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Court says towns can ban fracking

Decision upholds Dryden zoning ordinance

Thursday, May 2, 2013
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— A court decision Thursday upholds the right of New York towns to ban heavy industry operations including the controversial natural gas extraction process called hydraulic fracturing, or hydrofracking.

The Appellate Division of State Supreme Court for the 3rd Judicial Department unanimously rejected an appeal by Norse Energy Corp. that filed suit to fight the central New York town of Dryden’s zoning ordinance, which bans any action related to natural gas and petroleum storage or exploration.

Environmental groups and local officials concerned with the process are hailing the decision as support of the longstanding tradition of home rule in New York, which allows municipalities to decide their own fate.

At issue was whether OGSML, the state’s Oil and Gas Solution Mining Law, which gives the state the power to regulate hydrofracking, trumped localities’ efforts to control what type of industry takes place within their borders.

The Appellate Division in its ruling makes clear that the local land use laws are valid: “We hold that the OGSML does not pre-empt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders,” the decision reads.

Some local governments throughout the state have been passing moratoria or outright fracking bans, and many eyes have been on the Dryden case to see if those local laws would ultimately stand.

“This is a victory for Dryden and for all of the towns that want to control heavy industrial uses within their borders,” said Deborah Goldberg, an attorney at New York City-based Earthjustice, which represented Dryden in the case.

Mary Ann Sumner, supervisor of the town of Dryden, said the ruling will resonate far beyond her rural town.

“It means a lot for every town in New York to have the court reaffirm our authority to regulate land use,” she said.

Schoharie and Fulton are among the counties where towns have enacted moratoria or bans on heavy industrial use, which includes fracking.

Bob Neid, a director at the Center for Sustainable Rural Communities, with an office in Richmondville, Schoharie County, said the ruling is a good decision that wasn’t unexpected.

The government watchdog group, which fears the environmental and financial implications of fracking, has been calling on municipalities in Schoharie County to ban the practice.

“I think [the ruling] does empower other communities. Those who were hesitating can now move forward and can now move to protect their residents from fracking,” Neid said.

Environmental Advocates of New York issued a statement attributed to its director, Katherine Nadeau, hailing the decision.

“Today’s ruling is a victory for common sense. Municipalities have always had the right to determine where heavy industrial activities are or are not allowed, and given its land use, community and environmental impacts, fracking is certainly a heavy industry,” she said in the statement.

 
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