The Binghamton court decision affirms Home Rule as applied to gas wells, concurring with both the Dryden and Middlefield court. Problem is the case was not over a land use ordinance, but over a one-off ordinance which the court tossed as defectively enacted, as described in the press release below. Moral: All three courts have agreed that land use ordinances apply – so get your land use ordinance in shape. Before the DEC shovels their regs. out.
First the Dryden ruling, then the Middlefield decision and now Binghamton, where the court concurred with the opinions of the Dryden and Middlefield courts regarding the city’s right to enact zoning laws prohibiting gas wells. See the excerpt of the ruling below. But the judge tossed Bingo’s poorly enacted ordinane on a local fact issue that had nothing to do with the city’s right to address gas wells via a zoning ordinance. Lesson is that towns should focus on enacting or amending their land use ordinance. This was a clear message of the Binghamton court, and of the Albany Law School conference. Good land use protections start with getting your comprehensive land use plan and ordinance updated – before well permits are issued. Otherwise, you are left with the worst set of gas well setbacks in the country. Steven Barshov hammered away at that point. Then Tom West followed up and did not miss an opportunity to completely misconstrue how a road use permit works, or attempt to misconstrue supersedence – but none of the three trial court judges have agreed with West on his interpretation – as Helen Slottje explained at the Albany Law School conference.
The key finding of the Binghamton court is that zoning applies to gas wells. That local land use laws are not superseded by the DEC. That while the state regulates how gas wells are drilled, the municipality regulates where they may be drilled – or not drilled – with its land use laws. In New York. In Binghamton. Congrats to Mayor Ryan, Joe Heath, Team Slottje and all involved. Now Binghamton needs to go back and amend its land use ordinance, as the court affirmed it could. And as other towns should.
Here is the key part of the Binghamton ruling – the reaffirmation of Home Rule:
Few media outlets have picked up on the fact that having the moratorium tossed out on a procedural matter was actually a minor outcome of the case. The larger battle won was on the applicability of Home Rule to gas wells. The Marcellus Drilling News, a pro-fracking blog, summed up the ruling as a win for frackers: “All in all, Lebous’ ruling was a victory for landowners and for those who support the right of landowners to allow drilling on or under their property if they want to.” But they went on to report the actual significance of the case:
The influence of the ruling (embedded below) on future cases will likely run deep, and possibly counter to the interests of fracking supporters. While Lebous struck down the ban due to circumstances and context unique to the Binghamton case, he affirmed the state’s ruling in favor of bans in two other controversial cases that collectively represent a key bit of case law in the larger home rule debate. In supporting bans in the town’s of Dryden and Middlefield, Lebous wrote:
In well-reasoned, well –founded decisions, determined that ELC-23-0303(2) [the state law governing gas development] does not supersede local government’s rights to regulate the use of lands within their jurisdictions.
Helen Slottje, who represents municipal interests in controlling shale gas development, saw the Lebous ruling as “a huge victory.” (Click here for a full statement from the Community Environmental Defense Council.) Slottje explained:
On the narrow question of the specific (non—land-use) enactment mechanism relied upon by the city in connection with passage of its two-year law, the court found the city’s law was invalid because … the law should have been enacted on a different basis. But on the broader question of the city’s legal authority to enact a pro-active law prohibiting gas exploration, extraction and storage activities the court explicitly adopted the “well reasoned and well founded” decisions in the Dryden and Middlefield cases.
The court also ruled that local laws (as with Dryden and Middlefield) are not pre-empted by the state’s Gas Mining Law, the interpretation of which is a crucial aspect in all home rule cases in New York.