National Fuel Gas Supply Corp. v. Town of Wales
U.S. DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Land Use and Planning
Judge William Skretny
National Fuel Gas (NFS) planned to build a compressor station in defendant town. The Federal Energy Regulatory Commission's (FERC) certificate of public conveniencelimiting ambient noise to 55 decibelswas issued during pendency of special use permit proceedings before the town's board. The town's preliminary permit, inconsistent with FERC's certificate, imposed a 45-decibel limit. Its Dec. 2011 final permit retained that limit, and mandated that "noise related to compressor operation shall not exceed 3 dBA over background ambient noises." FERC later granted NFS permission to build the station. The town's Jan. 2012 building permit incorporated the 2011 special use permit. NFS began construction in April. District court dismissed NFS's May 2012 amended complaint charging interference with its federal rights as to the station's construction. It also dismissed NFS's claim that the town's actions constituted a regulatory taking. Claims against the board were redundant to those against the town. Further, NFS received adequate process and the town's actionsthe inconsistent permit's issuance 86 days after public hearingwere not "outrageously arbitrary." Nor was it clear that FERC's certificate granted NFS a property right. NFS's regulatory taking claim was dismissed for failure to allege it unsuccessfully sought compensation through an Article 78 proceeding.