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Supreme Court, Appellate Division, Third Department, New York.

Jeffery MASON et al., Appellants, v. CLIFTON PARK WATER AUTHORITY et al., Respondents.

Decided: February 27, 2003

Before:  CARDONA, P.J., MERCURE, PETERS, CARPINELLO and LAHTINEN, JJ. Offices of Richard C. Miller, Clifton Park (Richard C. Miller Jr. of counsel), for appellants. The Wilcox Firm, Troy (Robert D. Wilcox of counsel), for Clifton Park Water Authority, respondent. Crane, Greene & Parente, Albany (Mary Elizabeth Slevin of counsel), for Nextel WIP Lease Corporation and another, respondents.

Appeals (1) from an order of the Supreme Court (Williams, J.), entered January 24, 2002 in Saratoga County, which denied plaintiffs' motion for a preliminary injunction, (2) from an order of said court, entered September 5, 2002 in Saratoga County which, inter alia, granted defendants' motions for summary judgment dismissing the complaint, and (3) from the judgment entered thereon.

In May 2001, defendant Clifton Park Water Authority (hereinafter the Water Authority) and defendant Nextel WIP Lease Corporation (hereinafter Nextel) executed a lease that, among other things, permitted Nextel to install telecommunication antennas on the top of a water tower and supporting equipment at the base of the tower, which is located at 51 Castle Pines Road in the Town of Clifton Park, Saratoga County.   Nextel agreed to pay annual rent commencing at $14,400 and rising over the course of the 25-year lease to $25,188.   Nextel's site plan for the project was approved by the Town's Planning Board subject to certain conditions, including that the antennas be placed on the sides of the water tower rather than on top of it.   Thereafter, in November 2001, the Water Authority's board unanimously approved a resolution adopting an amendment to the lease consistent with the Planning Board's requirement.

Plaintiffs commenced an action in Federal District Court 1 and this action in Supreme Court, Saratoga County, challenging on various grounds the placement of the antennas on the water tower.   The lawsuit in Supreme Court sought injunctive relief and a declaration that the lease was legally defective.   Supreme Court denied plaintiffs' request for a preliminary injunction and subsequently granted motions by the Water Authority and Nextel for summary judgment dismissing the complaint.   Plaintiffs appeal.

 Plaintiffs contend that the Water Authority lacked the power pursuant to its enabling legislation to execute the lease.  Public Authorities Law title 6-B established the Water Authority and designated it as a “public benefit corporation” (Public Authorities Law § 1120-c [1] ).   As such, it was “created to accomplish a specific purpose or mission and [is] endowed with the freedom and flexibility necessary to achieve that mission” (Matter of Levy v. City Commn. on Human Rights, 85 N.Y.2d 740, 745, 628 N.Y.S.2d 245, 651 N.E.2d 1264;  see Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v. New York State Thruway Auth., 5 N.Y.2d 420, 185 N.Y.S.2d 534, 158 N.E.2d 238).   A public benefit corporation is authorized to act in accordance with the powers enumerated in and necessarily implicated by its enabling statutes (see Matter of R.A. Bronson, Inc. v. Franklin Correctional Facility, 255 A.D.2d 723, 724-725, 680 N.Y.S.2d 719;  cf.  Matter of City of New York v. State of New York Commn. on Cable Tel., 47 N.Y.2d 89, 92, 416 N.Y.S.2d 786, 390 N.E.2d 293).

Review of the Water Authority's enabling legislation reveals that it has been afforded considerable discretion with its many enumerated powers including, among others, acquiring property, managing the property, improving its property, entering contracts and managing its financial affairs (see Public Authorities Law §§ 1120-d, 1120-e).   The lease to Nextel involved permitting an entity providing a public service (see Matter of Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 604 N.Y.S.2d 895, 624 N.E.2d 990) access to a small portion of the Water Authority's property in return for consideration that would contribute to the maintenance of water facilities within its district.   In light of the statutory autonomy afforded to the Water Authority regarding its property and the public purpose served by the lease, we are unconvinced that the Water Authority exceeded its powers by entering into the limited lease with Nextel.

Plaintiffs conceded at oral argument that they could not prevail on their further contention that the lease was not properly approved by the Water Authority.   Indeed, the record reflects that the Water Authority authorized the lease and the amendment thereto through its designated agent and by the action of its board.

 Plaintiffs' assertion that the lease violated the public trust doctrine is meritless since the relevant property-a portion of sides of a water tower and a small plot at the base of the tower-does not implicate the type of property to which such doctrine applies (see generally Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 283, 117 S.Ct. 2028, 138 L.Ed.2d 438;  Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 479, 108 S.Ct. 791, 98 L.Ed.2d 877;  Adirondack League Club v. Sierra Club, 201 A.D.2d 225, 232, 615 N.Y.S.2d 788, mod. 92 N.Y.2d 591, 684 N.Y.S.2d 168, 706 N.E.2d 1192;  Smith v. State of New York, 153 A.D.2d 737, 739-740, 545 N.Y.S.2d 203).   Furthermore, although Nextel is a private entity, the lease serves a public purpose and, thus, we find no merit in plaintiffs' additional argument that the lease was an improper lease of public property to a private entity (see Port Chester Yacht Club v. Village of Port Chester, 123 A.D.2d 852, 853, 507 N.Y.S.2d 465;  Sprint Spectrum L.P. v. Mills, 65 F Supp 2d 148, 154-155, revd. in part on other grounds 283 F.3d 404;  see also Matter of Altona Citizens Comm. v. Town of Altona, 54 N.Y.2d 908, 445 N.Y.S.2d 131, 429 N.E.2d 809;  Murphy v. Erie County, 28 N.Y.2d 80, 88, 320 N.Y.S.2d 29, 268 N.E.2d 771).   The remaining arguments have been considered and found unpersuasive.

ORDERED that the orders and judgment are affirmed, without costs.


1.   The federal action has been dismissed (Mason v. O'Brien, 2002 WL 31972190 [ND N.Y. Sept. 30, 2002] ) and plaintiffs reportedly recently commenced a CPLR article 78 proceeding in Supreme Court.   We also note that the parties do not assert that the current state court action is preempted by the Federal Telecommunications Act (see Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 417;  see also 47 USC § 332).



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