Higher court voids water harvesting permit, back to local planning board for developer

By Jay Braman Jr.
A New York State Supreme Court decision allowing a controversial water-harvesting project to proceed has been overturned in the Appellate Division, leaving the fate of the project uncertain. Backers of the project must now go back before local zoners and planners.
Woodland Community Association (WCA) president Carol Seitz said Tuesday that the decision, reached last year following an eight-year local battle for project promoter Andrew Poncic, is rendered moot by this appeal verdict.
“I am pleased to announce that I have heard from our lawyers at Hogan & Hartson and we have proven successful in our appeal,” said Seitz in a prepared statement. “The Appellate Division of the State of New York Supreme Court agreed with us that the Town of Shandaken Planning Board overstepped their jurisdiction by attempting to interpret zoning law, something that only the zoning board of appeals is authorized to do.”
Without a ruling from the zoning board, Seitz wrote, the planning board had no authority to grant Poncic’s Good Water Corporation a special-use permit a year-and-a-half ago.
The WCA filed a lawsuit against the town after the permit was issued and lost. State Supreme Court Justice John C. Egan Jr. issued his decision in the matter last July, stating that the Shandaken Planning Board acted appropriately when it issued the approval in the fall of 2006.
“The planning board undertook the requisite hard look analysis of the environmental impact of the project and arrived at a well-reasoned conclusion in approving the same,” he wrote.
The plan, by part-time Woodland Valley resident Andrew Poncic to draw two truckloads a day of water from a spring near the head of the dead-end valley road near Phoenicia, was given the go ahead by the Shandaken Planning board in October 2006 after a six-year review. Hisses and boos from the audience were heard at the session when the planners gave Poncic the green light. Following the 5-1 vote, one woman shouted “shame on you” to the majority of the board that supported the project. The lawsuit was filed immediately and opponents felt confident that they had a case.
Justice Egan disagreed, dismissing the case on the merits.
“The court finds that the collection and hauling of non-potable water falls within the category of permitted uses under “water bottling and related uses” and it was within the planning board’s jurisdiction to grant good water a special permit,” the judge wrote in his 16-page decision.
“The project cannot be rejected simply on the basis of community pressure and there must be substantial evidence demonstrating the nature and magnitude of any undesirable impacts,” he wrote.
Now, Seitz said, the permit is voided and the case will be sent back to Supreme Court, which, in turn, will send it back to the Shandaken Planning Board. The planning board must then refer the matter to the zoning board for consideration on whether harvesting water for entirely non-potable uses is sufficiently similar to water bottling and related uses to merit a special use permit.
“If and when that determination is made, the board will have an opportunity to consider Poncic’s application anew,” she said.
The WCA feels the project would have made the roadway unsafe due to the truck traffic.