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In re Public Service Electric and Gas Co.

Decided: June 30, 1961.

IN RE PUBLIC SERVICE ELECTRIC AND GAS COMPANY AND STATEN ISLAND RAPID TRANSIT RAILWAY COMPANY ADS. BOROUGH OF ROSELLE -- IN RE: INSTALLATION OF POWER LINE (P.U.C. DOCKET NO. 5612-9767). IN RE PUBLIC SERVICE ELECTRIC AND GAS COMPANY -- APPLICATION UNDER R.S. 40:55-50 THAT ZONING ORDINANCE OF BOROUGH OF ROSELLE DOES NOT APPLY TO POWER LINE (P.U.C. DOCKET NO. 576-10118). THE BOROUGH OF ROSELLE AND THE COUNTY OF UNION, APPELLANTS,
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, STATEN ISLAND RAPID TRANSIT RAILWAY COMPANY, BOARD OF PUBLIC UTILITY COMMISSIONERS, ET ALS., RESPONDENTS. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, V. BOROUGH OF ROSELLE, IN THE COUNTY OF UNION, STATE OF NEW JERSEY, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT



No. A-34: For dismissal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. Nos. A-35, A-35a: For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Hall, J.

Hall

The controversy represented by these cases concerns the power of a municipality to compel a public utility to carry its high-capacity electric power lines, transmitting current for other than local use, through the municipality by underground installation rather than on overhead structures.

The effort by the Borough of Roselle was pursued on two fronts. The first involved an amendment of the local zoning ordinance adopted after construction of the transmission line in question had been commenced. Before the amendment the ordinance did not deal with the subject matter. The amendment required a utility to obtain a permit before erecting, in any zone in the borough, poles and towers for any transmission of electric current. The Board of Adjustment was vested with authority to hear the application and make recommendation to the governing body for issuance. Specifically it provided that no permit should issue unless both bodies found that in their judgment "the use in the case in question would not be detrimental to the health, safety

and general welfare of the community and is reasonably necessary for the convenience of the community."*fn1 Public Service Electric and Gas Company ("Public Service") sought exemption from the amendment with reference to this particular transmission line by instituting a proceeding with that object before the Board of Public Utility Commissioners ("Board") pursuant to R.S. 40:55-50 of the zoning enabling act. This proceeding is involved in the first-captioned cause. The statutory section empowers the Board to make a declaration of non-applicability if it finds that "the present or proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public."*fn2 It so found, after an extensive hearing.

Consolidated and heard with the Public Service application and likewise encompassed within the first-captioned cause, was a petition of the borough seeking converse relief,

which was filed before the Public Service application but after the adoption of the zoning ordinance amendment. It sought to invoke exercise of the authority granted the Board by R.S. 48:2-19 of the public utility law, which provides:

"The board may:

a. Investigate upon its own initiative or upon complaint in writing any matter concerning any public utility; * * *"

The application asked investigation by the Board to determine whether Public Service should not be required to attain its objective of service through the overhead line in question by some other means such as underground transmission or use of an alternate route. It also asked the Board to determine whether the plans for the line contemplated provision for additional future service thereby without appropriate consideration of future development of engineering methods. The Board's single decision in both matters did not dispose of this petition on the merits, but the factors relied upon were essentially the same as those involved and passed upon in the zoning ordinance proceeding.

The borough and the County of Union, in which it is situated, appealed from the decision of the Board and we certified the appeal while pending in the Appellate Division on the motions of Public Service and Staten Island Rapid Transit Railway Company ("Staten Island"), another party to the zoning ordinance proceeding, under R.R. 1:10-1A.

The second front of the borough's continuing attack took the form of a general police power ordinance adopted after the final decision of the Board and the taking of the appeal therefrom in February 1960. This local legislation provided, in effect, that all electric power lines in Roselle carrying more than 33,000 volts must be installed underground. It went on to specify standards for such installation as well as the requirement of filing plans and specifications and the obtaining of a municipal permit before any such line could be lawfully constructed or maintained. Public Service immediately instituted an action in lieu of

prerogative writ in the Law Division attacking the validity of the ordinance.*fn3 This is the second-captioned cause before us. Public Service's motion for summary judgment was granted, the trial court holding that, as a matter of law, the ordinance was invalid as beyond the police power delegated to the municipality, because the Legislature had specifically committed the subject matter to the exclusive jurisdiction of the Board.

When the zoning ordinance appeal was first called for argument here we were advised of the pendency of the prerogative writ action and the imminence of decision in the trial court. Since both sides indicated an immediate appeal would be taken, whichever was the loser, we indicated that we would certify such an appeal on our own motion (R.R. 1:10-1(a)) as soon as taken and consolidate it for argument with the Board case so that all phases of the controversy might be finally disposed of at one time. The borough's subsequent appeal was so certified and the appeals argued together.

Discussion of the issues presented must be prefaced by some detail, common to both causes, concerning the particular transmission line involved. The foundation facts are not in dispute. Public Service furnishes electric service to the greater part of that portion of the State which is most densely populated and heavily industrialized. Its 14-county territory, in which it supplies light, heat and power to 1,400,000 customers, extends from Bergen County in the northeast, southwesterly to Camden County. This service area is about 106 miles long and its narrow width varies from 7 to approximately 24 miles. Production of electricity is by means of steam generating stations, which must be

located where adequate supplies of condensing water are available and satisfactory arrangements can be made for necessary fuel deliveries. Public Service now has seven such generating stations. Those in the northern section are located in the eastern part thereof on waters in the general New York Bay area and those in the south are situate adjacent to the Delaware River in the western part of the section. The electricity produced must, of course, be carried by bulk transmission lines from the points of generation to the places throughout the territory where it is required for use. The entire system is integrated within itself, as well as interconnected with the systems of other utilities in adjoining areas and states, so that unusually heavy requirements or breakdown "outages" at a generating station or in a transmission line in a particular section may be immediately met by switching power from some other area.

The entire territory has in recent years experienced a phenomenal growth in population, commercial and industrial activity and home construction as well as in new and increased uses for electricity. This had resulted, even at the beginning of this controversy in 1956, in greatly increased demand for electricity and need for additional facilities to produce and relieve it. Predictions indicate a continuance of this expansion during the next several years. A utility must, in fulfillment of its obligation to furnish adequate service, construct facilities to be prepared to meet the present and prospective demand without fail. Such facilities must necessarily be geared, not to the average projected load, but to the possible peak load on the busiest day of the year. This time has changed in recent years from the winter months to the summer periods, due to the greatly increased use of electric cooling devices. Public Service has predicted a 45% increase in peak load by 1964 over that which actually existed in 1959, which in turn was substantially higher than the demand a few years earlier, and an even larger increase in the next five-year period. It estimated that by 1970 generation capacity required to serve this load would double

and that consequently additional bulk transmission facilities necessary to integrate the new capacity and deliver the energy in huge quantities to all parts of the service area must be provided.*fn4

As part of the increased facilities necessary for the then present and expected future needs, Public Service by 1956 had put in operation a new generating station in Linden, capable at the time of generating 465,000 kilowatts but planned for later expansion to meet additional future demands. The location is about four or five miles southeast of Roselle. One of the places some of the power generated at Linden has to go to connect with the integrated system and serve needs of interior areas, even presently not adequately supplied by overloaded lines, is a switching station at Aldene in the Township of Cranford, just west of Roselle.

The line in question through Roselle is part of this link. It is proposed to run along and within the 100-foot-wide private right of way of Staten Island, an old, non-electric, freight railroad extending from Cranford to Staten Island. The right of way, some 9,000 feet in length in the borough, runs through the southern part of it in a northwesterly-southeasterly direction. While the railroad right of way itself does not appear to be included in any zone on the borough zoning map, it is bordered by an industrial zone for some 1,900 feet, a business zone for 400 feet and residence zones for the remainder of the distance. The evidence

discloses that considerable portions of the adjoining residential zones still remain vacant for some distance from the track and that in other sections homes, many of recent construction, abut the right of way. It is to be noted that the community overall is substantially residential and for the most part well built up.

Public Service first proposed to carry the line through the borough, as in the other municipalities through which it had to pass, on 150-foot steel lattice-work towers. The uninsulated line is designed for ultimate 220,000 volt 600 megawatt capacity, but at inception is to carry only 132,000 volts. The type of transmission is a familiar one, frequently seen throughout the State, especially in sections not heavily built up. (Public Service last year had 405.4 circuit miles of such high voltage transmission lines supported by 1,852 steel towers in operation in some 79 municipalities within its 14-county territory.)

When Public Service commenced tower construction in Roselle in October 1956 the borough authorities directed the work to stop, although it is now conceded there was then no local legislation to support the command. The matter has been in litigation substantially since that event and the work has never resumed. We understand the line is practically complete except for the portion within the borough.

Immediately after the cessation of work, Public Service sought to resolve the controversy by offering to substitute H frame type structures for the 150-foot steel towers. Such structures are 70 feet high and each consists of a pair of columns connected by a rigid beam spanning the railway trackage, to which the power line would be attached. They are substantially the same in appearance and operation as those used on electrified railroads running through all types of land use areas in the State and would not differ from the construction necessary if Staten Island were to be electrified through ...


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