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We have been advised in writing by both the MTA/LIRR and the Long Island Power Authority that the poles were constructed and put in place by the contractors for the MTA/LIRR as part of the Third Track Project and are, when they are placed in the ground, the property of the MTA/LIRR and its contractors. That is their legal position.
It is our understanding that at some point in the future these poles, like everywhere along LIRR property, do get transferred in ownership and responsibility for maintenance to the prevailing utility on the pole - in this case LIPA/PSEG. But at the moment of construction - they belong to the MTA/LIRR. For example, if a pole snapped in half during its placement, the cost would be borne by the MTA/LIRR and its contractors, not LIPA or PSEG.
As has been expressly stated by MTA/LIRR and by the Third Track Committee, the Village was not asked for permission beforehand. It is the legal position of the MTA/LIRR that they were not required to ask the Village to place the poles where they are or to get the Village's approval to use 60-foot or 90-foot or 120-foot high poles. It has stated in writing to us that although the Village was entitled to be notified of the design change to move poles to the south side of the tracks, "Village approval [of the relocation of the utility poles] is not required" because they are located within a LIRR right-of-way.
The Village is aware that two of the poles west of Nassau Boulevard encroach on Village land by about 7-10 inches.
The Village has virtually no permitting regulatory authority over the MTA/LIRR. MTA/LIRR land and projects, like most projects on school property and Nassau County government property, are not generally subject to our building codes or other Village law or regulation. We do not inspect or issue permits for this type of Third Track work.
New York Public Authorities Law ("PAL") § 1020-ii entitled, "Public notice before approval of utility transmission facilities," is a relatively new law that was signed by Governor Cuomo on December 28, 2018. The law falls under Title 1-a of Chapter 43-a of the Public Authorities Law, known as the "Long Island power authority act." PAL § 1020. As such, the notice requirements apply directly to LIPA, not the MTA/LIRR. Notice, if applicable, is required to be given to local governments and residents only within 500 feet of the proposed action. As stated above, the MTA/LIRR has expressly stated, and so has LIPA, that the poles are the property of the MTA/LIRR.
The law does not include any provisions stating what damages or penalties should be imposed or what actions a court is authorized to take for violations of the law. There is nothing in the law that states that violations of the law result in removal of utility poles.
Some residents have made allegations that our Village Administrator, Ralph Suozzi, who also serves as Chairman of the LIPA Board of Directors, has a conflict of interest. To be perfectly clear, the Third Track Project and this pole issue was solely an MTA/LIRR initiative. Mr. Suozzi had no role or any discussions regarding the Third Track project or any component of it either in his role as Village Administrator or as Chairman of the LIPA Board.
Mr. Suozzi has been the Village Administrator for six years. He was Non-Executive Chairman of the Board of LIPA when we hired him and continues to be its Chairman. The Village was well aware of his position as Non-Executive Chairman.
According to Black's Law Dictionary, a conflict of interest is defined as, "A term used in connection with public officials and fiduciaries and their relationship to matters of private interest or gain to them."
The position of LIPA Chairman is not a paid position - he serves without compensation. The position of Chairman has no operational powers. He does not make operational decisions. Furthermore, LIPA does not operate the electric power utility system on Long Island. As a result of the LIPA Reform Act of 2013, LIPA contracts with PSEG Long Island, a subsidiary of Public Service Enterprise Group Incorporated, one of the nation's largest electric utilities, to operate LIPA's electric system.
Mr. Suozzi has no authority or role with PSEG Long Island. He has never received nor does he receive any personal gain from the placement of poles along the Third Track in Garden City - or anywhere else. Again, Mr. Suozzi never participated in any of the Village's discussions with the MTA/LIRR or its contractors.
As has been confirmed in writing by both LIPA and the MTA/LIRR, the selection of the contractor, design, construction and outreach for the Third Track Project, including the poles, were within the sole discretion of the MTA/LIRR. Additionally, the Third Track Project, including the poles, is entirely funded by the MTA/LIRR.
Neither PSEG Long Island nor LIPA told MTA/LIRR where to locate the poles or had any discretion in telling MTA/LIRR where to place the poles. Save for two poles, which are approximately 7 inches on Village property, the poles are located entirely on MTA/LIRR land. The poles replace existing power poles in the area. There were always electric utility poles along the tracks. The sole role of PSEG Long Island - not LIPA, was to advise MTA/LIRR of the industry-wide standards to which new poles are to be built - including height and spacing - which are necessary and were adopted to withstand weather issues and to accommodate various utilities (not only electricity) which run lines on poles such as those in question, including those facilities of the MTA/LIRR. All standards are required under state and federal law and industry standards.
As part of this argument, we have also heard that LIPA benefits from the placement of poles above ground instead of burying the utility lines, again somehow resulting in a conflict of interest for Mr. Suozzi. LIPA operates as a not-for profit entity under New York State law, so it does not make money (or saved money) - as some have tried to assert - from the placement of poles in lieu of burying them underground, and again, this was not a LIPA project but is instead an MTA/LIRR project.
The Third Track Committee with the advice of the heads of our Parks Department and Building Department have been negotiating and pushing the MTA/LIRR and its contractors to significantly enhance the original landscaping plan.
Under the original plan for the Third Track project, the MTA/LIRR made only minimal commitments to replace vegetation, trees and the like. As the project was a widening of the footprint for the tracks without taking of any additional land, MTA/LIRR never could commit to replace all growth that had occurred over decades within its property lines. It did commit to replace vegetation and trees that were removed outside of its property line, but only to a limited size.
Through the work of the Village Board of Trustees, we were able to get additional commitments in a Memorandum of Understanding that the Village would be entitled to apply for and receive up to $2.5 million through the Community Fund under the Third Track Project, and other commitments to enhance landscaping, far in excess of the requirements under the actual project plans. To date, we have applied to use at least $800,000 of such funds to primarily enhance landscaping along the Main Line corridor.
We have also received commitments from the MTA/LIRR and the contractors for even more trees and shrubs and hedges and have been working for months to finalize a definitive and binding landscaping plan that is being paid for solely by the contractors; it is important to note that this expenditure does not include reduce the money available to us from the Community Funds. Of the many issues that we are pressing is that larger trees and shrubs be planted - especially in light of the placement of the large poles. For example, and just as one example, we are pushing them to plant many trees in the 30-foot size. You may note that when the Village replaces trees, we plant trees about 12 feet high.
The Board and the Committee have been and continue to take steps to try to protect our Village. All of us live here too, several near the Main Line. The Board has retained special counsel, the nationally renowned environmental law firm of Beveridge and Diamond to assist us in exploring and understanding our rights, and asserting them against the MTA/LIRR. We will continue to push the MTA/LIRR and its contractors to be respectful of the Village, and to work with us to mitigate the impact of the project and the poles in particular, on the Village and our residents.
We look forward to discussing these and any other aspect of the project with fellow residents as well as with our local representatives. It is only when we have a discussion based on facts and not emotions that we will be able to do what is best for our Village as a whole.