LOWVILLE The Greig town Planning Board did not take a hard enough look at the latest permit request for a long-proposed bulk water project, a judge has ruled.
State Supreme Court Judge Hugh A. Gilbert, in a recent three-page decision, ordered the local board to consider on the merits according to lawful procedures and standards a special permit application filed by John T. and Lynn L. Smoke, Bangor, Pa., to install an 8-inch pipeline on their property off Sweeney and Greig roads.
The board failed to perform a duty enjoined upon it by law when it declined to consider the properly filed application for a special permit on the merits, the judge wrote.
However, he stopped short of requiring the board to approve the project.
The Smokes, in a November lawsuit against the town filed by Rome attorney Raymond A. Meier, asked the court to force the town Planning Board to accept their application and rule that the board has no authority to require additional approvals to use water from their property.
The judge instead made a procedural decision requiring the board to make a more complete review of the application, according to Mark G. Gebo, the towns attorney.
Were going to have to go through a process, Mr. Gebo said. I suspect the Planning Board will begin that process at their next meeting, set for March 6.
The board, after determining it has adequate information, likely would have to hold a public hearing on the matter before making a decision, he said.
For more than a decade, the Smokes have been working to develop a facility for the collection, bulk storage and shipment of spring water, but many residents have opposed it. In response, the couple has proposed building a facility off Burdicks Crossing Road in the town of Turin and constructing a water line under the Black River to connect the spring on their Greig property with the proposed building under the auspices of the Hidden Falls Spring Water project.
The Smokes in August filed an application to install 6,100 feet of pipeline in the town of Greig, with plans for an additional 8,400 feet in the town of Turin. However, the Greig Planning Board at its September meeting declined to consider the application, suggesting that it is an accessory to a proposed loading facility in Turin and that zoning authorization for commercial activity on the Greig property first must be obtained.
Board Chairman Steven J. Olmstead reiterated that sentiment in subsequent letters to Mr. Meier, referring back to a July 2012 decision by Judge Gilbert that struck down the town of Greigs 2010 water-extraction law but affirmed a town Zoning Board of Appeals ruling that the proposed water operation should not be considered a pre-existing use. The judge in that case wrote that the Smokes application for a special-use permit for the pipeline would appear to be premature without the towns first permitting commercial use of the wells.
In the latest in a series of lawsuits surrounding the more than decade-old proposal, Mr. Meier argued that pipelines are listed in town zoning law as a permitted use and should not require any additional project approvals. He also suggested the Greig Planning Board exceeded its authority by trying to regulate use of water resources after the judge threw out the towns water law, noting the state has exclusive oversight of water regulation, and by prohibiting a use that is in another town.