More than 50 municipalities across upstate New York’s Finger Lakes region that touch the Marcellus Shale are asking a state appeals court for permission to weigh in on whether they may ban oil and natural gas drilling within their jurisdictions.
According to a court filing on Monday, 53 municipalities, as well as New York’s Association of Towns, the Conference of Mayors and the Planning Foundation, have asked to submit briefs to the court in favor of home rule authority. Affidavits in support of the filing were submitted to the Supreme Court of the State of New York’s Appellate Division, Third Judicial Department in Ostego County (Cooperstown Holstein Corp. v Town of Middlefield, No. 515498). The Appellate Division has to approve the municipalities’ request before they may submit legal briefs for the court’s consideration.
Dairy operator Cooperstown Holstein last year filed a lawsuit against Middlefield, NY, and accused municipal officials of overstepping their authority by enacting a ban on oil and gas operations (see Shale Daily, Sept. 19, 2011). Middlefield’s town board had repealed its zoning ordinance and replaced it with laws that prohibited drilling operations, as well as other forms of heavy industry. Dryden, NY, town officials also were sued last year by Anschutz Exploration Corp. for banning drilling development (see Shale Daily, Sept. 21, 2011).
In the filing this week by the 50-plus parties, they said they “are particularly interested in this appeal” by Middlefield officials because the plaintiffs’ position “could significantly undermine the power of the municipalities of this state…to use their constitutionally guaranteed and legislatively delegated municipal home rule and zoning powers to determine the types and kinds of land uses that shale be permissible within their borders,” the filing states. “This would be a significant abrogation of local governments’ municipal home rule authority,” the statute at issue in the appeal.
Preempting the home rule authority to adopt zoning ordinances to permit and prohibit land uses within a municipality’s borders “is of great import to all municipalities in the state, especially those located in the vicinity of the Marcellus and Utica shales. Given the relatively new emergence of hydraulic fracturing in New York, and the [state’s] Department of Environmental Conservation’s recent prohibition of such operations on state-owned lands, these issues are plainly of significant importance…”
Ulysses, NY, Town Supervisor Roxanne Marino provided an affidavit to the court last year regarding home rule, which was submitted with the filing. Ulysses is is a rural community in the Finger Lakes region, which Marino said “takes great pride in its agricultural heritage and community character, natural resources and small-town atmosphere.”
However, without home rule, “the state and the oil and gas industry would have the unfettered right to dictate where heavy industrial operations can be located in a municipality without any regard whatsoever for local zoning,” she wrote. The town “has enacted a generally applicable zoning ordinance address land use and nuisance concerns in order to protect the health, safety and welfare of its residents…”
If the court were to supersede applicable zoning ordinances, “municipalities throughout the state would be deprived of the express authority that was delegated to them” by the state, Marino claimed. A municipality “would be without any control whatsoever over where an oil or gas derrick could be located. Presumably, the plaintiff could acquire a leasehold or other rights to a parcel of property in any part of a city, town or village and without any local review, immediately begin to conduct drilling operations in the middle of a residential neighborhood or next to the courthouse or school.”
For now, the ordinances are moot because New York has a moratorium on all drilling operations that use high-volume hydraulic fracturing (fracking) until the New York Department of Environmental Conservation (DEC) issues revised drilling rules, which may or may not allow the practice (see Shale Daily, Oct. 4a). In July New York Gov. Andrew Cuomo weighed in, saying he supported the home rule concept as a way for towns to either support or prohibit drilling within their jurisdictions (see Shale Daily, July 11).
However, whether the zoning ordinances enacted to ban drilling stand up to court scrutiny is tenuous. Just a few weeks ago Broome County, NY Supreme Court Judge Ferris Lebous tossed Binghamton, NY’s ban on fracking, which was enacted last year (see Shale Daily, Oct. 4b).
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