Fracking the Law

Sidney Lawsuit Update

Protective Law enacted by the Town of Sidney

This case involved a protective law enacted by the Town of Sidney in February of 2013. That law prohibited, within Town boundaries, natural gas extraction activities, underground storage of natural gas, and disposal of natural gas extraction and production waste streams.

The Law was styled as a moratorium and in any event expires by its explicit terms in February, 2014.

The Lawsuit Challenging the Town’s Law

Very briefly, this suit asserted various challenges to enactment of the subject law, including that (as a moratorium) the Town had not complied with the ‘moratorium requirements’ as set forth by Judge Lebous in the Binghamton decision (discussed above), and that the Town had impermissibly bypassed Delaware County planning Department’s ‘recommendation’ that the Town not enact its law.

The Delaware County Supreme Court did not accept the invitation of those challenging Sidney’s law that he embrace or accept Judge Lebous’ criteria for a valid moratorium. Indeed, the judge in the Sidney matter did not consider or reach the question of what the requisites of a valid moratorium were at all, because he held that the Town’s law was NOT a moratorium, but was instead a zoning amendment.

He then proceeded to invalidate the Town’s law because the Town had not followed provisions of the Town’s zoning ordinance that required proposed zoning code amendments to be referred to the Town Planning Board for an advisory recommendation prior to enactment, and because the Town had refused to recognize a Town Law 265 protest petition that had been presented to the Town Board the night it voted to enact the subject law.

(Town Law Sec. 265 is a state statute that provides that amendments to a town’s zoning code typically may be effected by a simple majority of the Town Board members, but that where a ‘protest petition’ is filed, under certain circumstances an amendment to the town’s zoning code requires a ‘majority plus one.’

We respectfully do not agree with the judge’s holding that the Town’s moratorium here is a “zoning amendment,” either for purposes of the aforesaid (Town) Planning Board referral requirement, or for Town Law Sec. 265 purposes.)

This decision was issued late on Friday, January 10, 2014. Without regard to how the Town Board elects to proceed in this matter, the Law being challenged was always scheduled to expire in February 2014.