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Consolidated Edison Co. v. Hoffman

Citation: 8 ELR 20250
No. No. 24, 374 N.E.2d 105/11 ERC 1346/43 N.Y.2d 598, (N.Y., 02/14/1978)

The State of New York's highest court affirms an order directing a semi-rural municipality to grant a variance from its zoning ordinance to permit a public utility to construct a 565-foot tower for treating the cooling water discharged from the Indian Point nuclear power plant.

The court applies a conventional land use analysis and explicitly avoids the issue upon which the decisions of the lower courts were grounded, i.e., preemption of local law by the federal nuclear regulatory scheme and by state transportation controls.The court holds that the zoning board's decision was arbitrary and capricious and exceeded established standards of discretion. A careful balancing of the anticipated costs and benefits of the proposed tower shows that the board's denial of the variance must have been based on an impermissibly narrow view of its obligation under state law to cooperate with public utilities from which it receives services and to consider the likely impacts upon a segment of the public broader than its own constituency. An objective approach to this cost-benefit analysis suggests that the variance must be granted. Although the court would normally be sensitive to the village's defense that it was presented with no alternative to the erection of a 60-story tower, this argument is inapposite because the village was given, and failed to exercise, a full opportunity to present comments and suggestions, including proposed alternatives, at hearings on the matter conducted by the federal Nuclear Regulatory Commission.

Counsel for Appellants
Carl R. D'Alvia, Henry J. Smith, Gerald Nolan
McCarthy, Fingar, Donovan & Glatthaar
175 Main St., White Plains NY 10601
(914) 946-3700

Counsel for Appellee
Edward J. Sack
Williams & O'Neill
130 E. 15th St., New York NY 10003
(212) 460-3355

Counsel for Intervenor-Respondent
Ross Sandler
Natural Resources Defense Council
122 E. 42nd St., New York NY 10017
(212) 949-0049