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DENNIS G. WHELPLEY
STEVEN C. HAAS
CATHERINE BURN5 QUENCE.R
KEITH B. CAUGHLIN
ANN E, PHIWPS
GEORGE E. MEAD III
WCY M, GERVISS'
• ALSO ADMITTED IN FlOIUDA
SCHWERZMANN & WISE, PC
ATTORNEYS AT LAW
P.o. BOX 704
WATERTOWN, NEW YORK 13601·3418
FAX 315 788-2813
137 MAIN AVENUE
RICHARD F. SCHWERZMANN
LESLIE H. DEMING
Jeffrey C. Cohen, Acting Secretary
State of New York Department of Public Service
Three Empire State Plaza
Albany, NY 12223-1350
Re: Development Authority of the North Country
Intervenor Funding Case No. 12-F-0410
Attached is our response to the Hearing Examiners Reasoning concerning their
initial determination on the Development Authority of the North Country's request for
Very truly yours
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Dennis G, Whelpley
SCHWERZMANN & WISE, P. C.
137 Main Avenue, P. O. Box 704
Watertown, New York 13601
To: Paul Aqresta, Esq., Chief Hearing Examiner
Maria Villa, Esq., Hearing Examiner
From: Dennis G. Whelpley, Esq.
Re: Eligibility ofthe Development Authority of the North Country ("DANC") for
Intervenor Funding, Case No. 12-F-0410
Date: May 30, 2013
Thank you for your email of May 22,2013 setting forth the rationale of the Hearing
Examiners regarding the above-referenced issue and offering this opportunity to respond.
The purpose of the Intervenor Funds is for the Applicant to a Public Services Law
("PSL") Article X proceeding to "provide funds to support intervenor participation in
the sitting process both at the preapplication and hearing phases of the proceeding" (see
New York Sponsors Memorandum 2012 A. B 8510 dated October 5, 2012, Legislative Bill
Jacket). The obvious reason for this legislative requirement is to ensure intervenor
participants are encouraged to participate in a meaningful manner.
In the Division of Budget's Memorandum in support of the current PSL Article X
Legislation, it stated that the purpose of the Intervenor Fund is to pay for consultant, legal
or other fees incurred by "interested parties to the proceedings" without undue economic
hardship on those parties. (id. , emphasis added). It is for this reason that DANe seeks
Intervenor Funds, as all unreimbursed costs incurred by it are ultimately borne by the
ultimate end-users of the water from its pipeline. These ultimate end-users are innocent
interested parties concerned over the potential adverse impacts of the Applicant's proposed
Project on the pipeline which supplies their drinking water. The issues of concern regarding
this proposed Project and DANC's pipeline are set forth in DANe's comments on the
Preliminary Scoping Statement and reference is made thereto for the sake of brevity, but not
for lack of importance.
It appears that the sole issue regarding the award of Intervenor Funding is whether
DANe is a "local party" pursuant to PSL § 160(9). It does not appear to be a dispute as to
whether DANe "may be affected" by the proposed project. Therefore, the sole issue to be
addressed from the reasoning you sent me is whether DANe is "local" as that word is used
in PSL § 160(9). On the face ofPSL § 160(9) and its legislative history, it appears that it is.
However, the reasons set forth in your email indicate a dichotomy exists between
state and local; even though PSL § 160(9) and § 1 000.10(a) of the implementing regulations
makes no such differentiation. The term "state" is not even used in the statutory language
in reference to the intervenor funds. It is respectfully submitted that based upon the plain
language of the statute and the implementing regulations, DANe is a "local party".
Your email indicates the reason for your initial determination is that DANe is
not local and "is in fact a state entity". The following is intended to address those stated
Public Authorities Law ("PAL") Section 2703 (4) in relevant part states:
The members, officers and employees of the Authority
shall be deemed to be state officers or employees and the
Authority shall be deemed a state agency SOLELY for the
purposes of sections seventy-three and seventy-four of the
public officers law. (emphasis added).
The operative word is solely. Section 231 of McKinney's Statutes reads that:
In the construction of a statute, meaning and effect
should be given to all its language, ifpossible, and words are not
to be rejected as superfluous when it is practicable to give to
each a distinct and separate meaning.
Section 240 of McKinney's Statutes states:
The maxim expressio UnIUS est exculsio alterius is
applied in the construction of statutes, so that where a law
expressly described a particular act, thing or person to which it
shall apply, an irrefutable inference must be drawn that what is
omitted or not included was intended to be omitted or excluded.
Section 232 of McKinney' s statutes reads:
Words of ordinary import used in a statute are to be given
their usual and commonly understood meaning, unless it is plain
from the statute that a different meaning is intended.
In light of the above-referenced rules of statutory construction, it is respectfully submitted
that the legislation creating DANC is very clear that DANC is not a state agency, except for
two limited express provisions of the Public Officers Law which deal with ethics and
conflicts of interests. Applying the above rules of statutory construction, for the purposes
of PSL Article X, DANC clearly is NOT a state entity or agency.
This reading of the PAL Section 2703(4) is consistent with other relevant sections
of the legislation creating DANe. (see McKinney's Statutes Sections 97 and 98).
While the Governor appoints five non-voting members, PAL Section 2703(2) IS
clear, "The powers of the Authority shall vest in the voting members, thereof' (emphasis
added). The voting members are appointed by the three "Participating Counties" Boards of
Legislators and the Common Council of the City of Watertown, all local governments. The
voting members file their oaths of office with their County Clerks of their respective
residencies, as required by Section 10 of the Public Officers Law. The voting members do
not file their oaths of office with the Secretary of State, as they are not state officers as
defined in Section 2 of the Public Officers Law, but are local officers. PAL Section 2703(1)
requires each voting member to be a resident ofthe appointing municipality. State Officers
typically can reside anywhere in the State (see, Hulbert v. Craig, 124 Misc 273, affirmed 213
AD 865, affirmed 241 NY525).
In the event that DANC is terminated, its property and rights pass to and vest in the
counties, not the State (see PAL §2703(7); cf. discussion of Lake Champlain Bridge
Commission and Commissioners of the Niagara Reservation, infra.) The term "Participating
Counties" is defined in PAL §2702(7) as meaning Jefferson, Lewis and St. Lawrence
Counties. The term Participating Counties is used throughout PAL Title 29 (e.g. PAL
§§2705, 2706, 2708, 2709, 2710). The term is used to convey an intent that DANC is a local
entity. Any bonds or other financial obligations issued by DANC are not a debt of the
State (see, PAL §2711 (11)).
DANC's authority to undertake the infrastructure projects set forth in PAL Title 29
is limited to the three Participating Counties. (e.g. PAL §§2706, 2707, 2708, 2709; cf. 1912
Opn of Atty Gen. 113)
In response to your observation concerning PAL §2720, those services may be
provided to DANC, but those state entities are not required to provide those services. The
section merely states what is generally available to any municipality in the state. Please note
that the vast majority of opinions issued by both the Comptroller and Attorney General are
in response to municipal inquiries. The Division of Audit and Control's primary mission is
to serve and oversee local governments and their finances.
Finally, in response to your comments as to analogies to other entities, we note the
Lake Champlain Bridge Commission
This was a six member commission, 3 members of which were appointed by the
Governor of New York and 3 were appointed by the Governor of Vermont. Its sole
responsibility was the construction and maintenance of a bridge across Lake Champlain to
connect the two sovereign states. It was supported with annual appropriations from both
states legislatures. It was abolished in 1987 and its functions and properties and rights
in New York were taken over by the New York State Department of Transportation. (See
Laws of 1986, Chapter 918).
In this comparison, DANC bears no relevant similarities to this defunct Commission in that
the Regional Waterline is not supported financially by annual State appropriations, and
DANC's governing board in which its powers are vested, is not appointed by the Governor,
but its constituent local government legislative bodies. DANC's waterline is not part of a
bi -state compact, while the Commission was to provide a vital transportation link for persons
and commerce between two sovereign states and their people. DANC's regional waterline
is a local source of water for local residents. In the event of DANC's termination, the
transfer of its rights and property is to the local levels of government, not the State of New
York. (See Laws of 1986 Chapter 918.); also, see former NY State Finance Law §92-M, a
copy of which is attached for convenience.) Finally, DANC still exists and the Lake
Champlain Bridge Commission is gone.
The Commissioners of the Niagara Reservation
The Niagara Reservation was the predecessor to the current State Park at Niagara
Falls and was established in concert with the Province of Ontario and the Canadian
Government. The Commissioners of the Niagara Reservation was created by Legislature in
1883. Its voting members vested with the power to act on its behalf were all appointed by
the Governor and were not residents of Niagara County, in fact, three of the five initial
members were residents of New York City. The funds of the Commission were provided
by appropriations of the State Legislature. The Commission was abolished by the Laws of
1928, Chapter 242 and the park is now governed by Parks, Recreation and Historic
Preservation Law (PRHPL) §7.03, (for a contemporaneous history of the inception of the
Commissioners of the Niagara Reservation see the attached article in the New York Times
published May 24 , 1 883 which can be found at:
A0915FD3F55 1 173 8DDDADOA94DD405B83 84FOD3.)
In 1912 Opn of Atty Gen 113, the opinion makes note that the Commissioners did not
have to reside in the locality of the Reservation, could acquire land anywhere in the State and
that it would submit any revenues it derives to the state treasury. It is respectfully submitted
that this defunct ancient Commission, which was a predecessor to an important part of the
current State Parks system, under the jurisdiction of the Office of Parks, Recreation and
Historic Preservation, is not analogous to DANC in its character or nature. The Commission
was created to preserve, protect and promote one of the seven natural wonders of the United
States. By contrast DANC runs a local regional waterline to serve a sparsely populated rural
area with a source of potable water from a local source.
Finger Lakes State Park Commission
This Commission is not analogous to DANe. The Finger Lakes State Commission is
one of the twelve parks regions that the State is divided into byPRHLP §7.01 and is the fourth
region established by PRHLP §7.03(4). Its only members are appointed by the Governor, with
the advice and consent of the Senate (See PRHLP §7.05(l). None of the members of which
need to reside in the areas of the region comprising the Finger Lakes Region of the Parks
System (cf. PRHPL §7.05 and PAL §2703(1». It is a component fo the State Department of
the Office of Parks, Recreation and Historic Preservation (See Article 7 ofPRHPL). The case
referred to by reference in the annotations to Section 2 of the Public Officers Law appears to
be Hulbert v. Craig City Comptroller, 124 Misc 273. In that case the plaintiff was a City of
New York Alderman who was contending that he did not forfeit his position as an alderman
to the City of New York by accepting an appointmentto the Finger Lakes Park's Commission.
The issue in that case was whether the position on the Park's Commission was a "state
office", because under the New York City Charter he would have vacated his city
government position by taking a state office. The Court held that the position was a state
office and not a local office, because it was an appointment by the Governor with the advice
and consent of the Senate, the powers were not restricted to an area of the state and that
qualifications for appointment were not restricted to residency within the region of the State
for those State Parks (id. at 275). The oath of office was filed in the Secretary of State and
not the political subdivision where the plaintiff resided. The Court held the plaintiff held a
state office based on those facts, and thus vacated his position as a New York City Aldennan
pursuant to the provisions of the City of New York Charter.
However, those are not the facts or law in the instant matter. The voting members of
DANC must be residents of the municipality appointing them (see, supra); the appointing
authority is not the Governor but the Participating Counties and the City of Watertown (see,
supra). The geographic authority of DANC is limited to the Participating Counties (see,
supra). The funding ofDANC is not supported by annual appropriations of the Legislature
(see, DANC's original request for intervenor funding) . It is respectfully submitted that the
foregoing decision is not to analogous to DANC in the matter at hand.
In summary, as stated in the initial request for intervenor funding, if such request is
denied the net result is that the local ultimate end-users of the water provided through the
Western Jefferson County Waterline will, of necessity, have to pay the all costs associated
with DANC'S participation in the Article X process, to protect DANC' s and their ultimate
interests in the waterline. This obviously runs contrary to the purpose and intent of the
Intervenor Funds requirement as evidenced by the plain language ofPSL Article X and the
regulations promulgated thereto. In addition, it is contrary to the Legislative history contained
in the Bill Jacket of the Legislation authorizing PSL Article X. (See, supra.)
There is nothing in the language of PSL Article X or the regulation promulgated
thereto which differentiates between a State or local agency, but assuming there is, DANC is
not a State agency because:
1) The language creating DANC is clear that for the purposes of PSL
Article X it is a local not a State agency (PAL §2703( 4); and supra.)
2) DANC is not analogous to the entities cited in your email. (see, supra.)
3) DANC has no more benefit from the Attorney General, Audit & Control
or other state agencies than that afforded every municipality of the State.
It is respectfully requested that DANC be awarded the Intervenor Funds it requested
to avoid unnecessary burdens to its ultimate end-users to cover the costs necessary to protect
its and their interests in this PSL Article X proceeding commenced by the application of a
subsidiary of a large multinational enterprise. The incomplete nature of the Applicant's
Preliminary Scoping Statement as it relates to the potential impacts on the Waterline, further
necessitates DANe's active involvement in the preapplication phase of this PSL Article X
proceeding and, further justifies DANC receiving the requested intervenor funding.
In light of the foregoing, DANC's initial request for intervenor funding, and its
comments in the Preliminary Scoping Statement, it is respectfully submitted that the law and
equity requires that DANC's request for intervenor funding be granted. Thank you for this
opportunity to respond.
N. Y. STF. LAW § 92-m : NY Code - Section 92-M: Lake CIJ ampJain bridges fund Page 1 of 2
In a FOR LEGAL PROFESSIONALS
.L .Y STF. LAW § 92-m ; NY Code - cction 92-M: Lake Champlain
Search N.Y. STF. LAW § 92-m : :"IV Code - Section 92-M: Lake Champlain bridges fund
1 . There is hereby established in
the custody of the state comptroller che commissioner o f taxation
and finance a special fund t o be knOl<O as the "Lake Champlain b r idges
fund " .. hich shal l oe c lassified by the cOl!'.ptroller in the capital
projects fund t ype .
2 . Such fund shall consist of all moneys of the Champlai:o bridge
c ommission determined to bel ong to the state of New York unde r a chap t e L'
o f the laws of nineteen hundred eighty- si x enti tl ed '!An Act in reJation
to providing for t he tL'ansfer to the New York sta te department of
transportation and the Vermont agency of transportat ion of che duties ,
functions a nd responsibilities of t he Lake Champlai n bridge commi ssion
and to amend the state finance law, in relation to che establishment of
a Lake Champlain bridges fund , and to repeal chapte::- chr"e hundred
twenty-one of the laws of nineteen hundred cwenty- s ven relating to the
creation o f t.he Lake Champlain bridge c ommis s i on ", and purs uant to an
agreement between the states of Ne\'l YO.rk and Vermont , inc lud i ng but not
limited t o bank deposits, notes and certificates and shall be
t ransferred to the comptroller by the Lake Champlain bridge conuni ssion
for deposit into the Champlain bridges fund as est.ablished by this
s e c tion.
3 . Noneys of the f und foil owing appropriation by the legi slature cO
the department o f transportation and allocation by the direct.or of the
budge;: , shall be available t o pay from such fund ( a j the outstanding
obligations of the c ommissi on that have been incurred or that may be
incurred on or before he effective date of this section, and which have
been assigned to and acc epted by the New York state department of
transpo rtation in an agreement to be enter d into ", i h the Vermont
agency of transportati.on pursuant to secti.on t:hree of a chapter of the
laws of nineteen hundred eighty- six entitled "An Act in r elation t o
providing for the transfer cO the New York department of
transportation and the Vermont agency of transportaLion of the dut.ies,
functions and res ponsibiljties of the Lake Champl ain bridge commiss ion
and to amend the state finance law, in relation to the establishment of
a Lake Champlain bridges fund, and to repeal chapter three hundred
t\>Jenty-one of the laws o f hundred twenty-seven relating t o toe
creation oi the Lake Champla i. n bridge commission", (b) expenses relat.ed
to the d.i:;solution of the I..ake Champlain bridge commiss i on , and (c) the
http: //codes.Jp.fmdlaw.com/nycode/ TFIGI92-m 5124/20 [3
N. Y. STF. LA W § 92-rn : NY Code - Section 92-M: Lake Champlain bridges fund Page 2 of2
cost of improvements to the Lake Champlain bridge .
4 . Notwithstanding the provisions o f any general o r special lcti-J , no
moneys shall be avai l abl e from the La ke Champlain bridges fund until a
0:: approval of availabiljt:y shal l have been issued by the
of the budget, upon the reCOI'!li."i1en ation of the c ommissioner 0 ::
transpor atj on , and a copy of such certif_l c ate filed ;",li th t_he state
comptroller , the chalrman of the senate financ e conunittee and the
cha irman of the assembly ways and means cornmittee . Such c ertificate may
be amended fron: time to time b y the director of the budget, upon the
r.econrrnenddtion of the commissioner of transportation, and a c opy of each
such amendment s haLi be filed wi t.h the state compt.roller , the c ha Lrman
of t.he senate finance cormnittee and the chairman of t he assembly >lays
and me ans committee.
5. Any mone ys in such fund, at the discretion of the stace
comptroller , may be i nvested jn securitiss and obligacions defined by
sections ninety- eight and ninety-eight-a of this article . Any ir..come or
interes t from suc h investment shall be cre dited to such fund .
6 . The moneys, f ol l owing allocation, shall be paid out. of t he fund on
the audit and warrant of the c omptroller on vouchers certified or
approved by the o f transportation, or by an officer or
empl oyee of the depa""tment of trans por tati on designated by the
FUNDS OF THE
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