NY Local Governments and Zoning Bans for Hydraulic Fracturing – Part 2

MDN reported yesterday that Gregory Sovas recently addressed local government leaders in Upstate NY to brief them on the fact that local governments cannot enact laws—zoning or otherwise—that would prohibit hydraulic fracturing or drilling in the Marcellus and Utica Shale. The legal principle is that local government laws cannot supersede the state law when it comes to regulating oil and gas drilling. Mr. Sovas should know—he’s the author of the language that became the law.

MDN received a number comments on that article (see here) stating the legality of local zoning ordinances regulating oil and gas drilling is far from over. The commenters claim that New York’s law in this regard is not yet settled.

A recent article sums up that viewpoint, stating that DEC Commissioner Joe Martens has left the door open in the forthcoming new regulations for local governments to control or even ban fracking by using zoning ordinances (although no one has seen the full copy of the regulations yet, so it’s all still speculative).

Governor Andrew Cuomo is likely to codify the DEC recommendations into law, opening private land up to fracking. Municipalities however still have the power to enact zoning laws to keep oil companies out. Martens reported that fracking could only take place in the appropriate industrial zones.

An attorney in Cooperstown, N.Y., Michelle Kennedy, already suspected this would be the key to shutting down fracking operations. She is leading the towns of Middlefield and Otsego in an initiative to beef up their zoning laws and keep would-be frackers out.

“This is an industrial activity that may not be compatible with already existent uses within the town, or based upon a comprehensive plan could be generally prohibited within the town … just like any use may not be permitted under zoning law,” said Kennedy in a phone interview.

She points to a precedent set by cases involving the mining of solids. In Free Run Gravel Products vs. Town of Carroll in 1987 and Gernatt Asphalt Products Inc. vs. the Town of Sardinia in 1996, the towns were able to shut out mining operations using zoning regulations. The cases were upheld right through to the State Court of Appeals.

“We would anticipate the same result in the case of natural gas extraction,” said Kennedy.

When asked whether he thinks municipalities that are opposed to fracking might successfully pursue this course of action, Martens replied that, “The law is not perfectly clear … I think we’ll see some legal challenges along the way that will make that clearer.”*

Sounds like those opposed to drilling will try and litigate this out for as long as possible by taking their fight local.

*The Epoch Times (Jul 4, 2011) – DEC Leaves Hydrofracking Loophole

  • http://pulse.yahoo.com/_XYIGHPT4T2JCZYKXNOAYMBRFB4 dmorgan2151

        Food for thought… First I would like to say I am Pro drilling and believe the well contamination is a bit over blown,but until recently I didn’t realize the true cost for those with Nat gas under them.. Things that make you ponder the cost of drilling nearby your property.. I read an article from a Sayre ,Pa newspaper about a public meeting of township supervisors on the spill in the area and those affected.. Turns out that property value’s have plummeted some as much as 90% ,also those people who have water buffalo’s placed at their residence have to heat that water buffalo so it wont freeze in the winter..Their electric use has skyrocketed..  Potential home buyers are looking at exactly how far from drilling a home they may have interest in and one would presume it’s miles were talking about..So any home within miles of a site are potentially losing value.. The other thing that I personally dealt with is homeowners Insurance.. I wanted to change my insurance company to get a better rate on the premium I was paying… I planed on shopping a few companies.. The 1st one I called the woman on the other end asked me what the property was worth.. I blurted out the House was worth this,the land was worth that  and proudly said and the gas underneath it is worth an unknown large figure.. She immediately stopped the conversation and said their company does not insure property that has the potential to be drilled… It was a no-brainer  that I didn’t mention that to the next company I called,but I see it as only a matter of time before other Insurance companies follow suit and or raise premium rates in certain areas to outrageous premiums… This is just food for thought and something that I didn’t even consider before.. I had only royalty on my mind and now I am realizing the true cost of it all.. I am sure others can come up more things one hasn’t considered…  

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