movereip power.
N.Y.
STATE INSPECTION, SECURITY AND LAW ENFORCEMENT wtPLOYEES, DIsTaICT CwNCIL 52 v. CUOMO, 45G NYs 2d, 1,
6 affirmed 455 NYS Zd 719 HAMPTUN5 HOSPITAL AND MwICAL CENTER V.
HOORE, 4 36 NTI 2d 239, 241-42_.
Addressing the defense of "laches":
It is hornbook law that this defense cannot be applied against a municipality in the exercise of a sovereign duty.
4 1 -- ---
~-
l, y g,g e.o Town of Mempstead, v_.
LII.CO, Et A1 422779/87 r
COMMISSIONER OF SOCIAL SERVICES v.
JERRY 5.
481 NYS 2d 981, 983.
INCORFORATw VILLAGE OF hr.,aloURY v. SAMUELS, 260 NYS 2d 369, 372.
With res m t to the defense of "unclean handse, this defense is likewise meritless.
ne action of the Town does not sound in fraud, illegal or unconscionable conduct.
The final equitable defense of "waiver" is likewise untenable in law or fact.
The Town acted prudently, conscientiously and expeditiously to enforce the Town codes.
The Town notified _ LILCO
- and, after non-compliance with said
- notice, instituted this litigation.
3.
The affirmative defense that this action is "nonjusticiable for mootness and lack of ripeness" is unavailing.
The necessary elements of a justiciable controversy are (a) a legally protected interest and (b) a present dispute.
.These elements are self-evident and pres, nt in this litigation.
The Town e
has an interest, albeit a duty, to protect against violation of its codes and ordinances adopted for the common good.
- LILCO, to its credit, does not deny the proposed use of the Bellmore site and, in fact, would be hard put to do so in view of the "trailer".
The issues arv far from moot and certainly ripe enough to litigate.
4.
The defense that the Town is "preempted" because of the "Emergency Plan" is contrary to the established law.
In other words, because nuclear power is Federally regulated, LILCO maintains that the duly enacted local laws may be disregarded and discarded.
Unlike LILCO, the Federal government does recornize the validity of local governmental jurisdiction.
To sustain this premise, LILCO must demonstrate a Congressional intent to preempt State law.
LILCO has not met this criteria and, A nde ed, cannot.
PACIFIC GAS a ELECTRIC Co.
v.
STATE ENERGY RESOURCES AND DEVELOPMENT COMMISSION, 361, U5 1,90,206.
JONES v. RATH PACKING CO.,
430 U5 519,525.
NEW YORK DEPT. OF SOCIAL SERVICZ5 v.
DUBLINO, 413 US 405,413.
SILxwoCo v.
KERR-McGEE_ CORP., 464, U5 235,255.
LILCO's argument of "preemption" was raised against.suf folk County relative to that County's refusal to adopt an emergency evacuation plan.
W e District Court found against LILCO.
CITIZENS FOR AN ORDERLY _ ENERGY POLICY v.
SUFFOLE COUNTY, 604 Fed ~5upp 1084; arrirmed 51'3 Federal 2d 570.
Th'e' Nuclear Regulatory Commission has recognized zoning laws as a legitimate function of local government, although the same may negatively impact on the utility's operation of licensing a Nuclear Power Plan.
5-
j y g,g g;g I
To of Hampstead v. LItCO_
$33779/37 i
.5.
MLCo raises another incredible defense to this action.
Town is "preempte4" from enforcement of its soning laws because it has "abdicated" its responsibility to prepare s Nuclear Response Flan.
The Town has no duty to define, promulgate, recomunend or adopt a Nuclear Response'71an, fas wuclear Regulatory Commission has so stated.
Sees 44_ Fed. Req. 75, 169: and Citizens for an orderly Energy Policy v. surro1x county, 404 Fed Supp at 1034-96.
For all of the foregoing
- reasons, the Court makes the following determinations Motion for plaintiff for sunmary judgment is granted.
Cross-motion by defendant for partial summary judgment dismissing the third, fourth, fifth, sixth, seventh, eighth and ninth causes of action is denied.
to CFLR Motion by plaintiff for a protective order pursuant
$2004, 3103 and 3122, is denied as academic in light of the decision reached upon plaintiffs' motion for summary judgment as is the cross-motion by defendant for an order pursuant to CFLR
$3124 compelling the production of certain documents.
settle Judgment on Notice.
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