Opinion
August 15, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Proceeding under article 78 of the Civil Practice Act, transferred to the Appellate Division, Third Judicial Department by order of the Supreme Court at Special Term entered in Albany County, to review and annul a determination of the Water Power and Control Commission approving an application by the Village of Nyack for the construction of a new water filtration plant at an estimated maximum cost of $650,000 and to increase its diversion of water from the Hackensack River in Rockland County from 1.5 million gallons per day (mgd) to a maximum rate of 3.75 (mgd) during peak periods but not to exceed an average of 3 (mgd). Petitioners, as owners in fee of riparian lands abutting the Hackensack River in the States of New York and New Jersey, filed objections to Nyack's application. Hearings were held by the commission. In a subsequent decision the plans of the village were approved and the diversion authorized. Petitioners' first attack on the commission's determination is leveled at the sufficiency of Nyack's petition to the commission which states that "The amount of increased diversion from the Hackensack River requested * * * is relatively small in comparison to the total flow into Oradell Reservoir" and that "no legal damages of any kind are contemplated." Section 523 (now § 451, subd. [4]) of the Conservation Law required the commission, in approving any plans for an additional water supply, to determine "whether the plans make fair and equitable provisions for the determination and payment of any and all legal damages to persons and property both direct and indirect which will result from the execution of the plans or the acquiring of such lands." Petitioners contend that the commission's determination that the plans made such provisions is arbitrary and without substantial evidence to support it. We are persuaded otherwise. The public purse of the village, coupled with its taxing and borrowing powers, provides available, adequate and certain financial sources whereby petitioners may be indemnified for any invasion of their property rights occasioned by the diversion and the commission, in effect, so found. Its finding on this point was neither arbitrary nor lacking in substantial foundation. (N Y Const., art. VIII, § 5, subd. B; General Municipal Law, §§ 70, 82; Local Finance Law, §§ 29:00, 36:00; Matter of Church, 92 N.Y. 1, 6; Matter of Mayor, etc. of City of New York, 99 N.Y. 569, 577-578.) Petitioners' other contention that the plans of the village are not justified by public necessity is also without merit. The future water needs of the village are largely dependent on such scientifically unpredictable elements as population growth, expanded construction of apartment houses and residences and other related subjects. The commission had the right to accept the higher prophetic estimates of the village and to reject the lower appraisals of the petitioners' experts. ( Matter of Rockland County Anti-Reservoir Assn. v. Duryea, 282 App. Div. 457.) Its finding on the subject of public necessity is grounded on substantial evidence and with its conclusion we may not interfere. ( Matter of City of Syracuse v. Gibbs, 283 N.Y. 275; Matter of Niagara Falls Power Co. v. Water Power Control Comm., 267 N.Y. 265, 278, motion for reargument denied 268 N.Y. 496, certiorari denied 296 U.S. 609; Matter of Suffolk County Water Auth. v. Water Power Control Comm., 12 A.D.2d 198.) Determination unanimously confirmed, with $50 costs.