Rochester Telephone Corp. v. Village of Fairport

Callahan, J. (dissenting).

We cannot agree to impose upon the taxpayers of the Village of Fairport the cost to relocate utility lines of the Rochester Telephone Corporation. Such an imposition is contrary to well-established principles of law.

The essential facts are not in dispute. In February of 1977, the Village of Fairport received approval from the Economic Development Administration of the United States Department of Commerce for a grant funding the reconstruction of West Church Street, a major village thoroughfare. The grant was issued under a program designed to combat local unemployment. The village utilized the funds to reconstruct antiquated and deteriorating water supply, sanitary sewer and storm sewer systems as well as curbing, sidewalks and pavements of West Church Street. While there was no provision in the grant for relocation of telephone poles lining West Church Street, the engineering plans for the project provided for the relocation of all aboveground utility lines into underground conduits. It was indicated by the project engineer that these changes were necessary for safety reasons when it was discovered during planning that the widening of various intersections would place some existing telephone poles physically in the streets and others within a close proximity of the curb. Also, there was the probability of a conflict between the utility lines and 112 additional new trees to be planted as part of the project with potential damage to the lines from ice laden branches. Further, the electric company lines sharing use on the existing poles were scheduled to be contained in underground conduits. For these reasons the village board passed a resolution directing Rochester Telephone to locate its lines underground within conduits provided by the urban renewal project.

The majority acknowledge the common-law rule, that utility companies which have been granted the privilege of maintaining their facilities in public streets must relocate them at their own expense “ ‘whenever the public health, safety or convenience requires the change to be made”’, remains in effect to the present day (Matter of Consolidated Edison Co. of N. Y. v Lindsay, 24 NY2d 309, 316, quoting *461Transit Comm. v Long Is. R.R. Co., 253 NY 345, 351, 352; see, also, New York Tel. Co. v City of Binghamton, 18 NY2d 152; New Rochelle Water Co. v State of New York, 10 NY2d 287; New York Tel. Co. v State of New York, 67 AD2d 745, 746; Pennsylvania & So. Gas Co. v State of New York, 57 AD2d 166, 167; Brooklyn Union Gas Co. v City of New York, 37 AD2d 603, 604). This rule evolves from the fact that a utility gains no property interest in the public right of way beyond a mere privilege, e.g., a franchise or a license to maintain facilities in public streets (see Ashland Oil & Refining Co. v State of New York, 26 NY2d 390; New York Tel. Co. v State of New York, supra, p 746).

As we view this record, Rochester Telephone failed to prove that it possessed an easement or other vested property right in its existing lines and, accordingly, must be deemed a mere licensee (cf. New York Tel. Co. v State of New York, supra). A licensee is not entitled to reimbursement for the cost of relocating its utility lines when the move was required by the public health, safety or convenience; or, put otherwise, when the municipalities’ action was a legitimate exercise of the police power (see Ashland Oil & Refining Co. v State of New York, supra, p 393; Matter of Consolidated Edison Co. of N. Y. v Lindsay, supra, pp 316-317).

The resolution of the Fairport Village Board is a legitimate exercise of its police power reasonably related to a valid subject of legislative concern and is neither arbitrary nor unduly oppressive (see People v Goodman, 31 NY2d 262, 266; Stubbart v County of Monroe, 58 AD2d 25, 29; see, generally, 40 NY Jur, Municipal Corporations, § 782). Rather we view it as a reasonable exercise of the police power (see Modjeska Sign Studios v Berle, 43 NY2d 468, 478, app dsmd 439 US 809; French Investing Co. v City of New York, 39 NY2d 587, 595, app dsmd 429 US 990). We can find no basis in this record to support the majority determination that the resolution of the village board resulted in “a public taking”.

The majority strain this record to relate the required underground relocation to a “public taking”. This case does not raise that sort of issue where compensation is required for a governmental taking of property or even suggest a *462case of essentially individualized cost of bearing some public improvement. Use of conduits to house utility lines is not foreign to Rochester Telephone or unique to West Church Street. The record relates that the main trunk line of Rochester Telephone for service to residents east of the village is contained in underground conduits along West Main Street and manholes for their maintenance are located therein for service thereof.

The trial court erroneously granted the utility’s request for reimbursement on the theory that the directive for relocating the lines underground was based solely on aesthetic reasons rather than as a matter of public necessity for the public health and safety. The mere fact that relocation of utility lines underground was motivated by aesthetic considerations does not automatically render the village resolution invalid. Sometimes aesthetics alone constitute a valid basis for exercise of the police power (see Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 490, app dsmd 439 US 808; Modjeska Sign Studios v Berle, supra, p 478). Aesthetics is a legitimate public purpose and burying the telephone lines underground is reasonably related to that purpose.

We agree, the reasonableness of the means employed must be subjected to a more searching scrutiny when the public purpose is the enhancement of aesthetics (see Modjeska Sign Studios v Berle, supra, p 474). In these circumstances the board’s, decision to order relocation of the utility lines underground was not unreasonable nor unduly oppressive. In the renewal scheme the street was to be excavated with the bulk of expenses, including cost of installing the conduit, being incurred by the village. It is undisputed that the planned construction and improving the intersections and repaving the streets required relocation of all poles within the intersections and all those placed in close proximity to the new curbing. There was also the probability of a hazardous condition developing by virtue of a foreseeable conflict between the remaining telephone lines and additional trees that were to be planted as an integral part of the renewal project. Additionally, other electrical utility lines were to be placed underground. Thus, while aesthetics were undoubtedly an *463important consideration for relocating the telephone lines, there were other valid safety and practical considerations as well. Aesthetics were properly considered in the context of the entire project. Accordingly, the board’s action in ordering Rochester Telephone to relocate its telephone lines underground along the path of the renewal project cannot be said to be an unreasonable exercise of the police power.

Therefore, the judgment should be reversed, on the law and facts, and judgment directed to be entered in favor of defendants dismissing plaintiff’s complaint.

Denman and Moule, JJ., concur with Simons, J. P.; Callahan and Schnepp, JJ., dissent and vote to reverse the judgment and dismiss the complaint in an opinion by Callahan, J.

Judgment affirmed, with costs.