Following the approval by the planning board of a site plan and special use permit allowing for the collection and hauling away by truck of 5,800 gallons of water twice daily from a spring on land owned by the respondents, nearby neighbors who are members of a community association, petitioned the court to annul the planning board’s approval. According to the Town’s zoning code, “water bottling and related uses” are special uses in the district where the property is located, subject to site plan review and issuance of a permit by the planning board. The Code requires the zoning enforcement officer to refer applications for such use to the planning board, and the Code further directs the planning board to “review and act on all special permit uses.” Additionally, the Code does not provide for appeal to the zoning board of appeals, but rather provides for direct judicial review.
The New York appellate Court said that, as a result of the above provisions in the zoning code, there was no requirement for the Association to exhaust administrative remedies by taking an appeal first to the zoning board of appeals. However, the Court did find merit in the petitioner’s claim that the planning board lack jurisdiction to determine that collection and transport of water was a special permit use. The Court noted that company seeking to collect and haul the water was not intending to use it for bottling, but rather as sale of spring water for non-potable purposes such as the filling of swimming pools. Therefore, the Court maintained that the planning board could not have concluded that the water for a use related to bottling. More significantly, the Court noted that only the zoning board of appeals is authorized to interpret the local Code’s provisions, and “the Code expressly provides that a special use not specifically listed shall be considered prohibited unless it is deemed a ‘similar use’ by the ZBA.” Therefore, the Court said that absent a referral to the ZBA, the Planning Board exceeded its authority in approving the application and such approval therefore is of no effect.
Lastly, the Court addressed the issue of measurement for purpose of determined whether the property was within 500 feet of the boundary of a state-owned recreation area for purposes of triggering a referral requirement to the county planning board. Since the statute does not direct how the measurements are to be taken, the Planning Board did not act arbitrary and unlawful when it measured the 500 foot distance from a road-side truck turnaround, which is the closest of the proposed uses.
Woodland Community Ass’n v. Planning Bd. of Town of Shandaken, 2008 WL 2369805 (N.Y.A.D. 3 Dept. 6/12/2008).
The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503427.pdf
