Woodbury Heights Estates Water Co. v. Vill. of Woodbury
| Decision Date | 19 March 2012 |
| Parties | WOODBURY HEIGHTS ESTATES WATER CO., INC., Plaintiff, v. VILLAGE OF WOODBURY, Defendant. |
| Court | New York Supreme Court |
James G. Sweeney, Esq., Goshen, for plaintiff.
Feerick Lynch MacCartney PLLC, South Nyack, for defendant.
It is hereby, ORDERED that the motion is granted, and it is further,
ORDERED, ADJUDGED and DECREED that plaintiff is granted judgment declaring Local Law No. 6 invalid on the ground of State preemption, and that the law is null and void.
Plaintiff alleges it is a private water works company located in defendant Village of Woodbury which seeks to sell water to a development in an adjacent town. Defendant passed a local law which prohibits the removal of groundwater, either directly or after storage, for use outside of the village. Penalties include fines and imprisonment. Plaintiff commenced this action to have the law declared invalid as preempted by the State law. Plaintiff moves for summary judgment. The motion is granted.
In April, 1999, plaintiff Woodbury Heights Estates Water Co., Inc. was incorporated under section 3 of the Transportation Corporations Law for the stated purpose of supplying water to a subdivision known as Woodbury Heights Estates (Plaintiff's Appendix at 22).
In August, 2008, the Village of Woodbury enacted Local Law No. 6 (Plaintiff's Appendix at 29–32). Pursuant to section 246–1, the Village Board found that "the unregulated and uncontrolled relocation, removal and exportation of certain natural materials may degrade the environment of the Village to a point that is detrimental to the public safety, health and general welfare" and that regulation of the same was necessary to protect against soil erosion and instability, and to preserve natural resources belonging to the Village and its residents (Opposition Papers, Exh A). Pursuant to section 246–11: "The removal of groundwater, either directly or after storage, for use outside of the incorporated Village of Woodbury is expressly prohibited, except by intermunicipal agreement with the Village Board of Trustees." Pursuant to section 246–12, a violation of the section was punishable as a misdemeanor offense and/or by fines.
In October, 2008, the Village of Woodbury commenced an unrelated action to set aside a sale of property by Zigmond Brach (president, owner, and sole stockholder of plaintiff) to the Village of Kiryas Joel (Plaintiff's Appendix at 18–20). The Village of Woodbury alleged that Brach, without obtaining subdivision approval, had sold property within its borders to the Village of Kiryas Joel for the purpose of building a water tower thereon to provide its citizens with potable water. In dismissing the action, the Supreme Court, Orange County (Slobod, J.), noted that the Village of Woodbury had entered into a stipulation in which it had, in effect, waived the lack of subdivision approval. The court held that the Village of Woodbury could not indirectly affect Kiryas Joel's property rights by seeking an order compelling Brach to rescind the deed.
In July, 2010, the Town of Monroe entered into an agreement with plaintiff to purchase water, on terms to be negotiated, to supply a property known as the "Forest Edge" subdivision in the Town of Monroe. It was agreed that the water was to be used solely for residential and not commercial purposes (Plaintiff's Appendix at 27).
By Certificate of Extension dated January 4, 2011, filed pursuant to section 46 of the Transportation Corporations Law, plaintiff noted that it had entered into a contract to supply water to the Town of Monroe (Plaintiff's Appendix at 24–25).
In February, 2011, plaintiff commenced the action at bar. Plaintiff seeks (1) a declaration that Local Law No. 6 is illegal and void, and (2) an award of damages pursuant to 42 USC § 1983 for a taking without just compensation.1 Plaintiff alleges that the regulation of water by the Village of Woodbury was preempted by state law and was outside the powers of local government. (Compl. ¶ 21–28, Plaintiff's Appendix at 6–7).As factual background, plaintiff alleges it owns two water supply wells and a storage tank located on three separate but adjacent parcels of property in the Village of Woodbury. Further, it owns distribution water mains and pipes, and various easements among a 67 lot subdivision named Woodbury Heights Estates. Plaintiff alleges the plans and specification for the system were reviewed and approved by the New York State Department of Environmental Conservation (hereinafter DEC) pursuant to article 15 of the Environmental Conservation Law. In 2010, it entered into the agreement supra to supply the Forest Edge subdivision in the Town of Monroe. On January 7, 2011, plaintiff filed a Certificate of Extension of Territory pursuant to Section 46 of the Transportation Corporations Law to include this area (Plaintiff's Appendix at 26).
In August, 2008, the Village of Woodbury enacted Local Law No. 6 supra, which prohibits the removal of groundwater for use outside of the village except pursuant to an inter-municipal agreement. Plaintiff alleges the protection of water, including groundwater, is a matter of State concern, and that Local Law No. 6 is preempted.
Plaintiff moves for summary judgment on its remaining cause of action for declaratory relief.
In support of its motion, plaintiff submits the affirmation of Zigmond Brach, its president, owner and sole shareholder. Brach avers that he acquired plaintiff in 2007 as an investment and as a potential source of water for a 56 unit subdivision he was planning to build in the Town of Monroe (i.e., the Forest Edge subdivision). He notes that 90% of the subdivision is surrounded by Kiryas Joel, and that the proposal for the same was then before the Town of Monroe Planning Board. Brach asserts that the Village of Woodbury was formed on August 8, 2008, and that its main purpose was to prevent the spread of the Hasidic community in the area. Brach avers that, after he purchased plaintiff, he met with the village mayor, Stephanie Berean–Weeks, and influential planning board member, Sheila Conroy, and disclosed his plans concerning the Forest Edge subdivision. He advised them that allowing the expansion would reduce the cost of water to village residents, and offered to give plaintiff to the village, subject to supplying water to the Forest Edge subdivision, to assure that no water flowed to Kiryas Joel. When he left the meeting, he believed Berean–Weeks and Conroy were amenable to his offer. However, the village passed Local Law No. 6, and commenced the action supra at 3, in which it attempted (unsuccessfully) to void a sale of land he had made to Kiryas Joel. Brach argues that the real purpose of Local Law No. 6 is to prevent his development of the Forest Edge subdivision and, consequently, to stop the expansion of the Hasidic community in the area. Regardless, he asserts, the law is preempted by State law and should be declared null and void.
In opposition, Village of Woodbury submits an affirmation from counsel, Christopher J. Walsh, Esq. Walsh notes that, among the disclosure demands in the case, Village of Woodbury sought the plans and drawings plaintiff submitted to the DEC to obtain a permit to operate a water works corporation. To date, those had not been supplied. Further, he asserts, although plaintiff provided its certificate of incorporation, which references a consent of the Village of Woodbury to the same, it did not provide a copy of the alleged consent. In addition, although such a consent is required by section 41 of the Transportation Corporation Law, it has not otherwise been provided during this motion practice. Walsh asserts that the Town of Monroe had still not approved the subdivision for the Forest Edge subdivision, and that Brach had not provided any insight into when that might occur.
The Village contends that Local Law No. 6 was duly enacted after the required hearings, and that Brach offered no evidence in support of his contention that the law was enacted specifically to affect him or to prevent the spread of the Hasidic community. Further, it asserts, Local Law No. 6 is not preempted by State law because the State has not evinced an intent to occupy the entire field of water by enacting article 15 of the Environmental Conservation Law. Otherwise, Walsh argues, it is completely legitimate for a village to regulate its water supplies in light of its own needs, including fire protection. In sum, he asserts, the law should be upheld.
In further opposition to the motion, Village of Woodbury submits the affidavit of Neil Crouse, a trustee since 2006. Crouse avers that he and other duly elected village officials, with input from the village counsel and engineer, worked diligently toward enacting a code for the Village of Woodbury, as required by law. This included reviewing the codes of other towns, including the Town of Woodbury, which had provisions for the protection of natural resources, water and soil. In enacting the provision at issue, he asserts, officials recognized that the village's sole water source was groundwater, which needed to be accessed by drilled wells, and that any damage to, or extinguishment of, that resource would result in no water for the village. Thereafter, hearings were duly held and Local Law No. 6 was enacted.
The "home rule provision" of the State Constitution ( N.Y. Const., Art. IX, sec. 2) confers broad police power upon local government relating to the welfare of its citizens, and local governments are authorized to legislate in enumerated areas of local concern. However, they cannot adopt laws that are inconsistent with the Constitution or with any general law of the State, and this local power is subject to a fundamental limitation by the preemption doctrine, which embodies the untrammeled primacy of the Legislature to act with respect to matters of State concern. Cohen v....
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