NY Appellate Court Upholds Towns’ Powers to Regulate Land Use

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“Home Rule” Rules! 

NY Appellate Court Upholds Towns’ Powers to Regulate Land Use

Today the New York Appellate Court issued its ruling in the Anschutz v. Dryden and Cooperstown Holstein v. Middlefield cases, and in both instances upheld the constitutional right of towns to determine what land use activities are best for their communities.

The decision, which you can read here, is a unanimous and unequivocal decision; the Towns won on all points. This decision upholds the power of local town boards which have already acted to protect their communities with a ban against fracking and gives courage to those that are still considering such steps. The Appellate Division found that there was neither express preemption nor implied preemption of local zoning powers. Notably, the Court discussed the industry’s argument that statutory provisions fostering energy development and prohibiting “waste” required a finding of preemption. The Court stated there was no support of this interpretation:

 “…this does not equate to an intention to require oil and gas drilling operations to occur in each and every location where such resource is present, regardless of the land uses existing in that locale.Indeed, the policy of the OGSML explicitly seeks to protect the rights of “all persons including landowners and the general public” – not just the owners of oil and gas properties, such as petitioner …, a goal which is realized when individual municipalities can determine whether drilling activities are appropriate for their respective communities.” (Decision, p. 15.)

We all owe an enormous debt of gratitude to the Town Boards of Middlefield and Dryden for having the courage to take the necessary steps to defend their right to protect their communities, as well as to the citizens, Middlefield Neighbors, Dryden Resources Awareness Coalition, Brewery Ommegang and other businesses, and the many other activist groups who supported these towns in the face of sometimes intense pressure from this industry. Next, we must thank the excellent lawyers in our community who contributed their skills because this cause is right. We thank Michelle Kennedy, Douglas Zamelis, Helen and David Slottje, Mary Ann Long, Deborah Goldberg of Earthjustice, Kate Sinding of NRDC, Whiteman, Osterman & Hanna, and the firms that prepared the many amicus briefs.

We are indeed fortunate to have such a strong community committed to protecting our region’s singularly beautiful resources.