Posted by: Patricia Salkin | May 17, 2016

NY Appellate Court Finds Water Resources Law Does Not Preempt Authority of Local Governments to Regulate Use of Land Through Zoning

Petitioners-plaintiffs owned land in the Town of Greig, situated in a rural residential district. Plaintiffs filed a special permit application seeking permission to install 7,600 feet of underground pipeline for the purpose of transporting water from their property to a “load out” facility in a separate town. Plaintiffs’ intent was to “collect water from the naturally occurring aquifer under their land and to store such water for the purpose of bulk sale.” Initially respondent-defendant, Planning Board of Town of Greig, refused to consider the application, thereby forcing petitioners to commence an initial hybrid CPLR article 78 proceeding and declaratory judgment action. The Supreme Court granted that petition-complaint, in part, by ordering the Planning Board “to consider the application on the merits according to lawful procedure and standards.” However, the court declined to address that part of the first petition seeking affirmative relief on the application.

The Planning Board then granted the special permit, with several conditions, including one that “no construction on the pipeline may commence until the use of wells on the other property of the applicants is approved for commercial uses by the Town of Greig.” Petitioners commenced a second hybrid CPLR article 78 proceeding and declaratory judgment action, by another petition-complaint, seeking to strike that condition from the special permit and a declaration that the Planning Board was without legal authority to regulate the use of water resources or to require petitioners to secure any additional approval with regard to water extraction from their property. The court consolidated the two proceedings/actions, but denied the relief requested in the second petition as well as petitioners’ request for a declaration.

The court found that the Water Resources Law did not preempt the authority of local governments to “regulate the use of land through the enactment of zoning laws.” The court considered the language of the statute, the statutory scheme as a whole, and the legislative history of the Water Resources Law, in reaching its conclusion that the intent of the legislation was to regulate water extraction “for commercial and industrial purposes” in order to preserve and protect the natural resource. Thus, the court held that business could be excluded from residential districts, whose primary purpose is to provide an environment for “safe, healthful and comfortable family life rather than the development of commercial instincts and the pursuit of pecuniary profits.” Additionally, petitioners did not yet obtain permission to use their residential property for a commercial use. Accordingly, the dismissal of Plaintiffs’ second petition was affirmed.

Smoke v Planning Board of Town of Greig, 2016 WL 1710454 (NYAD 4 Dept. 4/29/2016)

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