The legal jousting between the Villages of Westhampton Beach and Quogue, the Town of Southampton, East End Eruv Association, Verizon and Long Island Power Authority recently had its path through the preliminary Courts system cleared a bit by a Joint Stipulation of Uncontested Facts Regarding Verizon's and LIPA's Authority to License Attachments to their Utility Poles.
Of particular interest in the document are items...
- Westhampton Beach and Quogue do not own the utility poles on which the lechis would be placed. The utility poles on which the lechis would be placed belong to Verizon and LIPA.
- Verizon and LIPA do not own the real property on which their utility poles stand.
- In 1949, the Westhampton Beach Board of Trustees adopted a resolution related to a request that LILCO had made to the Coast Guard seeking a Coast Guard permit to allow LILCO to install an aerial power crossing over the Quogue Canal.
- Attached as Exhibits L and M are copies of agreements between New York Telephone Company and the Village of Westhampton Beach regarding the installation or placement of new utility poles.
- Attached as Exhibits O, P, and Q are true and correct copies of license agreements that Verizon has entered into with Westhampton Beach.
- In 1910, the Town Board of the Town of Southampton ("Southampton Town Board") granted a franchise agreement to Riverhead Electric Light Company for the area west of Quantuck Creek.
- In 1911, the Southampton Town Board granted to Patchogue Electric Light Company a franchise for the area west of the Speonk River.
- In 1912, the Southampton Town Board consented to the transfer of the franchise from Riverhead Electric Light Company to either the Patchogue Electric Light Company or Suffolk Light Heat and Power Company.
- In 1917, the Southampton Town Board approved the assignment of the franchise to Long Island Lighting Company.
- In 1964, the Southampton Town Board approved the transfer of the franchise from Patchogue Electric Light Company to Long Island Lighting Company.
- LIPA acquired all of the common stock of the Long Island Lighting Company. LIPA acquired from LILCO all electric franchise and electric utility service responsibilities for all ultimate consumers of electricity within LILCO’s former service territory.
- Some or all of the poles that are proposed to be used for the eruv fall within the areas described in the Patchogue and Riverhead franchise agreements.
- The Board of Trustees of the Village of Westhampton Beach adopted a resolution on November 7, 1938 regarding the restoration or replacement by the United States Coast Guard of certain utility poles on Dune Road....
- The Board of Trustees of the Village of Westhampton Beach adopted a resolution on December 1, 1952 regarding certain utility poles located on Dune Road.... To date, Verizon and the Village of Westhampton Beach have not located a signed franchise or consent for the New York Telephone Company to take over and operate the pole line along Dune Road, within the limits of the Village of Westhampton Beach.
- The utility poles to which EEEA seeks to attach lechis include three of Verizon's utility poles located on Dune Road in Westhampton Beach.
And there ya go... the core argument of Westhampton Beach's position is that the agreements are between the Village and the two utilities, and that under franchise law, neither LIPA nor Verizon have, as a matter of law, the right to "sub-let" (or convey) to other entities permission something not granted to the utilities in the first place.
Okay, try this: the Village granted the predecessors of LIPA and Verizon, the right to erect their poles on Village property solely for the purpose for stringing wires for "the generation or physical distribution of electricity, cable, telephone, internet, or other utility or communications service."
Additionally, as a matter of law dating back to the 1800s, roads and rights of way are for public use and cannot be used for private purposes... in this instance, the attaching of lechis to utility poles erected on municipal property to define the boundaries of an eruv, would be for private benefit.
Nothing to do with First Amendment rights... it's franchise and contract law.
The scheduled trial date is one week from today in Central Islip... it will be watched with great interest.
Wow. Way to comprehensively report! I guess all those years on the Zoning Board paid off. Thanks.
Nice job analyzing this. Keep at it.