        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

321
CA 15-01295
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF JOHN T. SMOKE AND LYNN
SMOKE, INDIVIDUALLY AND DOING BUSINESS
AS HIDDEN FALLS SPRING WATER,
PETITIONERS-PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

PLANNING BOARD OF TOWN OF GREIG,
RESPONDENT-DEFENDANT-RESPONDENT.


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.


     Appeal from a judgment (denominated order) of the Supreme Court,
Lewis County (Hugh A. Gilbert, J.), entered December 1, 2014 in a CPLR
article 78 proceeding and a declaratory judgment action. The
judgment, among other things, denied the relief requested in the
petition-complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     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.
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                                                         CA 15-01295

     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 AD3d
1460, 1461; see generally Greystone Mgt. Corp. v Conciliation &
Appeals Bd. of City of N.Y., 62 NY2d 763, 765; Matter of Custom
Topsoil, Inc. v City of Buffalo, 81 AD3d 1363, 1364, lv denied 17 NY3d
709).

     Contrary to petitioners’ contention, the Water Resources Law (ECL
article 15) 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
AD3d 699, 702; see ECL 15-0103 [1]; Williams v City of Schenectady,
115 AD2d 204, 205). 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 AD3d 25, 30, affd 23 NY3d 728, rearg denied 24 NY3d
981). 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 NY3d 728,
744, rearg denied 24 NY3d 981), 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
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                                                         CA 15-01295

Basin” (Adirondack Council Mem in Support, Bill Jacket, L 2011, ch 401
at 20; see Williams, 115 AD2d at 205). 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 NY2d 91, 96). Here, as in Wallach
(23 NY3d at 754-755) and Matter of Frew Run Gravel Prods. v Town of
Carroll (71 NY2d 126, 133), 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 NY2d 449, 455; Ryan v New York Tel. Co., 62 NY2d 494,
501), we nevertheless agree with the Planning Board and the amici
curiae that the Planning Board did not act “illegally or arbitrarily,
or abuse[] its discretion” in imposing the challenged condition on the
special permit (Matter of Pecoraro v Board of Appeals of Town of
Hempstead, 2 NY3d 608, 613). “It is well settled that a zoning board
may impose appropriate conditions and safeguards in conjunction with a
grant of a special permit” (Matter of Old Country Burgers Co. v Town
Bd. of Town of Oyster Bay, 160 AD2d 805, 806; see Matter of Dexter v
Town Bd. of Town of Gates, 36 NY2d 102, 105). “Conditions imposed to
protect the surrounding area from a particular land use are consistent
with the purposes of zoning, which seeks to harmonize the various land
uses within a community” (Matter of St. Onge v Donovan, 71 NY2d 507,
516). Here, the condition at issue is that, before the pipeline is
constructed, petitioners must obtain approval to use the wells on
their property for commercial uses. We recognize that “the separation
of business from nonbusiness uses is an appropriate line of
demarcation in delimiting permitted uses for zoning purposes. On that
basis, business uses most certainly may be excluded from residential
districts, whose primary purpose, almost by definition, 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’ ” (Town of Huntington v Park Shore Country Day Camp
of Dix Hills, 47 NY2d 61, 66, rearg denied 47 NY2d 1012; see Matter of
Tarolli v Howe, 37 NY2d 865, 867).

     Contrary to petitioners’ contention, our decision in SCA Chem.
Waste Servs. v Board of Appeals of Town of Porter (75 AD2d 106,
affd 52 NY2d 963) does not dictate a different result. In that case,
permission to use the property for an industrial venture had already
been granted. We determined that the pipeline sought to be installed
was “[not] part of the industrial process” but, rather, “serve[d]
solely as a vehicle for transporting the material after the
[industrial] process ha[d] been completed” (id. at 109). Here,
however, petitioners have not yet obtained permission to use their
residential property for a commercial venture. We therefore conclude
that the court properly denied the relief requested in the second
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                                            CA 15-01295

petition.




Entered:    April 29, 2016         Frances E. Cafarell
                                   Clerk of the Court
