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Regional Archives The Altamont Enterprise, August 18, 2011

Can towns use zoning to prevent hydrofracking?

By Saranac Hale Spencer

ALBANY COUNTY — Rensselaerville is joining more than 30 towns across the state that have taken note of the potential for hydraulic fracturing.

The rural town of 1,900 in the southwest corner of the county is putting together a committee to study the likely impact of drilling for natural gas using hydraulic fracturing.  Twelve municipalities across the state have legislated against the controversial practice, which has been under a statewide moratorium, but, with the release last month of the New York State Department of Environmental Conservation’s revised environmental impact statement, the DEC expects to begin accepting applications for permits to drill by the beginning of 2012.

The DEC is charged with granting permits for drilling and the state’s Environmental Conservation Law says that it “shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.”

Some are arguing that municipalities can exercise some control over hydraulic fracturing by using their zoning laws.

“‘Regulating’ an industry and ‘prohibiting’ that industry within a town are very different concepts,” wrote attorney David Slottje, executive director of the Community Environmental Defense Council, to town officials earlier this month.  “The fact that the Gas Mining Law precludes a town from enacting a local law which would regulate gas drilling does not mean that that law precludes a town from enacting a land use law which would prohibit gas drilling within the town,” he wrote.

In 1987, the state’s highest court decided a case with similar points between a mining company and a town.  The Court of Appeals decided in favor of the town’s right to set zoning laws that might preclude certain operations, like mining.

The same state law that has the supersession clause for gas extraction states in another section that it “shall supersede all other state and local laws relating to the extractive mining industry.”  That was the section at issue in the 1987 ruling in the Frew Gravel Products v. Town of Carroll.

In a decision nine years later, the same court found that the town of Sardinia did not violate the law when it prohibited mining in all of its zoning districts, effectively banning the practice from the town as a whole.

“A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole,” the Court of Appeals decision says.

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