Water harvesting plans are cloudy

By Jay Braman Jr.
After months of mulling over some very tricky legal language and hearing several opinions from lawyers, judges and residents, the Shandaken Zoning Board of Appeals reached a verdict this month on whether water harvesting is an activity covered in the town’s zoning code.

In short, according to a majority of the board, the answer is no. At their February meeting the zoners voted 3-2 that water harvesting is not a similar use to water bottling. While the interpretation was not related to any one particular project, the one most affected by the decision is that of Andrew Poncic.

Poncic, a Woodland Valley resident, has tried unsuccessfully for almost a decade to get permission to develop a water harvesting system in Phoenicia. It was in October of 2006 when the town’s planning board gave Poncic a permit to draw two truckloads of water a day from a spring at the head of the dead-end Woodland Valley Road in Phoenicia. Neighborhood opponents of the project then sued the planning board in the belief that the board exceeded their authority when the permit was granted. In July 2007 State Supreme Court Justice John C. Egan Jr. determined that the board was on solid ground.

“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.” Egan wrote in his 16-page decision.

That decision was appealed, and last June the Appellate Division of the State of New York Supreme Court decided 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, the planning board therefore had no authority to grant Poncic’s Good Water Corporation a special use permit.

The permit was voided and the case sent back to the planning board. The planning board then referred the matter to the zoning board for consideration on whether harvesting water for entirely nonpotable uses is sufficiently similar to water bottling and related uses.

Ultimately zoning board members Thomas Hickey, Joe Michaels and board chair Rolf Reiss voted it is not similar. Board members Keith Johnson and Gary Guglielmetti disagreed.

On Tuesday planning board Chair Beth Waterman said that, at this point, the planning board would do nothing as a result of the zoning board’s decision except to wait and see what Poncic does.