Con Edison is accusing the town of Eastchester of gouging the utility ”“ and thus its customers ”“ by charging excessive permit fees to fix underground gas lines.
“The town has repeatedly made it clear that Con Edison must comply with its demands, no matter how unreasonable,” the company says in a complaint filed April 7 in Westchester Supreme Court, “if it wants to continue receiving the permits it needs to ”¦ upgrade its underground gas system.”
The Eastchester legal department did not respond to an email asking for its side of the story.
Con Edison says the town has the right to charge a fee to allow a street to be dug up for utility repairs, but the fee must be based on studies or statistics on the actual costs for issuing permits, inspecting work sites and enforcing the laws, “not guesswork or conjecture.”
The company paid Eastchester about $910,000 for street-opening permits from 2017 to 2019.
Many local governments charge a flat rate ranging from $100 to $500 for street opening permits, according to the complaint. Eastchester charges $350 per permit plus $8 per-square-foot for openings greater than 15 square feet. Many permits cost $40,000 or more.
Eastchester used to require the utility to repave a section somewhat larger than the street opening. Then it began requiring curb-to-curb repaving, regardless of the size of the hole, on streets that had been repaved by the town in recent years.
The town also allegedly gave the superintendent of highways “unfettered discretion” to decide the length of the repaving.
In 2018, for instance, Con Edison opened a 20-square-foot section of Hickory Hill Road to repair a gas leak, according to the complaint. But it was required to repave 4,140 square feet, or 207 times greater than the hole, costing more than $50,000.
When Con Edison objected in 2018 to a demand to repave a large section, the highway superintendent allegedly revoked unrelated permits and denied new permits until the company “explained the illegality of these acts.”
Last September, the town allegedly threatened to fine Con Edison $5,000 a day if it did not comply with certain conditions, the complaint states, “even though the town code does not provide for such a penalty.”
Con Edison asked the town for all studies, statistics, reports and other records, in a Freedom of Information Law request, about the costs of issuing, inspecting and enforcing street opening permits.
The town clerk responded that “no records exist,” according to the complaint.
Con Edison depicts the alleged excessive fees as hidden taxes, unauthorized by the state constitution or legislature, and borne by the 10 million people it serves in the region.
It accuses Eastchester of charging unauthorized taxes, discrimination and unjust enrichment. It is asking the court to declare the fees as unenforceable and to compel the town to return excessive fees.
