Opinion
June 12, 1989
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
The respondent's denial of the petitioner's application for a variance and his disapproval of the petitioner's proposal for the development of the residential portion of its property was neither arbitrary nor capricious since the regulation of sewage discharge is reasonably related to the public health, safety and welfare of the community (see, Matter of National Merritt v Weist, 41 N.Y.2d 438; Matter of Fulling v. Palumbo, 21 N.Y.2d 30). Nor did the determinations constitute a taking of real property without just compensation. The petitioner has failed to meet its burden of demonstrating that no reasonable return on its investment could be obtained from the property under the existing zoning (see, de St. Aubin v. Flacke, 68 N.Y.2d 66; Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492). Restrictions reasonably related to the public health are not confiscatory even though they may diminish the value of private property (see, de St. Aubin v. Flacke, supra, and cases cited therein).
Nor is there merit to the petitioner's contention that the respondent lacked jurisdiction to apply article 6 of the Sanitary Code of Suffolk County to its proposed development. The provisions of article 6 are not inconsistent with the Public Health Law or the Environmental Conservation Law nor has the State legislation preempted the field (see, Public Health Law § 1116; ECL 17-1505; see also, Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91; Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99; Suffolk County Bldrs. Assn. v. County of Suffolk, 46 N.Y.2d 613). The local Department of Health is empowered to adopt regulations to maintain an adequate and satisfactory water supply and sewerage facility (see, Public Health Law § 1118; ECL 17-1503). Mangano, J.P., Bracken, Kunzeman and Eiber, JJ., concur.