Petitioners-plaintiffs owned rural residential land in the Town of Greig. Plaintiffs filed a special permit application to install 7,600 feet of underground pipeline to transport water from their property to a facility in a separate town, collecting “water from the naturally occurring aquifer under their land and to store such water for the purpose of bulk sale.” Respondent-defendant Planning Board of Town of Greig, refused to consider the application.  Petitioners commenced a hybrid CPLR article 78 / 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,” but declined to grant any affirmative relief.

Following the Court’s decision, the Planning Board granted the special permit, with several conditions. One condition was 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 / declaratory judgment action to strike that condition from the special permit and for a declaration that the Planning Board was without authority to (1) regulate the use of water resources or (2) to require petitioners get additional approval to extract water from their property. The court consolidated and denied both requests, and petitioner’s appealed.

On appeal, the Appellate Division held that the Water Resources Law did not preempt local governments from “regulat[ing] the use of land through the enactment of zoning laws.” The court considered the statutory language, statutory scheme as a whole, and legislative history of the Water Resources Law, concluding that the law’s intent was to regulate water extraction “for commercial and industrial purposes” to preserve and protect natural resources. Thus, petitioners’ business could be blocked in 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 lacked permission to use their residential property for a commercial use. Accordingly, dismissal of Plaintiffs’ second petition was affirmed.

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