Shale Gas Perspectives - Landowners Challenge Town of Sidney Gas Drilling Moratorium Law in Delaware County Supreme Court, Raise Novel Issues (Vol. I, No. 7)

A Periodic Blog on the Status of Marcellus Shale Development in the Southern Tier of New York - and Other Interesting and Exciting Developments in the Law, Science and Politics of Natural Gas Development (Or Not) in the Empire State.

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(June 17, 2013) 

In legal papers filed June 13, 2013 in Delaware County State Supreme Court, Town of Sidney landowners, represented by lawyers from Hinman, Howard & Kattell, challenged a 1-year gas drilling moratorium approved on February 14, 2013 by three members of the five-member Town of Sidney Town Board.

According to legal papers, the landowners asked the Court to “vacate and annul Local Law No. 1” as:

  • “jurisdictionally defective because the Sidney Town Board failed to perform non-discretionary duties under… the General Municipal Law (§239-m), the Town Law (§265), and the Town of Sidney Zoning Ordinance (§1600)”—in other words, it did not follow prescribed procedures for legal adoption, including the legal requirement of passage by a “supermajority” vote (in this case, by four of the five members of the town board), where, as here, the county planning board recommended disapproval and a “protest petition” was signed by owners of more than 20 percent of town landowners;
  • “substantively deficient and invalid for failing to satisfy necessary legal prerequisites for adoption of both land use and general police power moratoria”—in other words, in passing the moratorium law, the town failed to demonstrate the “dire necessity” and other justifications needed (under a long line of New York court decisions, including the Oct. 2012 decision of Judge Lebous in Jeffrey v. Ryan invalidating the City of Binghamton’s 2-year moratorium) to limit the rights of property owners to use their own land; and
  • “unconstitutional under the Commerce Clause of the U.S. Constitution”—the Sidney moratorium, considered as it must be in conjunction with the 111 other local moratoria and 60 local bans in New York, impedes interstate commerce in the byproducts of natural gas drilling, while continuing to reap the energy benefits of natural gas.

This is the first time a local gas drilling moratorium or ban has been challenged under the Town Law 265 “protest petition” procedure or as being unconstitutional under the federal Commerce Clause.

The two landowners on whose behalf the Town of Sidney challenge was brought are Inge Grafe-Kieklak, who owns more than 170 acres in Sidney, and Concetta (Connie) Martinucci, who owns approximately 35 acres in Sidney and 17 acres in the adjoining Town of Franklin.

The lawsuit is supported by several sworn affidavits.  In addition to an affidavit from petitioner / complainant Grafe-Kieklak, there are affidavits from Everett J. Wood (a Sidney resident and landowner, who initiated and submitted the Town Law 265 “protest petition”), and an affidavit by Shelly Johnson-Bennett, chief planner of the Delaware County Planning Department in Delhi, NY.  There is also an affirmation of counsel by HH&K lawyer, Ken Kamlet.

The Wood affidavit summarizes and explains the “protest petition,” which was signed by the owners of 107 groups of land parcels in the Town of Sidney with a total land area of more than 8,000 acres, making up more than 26% of the land in the Town of Sidney (excluding the Village of Sidney, which is not part of the Town moratorium). 

Unlike the zoning bans in the towns of Dryden and Middlefield, recently upheld by a mid-level appellate court on May 2, 2013, the Town of Sidney challenge does not involve a permanent gas drilling ban by means of a formal amendment to a town’s zoning ordinance.  And the Sidney challenge, unlike the Dryden and Middlefield cases, does not hinge on (or have anything to do with) whether or not a local zoning ban is superseded or preempted by State law (the Oil, Gas and Solution Mining law).  The one thing the cases have in common is the county referral requirement of the General Municipal Law (GML).  However, while the Towns of Dryden and Middlefield fully complied with GML referral requirements, the Town of Sidney, having (twice) referred proposed moratorium laws to the Delaware County Planning Board, and having (twice) received disapproval recommendations, proceeded to disregard the supermajority override provisions of the GML.  None of the other legal challenges in the Sidney case were before the courts in the Dryden or Middlefield cases.

The lawsuit is styled Grafe-Kieklak v. Town Board, Town of Sidney (Index No. 2013, RJI No. 13-0220).

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Article written by Kenneth S. Kamlet, Esq.  For more information, contact Mr. Kamlet at 607-231-6914 or via email at kkamlet@hhk.com.

 

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