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NEW YORK STATE NATURAL GAS CORP. v. TOWN OF ELMA

March 21, 1960

NEW YORK STATE NATURAL GAS CORPORATION, Plaintiff,
v.
TOWN OF ELMA, Defendant



The opinion of the court was delivered by: HENDERSON

Plaintiff seeks an injunction directing defendant municipality to reinstate a zoning permit issued to plaintiff on August 14, 1958, for the construction of a measuring and regulating station in conjunction with a gas pipe line, or to issue a new permit in like form, or alternatively restraining defendant, its agents, servants and attorneys from interfering with or placing any restraints on plaintiff's installations and operations under the zoning ordinance of the defendant so as to prevent, restrain, or delay plaintiff in supplying natural gas to its customer.

Findings of Fact.

From the admitted allegations in the complaint, concessions of counsel at the pretrial conference and the final hearing in this case, I find the following facts:

 1. Plaintiff is a New York corporation.

 2. Defendant is a municipal corporation organized under the laws of New York.

 3. The action arises under the Constitution of the United States, Article I, Section 8, Clause 3, and the Natural Gas Act, Title 15 U.S.C.A. § 717 et seq.

 4. Plaintiff is a Natural Gas Company within the meaning of that term as used in the Natural Gas Act, and is engaged in the transportation and sale of natural gas in interstate commerce for resale and is endowed with the power of eminent domain pursuant to the provisions of said Natural Gas Act.

 5. Plaintiff entered into contracts with the Iroquois Gas Corporation, calling for the construction of a 29.5 mile 20 inch high pressure transmission line and facilities therefor at a cost in excess of $ 1,600,000 to deliver natural gas to said Iroquois Gas Corporation in specified quantities to a point on the Iroquois Gas Corporation distribution system near Porterville, Erie County, New York.

 6. For the purpose of carrying out these agreements, plaintiff applied to the Federal Power Commission for a Certificate of Public Convenience and Necessity pursuant to Section 7 of the Natural Gas Act, calling for the pipe line construction, together with a measuring and regulating station at the Porterville connection which would cost $ 60,000.

 7. On August 12, 1958, the Federal Power Commission in Docket No. G-14956 issued a temporary Certificate of Public Convenience and Necessity to plaintiff pursuant to Section 7(c) of the Natural Gas Act (15 U.S.C.A. § 717f(c)), to construct and operate the transmission line and facilities proposed in its application for a Certificate of Public Convenience and Necessity above referred to.

 8. The 29.5 mile pipe line connection between the plaintiff and the Iroquois Gas Company forms a part of an interstate distribution system entering the State of New York from points outside the State of New York.

 9. The said pipe line system is intended for use and is presently used for the delivery of gas to the Iroquois Gas Corporation, which gas is and will be transported from points outside the State of New York to the Iroquois Gas Corporation distribution system near Porterville, Erie County, New York.

 10. Plaintiff agreed with Iroquois Gas Corporation to start deliveries of gas through the 29.5 miles of 20-inch transmission line on October 1, 1958; the purpose of such delivery being to supply Iroquois Gas Corporation with gas for delivery to the latter's customers, including commercial and industrial customers, and including upwards of 220,000 space heating customers dependent upon Iroquois Gas Corporation for the heating of homes during the heating season, and including housing projects, schools, hospitals, churches, hotels, office buildings and other institutions.

 11. In reliance upon the agreements with Iroquois and on the temporary authorization of the Federal Power Commission, plaintiff entered upon the performance of the agreements and secured rights-of-way by negotiation over the full 29.5 miles necessary for the laying of the line and purchased property adjacent to the Porterville station of the Iroquois Gas Corporation, consisting of slightly over two acres, upon which it proposed to bring out of the ground the 29.5 mile pipe line and install therein and thereon regulators and metering equipment, all of which work is substantially completed.

 12. The Porterville Station of the Iroquois Gas Corporation is one of that corporation's pipe line discharging stations and a point at which gas is received from pipe line suppliers. Gas is taken out of storage, controlled and discharged to the markets at that point. Approximately 30% of the deliveries made by Iroquois Gas Corporation during the heating season in the years 1958-1959 were processed through that station.

 13. The regulators and metering equipment upon the lot are an essential part of the 29.5 mile pipe line.

 14. The purpose of the regulators is to control the pressure of natural gas from plaintiff's line into the lines and mains of Iroquois Gas Corporation immediately adjacent to the lot acquired by plaintiff.

 15. The purpose of the metering equipment on the property is to measure the gas delivered to Iroquois at the point of delivery in order to ...


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