Smoke v. Planning Bd. of Town of Greig (In re Smoke)

138 A.D.3d 1437

31 N.Y.S.3d 707

2016 N.Y. Slip Op. 03322

In the Matter of John T. SMOKE and Lynn

Smoke, Individually and Doing Business as Hidden Falls Spring Water, Petitioners–Plaintiffs–Appellants,

v.PLANNING BOARD OF TOWN OF GREIG, Respondent–defendant–Respondent.

321 CA 15-01295.

Supreme Court, Appellate Division, Fourth Department, New York.

April 29, 2016.

Bond, Schoeneck & King, PLLC, Utica (Raymond A. Meier of Counsel), for Petitioners–Plaintiffs–Appellants.

Hrabchak & Gebo, P.C., Watertown (Mark G. Gebo of Counsel), for Respondent–Defendant–Respondent.

Woods Oviatt Gilman LLP, Rochester (Donald W. O'Brien, Jr., of Counsel), For

Charles Benzing And Lorraine Benzing, Amici Curiae.

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

Memorandum:

Petitioners-plaintiffs (petitioners) are owners of land in the Town of Greig (Town) situated in a rural residential district, and they 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.” Initially respondent-defendant, Planning Board of Town of Greig (Planning Board), refused to consider the application, thereby forcing petitioners to commence an initial hybrid CPLR article 78 proceeding and declaratory judgment action. Supreme Court granted that petition-complaint (first petition), in part, by ordering the Planning Board “to consider [the application] on the merits according to lawful procedure and standards.” The court declined to address that part of the first petition seeking affirmative relief on the application.

The Planning Board thereafter granted the special permit, with several conditions, only one of which is relevant to the instant appeal, i.e., that “[n]o construction on the pipeline may commence until the use of wells on the other property of the applicant[s][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 (second petition), seeking, inter alia, 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. We now affirm.

As a preliminary matter, we note that where, as here, “issues of law are limited to whether a determination was affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational, the issues are subject to review only pursuant to CPLR article 78 ... Indeed, ‘a declaratory judgment action is not an appropriate procedural vehicle for challenging the ... administrative determination[ ] [in question], and thus the proceeding/declaratory judgment action ... is properly only a proceeding pursuant to CPLR article 78’ ” (Matter of Legacy at Fairways, LLC v. McAdoo, 67 A.D.3d 1460, 1461, 888 N.Y.S.2d 450 ; see generally Greystone Mgt. Corp. v. Conciliation & Appeals Bd. of City of N.Y., 62 N.Y.2d 763, 765, 477 N.Y.S.2d 315, 465 N.E.2d 1251 ; Matter of Custom Topsoil, Inc. v. City of Buffalo, 81 A.D.3d 1363, 1364, 916 N.Y.S.2d 446, lv. denied 17 N.Y.3d 709, 2011 WL 4089772 ).

Contrary to petitioners' contention, the Water Resources Law (ECL article 15, et seq. ) does not preempt local zoning laws concerning land use. Instead, the Water Resources Law preempts only those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state's territorial limits” (Woodbury Hgts. Estates Water Co., Inc. v. Village of Woodbury, 111 A.D.3d 699, 702, 975 N.Y.S.2d 101 ; see ECL 15–0103[1] ; Williams v. City of Schenectady, 115 A.D.2d 204, 205, 495 N.Y.S.2d 288 ). The Water Resources Law does not preempt the authority of local governments to “regulate the use of land through the enactment of zoning laws” (Matter of Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d 25, 30, 964 N.Y.S.2d 714, affd. 23 N.Y.3d 728, 992 N.Y.S.2d 710, 16 N.E.3d 1188, rearg. denied 24 N.Y.3d 981, 995 N.Y.S.2d 704, 20 N.E.3d 650 ). Considering, as we must, the language of the statute, the statutory scheme as a whole, and the legislative history of the Water Resources Law (see Matter of Wallach v. Town of Dryden, 23 N.Y.3d 728, 744, 992 N.Y.S.2d 710, 16 N.E.3d 1188, rearg. denied 24 N.Y.3d 981, 995 N.Y.S.2d 704, 20 N.E.3d 650 ), we conclude that the intent of the legislation was to regulate water extraction “for commercial and industrial purposes” in order to “preserv [e] and protect[ ]” the natural resource (Assembly Introducer Mem in Support, Bill Jacket, L 2011, ch 401 at 5), “to conserve and control the State's water resources” (Division of the Budget Bill Mem, L 2011, ch 401 at 12), “to manage the State's water resources to promote economic growth and address droughts” (New York State Dept of Envtl Conservation Mem, Bill Jacket, L 2011, ch 401 at 14), and to “assure compliance with the Great Lakes Compact which requires that New York regulate all water withdrawals occurring in the New York portion of the Great Lakes Basin” (Adirondack Council Mem in Support, Bill Jacket, L 2011, ch 401 at 20; see Williams, 115 A.D.2d at 205, 495 N.Y.S.2d 288 ). Nothing in the legislation or legislative history indicates any intent to preempt the local government's power to regulate “land use within its borders” (DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 96, 725 N.Y.S.2d 622, 749 N.E.2d 186 ). Here, as in Wallach , 23 N.Y.3d at 754–755, 992 N.Y.S.2d 710, 16 N.E.3d 1188 and Matter of Frew Run Gravel Prods. v. Town of Carroll (71 N.Y.2d 126, 133, 524 N.Y.S.2d 25, 518 N.E.2d 920 ), the statute regulates how a natural resource may be extracted but does not regulate where in the Town such extraction may occur.

Although we agree with petitioners that they are not collaterally estopped from challenging the condition (see generally Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 ; Ryan v. New York Tel. Co., 62 N.Y.2d 494, 501, 478 N.Y.S.2d 823, 467 N.E.2d 487 ), we nevertheless agree with the Planning Board and the amici curiae that the Planning Board did not act “illegally or...