National Fuel Gas Supply Corp. v. Town of Wales

Land Use and Planning

New York Law Journal


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 convenience—limiting ambient noise to 55 decibels—was 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 actions—the inconsistent permit's issuance 86 days after public hearing—were 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.

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