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Replacement Water Tank By Water District Is Not Subject to Village Zoning

Construction of a replacement water tank by the local water district was found to be a SEQRA Type II Action and not subject to the zoning of the Village in which the property is locted.  In Incorporated Village of Munsey Park v. Manhasset-Lakeville Water District, the Court held the Water District (Defendant) properly determined its replacement water tank was not subject to local zoning and the project was a Type II Action that did not require any environmental review.

Since 1929, the Defendant had maintained a water tank on property it owned in the Village. In 2014 it was determined the tank needed to be replaced. The proposed replacement tank would have a 250,000 gallon greater capacity and would be shorter and squatter than the existing tank. The Defendant determined it did not require zoning review by the Village and the tank would be a SEQRA Type II Action as it constituted a replacement in kind. The Village commenced this action claiming that local zoning applied and that an environmental review is required.

The Court agreed with the Defendant holding:

“In Matter of County of Monroe (City of Rochester) (72 NY2d 338), the Court of Appeals addressed the applicability of local zoning laws where a conflict exists between two governmental entities. The Court therein articulated “a balancing of public interests” test which requires the consideration of various factors in order to determine whether an entity should be granted immunity from local zoning requirements (id. at 341 [internal quotation marks omitted]). These factors include “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” (id. at 343).”

The Court noted that there was no basis for the Village’s contention that the Village, rather than the Defendant, should make a determination under the balancing test. The Court found:

“the Court of Appeals did not specify the entity initially responsible for evaluating the competing interests (see id. at 341-343; Nanuet Fire Engine Co. No. 1 v Amster, 177 Misc 2d 296, 300 [Sup Ct, Rockland County]). Further, the Supreme Court properly employed the ‘balancing of public interests’ test and correctly determined that the proposed construction plan is immune from the Village’s local laws (see Jamaica Water Supply Co. v City of New York, 304 NY 917, 919, affg Jamaica Water Supply Co. v City of New York, 280 AD 834, 835; Town of Hempstead v State of New York, 42 AD3d 527, 529; Matter of Town of Queensbury v City of Glens Falls, 217 AD2d 789, 791; County of Nassau v South Farmingdale Water Dist., 62 AD2d 380, 391-392, affd 46 NY2d 794; cf. Volunteer Fire Assn. of Tappan, Inc. v Town of Orangetown, 54 AD3d 850, 851).”

In addition, the Court found that Defendant properly determined the new tank was a replacement not requiring environmental review.

“The Supreme Court also properly found, in effect, that the Water District’s determination that the proposed construction plan was for a ‘replacement, rehabilitation or reconstruction of a structure or facility, in kind’ (6 NYCRR 617.5[c][2]) and, thus, was a Type II action under SEQRA that presumptively did not have a significant impact upon the environment and did not require the preparation and circulation of an environmental impact statement, was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion…”.

Steven Silverberg

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