Opinion
May 27, 1997
Appeal from of the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order and judgment (one paper) is reversed insofar as appealed from, on the law, without costs or disbursements, the petition is denied and the proceeding is dismissed on the merits.
The petitioner JIJ Realty Corporation is the owner of a parcel of property improved with a two-story building which the petitioner Interstate Petroleum Products, Inc., seeks to use to store its petroleum products. The subject property is situated in an ED-1 (economic development) zoning district in the Town of Southeast, 1,000 feet from a reservoir that supplies water to the City of New York and to the residents of the Town.
Pursuant to the zoning ordinance of the Town of Southeast, an ED-1 district permits a "warehouse" use, and defines "warehouse" as a "building or structure used for the storage of nonpolluting and nonhazardous manufactured goods". The respondent Town of Southeast Zoning Board of Appeals (hereinafter the ZBA) interpreted the subject zoning provision to exclude the storage of petroleum and denied the petitioners' application for an interpretation that the use of the warehouse to store lubricating oil and grease was permitted under the ordinance. The Supreme Court annulled that determination and found that the Petroleum Bulk Storage Code (ECL 17-1001 et seq.; 6 NYCRR 612.1-614.1) expressly and impliedly preempted the field (ECL 17-1017; Oil Heat Inst. v. Town of Babylon, 156 A.D.2d 352).
In the Oil Heat case we stated that "[the State Legislature's] enactment of a comprehensive and detailed regulatory scheme with regard to the installation, maintenance and abandonment of fuel oil storage tanks would permit the finding that local laws in the same field were impliedly preempted" (Oil Heat Inst. v. Town of Babylon, supra, at 354 [emphasis supplied]). The zoning ordinance here, however, did not pertain to the installation, maintenance and abandonment, or storage of petroleum. Rather, as interpreted by the ZBA, the zoning ordinance categorically prohibited the use sought by the petitioners. The interpretation by the ZBA of the Town Zoning Ordinance was not irrational and is therefore entitled to great deference (see, Matter of Naumann v. Zoning Bd. of Appeals of Town of Carmel, 161 A.D.2d 714; cf., Matter of North White Auto v. Clem, 229 A.D.2d 393). Moreover, the interest of the Town in preventing water pollution by restricting the use of property near a reservoir is not inconsistent with the underlying purpose of the article 17 of the Environmental Conservation Law, which is, in part, to prevent water pollution arising from petroleum spills and leaks (ECL 17-1001). Therefore, as the subject zoning provision is not in conflict with the regulations promulgated under the Petroleum Bulk Storage Code (see, 6 NYCRR 612.1-614.1) and is consistent with the purpose underlying the Petroleum Bulk Storage Code, the zoning provision at issue is not preempted by State law (see, Matter of Frew Run Gravel Prods. v. Town of Carroll, 71 N.Y.2d 126; accord, Jancyn Mfg Corp. v. County of Suffolk, 71 N.Y.2d 91, 97).
Moreover, we find that the petitioners failed to meet their burden of demonstrating that the terms "nonpolluting" and "nonhazardous" were so indefinite that they did not understand them (see, Matter of Burke v. Denison, 218 A.D.2d 894). A review of the record demonstrates that the interpretation and determination of the ZBA was reasonable, supported by evidence, and not arbitrary or capricious (see, Matter of Burke v. Denison, supra; Matter of Tallini v. Rose, 208 A.D.2d 546).
Miller, J.P., Ritter, Joy and Krausman, JJ., concur.