Posted by: Patricia Salkin | June 13, 2016

NY Appellate Court Holds Local Laws Regulating Extraction of Groundwater Were Not Preempted by Water Resources Law

Petitioners-plaintiffs owned land in the Town of Greig situated in a rural residential district, and 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. It was petitioners’ intent to collect water from the naturally occurring aquifer under their land and to store such water for the purpose of bulk sale. 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.” The Planning Board thereafter granted the special permit, with several condition that no construction on the pipeline may commence until the use of wells on the other property of the applicant were approved for commercial uses by the Town of Greig. Petitioners commenced a second hybrid CPLR article 78 proceeding and declaratory judgment action 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 contrary to petitioners’ contention, the Water Resources Law (ECL art 15) did not preempt local zoning laws concerning land use, but only preempted those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state’s territorial limits”. Here, the court noted that nothing in the legislation or legislative history indicated any intent to preempt the local government’s power to regulate “land use within its borders”, as the statute regulated how a natural resource may be extracted but did not regulate where in the Town such extraction may occur.

Next, the court addressed the condition at issue, which was that, before the pipeline is constructed, petitioners must obtain approval to use the wells on their property for commercial uses.

The court held that the separation of business from nonbusiness uses was an appropriate line of demarcation in delimiting permitted uses for zoning purposes. Therefore, business uses most certainly 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.” Accordingly, the court affirmed the denial of the relief requested in the second petition.

Smoke v Planning Board of the Town of Greig, 138 A.D. 3d 1437 (4th Dept. 4/29/2016)

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