Opinion
November 22, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Taylor, JJ.
The petitioner seeks a review, pursuant to article 78 of the Civil Practice Act, of a determination by the respondents rejecting an application for approval of its plans for the extension of its water supply and distribution system into a territory not previously serviced. The petitioner is a private corporation organized solely for the purpose of supplying and distributing water to real estate subdivisions in the Town of Smithtown, Suffolk County, New York. It had previously received permission as the result of five prior applications to service certain areas. A prior application had been granted for a period of three years to service an area known as the Marlboro Acres and which included the area here in question. However, no real estate development had taken place and no action had been taken by the petitioner. The present application which has been denied is, for all intents and purposes, to extend for an additional year the so-called Marlboro Acres permit. The record discloses that all of the water supplied by the petitioner comes from one well; that a prior permit had given it permission to develop a second well, which at the time of this petition had not been commenced. It was further shown that the present water supply of the petitioner was amply sufficient to provide service to all of its present customers and would be sufficient to provide for the new development. It further appears that the Suffolk County Water Authority was closer than the petitioner's water line to the proposed real estate development. It is also claimed that because of the number of wells, the respondent Water Authority was better able to furnish service during emergency conditions and could make the necessary water connection for considerably less than the petitioner. The commission found among other things "That the specific plans now proposed are not justified by public necessity". The supply of fresh water in Suffolk County, as well as other parts of Long Island, has been a matter of public concern for a considerable period and the problem becomes more acute year by year. Due to the great influx of population, there presently exist both municipal and private water suppliers, and the Water Power and Control Commission of the State, in making its determinations, has properly given consideration not only to the present water demand but also to the future demand in attempting to determine the best interests of the public to be served. We have previously considered in Matter of Suffolk County Water Auth. v. Water Power Control Comm. ( 12 A.D.2d 198, 202) the problem involved, the related questions and the matters which must be taken into consideration in determining what is for the best interests of the inhabitants of that particular county. While it might be said under different circumstances that the findings do not justify the determination of the commissioners under the peculiar aspects and conditions which now exist in Suffolk County and which determination will influence the future supply of water, we are unable to say that the determination was arbitrary, unreasonable or not in the interests of justice. Determination unanimously confirmed, with $50 costs.