Wednesday, February 29, 2012

Bans Upheld !

This last week brought important developments for the towns in New York State that seek to protect themselves from high volume, slickwater, horizontal hydrofracking through the use of their local zoning laws. Both the towns of Dryden (Tompkins Co.) and Middlefield (Otsego Co.) used zoning to ban gas drilling and heavy industry within their jurisdictions and both towns were sued, each by different plaintiffs. This week in two separate decisions, two State Supreme Court judges ruled in favor of the towns, strongly affirming home rule. Both decisions acknowledge that state law regulates gas drilling, but that it is the right of municipalities to determine land use and permissible activities via zoning.

On August 2, 2011 the town of Dryden amended its zoning ordinance to ban all activities related to the exploration for, and production or storage of natural gas or petroleum. The town was sued by the Anschutz Exploration Corporation. Anschutz claimed that the New York State Oil, Gas and Solution Mining Law overrides all local ordinances related to natural gas drilling. Tompkins County Supreme Court Judge Phillip Rumsey disagreed and ruled that although the Oil, Gas, and Solution Mining Law does indeed regulate those industries, they are still subject to local regulations and zoning.

Mahlon Perkins, Dryden town attorney stated, “That was the crux of the town’s argument all along… it is important to remember that this case is not about fracking….this case is about land-use authority. It comes down to whether a municipality that has land-use authority-- such as a village, city, or town can determine where heavy industrial uses are allowed or if they are allowed, and it is not about regulating the industry.”

State Assemblywoman Barbara Lifton, whose district includes the town of Dryden, said she was not surprised by the ruling. “I cannot say that I am shocked because I think the arguments for home rule are very compelling… I am thrilled the judge gave us a fair hearing and upheld our State’s tradition of home rule. It was a very logical decision and one that I strongly agree with.”

On June 28, 2011 the town of Middlefield enacted a zoning law that prohibited heavy industry and all new oil, gas, and solution mining. On October 28, 2011 the town of Middlefield was sued by a landowner who had signed a lease with a gas company claiming that the lease superseded the zoning law and that the zoning law should be declared void. In the second ruling last week, State Supreme Court Justice Donald Cerio affirmed that the town of Middlefield was within its rights under state law to ban oil and gas drilling. Judge Cerio, like Judge Rumsey, affirmed New York State’s right to regulate how  the gas industry operates, and the towns right to determine where that industry may or may not operate.

Both decisions are expected to be appealed.

I think it is important to remember that on Thursday, Dec. 8 the Alfred Town Board adopted a resolution to become a “friend of the court” in the Dryden and Middlefield proceedings. The Board passed unanimously a statement in “support of its sister towns in order to reassert the right of municipalities throughout New York State to determine what land uses are appropriate through the municipal home rule powers granted by the New York State Constitution and the New York Municipal Home Rule Law.”

In response to these two rulings Helen and David Slottje, lawyers who helped draft Alfred’s one year moratorium on hydrofracking said, “…Local elected officials across the state have stood strong and stood together, with the unflinching backing of so many of their residents….This strength and resilience was tested by these lawsuits….[B]ecause the members of the town boards in Dryden and Middlefield were willing to exercise their right to protect their citizens and stood firm in their convictions, we now have definitive answers from two separate courts that clearly support community rights.”

As reported in Rochester’s Democrat and Chronicle, when Governor Cuomo was asked about municipalities’ rights to enact bans against gas drilling he said, “… I believe that it’s up to the courts. And if the courts say they have that right, they have that right.”

The right of towns to determine their own fate and protect their very nature and character is something that we have taken for granted. Fracking has changed all of that. We have now received legal affirmation of this right and I find this tremendously heartening.

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The actual court documents are interesting to read. The Dryden document can be found at :


The Middlefield document can be read at:



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