NY Law Provides Legal Recourse to Towns Duped by Slottje
A couple weeks now removed from the court decisions on natural gas development handed down in the cases of Dryden and Middlefield, new strategies — and good ones — are finally starting to emerge that could help supporters of responsible development reclaim the legal high-ground and in the process reassert their basic property rights.
Indeed, one of the most effective strategies for turning the tables on the ban-everything crowd has also been among the ones least talked about. Basically, it has to do with a unique requirement of the New York State General Municipal Law that allows counties to require supermajority votes by towns on issues that have “intermunicipal” impacts. It’s a bit complicated but also routine in New York, where of course, by routine, nothing’s not complicated.
The General Municipal Law
It all starts with Section 239 of the General Municipal Law, the relevant provisions of which say:
From Section 239(l):
2. Intent. The purposes of this section, sections two hundred thirty-nine-m and two hundred thirty-nine-n of this article shall be to bring pertinent inter-community and county-wide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction. Such review may include inter-community and county-wide considerations in respect to the following:
(a) compatibility of various land uses with one another;
(b) traffic generating characteristics of various land uses in relation to the effect of such traffic on other land uses and to the adequacy of existing and proposed thoroughfare facilities;
(c) impact of proposed land uses on existing and proposed county or state institutional or other uses;
(d) protection of community character as regards predominant land uses, population density, and the relation between residential and nonresidential areas;
(f) community facilities;
(g) official municipal and county development policies, as may be expressed through comprehensive plans, capital programs or regulatory measures; and
(h) such other matters as may relate to the public convenience, to governmental efficiency, and to the achieving and maintaining of a satisfactory community environment.
From Section 239(m):
4. County planning agency or regional planning council review of proposed actions; recommendation, report.
(a) The county planning agency or regional planning council shall review any proposed action referred for inter-community or county-wide considerations, including but not limited to those considerations identified in section two hundred thirty-nine-l of this article. Such county planning agency or regional planning council shall recommend approval, modification, or disapproval, of the proposed action, or report that the proposed action has no significant county-wide or inter-community impact.
(b) Such county planning agency or regional planning council, or an authorized agent of said agency or council, shall have thirty days after receipt of a full statement of such proposed action, or such longer period as may have been agreed upon by the county planning agency or regional planning council and the referring body, to report its recommendations to the referring body, accompanied by a statement of the reasons for such recommendations. If such county planning agency or regional planning council fails to report within such period, the referring body may take final action on the proposed action without such report. However, any county planning agency or regional planning council report received after thirty days or such longer period as may have been agreed upon, but two or more days prior to final action by the referring body, shall be subject to the provisions of subdivision five of this section.
5. Extraordinary vote upon recommendation of modification or disapproval. If such county planning agency or regional planning council recommends modification or disapproval of a proposed action, the referring body shall not act contrary to such recommendation except by a vote of a majority plus one of all the members thereof.
6. Report of final action. Within thirty days after final action, the referring body shall file a report of the final action it has taken with the county planning agency or regional planning council. A referring body which acts contrary to a recommendation of modification or disapproval of a proposed action shall set forth the reasons for the contrary action in such report.
Note: Emphasis added.
Break it down into plain English, and it appears from the law that towns and municipalities have obligations under these sections to submit proposals seeking to ban natural gas development to county planning agencies, which will review those plans through the lens of potential inter-community or countywide impacts before enacting such laws. Moreover, if the county planning agency recommends a provision of the proposed law be adopted, it can only be enacted by the vote of a majority plus one on the town or village board. In practice, this means the vote can be no less than four to one in such circumstances and the majority must be able to explain its reasons for acting against the county recommendations.
Delaware County Exercises Its Rights and Some Common Sense
We saw these provisions in action recently with the Town of Sidney in Delaware County, New York, where the Town Board proposed to adopt a local law “to effect a Moratorium and Prohibition Within The Town of Sidney Natural Gas and Petroleum Exploration and Extraction Activities, Underground Storage of Natural Gas, and Disposal of Natural Gas or Petroleum Extraction Exploration, and Production Wastes.” A vote on the proposed moratorium was apparently delayed while waiting for the Delaware County Planning Board to act, as if this were merely some technicality, but when the recommendation came on March 7, it was much more than that.
The Delaware County Planning Board disapproved the proposed ban/moratorium on several grounds. The Planning Board said Sidney’s proposed law was “premature and may have negative economic impacts on the County.” Wise words of common sense finally enter the picture! The law is obviously premature because the State of New York has not yet even finished its own permitting process so the Town might know what the Department of Environmental Conservation (DEC) is regulating and, until the Dryden and Middlefield cases are resolved on appeal, no one knows whether town can even venture into this area of law (many, including ourselves, submit they cannot). Nonetheless, it is beyond doubt the restriction of natural gas development as defined by the Town of Sidney would have negative impacts on Delaware County as a whole. This was clear from the testimony from the General Manager of Amphenol Aerospace at the public hearing on the law (read by another employee):
Any county economic development strategy is pretty well sunk when three agenda driven members of one town board can torpedo efforts to extend natural gas infrastructure to the facilities of one of its very largest employers. Whatever the motives of the current majority on the Sidney Town Board, the action they propose would clearly undermine everything Delaware County and the State of New York are attempting to do to ensure the survival of employment opportunities for residents desiring them. Governor Andrew Cuomo said the partnership of the Village of Sidney, the county of Delaware and the State of New York had sent “a message to companies that New York supports its businesses in good times and bad,” but three people apparently don’t see themselves as part of that partnership and prefer to impose their own ideas of community development, which don’t include natural gas. The Delaware County Planning Board has now weighed in and reminded these town officials they can’t operate in a vacuum without regard to the interests of their neighbors.
The Delaware County Planning Board detailed explanation on this point is flawless (emphasis added):
1. The action proposed in the moratorium to change the zoning law is not timely since New York State has not completed their studies and provided guidance for permitting and requirements that must be adhered at the local level. Until these rules and guidance are adopted by the state the executive order prohibiting the issuance of permits for gas extraction remains in effect. Therefore, any local law that would contradict the state rules would be superseded by the state regulations and become moot. It is not recommended that any municipality act before the state to ensure any local laws adopted are in compliance with the state laws and guidelines.
2. The local law as presented is cumbersome and difficult to read or understand. As an example there are a number of instances that the law prohibits application for any of the defined uses; however, there is clause for hardships included. The purposes and intent of the law appear to contradict this section and the process for applying for a variance is unknown given the statements that no applications for a variance shall be accepted.
3. The inclusion of gas pipelines is of great concern from a regional perspective. The pipelines are necessary for the further development of industrial and commercial properties in the Town and Village of Sidney. These are important developments to Delaware County given the large industrial base in Sidney and the jobs that are created by these developments. The inability to create or retain jobs and industrial tax base in this part of the county would be detrimental overall. Delaware County is limited by geography, highway access and the New York City watershed to few areas for industrial growth and Sidney is an important economic stimulus community for the county. The potential regional impacts from the inclusion of gas pipelines in this local law are extensive.
4. Local moratoriums currently being challenged have come at a substantial cost to the communities that have had to expend significant resources to defend the local laws they have enacted. Given the anticipated financial burden to the local tax payers to potentially defend this law it is not advisable for any Delaware County municipality to undertake this action without a direct threat to the community. As previously stated this law is redundant since the executive order prohibiting the issuance of permits for gas extraction remains in effect eliminating any immediate threat to the Town of Sidney at this time.
Pipeline Madness, Anti-Gas Zeal and the Lessons
The county explanation is largely self-explanatory but it is important to reiterate the point it makes about pipelines. One community cannot decide for another where inter-community pipelines are going to be located. Yet, in the zeal of the Great Davidski, Park Foundation-funded attorney David Slottje — whose job is to eliminate every avenue that would allow for the development of anything at all related to natural gas — has presented the Town of Sidney’s current majority with legislation that plainly runs counter to this reality and every facet of New York State law. He repeatedly advises towns to prohibit not only natural gas development, but also distribution and storage. Yet, the law is crystal clear – towns cannot substitute their judgment or control for that of the New York State Public Service Commission (PSC), laid out succinctly in a Norse Energy decision. They can provide input and even suggest substantive standards for consideration by the PSC but cannot require permits and cannot prohibit construction of facilities. Slottje, anxious to secure another notch in his belt to show off to his Park Foundation funders, has been leading Sidney down the yellow-brick road, but the Delaware County Planning Board has wisely blocked his path and erected a big sign that says “Road Closed – There Is No Wizard.”
The lesson here is this: New York counties don’t have to let the Attorneys Slottje play havoc with their economic development strategies. They can insist the needs of neighbors and their counties as a whole be considered by exercising their rights unders Section 239 of the General Municipal Law. They can require a minimum of four members of a town or village board sign onto to the madness if it is to proceed. They can expose the fakery of the magic performed by the Great Davidski. They an insist the law be followed and it’s about time someone did.