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Home My WebLink AboutLilco Bond Act - 1986 COpy FOR YOUR INFORM~TION BOARD OF ELECTIONS GEORGE WOLF DEMOCRATIC COMMISSIONER COUNTY OF SUFFOLK YAPHANK. NEW YORK 11980 TEL 924.4300 WILLIAM J. CANARY, JR. REPUBLICAN COMMISSIONER Honorable Judith T. Terry Town Clerk, Town of Southold Southold Town Hall 53095 Main Road Southold, N.Y. 11971 ---" ~-...., < \I. l .' ..".... .:...( ,.,. ,. . '.-"'. "). "" ..... - ~~~ . .,--t.. .:0:'.' ,\... \. \ ~' :"&\W~!l'lll,... ' -j ..' -, ,- t \ : ":".' 'tl;.I;,'c'. t,' t;"f j>5; \' ?lj" I".',~,')i)ii.:,('\"" 1.~"~rl~)l\j..,~,.(. ~"7< :!"'..:lla:/'.' ~... ,"v J ...::.~_t../..___~___________;_.;.. '. ~ " \b.\. ~~t ,\. ..f.~ ~ \ ~'/~ ..., -'" ~.'!'~ :""~.. . "Nl",~/iJ)J~""':l...~'::\{~"~'~-' , '~~"'~'!'-1"/I""~; ,:1. ;. ;s.g~7~J:, ').' ~'f'< ~. -.;' ~..ioio~~,;,'~~ . November 17, 1986 Dear Mrs. Terry: We, William J. Canary, Jr. and George Wolf, Commissioners of Elections in and for the County of Suffolk, pursuant to instructions received from your office, have directed to be placed on the ballot, at the November 4th, 1986 General Elec- tion, the following proposition: BALLOT PROPOSAL NO. THREE TOWN PROPOSITION NO. ONE SHALL "Resolution and Bond Act authorizing the Town of Southold, New York (A) to establish, own and operate a public utility service system (B) to acquire the distribution facilities of the Long Island Lighting Company within the Town but outside the boundaries of the Village of Greenport and Greenport's service terri- tory in School District No. 10 to construct necessary additions thereto at an estimated maximum cost of $23,555,000. (C) to apprqpriate said amount therefor, (D) to issue $23,555,000. general' obligation serial bonds of the Town, or so much thereof as may be necessary to finance said object or purpose, and (E) to levy a tax to pay the principal of and interest on said bonds and to establish rates, rentals and charges for the services rendered sufficient to pay all operating costs and principal and interest on said bonds and to be budgeted as an offset to any such tax," (Adopted July 29, 1986) BE APPROVED? The Total YES Vote The Total NO Vote 2,907 3,147 Therefore, we do hereby certify that the above canvass and recanvass for the General Election, held on the 4th day of November, 1986 is a true and complete copy of the original on file in the office of the Suffolk County Board of Elec- tions. IN WITNESS WHEREOF, We have hereunto set our hands and affixed the seal of the Board of Elections of Suffolk County this 17 th day of November, 1986, at N w Y k. Sincerely, , "-_....:...........:.......,,.... William J. Canary, Jr. ,.."'.........:1"'1"'.:,............... ROBERT W. TASKER Town Attorney RECEIVED _ '.' _~")i>::> l'~:;, /'\ '-c~ ,"__ c""'4 "\ .,.---,." ,,,...."t ! " ") "'"~:,-~ ~ OFFICE OF \O~ ~Jl'ORNEY TOWN OF SOUTHOLD '',.''<-~)'A.\I ~__J/?' _., --y".>.-.,':Y "?o.:ij ':.'V ~--. "'~~;2:L~~tP TELEPHONE (516) 477-1400 AUG 8 1986 Tn..", CfE'rk ~outhold 425 MAIN STREET. P.O. BOX 697 GREENPORT, L.I., NEW YORK 11944 August 8, 1986 Hon. Judith T. Terry Southold Town Clerk Southold Town Hall Southold, New York 11971 Re: Proposition for November General Election Dear Judy: I have prepared and enclose herewith a "Notice of Proposition to be Submitted at the General Election to be held on November 4, 1986", which contains the form of the Proposition to be submitted to the electors and to which is attached an "Abstract" of the Resolution and Bond Act stating the purpose and effect thereof. Section 360 (5) of the General Municipal Law provides that notice of the submission of the Resolution must be published once in each week for six consecutive weeks immediately preceding the November 4, 1986 General Election. According to my calculation the notice must be published on September 25, October 2, 9, 16 23 & 30. The notice should also be posted on the Town Clerk's bulletin board on or prior to September 25th. You should oftain affidavits of publication and prepare an affidavit of posting, and they should be filed in your office. Section 4-108 subd. (1) (b) of the Election Law requires that the Town Clerk at least 36 days prior to the election transmit to the Board of Elections "a certified. copy of the text of such proposition" and a statement of the form in which it' is to be submitted. It would seem to me that a certified copy of the enclosed notice of submission of the proposition would satisfy these requirements. Yours very truly, #~ ROBERT W. TASKER enc. TOWN OF SOUTHOLD NOTICE OF PROPOSITION TO BE SUBMITTED AT THE GENERAL ELECTION TO BE HELD ON NOVEMBER 4, 1986 NOT ICE IS HEREBY GIVEN that at the General Election to be held on November 4, 1986, between the hours of 6:00 o'clock A.M. (E.S. T.) and 9:00 o'clock P.M. (E.S.T.). the following Proposition will be submitted to the qualified electors of the Town of Southold, to wit: PROPOSITION NO. 1 SHALL "Resolution and Bond Act authorizing the Town of Southold, New York (A) to establish, own and operate a public utility service system, (B) to acquire the distribution facilities of the Long Island Lighting Company within the Town but outside the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10 to construct necessary additions thereto at an estimated maximum cost of $23,555,000. (C) to appropriate said amount therefor, (D) to issue $23,555,000. general obi igation serial bonds of the Town, or so much thereof as may be necessary to finance said object or purpose, and (E) to levy a tax to pay the principal of and interest on said bonds and to establish rates, rentals and charges for the services rendered sufficient to pay all operating costs and principal and interest on said bonds and to be budgeted as an offset to any such tax," (Adopted July 29, 1986) BE APPROVED? NOTICE IS FURTHER GIVEN that the polling places in each of the respective election districts of the Town of Southold shall be the same polling places as shall be used for voting at the General Election held on that day. An abstract of said Resolution and Bond Act stating the purpose and effect thereof is as follows: ABSTRACT FIRST: RECITING that the Town of Southold (the "Town") retained R. W. Beck and Associates to prepare a preliminary feasibility study for the acquisition and operation by the Town of certain of the electric distribution properties of the Long Island Lighting Company, Inc. within the Town; that such study concluded that such acquisition and operation can result in savings in the cost of electricity to consumers in the Town; that Section 360 of the General Municipal Law empowers any municipality of the State to construct, lease, purchase, own, acquire use and/or operate any public utility service within or without its territorial limits for the purpose of furnishing to itself or for compensation to its inhabitants any service similar to that furnished by any public utility company specified in Article 4 of the Public Service Law; and that any resolution of the Town Board setting forth the proposed method of constructing, leasing or acquiring the plant and facilities for such service together with the maximum and estimated cost thereof, and the method for furnishing such service shall be submitted for the approval of the electors of the Town at the next general election in such Town held not less than ninety (90) days after the adoption thereof; SECOND: AUTHORIZING the Town to establish, own and operate a publ ic electric utility service system within and lor without its territorial limits or within any part of its territorial limits, for the purpose of furnishing to itself and for compensation to its inhabitants any service similar to that furnished by any public utility company specified in Article 4 of the Public Service Law; providing that the Town may in the future, construct, lease, purchase, own, acquire, use and/or operate any additions, to such system within or without its territorial limits for the purpose aforesaid; providing that for such purpose the Town is hereby authorized to purchase gas or electrical energy from the State of New York or from any State agency or other municipal corporation or from any private or publ ic corporation. THIRD: Stating that the proposed method of providing such public utility electric system is by the acquisition of certain distribution, substation and transmission facilities of the Long Island Lighting Company either through purchase or condemnation proceedings and by the construction of additions and incidental improvements as necessary to provide for such electric service, stating that while acquisition of facilities to serve the entire Town of Southold may be undertaken pursuant to future resolutions, electric service would be provided through the facilities acquired pursuant to this resolution solely to an electric utility district which will be comprised of the territory within the boundaries of the Town outside of the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10; further setting forth the transmission and distribution facilities to be acquired by purchase or condemnation. FOURTH: Stating that the maximum and the estimated total cost of such acquisition and construction under the aforesaid proposed method is $23,555,000. -2- FIFTH: Stating the proposed method of furnishing such electric service, once such system is acquired as aforesaid, is to consist of (a) purchasing power from the Power Authority of the State of New York, and any other sources as may be required to ensure power availability to all the electric system's customers, (b) delivering such power to the Town's electric service system for distribution to its electric customers over the transmission facilities of the Power Authority of the State of New York and the transmission substation and distribution facilities of Long Island Lighting Co., and such other entities as may be required to ensure power availability to all of the electric system customers, (c) installing metering equipment to monitor power flow between the Town's electric system and Long Island Lighting Company's remaining electric system, and (d) constructing any necessary additions to the existing distribution facilities so acquired as aforesaid. SIXTH: Stating that the Town's utility system shall be administered by a Town Utility Board to be established and whose members will be appointed by the Town Board; providing that such Utility Board is authorized to operate the municipal utility throughout the boundaries of the Town, outside of the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10, or, at the Board's discretion, in any section or portion of the Town in which municipal service has been authorized. SEVEN TH: Stating that the method of operation of, and the rates, rentals and charges for such service shall be fixed by the Town Utility Board in the manner provided by law and the indebtedness of the Town -~- issued for such purpose shall be self-liquidating, and the power. of the Town to contract indebtedness shall be excludable from the Town's constitutional debt limit pursuant to Section 123 of the Local Finance Law upon appl ication to and approved by the State Comptroller. EIGHTH: Authorizing the issuance of $23,555,000 of serial bonds of the Town for the acquisition and construction of the aforesaid utility system; stating the estimated maximum cost of such specific object or purpose is $23,555,000, including buildings, land, furnishings, equipment, apparatus, and other costs incidental thereto. N I NTH: Stating the plan of financing is the issuance of $23,555,000 serial bonds and notes in anticipation of the sale of such bonds; stating that all the taxable real property within the Town shall be subject to the levy and collection of a tax to pay the principal of said bonds or notes and the interest thereon as the same shall become due and payable, and electric service rates, rentals and charges for services rendered shall be fixed, charged and collected in order that the revenues therefrom, after deducting in each year all of the costs of operation, maintenance and repairs of the system for such year, will be sufficient to pay the principal of and interest on such bonds or notes and shall, and are hereby authorized to, be budgeted as an offset to any such tax. TENTH: Determining the period of usefulness of said specific object or purpose is thirty (30) years; that current funds are not required by the Local Finance Law; that the proposed maturity of the bonds authorized therefor will exceed five years. -4- ELEVENTH: Delegating to the Supervisor, the chief fiscal officer of the Town, the powers and duties as to the issuance of said bonds and notes, and any bond anticipation notes issued in anticipation of said bonds, or the renewals thereof. TWELFTH: Determining that said bonds and notes issued in anticipation of said bonds and the renewals of said notes shall be general obligations of the Town and pledging to their payment the faith and credit of the Town. THIRTEENTH: Stating that the validity of the bonds authorized by said resolution and of any notes issued in anticipation of the sale of said bonds may only be contested if: (a) the same are authorized for a purpose for which the Town is not authorized to expend money, or (b) the provisions of law which should be complied with at the date of the publ ication of such Resolution are not substantially complied with, and an action, suit or proceeding contesting such validity, is commenced within twenty days after the date of such publication; and FOURTEENTH: Stating that said Resolution and Act shall not become effective until submitted to and approved by the qualified voters of the Town at the general election to be held on November 4, 1986. Dated: September 22, 1986 Judith T. Terry Southold Town Clerk -5- :1 ~ LEGISLATION n P' version 3: Southold acquires LILCO's distribution system within the Town, outside of the boundaries of Greenport and Greenport's service area in School District No. 10; the Town utility system to be owned and operated by Southold. ; .. EXTRACT OF MINUTES " ..l Meeting of the Town Board of Town of Southold, Suffolk County, New York , 1986 * * * A meeting of the Town Board of the Town of Southold, Suffolk County, New York, was held at , New York, on , 1986, at o'clock .M. (D.S.T.). There were present: Board Members There were absent: Board Members Also present: , Town Attorney , Clerk of the Town Board * * * Board Member offered the following Resolution and Bond Act and moved its adoption: RESOLUTION AND BOND ACT AUTHORIZING THE TOWN OF SOUTHOLD, SUFFOLK COUNTY, NEW YORK (A) TO ESTABLISH, OWN AND OPERATE A PUBLIC UTILITY SERVICE SYSTEM, (B) TO ACQUIRE THE DISTRIBUTION FACILITIES OF THE LONG ISLAND LIGHTING COMPANY WITHIN THE TOWN BUT OUTSIDE - 2 - . ~ ~ ~ THE BOUNDARIES OF THE VILLAGE OF GREENPORT AND GREENPORT'S SERVICE AREA IN SCHOOL DISTRICT NO. 10 AND TO CONSTRUCT NECESSARY ADDITIONS THERETO AT AN ESTIMATED MAXIMUM COST OF $23,555,000, (C) TO APPROPRIATE SAID AMOUNT THEREFOR, (D) TO ISSUE $23,555,000 GENERAL OBLIGATION SERIAL BONDS OF THE TOWN, OR SO MUCH THEREOF AS MAY BE NECESSARY TO FINANCE SAID OBJECT OR PURPOSE, AND (E) TO LEVY A TAX TO PAY THE PRINCIPAL OF AND INTEREST ON SAID BONDS AND TO ESTABLISH RATES, RENTALS AND CHARGES FOR THE SERVICES RENDERED SUFFICIENT TO PAY ALL OPERATING COSTS AND PRINCIPAL AND INTEREST ON SAID BONDS AND TO BE BUDGETED AS AN OFFSET TO ANY SUCH TAX. (Adopted , 1986) ~ ~. ~ - 3 - Recitals WHEREAS, the Town of Southold, Suffolk County, New York (the "Town") has been concerned for some time with the high cost of electric power in the Town and the effect of such cost on the economic growth and well-being of the Town: WHEREAS, the Town retained R.W. Beck and Associates, Engineers and Consultants (the "Consulting Engineers") to prepare a preliminary feasibility study for the acquisition and operation by the Town of certain of the electric distribution properties of the Long Island Lighting Company, Inc. ("LILCO" or "the "Company") within the Town which study was submitted to the Town Board (the "Board") through the Town Supervisor on July 9, 1985: WHEREAS, the Consulting Engineers concluded, among other things, and based upon the analysis presented in such report, that the Town's acquisition and operation of certain of the company's electric properties in the Town can result in savings in the cost of electricity to customers in the Town: WHEREAS, Section 360 of, the General Municipal Law constituting Chapter 24 of the consolidated Laws of the State of New York (the "General Municipal Law") empowers any municipality of the State to construct, lease, purchase, own, acquire, use and/or operate any public utility service within or without its territorial limits for the purpose of furnishing to itself or for compensation to its inhabitants any service similar to that furnished by any public utility company specified in Article 4 of the Public Service Law and provides that any resolution of the Board setting forth the proposed method of constructing, leasing , , " - 4 - or acquiring the plant and facilities for such service together with the maximum and estimated cost thereof and the method for furnishing such service shall be submitted for the approval of the electors of the Town at the next general election in such Town held not less than ninety (90) days after the adoption thereof; and WHEREAS, Section 33.10 of the Local Finance Law constituting Chapter 33-a of the Consolidated Laws of the State of New York (the "Local Finance Law") provides that any bond act authorizing the issuance of bonds of the Town to finance any capital improvement shall not become effective until submitted and approved at a general election; NOW, THEREFORE, BE IT RESOLVED AND ENACTED BY THE TOWN BOARD OF THE TOWN OF SOUTHOLD, SUFFOLK COUNTY, NEW YORK (by the affirmative vote of not less than three-fifths of the voting strength of said Board) AS FOLLOWS: Section 1. Pursuant to'the General Municipal Law and other laws applicable thereto, the Town is hereby authorized to establish, own and operate a public electric utility service system within and/or without its territorial limits, or within any part of its territorial limits, for the purpose of furnishing to itself and for compensation to its inhabitants any service similar to that furnished by any public utility company specified in Article 4 of the Public Service Law. Notwithstanding any general or special law, pursuant to the provisions of subdivision 2 of Section 360 of the General Municipal Law, the Town may, in - 5 - . . the future, construct, lease, purchase, own, acquire, use and/or ~ operate any additions to such system within or without its terri- torial limits for the purpose aforesaid. For such purpose the Town is hereby authorized to purchase gas or electrical energy from the State of New York or from any state agency, or other municipal corporation, or from any private or public corporation. Section 2. The proposed method of providing such public utility electric service is by the acquisition of certain distribution, substation and transmission facilities of Long Island Lighting Company either through purchase or condemnation proceedings in conformance with law and by the construction of additions and incidental improvements as necessary to provide for such electric service, which method is hereby authorized. While acquisition of facilities to serve the entire Town of Southold may be undertaken pursuant to future resolutions, electric ser- vice would be provided through the facilities acquired pursuant to this resolution solely to an electric utility district which will be comprised of the territory within the boundaries of the Town outside of the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10. The transmission and distribution facilities which are to be acquired by purchase or condemnation are the 69 kilovolt line which serves peconic and Southold Substations, which emanates from the Riverhead Substation which is located approximately seven miles from the Town line; the 23 kilovolt subtransmission line which runs from the Town line all the way across the peninsula to orient Point; a double circuit 23 - 6 - kilovolt subtransmission line served from Riverhead Substation . which runs through Tuthills Substation into Mattituck Substation; a single circuit 23 kilovolt subtransmission line which runs from Mattituck and ties into peconic, Southold and Orient Point Substations, and continues through Orient Point Substation to serve Plum Island; and two express 13.8 kilovolt distribution feeders from the Southold Substation which provide service to Greenport and Shelter Island. Section 3. The maximum and the estimated total cost of such acquisition and construction under the aforesaid proposed method is $23,555,000. Section 4. The proposed method of furnishing such elec- tric service, once such system is acquired as aforesaid, consists of (a) purchasing power from the Power Authority of the State of New York, and any other sources as may be required to ensure power availability to all the electric system's customers, (b) deliver- ing said power to the electric service system of the Town for distribution to its electric customers at transmission or distri- bution voltages over the transmission facilities of the Power Authority of the State of New York and the transmission substation and distribution facilities of the Company, and such other enti- ties as may be required to ensure power availability to all of the electric system customers, (c) installing metering equipment to monitor power flow between the Town's electric system and the Company's remaining electric system, and (d) constructing any necessary additions to the existing distribution facilities so acquired as aforesaid. - 7 - Section 5. The Town's utility system shall be admin- istered by a Town Utility Board which shall be established and whose members shall be appointed by the Town Board of the Town of Southold, Suffolk County, New York, in the manner provided by law. The utility Board is authorized to operate the municipal utility throughout the boundaries of the Town of Southold, outside of the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10, or, at the Board's discretion, in any section or portion of the Town in which municipal service has been authorized by lawful resolution and approval of the electorate. Section 6. The method of operation of, and the rates, rentals and charges for such service shall be fixed by the Town Utility Board in the manner provided by law and the indebtedness of the Town issued for such purpose shall be self-liquidating and, in ascertaining the power of the Town to contract indebtedness, shall be excludable from the Town's constitutional debt limit pursuant to Section 123 of the Local Finance Law upon application to and approval by the State Comptroller. Section 7. Pursuant to the provisions of the Local Finance Law and the provisions of other laws applicable to the Town of Southold, $23,555,000 in serial bonds of the Town, or so much thereof as may be necessary, are hereby authorized to be issued for the acquisition and construction of the aforesaid utility system. The estimated maximum cost of such specific object or purpose is $23,555,000 including buildings, land or rights in land and the necessary original furnishings, equipment, - 8 - machinery and apparatus and preliminary cost of surveys, maps, plans, estimates, and hearings in connection therewith, and other costs incidental thereto and the financing thereof including but not limited to legal fees, printing or engraving, publication of notices, taking of title, apportionment of costs, and interest during acquisition and construction and said amount of $23,555,000 is hereby appropriated therefor. Section 8. The plan of financing includes the following: the issuance of $23,555,000 serial bonds of the Town or such amount thereof as may be necessary to finance such object or purpose and notes in anticipation of the sale of such bonds; all the taxable real property within the Town shall be subject to the levy and collection of a tax to pay the principal of said bonds or notes and the interest thereon as the same shall become due and payable; and electric service rates, rentals and charges for services rendered shall be fixed, charged and collected in order that the revenues therefrom after deducting in each year all the costs of operation, maintenance and repairs of the system for such year will be sufficient to pay the principal of and interest on such bonds or notes and shall, and are hereby authorized to, be budgeted as an offset to any such tax. Section 9. The following additional matters are hereby determined and declared: (a) The period of probable usefulness of the specific object or purpose for which the bonds authorized by this Resolution and Act are to be issued, within the limitations of Section 11.00 a. 5 of the Local Finance Law, is thirty (30) years. - 9 - (b) Current funds are not required prior to the issuance of the bonds herein authorized or of any notes in anticipation of the sale of such bonds pursuant to the provisions of section 1007.00 d. 3 (c) of the Local Finance Law. (c) The proposed maturity of the bonds authorized by this Resolution and Act will be in excess of five (5) years. Section 10. Subject to the provisions of this Resolution and Act and of the Local Finance Law, and pursuant to the provisions of Section 30.00 relative to the authorization of the issuance of bond anticipation notes or the renewals of said notes and of Sections 50.00 and 56.00 to 60.00 of said Law, the powers and duties of the Town Board relative to authorizing the issuance of any notes in anticipation of the sale of the serial bonds herein authorized or the renewals of said notes and relative to authorizing bond anticipation notes and prescribing the terms, form and contents and as to the sale and issuance of the serial bonds herein authorized and of any notes in anticipation of the sale of said serial bonds or the renewals of said notes, are here- by delegated to the chief fiscal officer of the Town of Southold. Section 11. Each of the serial bonds authorized by this Resolution and Act and any notes issued in anticipation of the sale of said bonds or the renewals of said notes shall contain the recital of validity prescribed by Section 52.00 of the Local Finance Law and said bonds and any notes issued in anticipation of said bonds shall be general obligations of the Town, payable as to both principal and interest by general tax upon all the taxable real property within the town without limitation as to rate or - 10 - amount. The faith and credit of the Town are hereby irrevocably pledged to the punctual payment of the principal of and interest on said bonds and any notes issued in anticipation of said bonds or the renewals of said notes, and provision shall be made annually in the budgets of the Town by appropriation for (a) the amortization and redemption of the notes and bonds to mature in such year, and (B) the payment of interest to be due and payable in such year. Section 12. The validity of the bonds authorized by this Resolution and Act and of any notes issued in anticipation of the sale of said bonds, may be contested only if: (a) such obligations are authorized for an object or purpose for which the Town is not authorized to expend money, or (b) the provisions of law which should be complied with at the date of the publication of such Resolution and Act are not substantially complied with, and an action, suit or proceeding contesting such validity, is commenced within twenty days after the date of such publication, or (c) such obligations are authorized in violation of the provisions of the Constitution. Section 12. The estimate of $23,555,000 as the maximum cost of the aforesaid specific object or purpose is hereby approved, and this Resolution and Act shall not become effective - 11 - until submitted at the general election to be held on , 1986 and approved by a majority of the votes cast on the question of the approval or disapproval of this Resolution and Act. CERTIFICATE I, , Clerk of the Town Board of the Town of Southold, County of Suffolk, State of New York, HEREBY CERTIFY that the foregoing annexed extract from the minutes of a meeting of the Town Board of Said Town duly called and held on , 1986, has been compared by me with the original minutes as officially recorded in my office in the Minute Book of said Town Board and is a true, complete and correct copy thereof and of the whole of said original minutes so far as the same relate to the subject matters referred to in said extract. , IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of said Town this day of , 1986. Clerk of the Town Board (seal) RESOLUTION NO. , ADOPTED , 1986, PROVIDING FOR THE SUBMISSION OF A PROPOSITION AT THE GENERAL ELECTION TO BE HELD , 1986. WHEREAS, on , 1986, this Town Board adopted a Resolution and Bond Act entitled: "Resolution and Bond Act authorizing the Town of Southold, Suffolk County, New York (A) to establish, own and operate a public utility service system, (B) to acquire the distribution facilities of the Long Island Lighting Company within the Town but outside the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10 and to construct necessary additions thereto at an estimated maximum cost of $23,555,000, (C) to appropriate said amount therefor, (D) to issue $23,555,000 in general obligation serial bonds of the Town, or so much thereof as may be necessary to finance said object or purpose, and (E) to levy a tax to pay the principal of and interest on said bonds and to establish rates, rentals and charges for the services rendered sufficient to pay all operating costs and principal and interest on said bonds and to be budgeted as an offset to any such tax." (Adopted , 1986). WHEREAS, Section 33.00 of the Local Finance Law of the State of New York requires that said Resolution and bond Act shall not become effective until submitted at a general or special election and approved by ~ majority of the votes cast on the question of the approval or disapproval of such Resolution and Bond Act; and WHEREAS, Section 360 of the General Municipal Law of the State of New York requires that an Act which authorizes the Town to establish, own and operate a public utility service be submitted for the approval of the Town electors at a general or special election; now, therefore, BE IT RESOLVED BY THE TOWN BOARD OF THE TOWN OF SOUTHOLD: - 2 - Section 1. The following proposition shall be submitted to the voters of the Town of Southold at the general election to be held on , 1986, for their approval or disapproval: FORM OF SUBMISSION OF TOWN OF SOUTHOLD PROPOSITION NO. SHALL "Resolution and Bond Act authorizing the Town of Southold, New York (A) to establish, own and operate a public utility service system, (B) to acquire the distribution facilities of the Long Island Lighting Company within the Town but outside the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10 and to construct necessary additions thereto at an estimated maximum cost of $23,555,000, (C) to appropriate said amount therefor, (D) to issue $23,555,000 general obligation serial bonds of the Town, or so much thereof as may be necessary to finance said object or purpose, and (E) to levy a tax to pay the principal of and interest on said bonds and to establish rates, rentals and charges for the services rendered sufficient to pay all operating costs and principal and interest on said bonds and to be bUdgeted as an offset to any such tax," (Adopted , 1986) BE APPROVED? Section 2. An abstract of such Resolution and Bond Act is as follows: (Insert abstract of Resolution and Act as follows local practice) . Section 3. The Clerk of the Town Board shall forthwith and not less than 29 days prior to said Election forward a certified copy of this resolution to the Board of Elections of the Town of Southold. , 1986 PROVIDING OF TOWN RESOLUTION AND BOND ACT NO. NOTICE OF SUBMISSION OF A PROPOSITION GENERAL ELECTION TO BE HELD ADOPTED FOR THE PUBLICATION AND THEREON AT THE , 1986. RESOLUTION NO. BE IT RESOLVED BY THE TOWN BOARD OF THE TOWN OF SOUTHOLD, AS FOLLOWS: Section 1. The Clerk of the Town Board is hereby directed to cause to be published a coy of Resolution and Bond At , adopted by the Town Board on , No. 1986, together with a notice that a Proposition for the approval or disapproval of said Resolution and Bond Act shall be submitted at the general election to be held on , 1986, such publication to be made once in each of the six weeks immediately preceding said general election, in each of the following newspapers having a general circulation in the Town of Southold, which newspapers are hereby designated the official newspapers for the purpose of said publication: Section 2. Said Notice shall be in substantially the form as follows: NOTICE OF SUBMISSION OF A ELECTION TO BE HELD ON OF SOUTHOLD, STATE OF NEW PROPOSITION AT THE GENERAL , 1986, TOWN YORK. NOTICE IS HEREBY GIVEN that Resolution and Bond Act No. published herewith, has been adopted by the Town Board of the Town of Southold, New York, on , - 2 - 1986, and a proposition for the approval or disapproval of said Resolution and Bond Act will be submitted to the electors of the Town at the general election to be held on , 1986. (Insert Resolution and Bond Act) By order of the Town Board of the Town of Southold, State of New York. Clerk of the Town Board Town of Southold, New York Section 3. The Clerk of the Town Board is hereby further directed to cause to be published in full, a copy of Resolution and Bond Act No. adopted by the Town Board on , 1986, together with the statutory notice attached, as prescribed by Section 81.00 of the Local Finance Law, constituting Chapter 33-a of the Consolidated Laws of the State of New York, such publication to be made once in each of the following newspapers having a general circulation in the Town of Southold, which newspapers are hereby designated the official newspapers for the purpose of said publication: . - 3 - Said publication shall be effected as soon as possible after the canvass of the results of the voting on the Proposition with respect to said Resolution and Bond Act at the general election provided that the said Proposition shall have received the approval of a majority of the votes cast thereon. " 'RlCElVID. OCT 1 4 1986 . . ,..... ......... ~r 1t lie' OFFICE QF TOWN ArrORNEY ,".- , ' ", TOWN OFSOUTHOLD TELEPHONE (5]6) 477-1400 ROHER,!, W. TASKER Tllwn Attorney 425 MAIN STREET. PO. BOX 697 GREENPORT, L.I., NEW YORK 11944 October II, 1986 Wallace L. Duncan, Esq. Duncan, Weinberg & Miller, P. C. 1775 Pennsylvania Avenue N. W. Washington, D. C. 20006 Re: Town of Southold Establishment of Public Electric System Dear Mr. Duncan: In accordance with our telephone conversation on Friday, October 10, 1986, I am enclosing herewith copies of the memorandum decision of Justice William R. Geiler, Supreme Court, Suffolk County (Index No. 86-1379!1), dated August 7, 1986 and the Per Curiam decision of the Appellate Division, Second Department, dated August 22, 1986, which affirmed the Supreme Court Order dated August 8, 1986, which granted L1LCO's motion for a preliminary injunction to enjoin the County of Suffolk from taking any action pursuant to its Resolution No. 1939-86. The County of Suffolk thereafter appealed to the Court of Appeals. Although I do not have a copy of the Court of Appeals Decision, I am advised that the Court of Appeals affirmed the Appellate Division Decision, without an opinion. On July 29, 1986, the Southold Town Board adopted "Version 3" of the Resolution and Bond Act in' substantially the form set forth in your January 1986 Draft of Legislation, together with a second Resolution providing for the submission of a Proposition to the town electors at the November !I, 1986 General Election. Publication of the "Notice of Proposition to be Submitted" is being published in the official town newspapers, commencing on Sept. 25, 1986 and continuing each week through Oct. 30, 1986. All of the above proceedings were taken pursuant to Section 360 of Article 1 !I-A of the General Municipal Law. Although L1LCO raised many issues in its pleadings, you will observe that both courts limited their decisions to the issue of preemption, holding that the Resolution of the County Legislature which authorized the incorporation of the Consumer Electric Corporation (CEC) to acquire LI LCO and lor its assets to provide electric and gas service to L1LCO's present service area is preempted by Title I-A of Article 5 of the Public Authorities Law, as added by Chapter 517 of the Laws of 1986 (The Long Island Power Authority). . . -2- I t would appear to me that the New York courts have construed Title 1- A , Section 5 of the Public Authorities Law as conferring upon the Long Island Power Authority the exclusive authority to acquire L1LCO, and that such law has preempted the Resolutions adopted by the Southold Town Board on July 29, 1986, and that the Town Board is precluded from proceeding to take any action pursuant to such resolutions. I would request, on behalf of the Town Board, that you review the enclosed court decisions and advise the Town Board of your opinion. Yours very truly, ~ RO~f:' wu/ Copies to: Members of the Town Board Wallace L Duncan, Esq. Duncan, Weinberg & Miller, P. C Suite 620 39L1S Freedom Circle Santa Clara, California L108 -~ ", "'. " ,.,- I i 1 1 I I I I I I 08/22/86 16: 17 ,~';::~:; ,~t'!: ~ ~~..B~~~~~L~~D_,'...;i,..",~"..;,.;..;..t,~E~~t~l:":- :'.'f"~"~~">>:;U:fN,:~1Ai:....r~~~,.,,, I.... :, .'!"J..,:..';..'::.....!.:".;.:...-..:..-;..!..:: 3763j P!je SUPREME COURT ; APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT August 22, 1986 ------------..-----.-----------------------.---.-.------------------ HOLLEN, P.J., MANGANO, BROWN, RUBIN and KOOPER, JJ. ------------------------------------------------------.------------- .LONG ISLAND LIGHTING COMPANY, Respondent, - again.t - THE COUNTY 01 SUFFOLK, et al., Appellants, et al., Defendants. -------------------------------------------------------------------- APPEAL by the detendants County ot Suffolk, Peter F. ., Cohalan, Suffolk County Electrical Agency and The Consumer ., Electric Corporation of Long Island, from an order of the Supreme COl,lrt at Tr illl Term (willillm R. Geiler, J.), da ted August 8, 1986, and entered in Suffolk County, which granted the plaintiff's motion for a preliminary injunction and denied their cross motion to dismiSS the complaint. Skadden, Arps, Slate, Meagher & Flom, New York, N.Y. (Jonathan J. Lerner of counsel), and Paul Sabatino II, Hauppauge, N.Y., for appellants. (one brief filed) Shea' Gould, New York, N.Y. (Michael Lesch, John G. Nieolish and Barry V. Sautman ot counsel), and Anthony F. Earley, Jr., Hicksville, N.'!. (Susan E. Silverman of oounsel), for respondent, (one brief filed) r:'" " . .. .~ .' '. -:' _'~"",.'" -fl".. ., '.. ,';"... ,'J'. .... -." ," . "'-' - - uU':: ~,..,"~.-,:.~..:v.:....-.. "-..., "'''';r fl?. .:",.-..".......~". '... "..,J"').~l~~~ t,~~"",. ~.~~.:t1:' ,~i':~" '.'.:.~.;.~."~,,..' 'P'.r!~r.1~"""'~~~'Y". ""~" >,~;t\~~~'" 1'. ..........7~~ 1 - ~.. I' ...........' '.~'i]J,l,~ ., 'iIUl n..~&1tt~':'-~:~..~'~ "~~i& r .~ ~ -.~ ,- . ' Sive, Paget' Riesel, New Yor~, N.Y. (David Sive, Eric Bregman and tawrence A. Goldberg of counsel), for Citizens- Committee 10r A tong Island Power Authority, amicus curiae. PER - -- CUR I A M. ------ On July 28, 1986, the Suffolk County Legislature enacted Resolution No. 850 of 1986, authorizing the formation of a looal development oorporation pursuant to Not-ror-Profit Corporat~on Law SS 402 'and 1411. The looal development oorporation, to be known as the Consumer Electrio Corporation of Long Island (hereinafter the CECl, was inoorporated for the purpo.e of~ inter !!!!, aoquiring the stook and/or assets of the Long Island Lighting Company (hereinafter LILCO) and to provide for the management and operation of LILCO subsequent to its acquisition. Pursuant to the county oresolution, the C!C is empowered to issue negotiable bond. and other obligations 1n order to finance the acquisition of LILCO. Moreover, the CEC i8 to . exercise its discretion in determining whether the acquisition of " LILCO will result in lower rates and to withhold its authorization of any acquisition if such lower rates cannot be attained. Finally, under the county resolution, in the event of an acquisition of LILCO, the CEC is mandated to "forthwith close and decommission the Shoreham [Nuclear POwer] plant" and take "any and all actions to terminate, discontin~e and preclude all pending, current or future licensing proceeding8 before the Nuclear Regulatory Commission (NRC) for the Shoreham Nuclear [Power] Plant". On July 24, 1986, four days prior to the adoption of the Suffolk County resolution, Governor Cuomo signed into law legislation adding a Title l-A to Public Authorities Law article 5 - 2 ~ ..., ::'::~%-.;&~~:~'';J./;~,::~':\.::: ::>1'11 TH bhl"<l ~t:. I r't- u t'lU. iOS::;I tJu...) ___. . , '..,..~"" f'<;>l.' It::' ~.: :~';hl~~~.~l~~.":"~""'~.J.;L~:':fl:'t~\t~~:.'atl.,: "":"~4i~~~It-,_~'~;" ...~ii:.~ ."',l'.'.'.,..,~,",.I' ,':-' ~.~....~~.. .:"'lI.M~..1!Li(J" . w~ __ W~ ~~'~v , , . 1 _ " (L 1986, ch 517) which authorized the acquisition ot LILCO by an entity to be known as the Long Island Power Authority (hereinatter LIPA) (!!!, Public Authorities Law 5 1020-c). The "legiSlative findings and declarations" set forth in Public Authorities Law 5 1020-a state that "[t)here is a lack ot confidence that the needs ot the residents and of commerce and industry in [LILCO's) service are. tor electricity can be supplied in a reliable, etficient and economic manner by [LILCO)". Public Authorities Law 5 1020-a further states that "excessive co.ts and lack ot confidence have deterred commerce and industry from locating in the .ervice area" and that "[t]he investment ot LILCO in [the] Shoreham Nuclear Power Plant has created significant rate increases, .training the economic capabilities of ratepayers in the service area". The legislative determination declares that "[flor all the above reasons, a situation threatening the economy, health and safety exists in the service area". Public Authorities Law S 1020-a . concludes that "[sluch matters of state concern best can be dealt with by replacing such investor owned utility with a publicly owned power authority". To effectuate this objective, Public Authorities Law S 1020-0 creates LIPA, defined as "a .body corporate and politic and a pOlitical subdivision of the state, eKeroising essential governmental and publio powers". Public Authorities Law S 1020-h(1) (a) specifically empowers LIPA to acquire LILCO. Pursuant to Public Authorities Law S l020-h(1) (b). LIPA must, prior to acquisition, enter into negotiations with LILCO for the purpose of acquiring the utility on terms which would reBult in rates equal to or less than rates which would result if LILCO were to continue in operation. Public Authorities Law S 1020-h(2) - 3 - .- -, " ,', ... . ".oJ;..,';:::;,' ':'v,"!'"!-,"" --,III II-I L..oI 11'11-1 t-j U ". '.,'-'~ .;::-:...~' j"" '-', ~...:~ " , I. W--,=' uU I '~-~~~--'" '. T"- .. provides that as a prerequisite to the acquisition ot LILCO's stock and/or as.ets, LIPA must determine, "in its sole discretion", based upon engineering, financial and legal data, studies and opinions, that the rates pl:ojected to be charged atter the acquisition will not be higher than the rates projected by LILCO if the acquisition does not taka place. Significantly, Public Authorities Law article 5, title l-A, also provides tor the decommissioning of the Shoreham Nualear Power Plant (!!!, Public Authorities Law S 1020-h(9]). Pursuant to Laws ot 1986, chapter 517, S 11, however, the substantive provisions of Public Authorities Law artiole 5, title l-A, do not become effective until January 15, 1987. On the same day that the county resolution ~as approved, LILCO commenced the instant aotion seeking, inter !1!!, to declare . the resolution iny~lid and to enjoin its imple~ntation. 8y o~er to show cause dated July 30, 1986, LILCO moved for a preliminary injunction. Thereafter, by notice of motion dated August 4, 1986, the appellants sought dismissal of the LILCO complaint. By order dated August 8, 1986, the supreme Court, Suffolk County, granted the plaintiff'S motion for a prelim~nary injunction upon the ground that the county resolution had been pre-empted by .the State's enactment of Public Au~horities La~ article 5. title l-A. After comparing the Suffolk County resolution and Public Authorities Law article 5, title i-A, the court, in its memorandum decision, concluded that "(t]here is no doubt, from the language employed by the authors of Title l-A, that the State intp.nded to acquire LLLCO by itself". ~he court further ob8ervod that "(t]ho fact that the timetable lIlnd the method is slower than the plan invented by the Suffolk County Legislature is no reason to - 4 - 'J :;......~.:;'<l>::.....;. .:.~~.; ~1~1'..,.'.r.!.;. :'(~';~;; ~.~,''t. .'. ......jl,-" , '"' ,. ~ 1 ,....... '-'....1....1 , , ':':""6?'''''':J'i.t..:i-:::'~'q1~'...'''~~.:i:~...~,.....,.......~'~._.a-:h:a.. ,;' ..~~~.'...i..:......'......;..-...,'-.._ '.t", '. '''''',.' We begin by rejecting the appellants' argument that we mu.t remain indifferent to the objectives of, and the legislative intent disclosed by, the enaotment of Law. of 1986, chapter 517, adding title l-A to article 5 of the Public Authoritie. Law, ~olely because the framers of that legislation thought it provident to delay the implementation thereof until January 1987. To circumscribe our substantive inquiry in such.a fashion would be to adopt a myopic and unaoceptably narrow impediment to the ascertainment of legislative intent. Nor do we subscribe to the appellants' contention that, as a matter of law, the substantive implications and objectives of Public Authorities Law article 5, title l-A, cannot be assessed in terms of their potentially pre-emptive scope until after the effective date of the Laws of 1986, chapter 517. Suffice it to say that, where an intent to pre-empt is discernible, the adoption of such a oontention oould, conceivably, frustrate legislative discretion in gauging the most efficacious juncture at which statutorily mandated acts should be performed. In short, we conclude that the Legislature's decision to delay implementation of Public Authorities Law article ~, title l-A, does not p(Gclude our inquiry into the question of whether the county's resolution has been pre-empted. - 5 ~ .~\~~~~,...t",;,~...~,,i...~!.~-~~i:::"':liiiJr~.~~:~~8~,,'~;'~~,~t.."i.~~~.:.~,~}t!~'~~'i:liA"tJf,lltt~:lwo.- ..~..... ~ '-. -r' - Turning to the substantive pre-emption issue, it is well settled that although " [mJunicipalities have broad powers to enact local legi~lation concerning the health, safety, welfare and morals of residents" they nevertheless are limited in their enactments by "the preclusion against the adoption of local laws which are preempted by State legislation" (Douqa1 v County of Suffolk, 102 A02d 531, 532, !..tl.!! 65 NY2d 668). Moreover,." (wI here a State law indicates a purpose to occupy an entire field of regulation, local regulations are pre-empted regardless of whether their terms conflict with provisions of the State statute or only duplicate them" (Matter of Ames v Smoot, 98 AD2d 216, 218). It ill also settled that, "[tJ'he intent to pre-empt need not be express. It is enough that the ~eqislature has impliedly evinced its desire to do so" (Consolidated Edison Co. of N.Y. v ~own of Red Hook, 60 NY2d 99, 105). As further stated by the Court of Appeals, "(aJ desire to pre~.mpt may be implied from a declaration of State policy by the Legi.lature ... Or from the fact that the Legislature has enacted a comprehsnsive and detailed regulatory scheme in a particular area" (Consolidated Edison Co. of N.Y. v Town of Red Hook, supra, at p 105). Indeed, this court has noted that " (cJomprehensiveness and detail are important in determining the existence of an intent to pre-empt" (Matter of Amel v Smoot, supra, at p 220). Moreover, even where the Leqislature has not pre-empted the field, Suffolk County's -authority to enact looal laws under the Constitution or the Municipal Home Rule Law is conditioned on the exercise of such authority not being inconsistent with any State enaotment" (Consolidated Edi80n Co. of N.Y. v Town of Red Hook, supra, at p 107). "While (theJ two infirmities [of pre-emption and inoonsistencyJ are often . - 6 _ .JiI!~.,\ ..l::.lf .,'" ,''(~''';::;-~:;':;~~~~i'''A'' ,',.' ."'i,.;....Ol!'A"<,,""lil'l'~,.~""'..'''~'" "- f['" \ "'r~" ",..' ." ",:.10, 'i)'-.... l'.'-':J"~. '~-.. *,.:./}r''';,At, ..." ~ - intettelated, each is in itself a sufficient basis fot invalidating a local law. (Consolidated Edison Co. of N.Y. v Town of Red Hook, sugra, at p 105). Our review of the record discloses that Public Authorities Law article 5, title l-A, is a detailed, highly comprehensive, special enactment pursuant to which the power authority created thereunder is specifically authorized to perform the function of acquiring LILCO and transforming it from a private, investor-owned utility into a publicly-owned power authority. We reject the contention that the county-initiated acquisition is compatible or consistent with the acquiring function to. be exeteisad by the statutorily-oreated LtPA. The language of Public Authoritie. Law article 5, title l-A,' buttresses our conclusion in this re.peot. Signifioantly, Public Authorities Law S 1020-c creat.. LIPA for the expre.. purpose of effectuating the policies declared in Public Authorities Law 5 1020-a, paramount among which i. -replacing luch investor owned utility with a publicly owned power authority-. Moreover, Public Authorities Law S 1020-h states, in pertinent part, that, -1. The legislature hereby expressly finds and determines: la) The acquisition by the authority [i.e., LIPAJ, through purchase or the exercise of the power of eminent domain, of either the securities or aasets of LILCO · · * i. the mOst appropriate means of dealing with the emergency involving the economy, health and safety of the residents and the industry and commerce in the .ervice ares- (emphasis added). rurther, Public Authorities Law 5 1020-h(1) (n) states that -(sJuch an acquisition bv the authority * * * .erves the public purpose. of aSluring the - 7 _ .._....,_.a........_ ""', "'-"~'-. ..~ _'_ ,_'...... .L' . . ~ ,..,,,,. ""'~',-t~.'~'j'~-:'~"1";~"-;' .~ =..1'jlltl,""lI'.lic.fr-,..u . liS:! ~ '.01 " - 'otI'~"r:'~!",,-l'-' -...""........,~J..~ ~1JIIl~ :u.:....s.. ~".'_' A ~,~}t-r_.. . 'JII , -....'--'.~~---"I~.t\.>>..i~... I j I I, provieion of an adequate supply of gas and electricity in a reliable, efficient and economic manner and retaining existing commerce and ind~stry · · · all of which are mattere of Itate-wide concern" (emphasis added). The characterization of the LILCO situation as a "Itate-wide concern" i8 repeated ale.where in the stat~te. For example, .in Public Authorities Law S 1020-a, it h Ipecifically stated that "dealing with [the LILCO] ait~ation in an effective manner · · · ie hereby determined to be [a matter] of State concern · · ~ Such matters of atate concern beet can be dealt with by replacing such inv.stor owned utility with a publicly owned power author ity". The appellante nevertheless argue that the acquisition of LILCO by an entity other than LIPA il ultimately consistent with the und.rly~ng.obj.ctives of Public Authorities Law article 5, title l-A, lince, 'inter ill.!, .acquisition by the CEC will facilitate the deoommiesioning of the Shoreham Nuclear Power Plant. They further theorize that the CEC's acquisition of LILCO is not inconsistent with LIPA's acquiring of LILCO since LIPA can simply purchase the utility from the CEC. In fact, as the appellante note, the county resolu~ion specifically authorizes cooperation with LIPA and even the sale of the CEC's assets to LIPA. These contentions are not, however, persuasive. Although Public Autho~ities Law article 5, title l-A, authorizes LIPA to, inter !li!, transfer its assets to private utilities or to a municipal gas or electric agency (Public Authorities Law S l020-flt]l, to cooperate and to enter into contractual arrangements with munioipalities with respect to the conatructton, improvement, rehabilitation, ownership and/or operation ot generating facilities (Public Authorities Law S l020-g[k]), and to - 8 - ~;_'.',' ,.-..~.,''';_.. _ >'. J.'-',:,~--'. . > ._IH LJrW,14LI ,tlV. . _ HU.~ ~~, ~1~~!t).~;"Rl"~ It :~. r -' ~:f. (i~~~-r , ~G1:~;i '~. b '~ll.L " ;,,:'".;,~;;..,;'\lt-~.bl'lIo~';"~\ . .~iM..i;<ny:; UU_I .....\., -t'tl,d b,1....:...~f,I:"'Q...w.. cooperate with private utilitie. and public entit~es in connection with transmission facilities (Public Authorities Law 5 l020-q[j) (iii]I, these and other provisions of Public Authorltiel Law article 5, "title l-A, furnilh no evidence lupportive of the contention that the Legillature anticipated or authorized the initial acquilition of LILCO by an entity other than LIPA. Moreover, we reject the contention that the county'. resolution is consistent with Public Authoritie. L.w article 5, title l-A, because the CEC, if permitted to proce.d, will acquire LILCO immediately and preclude the commi..ioning of the Shoreham Nuclear Power ?lant. AI Justice Geiler obserVedl R(t)he fact that the time table and the method i. Ilower [under title l-A] than the plan invented by the Suffolk County Legislature is no reason to disregard the State's pre-emption in this .r.... rurthermore, in addition to the previously identified confli~t 1n conneotion with . . the acquiring function to be exercised by LIPA under Public Authorities Law article 5, title l-A, we note certain additional inconsistencies in the two enactments. For example, title l-A requires LIPA to enter into negotiations with LILCO prior to exercising its power of eminent domain to acquire LILCO's stock or assets (~, Public Authorities Law S l020-h [1] [b)), whereas the county resolution imposes no such requirement upon the CEC prior to the acquisition ot LILCO's stock or assets. Perhaps more significantly, in approving the Laws of 1986, chapter 517, Governor Cuomo atatad that "[w)hile ratepayer savings are the touchstone for any deciaion to proceed with public power, these savings should not be achieved at the expens& or rat"pay.r~ in other regions of the State" (Governor's memorandum on approving - ~ - I. - -- "--_. .-.~".,... ... .. ~. .........,,-_. . " L 1986, ch 51!, p 2). In this respect, it ia notable that pursuant to Public Authorities Law S l020-q(2), LIPA is required to make payments in lieu of taxes that would otherwise be imposed upon LILCO under, inter ~, Tax Law 51 186, l86-a, l86-b, and and 186-c. The present value of the State's right to receive those tax payments from LILCO in the future has been estimated at approximately,'900,OOO,000, and obViOUSly, the actual receipts would be far in excess of that sum. Under the county plan the CEC, as a not-for-profit corporation, would be exempt frOm such taxe. (~, Not-for-Profit Corporation Law I 14ll[fl), thereby reSUlting in a substantial savings. The savings, however, would only be to the CEC's ratepayers, and the ,re.l,llting los. of tax revenues to the State would have to be shouldered by all its taxpayers. Public Authoriti.. Law article 5, title l-A, moreover, al'O . prohibits LIPA from acqUiring preferenoe hydroelectrio power (!!!, Public Authorities Law 5 1020-cc), where.s no suoh prohibition is contained in the county resolution. The GOvernor'S approval memorandum note. with respect to hydroeleotric power that -[mlore importantly, under this bill, the Authority is speoifically precluded from requesting or obtaining an allocation of preference hydroelectric power from the Power Authority's Niagara and St. Lawrence projects. Therefore, under the bill, ratepayers on Long Island or a Long ISland Power Authority will not obtain acoe.. to low cost hydropower at the expense of ratepayer. in other parts of the State-. Clearly, the differing treatment accorded the.. significant issues by Laws of 1986/ chapter 517, and the county resolution represents a marked inoon.istenoy in important areas of substantive polioy. - 10 - . ...... :..;.:;.....---....,. ~. I -'"..k".'''..".:l'~. ft"('.""'..,...""".",.,........",...'.........V.., ........,.,....... ':;;:..~~.... 0...'.1. J,. ~...-\U.,~...~llII... ,._ .. '" In short, we find no ba.is whatsoeVer to assume that the tramerl of Laws of 1986, chapter 517, anticipated a peremptory. municipal initiative when their own comprehensive enactment creates. a State acquiring authority and characterizes the acquisition of LILCO as a matter of State-wide concern. It il not, moreover, ameliorative of the inconsiltency between the county re.olution and Public Authorities Law article 5, title l-A, to offer, al a palliative, the contention that ultimately LIPA may acquire LILCO from the CEC. The language of the State legislation disclo.ea that the State ha. determined that it mUlt a.sume the not inconsiderable .taak of initially acquiring LILCO and transforming it from a private, investor-owned utility to a publicly-owned power authority. There can be little question that the State Legislature intended to confer upon LIPA the exclulive authority to acquire LILCO and that Public Authorit~ea Law article 5, title l-A, neeeslarily. occupies the field in'~onn.ction with auch acqUisition. Thus, we conclude that implementation of the Suffolk County resolution was properly enjoined. In light of our decision, we do not reach the remaining issuea raised by the parties. Accordingly, the order appealed from should be affirmed, without costs or disburaements. MOLLEN, P.J., MANGANO, BROWN, RUBIN and KOOPER, JJ., conour. - 11 - . FO"J:.. UI~ . MEMORANDUM . August 5, lY86 SUPREME COURT. SUFFOLK COUNTY TRIAL SRICOlmL TERM PART XVI LONG ISLAND LIGHTING COMPANY, By GEILER J. S. C. Plaintiff, vs. DATED August 7, 1986 THE COUNTY OF SUFFOLK, NEW YORK a New York Municipal Corporation, PETER F. COHALAN, in his official capacity as Suffolk County Execu- tive SUFFOLK COUNTY ELECTRICAL , AGENCY and the CONSUMER ELECTRIC - CORPORATION OF LONG ISLAND, and JOHN DOES, 1 through 13, '" 1'1) 8" '''''''Y'' r t': I. rl (~ {,. - / '"'.. f ','" . "" ;~~ ~" ," .. { Defendants. SHEA & GOULD, ESQS. Attorneys for Plaintiff 330 Madison Ave. New York, N.Y. 10017 By~ MICHAEL LESH, ESQ. Of Counsel and ANTHONY F. EARLY, ESQ. 1 Old Country Road Hicksville, N,Y. 11801 SKADDEN, ARPS, SLATE. MEAGHER & FLOM Attorneys for Defendants 919 Third Ave. New Y?rk, N.Y. 10022 THE PROCEEDING The plaintiff, Long Island Lighting Company (hereinafter referred to as LILCO), commenced an action for a judgment declaring a certain resolu- tion, adopted by the defendant County of Suffolk on July 28, 1986, illegal. LILCO simultaneously served an order to show cause to enjoin the defendants from taking any action pursuant to the said resolution during the pendency of this action. The defendants oppose LILCO's request for a preliminary injunction and also seek to dismiss LICO's complaint pursuant to 3211(a) of the Rules of the C.P.L.R. The Court has granted LILCD a temporary restra~n~ng order and this proceeding involves LILCD's request for a temporary injunction and defendant's request to dismiss LILCO's complaint. THE PARTIES A brief description of the various parties is necessary in order to understand the role each of them plays in this proceeding. LILCD, the sole plaintiff herein, is a public service corporation and has been incorporated pursuant to the Transportation Corporations Law of the State of New York and is engaged in the production, distribution and saleo[ electricity and natural gas in the counties of Nassau and Suffolk as well as a portion of Queens County. . . The defendant, County of Suffolk, is a municipal corporation organized pursuant to the Laws of the State of New York, and has govern- mental jurisdiction over an area known as Suffolk County. The chief executive officer of Suffolk County is defendant, PETER F. COHALAN (her.'- inafter referred to as Cohalan) and his official title is County Execu- tive. Defendant, Suffolk County Electrical Agency (hereinafter referred to as SEA) is a municipal agency created pursuant to Suffolk County Local Lm. 22-1983. The members of the SEA total seven and are . made up of the Chief Deputy County Executive, the Deputy County Executive for Finance, the County Attorney, two persons appointed by the County Executive and two persons appointed by the County Legislature. The defendant, Consumer Electric Corporation of Long Island is a local development corporation (hereinafter referred to as CEC) created by a resolution adopted by the Suffolk County Legislature on July 28, 1986. THE JULY 28, 1986 RESOLUTION A perusal of the complaint and the various affidavits and voluminous documents submitted by the parties indicates that a careful analysis of Resolution 1939-86 adopted by the Suffolk County Legislature on July 28, 1986 is crucial to the resolution of this proceeding. The pertinent provisions of said resolution may be summarized as follows: 1. The County Executive is directed to cause the incorporation of CEC pursuant to Section 1411 of the Not-for-Profit Corporation Law. The CEC is to provide electric and gas service to LILCO's present service area which includes Suffolk, Nassau and a portion of Queens Counties. 2. The CEC is specifically empowered to acquire LILCO and/or its assets. 3. CEC, according to the resolution, will serve the purpose of "encouraging the development or retention of industry on Long Island, thereby lessening the burden of government and acting in the public interest by assuring the provision of an adequate supply of electricity and gas in a reliable, efficient and economic manner to the residents and the commercial and industrial enterprises of Long Island through the acquisition of the stock or assets of LILCO." 4. CEC shall enter into a contract with SEA to provide for the management and operation of LILCO subsequent to the latter~s acquisi- tion. This contract is to include a provision providing for the closing of the Shoreham plant and a termination of all licensing procedures before the Nuclear Regulatory Commission. 5. The interim members of CEC's Board of Directors will include the Counsel to the Legislature, one member chosen by the presid- ing officer of the Legislature and two members chosen by the County - 2 - . " . . Executive. The initial Board of Directors will be chosen solely by the County Executive and the County Legislature and can serve for a maximum of two years. A permanent Board of Directors will then be elected approximately within two years after the formation of CEC, from fifteen separate election districts. 6. The CEC Board of Directors, whether interim, initial or permanent, are required to consult with the Suffolk County Legislature in connection with all substantive matters of policy concerning LILCO. 7. CEC shall be permitted to have access to the staffs of the Suffolk Budget Review and of Suffolk County. 8. CEC is to finance its acquisition of LILCO through the issuance of bonds. utilize the resources and County Legislature Office of LIPA The Resolution heretofore mentioned makes mention of transac- tions which may be carried out by LIPA in place of CEC. The Resolution fails to identify LIPA and thus one must turn to Title I-A of the Public Authorities Law enacted by the State Legislature on March 4, 1986 to understand what function LIPA serves. An examination of this legislation indicates that the State of New Yurk set forth a plan to acquire and operate LILCO. The means by which this is to be accomplished is by the creation of the Long Island Power Authority (hereinafter referred to as LIPA). The members of LIPA are to be appointed by the Governor of ~he State of New York, the Speaker of the Assembly and the Temporary President of the Senate. The Act sets forth the course which LIPA is to follow in acquiring LILCO. THE PRE-EMPTION CRITERIA Does the fact, that the State Legislature has addressed the LILCO issue, pre-empt the County of Suffolk from passing legislation concerning LILCO? What is the criteria to be utilized in determining whether there is pre-emption of a local law by State legislation? Municipalities admittedly have broad powers to enact local legislation concerning the health, safety and welfare of its residents. (N.Y. CONST. ART 9, ~2; Municipal Home Rule Law ~lO, subd. 1;). However, this broad power is limited by the preclusion against the adoption of local laws \vhich are pre-empted by State legislation (People v. Cook, 34 N.Y.2d 100). The mere fact that a local law concerns the same matters as State Legislation does not, in of itself, render it invalid on pre-emptive grounds (People v. Judiz, 38 N.Y.2d 529). It is only where the State has evinced an ~ntention to occupy the entire field, marked by a pervasive scheme of State Legislation, or where the local enactment expressly con- - 3 - . . '. . flicts with State legislation, that the local legislation must yield (Pcosle v. Dejesus, 54 N.Y.2d 465; Robin v. Incorporated ViI of Hemp- stea , 30 N.Y.2d 347). . Does the State Legislature have to specifically declare an intent to pre-empt? Pre-emption may be implied from the nature of the subject matter being regulated and the purpose and scope of the State Statutory scheme. (Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99). The Appellate Division, Second Department, clearly stated that "where a State law indicates a purpose to occupy an entire field of regulation, local regulations are pre-empted regardless of whether their terms conflict with provisions of the State Statute or only duplicate them." (Matter of Ames v. Smoot, 98 A.D.2d 216, 218) . STATE LAW vs. LOCAL RESOLUTION Is Resolution 1839-86 passed by the Suffolk County Legisla- ture compatible with Title I-A of the Public Authorities Law? Has the State intended to exclusively acquire and operate LILCO? There is no doubt, from the language employed by the authors of Title I-A, that the State intended to acquire LILCO by itself as evidenced by the following language found in Sections 1020-g(n) a~d Sections 1020-h(1)(a). Section l020-g(n) provides that: "After the establishment of. Long Island Power Authority (LIPA) and the commencement of its function as a utility, LIPA shall acquire from LILCO all franchise and utility service responsibilities for all ultimate consumers of gas and electricity within LILCO's former service ter- ritory, including the responsibility t6 provide safe and adequate service." Section l020-4(1)(a) provides that: "The acquisition by the authority, through purchase or the exercise of the power of eminent domain, of either the securities or assets of LILCO whichever is less expensive for the ratepayers, as the authority may deter- mine will be just to the ratepayers in the service area, is the most apropriate means of dealing with the emer- gency involving the economy, health and safety of the residents and the industry and commerce in the service area, notwithstanding the fact that LILCO presently may be devoted to a public use, since the public use of such property by the authority is hereby deemed to be superior to the public use bf such property by any other person, association, or corporation." - 4 - . . The State Legislature also set forth the specific method by which LILCO was to be acquired as evidenced by the following provision found in Section l020-h (1): UThe authority, prior to exercising its power of eminent domain to acquire the stock or assets of LILCO, shall enter into negotiations with LILCD for the purpose of acquiring such stock or assets upon such terms as the authority, in its sole discretion, determines will result in rates equal to or less than the rates which would result if LILCO were to continue in operation." This Court, after comraring the State Legislation with the Regulation of July 28, 1986 finds that the latter is inconsistent with and is pre-empted by State Law for the following reasons: 1. The local resolution, passed subsequent to the State law, authorizes the creation of CEC for the acquisistion of LILCD and to provide electric and gas utility service to LILCD's service areas. This was passed by the County of Suffolk, notwithstanding that Title lA of the. Public Authorities Law established LIPA for the same exact purposes. 2. The State Legislature determined that the acquisition of LILCOby LIPA is the "most appropriate means" of dealing with the provision of electric and gas utility service to LILCO's service area. Thus, the State, by implication, has determined that the acquisition by LILCO by any other corporation, including CEC, is a less appropriate means of providing electric and gas utility service to LILCO's service area. 3. Title lA of the Public Authorities Act mandates LIPA to enter into negotiations with LILCO prior to exercising its power of eminent domain to acquire LILCO's stock or assets. The Local Law imposes no such requirement upon CEC prior to the acquisition of LILCO's stock or assets. The local law is clearly inconsistent with the State legisla- tion. Furthermore, the State has clearly demonstrated that it alone intends to acquire and control LILCO and unquestionably "occupy the entire field" of the LILCO takeover procedure and for the providing of gas and electricity service in the area now controlled by LILCD. CONCLUSION The statement contained in the Resolution passed July 28, 1986 that ... "nothing contained herein shall be construed as any action inconsistent with the goals and objectives of public power" can only be described as self-serving. The inconsistencies are in no way lessened by this gratuitous language. The County of Suffolk is not omnipotent. It cannot arrogate to itself the power to decide whether one of its local laws is inconsistent with a State Law. - 5 - . . This Court, on a previous oCcasion in holding the LILCO evacuation plan invalid, reminded the utility that this is a govern- ment of law and not of men. (Cuomo v. Lilco, Supreme Court, Suffolk County, Index No. 84/4615). The County of Suffolk must also realize that this same principle applies to them. Our system of government and justice has always strived to reject the Machiavellian notion that the end justifies the means. The State Legislature has pre- empted the whole field of the LILCO takeover. The fact that the time table and the method is slower than the plan invented by the Suffolk County Legislature is no reason to disregard the State's pre-emption in this area. The Court, in view of the fact that Resolution 1839-86 is pre- empted by State law, will not consider the various other arguments advanced against the validity of the said resolution. The preliminary injunction is granted and the defendants' application to dismiss the complaint is denied. Settle order on notice. Dated:. August 7 , 1986 aL~tL ~ k J.pJu, ~illiam R. Geiler, JS.C. - 6 - r SOUTHOLD PROPOSITION NO. 1 Southold Proposition NO.1 will allow the Southold Town Board to: 1. Purchase all of L.1.L.Co.'s assets within the Town of Southold. 2. Establish a publicly-owned and operated electric utility department. 3. Authorize the Town Board to issue General Obligation Bonds in the amount of $23,555,000.00 to establish the Utility Department. The preliminary estimate of $23,555,000.00 the Town could be expected to incur in establishing an electric department is summarized as follows: Allowance for Purchase of Electric Properties. . . . . . . . . . . . . . . . . . . . .$17,210,000.00 Allowance for Cost of Going Concern. . . . . . . . . . . . . . . . . . . . . . . . . . . . 250,000.00 Estimated Cost of Severance and Reconnection ... .... .. .. ..... .. . 251,000.00 Working Capital and Initial Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2,200,000.00 Legal, Engineering, and Financial Costs. . . . . . . . . . . . . . . . . . . . . . . . .. 1,500,000.00 Allowance for Reserve and Contingencies. " .. .. ... .. .. .. ..... ... 2,144,000.00 Estimated Total Investment (Bond Issue) . . . . . . . . . . . . . . . . . . . . . '$23,555,000.00 . Based on 1985 prices with some contingency allowance for price increases and changes during construction. Q. WILL REPAYMENT OF THE BONDS BE DERIVED FROM TAXES? A. The rates and service charges, if set properly, should produce revenues sufficient to pay the principal of and interest on such bonds, cost of operation, maintenance and repairs of the system. Q. IF THERE IS A COST OVER-RUN, CAN THE TOWN SPEND MORE THAN THE ALLOT- TED $23,555,OOO.00? A. No. If more funds are needed, a referendum would be presented to the voter for ap- proval or disapproval. Q. WHAT IS THE UTILITY SERVICE AREA? A. The Utilities Service territory would include the area of the Town except that presently served by the Village of Greenport and Fishers Island. Q. WHO WILL ADMINISTER THE MUNICIPAL ELECTRIC DEPARTMENT? A. The Town would establish a Department which is fiscally independent of all Town opera- tions. The Board may be elected or appointed and formulates policy for the electric utility. The recommendation is that a five member Board be created. Q. WHO HAS THE DAY-TO-DAY RESPONSIBILITY OF OPERATIONS? A. This would be the responsibility of a manager of superintendent. The remainder of the Department's operating staff would generally consist of three line crew, meter readers, meter and operating equipment repair personnel, and an office staff. Q. WHAT ARE THE POSSIBLE SOURCES OF POWER FOR SOUTHOLD? A. 1. Hydropower - Niagra Project; St. Lawrence Project (least expensive source in N.Y.S.). 2. Nuclear Power - Fitzpatrick Power Project (second least expensive source). 3. Power purchased from other publicly-owned or privately-owned utilities. 4. Power pool. Evaluation of the economic feasibility of any of these alternatives must await certain engineering analyses and political decisions. Q. IS THIS REFERENDUM BINDING ON THE TOWN BOARD TO ESTABLISH A PUBLICLY-OWNED AND OPERATED ELECTRIC UTILITY? A. No. If after further investigation the Town Board makes the determination that the for- mation of a Southold Electric Utility is not beneficial to the ratepayers they may abandon the project. PROVIDED BY THE SOUTHOLD TOWN BOARD TO PROVIDE VOTER INFORMATION. . , . " . . RESOLUTION NO. 31, ADOPTED JULY 29, 1986, PROVIDING FOR THE SUBMISSION OF A PROPOSITION AT THE GENERAL ELECTION TO BE HELD NOVEMBER 4, 1986. -'.\ WHEREAS, on July 29, 1986, this Town Board adopted a Resolution and Bond Act entitled: "Resolution and Bond Act authorizing the Town of Southold, Suffolk County, New York (A) to establish, own and operate a public utility service system, (B) to acquire the distribution facilities of the Long Island Lighting Company withi n the Town but outside the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10 and to construct necessary additions thereto at an estimated maximum amount of $23,555,000, (C) to appropriate said amount therefor, (D) to issue $23,555,000 in general obfigation serial bonds of the Town, or so much thereof as may be necessary to finance said object or purpose, and (E) to levy a tax to pay the principal of and interest on said bonds and to establish rates, rentals and charges for the services rendered sufficient to pay all operating costs and principal and interest on said bonds and to be budgeted as an offset to any such tax." (Adopted July 29, 1986). WHEREAS, Section 360 of the General Municipal Law of the State of New York requires that an Act which authorizes the' Town to establish, own and operate a public utility service be submitted for the approval of the Town electors at a general or special election; now, therefore, BE IT RESOLVED BY THE TOWN BOARD OF THE TOWN OF SOUTHOLD: Section 1. The following Proposition shall be submitted to the voters of the Town of SouthoJd at the general eJection to be held on November 4, 1986, for their approval or disapproval: .- " . . . . FORM OF SUBMISSION OF TOWN OF SOUTHOLD PROPOSITION NO.1 SHALL "Resolution and Bond Act authorizing authorizing the Town of Southold, New York (A) to establish, own and operate a public utility service system,(b) to acquire the distribution facilities of the Long Island Lighting Company within the Town but outside the boundaries of the Village of Greenport and Greenport's service territory in School District No.- -TO and to construct necessary additions thereto at an estimated maximum cost of $23,555,000, (C) to appropriate said amount therefor, (D) to issue $23,555,000 general obligation serial bonds of the Town, or so much thereof as may be necessary to finance said object or purpose, and (E) to levy a tax to pay the principal of and interest on said bonds and to establish rates, rentals and charges for the services rendered sufficient to pay all operating costs and principal and interest on said bonds and to be budgeted as an offset to any such tax," (Adopted July 29, 1986) BE APPROVED? Section 2. An abstract of said Resolution and Bond Act stating the purpose and effect thereof is as follows: ABSTRACT FIRST: RECITING that the Town of Southold (the "Town") retained R. W. Beck and Associates to prepare a preliminary feasibility study for the acquisition and operation by the Town of certain of the electric distribution properties of the Long Island Lighting Company, Inc. within the Town; that such study concluded that such acquisition and operation can result in savings in the cost of electricity to consumers in the Town; that Section 360 of the General Municipal Law empowers any municipality of the State to construct, lease, purchase. own. acquire use and/or operate any public utility service within or without its territorial limits for the purpose of furnishing to itself or for compensation to its inhabitants any service similar to that furnished by any public utility company specified in Article 4 of the Public Service Law; and that any resolution of the Town Board setting forth the proposed method of constructing. leasing or acquiring the plant and facilities for such service -2- . . together with the maximum and estimated cost thereof, and the method for furnishing such service shall be submitted for the approval of the electors of the Town at the next general election in such Town held not less than ninety (90) days after the adoption thereof; SECOND: AUTHORIZING the Town to establish, own and-<lj?erate a public electric utility service system within and/or without its territorial limits or within any part of its territorial limits, for the purpose of furnishing to itself and for compensation to its inhabitants any service similar to that furnished by any public utility company specified in Article 4 of the Public Service Law; providing that the Town may in the future, construct, lease, purchase, own, acquire, use and/or operate any additions, to such system within or without its territorial limits for the purpose aforesaid; providing that for such purpose the Town is hereby authorized to purchase gas or electrical energy from the State of New York or from any State agency or other municipal corporation or from any private or public corporation. TH IRD: Stating that the proposed method of providing such public utility electric system is by the acquisition of certain distribution, substation and transmission facilities of the Long Island Lighting> Company either through purchase or condemnation proceedings and by the construction of additions and incidental improvements as necessary to provide for such electric service, stating that while acquisition of facilities to serve the entire Town of Southold may be undertaken pursuant to future resolutions, electric service would be provided through the facilities acquired pursuant to this resolution solely to an electric utility district which will be comprised of the territory within the boundaries of the Town outside of the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10; further setting forth the transmission and distribution facilities to be acquired by purchase or condemnation. -3- " . . FOURTH: Stating that the maximum and the estimated total cost of such acquisition and construction under the aforesaid proposed method is $23,555,000. FI FTH: Stating the proposed method of furnishing such electric service, once such system is acquired as aforesaid, is to consist o~ (al purchasing power from the Power Authority of the State of New York, and any other sources as may be required to ensure power availability to all the electric system's customers, (bl delivering such power to the Town's electric service system for distribution to its electric customers over the transmission facilities of the Power Authority of the State of New York and the transmission substation and distribution facilities of Long Island Lighting Co., and such other entitites as may be required to ensure power availability to all of the electric system customers, (cl installing metering equipment to monitor power flow between the Town's electric system and Long Island Lighting Company's remaining electric system, and (dl constructing any necessary additions to the existing distribution facilities so acquired as aforesaid. SIXTH: Stating that the Town's utility system shall be administered by a Town Utility Board to be established and whose members will be appointed by the Town Board; providing that such Utility Board is authorized to operate the municipal utility throughout the boundaries of the Town, outside of the boundaries of the Village of Greenport and Greenport's service territory in School District No. 10, or, at the Board's discretion, in any section or portion of the Town in which municipal service has been authorized. SEVENTH: Stating that the method of operation of, and the rates, rentals and charges for such service shall be fixed by the Town Utility Board in the manner provided by law and the indebtedness of the Town issued for such purpose shall be self-liquidating, and the power of the Town to contract -4- . . indebtedness shall be excludable from the Town's constitutional debt limit pursuant to Section 123 of the Local Finance Law upon application to and approved by the State Comptroller. EIGHTH: Authorizing the issuance of $23,555,000 of serial bonds of the Town for the acquisition and construction of the aforesaid_ utility system; stating the estimated maximum cost of such specific object or purpose is $23,555,000, including buildings, land, furnishings, equipment, apparatus, and other costs incidental thereto. NINTH: Stating the plan of financing is the issuance of $23,555,000 serial bonds and notes in anticipation of the sale of such bonds; stating that all the taxable real property within the Town shall be subject to the levy and collection of a tax to pay the principal of said bonds or notes and the interest thereon as the same shall become due and payable, and electric service rates, rentals and charges for services rendered shall be fixed, charged and collected in order that the revenues therefrom, after deducting in each year all of the costs of operation, maintenance and repairs of the system for such year, will be sufficient to pay the principal of and interest on such bonds or notes and shall, and are hereby authorized to, be budgeted as an offset to any such tax. TENTH: Determining the period of usefulness of said specific object or purpose is thirty (30) years; that current funds are not required by the Local Finance Law; that the proposed maturity of the bonds authorized therefor will exceed five years. ELEVENTH: Delegating to the Supervisor, the chief fiscal officer of the Town, the powers and duties as to the issuance of said bonds and notes, and any bond anticipation notes issued in anticipation of said bonds, or the renewals thereof. -5- " . . TWELFTH: Determining that said bonds and notes issued in anticipation of said bonds and the renewals of said notes shall be general obligations of the Town and pledging to their payment the faith and credit of the Town. TH I RTEENTH: Stating that the validity of the bonds authorized by said resolution and of any notes issued in anticipation of the sale of ~aid bonds may only be contested if: (a) the same are authorized for a purpose for which the Town is not authorized to expend money, or (b) the provisions of law which should be complied with at the date of the publication of such Resolution are not substantially complied with, and an action, suit or proceeding contesting such validity, is commended within twenty days after the date of such publication; and FOURTEENTH: Stating that said Resolution and Act shall not become effective untit submitted to and approved by the qualified voters of the Town at the general election to be held on November 4, 1986. Section 3. The Clerk of the Town Board shall forthwith and not less than 36 days prior to said Election forward a certified copy of this resolution to the Suffolk County Board of Elections. -6- " ".1 . . CERTIFICATE I, Judith T. Terry, Town Clerk of the Town of Southold, County of Suffolk, State of New York, HEREBY CERT I FY that the foregoing annexed extract from the minutes of a meeting of the Town Board of said Town duly called and held on July 29,1986, has been compared by me with the original minutes as officially recorded in my office in the Minute Book of said Town Board and is a true, complete and correct copy thereof and of the whole of said original minutes so far as the same relate to the subject matters referred to in said extract. IN WITNESS WHEREOF, have hereunto set my hand and affixed the corporate seal of said Town this 29th day of July, 1986. ~d ~ ~c'L- . Judith T. Terry t:7 Southold Town Clerk (s e a I)