Fracking proponents recently succeeded in overturning Local Law 11-006 the city’s ban on fracking, but this ruling is unlikely to drastically alter the landscape for municipal fracking regulation in New York outside of Binghamton.
In a decision dated October 2, Broome County Justice Ferris D. Roberts in Jeffrey v. Ryan, 20120695-M struck down the ban based on the Petitioners’ argument that the city had improperly enacted a moratorium on an activity without fulfilling its legal obligations. Though the city had argued that the ban did not constitute a moratorium in the formal sense, Justice Roberts cited the city’s own transcripts of the City Council Work Sessions where the ban was discussed. In one session, the author of the law explained to the City Council that:
“[i]t is not literally a moratorium because this is not literally a zoning ordinance. This is a police power ordinance.
But it quacks like a duck and walks like a duck. So, you can absolutely think of it in terms of being a moratorium.”
Faced with such evidence, the court concluded that the law in fact constituted a moratorium, and analyzed its validity under a three part test.
While a municipality does have the authority to ban certain land uses through moratoria under its police powers – the power to protect the health and well-being of the citizenry -, the municipality must be able demonstrate: (1) that the moratorium was enacted in response to a “dire necessity”; (2) that the moratorium is reasonably calculated to alleviate or prevent a crisis condition; and (3) that the municipality is presently taking steps to rectify the problem. See Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512, (1974).
Justice Roberts explained that the ban failed test because the city could not demonstrate a “dire necessity” avoided by the law, that the two year ban was an arbitrary time period, and that the city had planned no steps during the ban to investigate or rectify any harm presented.
While the fracking ban in this case was successfully challenged by the Petitioners, this ruling is unlikely to sound the death knell of municipal authority to regulate fracking locally. In fact, Justice Roberts cited two recent cases, Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450, and Cooperstown Holstein Corp. v. Town of Middlefield, 35 Misc.3d 767 as “well reasoned, well founded decisions” that determined that state law did not preempt a municipality’s rights to regulate fracking within their borders in a manner that effectively banned it. In these cases, both towns used amendments to their zoning regulations, rather than moratoria, to exclude fracking within their borders.
