Our Rachael Colley has been following the Slottjes around New York documenting their every move.  Wherever the Great Davidski pops up,  she is there with video camera in hand.  One of the things we learned, through her efforts, is just how little David and Helen know about zoning law in New York State, despite being relied upon as an outside expert by a bunch of single-issue local officials who would like to torpedo natural gas development and easily fall prey to the Great Davidski’s magic tricks.  It’s hardly surprising, given the fact they spent most of their careers as real estate and dollar store attorneys and David only bothered to join the New York State Bar Association in 2010.  That lack of zoning experience is starting to bite them from behind and, now that somebody let the dogs out, some of those local officials may face embarrassment and wish they’d never seen the Slottjes or listened to their Park Foundation funded message.

The Delaware County Planning Board was the first among local officials to say “the emperor has no clothes” when it pointed out the Town of Sidney’s proposed ban on natural gas development would have serious intergovernmental implications due to naive pipeline restrictions.  It also raised the issue of conflict with county economic development policies, forcing the town to either revise its law or override the county with a super-majority vote.

Then the Otsego County Planning Department, albeit reluctantly, raised the intergovernmental issue with the Town of Butternuts, also noting the obvious intergovernmental impacts of a ban on pipelines.  This forced these towns to scramble as the Slottjes maneuvered to salvage bans by revising the special interest laws they’ve been promoting from the Community Environmental Defense Council website, leading to some interesting theatrics Rachael chronicled for us here and here, for example.

This is just the beginning.  The Slottjes clearly do not understand the intricacies of New York State’s Town Law or its General Municipal Law, both of which serve to provide the rules for communities doing zoning in the state – rules that are not invalidated by “home rule.”  We previously reviewed here the terms of the General Municipal Law as it applied to the need to consider intergovernmental impacts of natural gas bans, but we have not addressed two other requirements of the New York State Town Law that may be even more important.  These are Sections 264 and 265, the relevant portions of which are provided below with highlights of key provisions:

Section 264 of New York State Town Law

2. Service of written notice. At least ten days prior to the date of the public hearing, written notice of any proposed regulations, restrictions or boundaries of such districts, including any amendments thereto, affecting property within five hundred feet of the following shall be served personally or by mail by the town upon each person or persons listed below:

(a) The property of the housing authority erecting or owning a housing project authorized under the public housing law; upon the executive director of such housing authority and the chief executive officer of the municipality providing financial assistance thereto.

(b) The boundary of a city, village or town; upon the clerk thereof.

(c) The boundary of a county; upon the clerk of the board of supervisors or other person performing like duties.

(d) The boundary of a state park or parkway; upon the regional state park commission having jurisdiction over such state park or parkway.

3. Additional requirements.  The procedural requirements set forth herein shall be in addition to the requirements of the provisions of sections two hundred thirty-nine-l and two hundred thirty-nine-m of the general municipal law relating to review by a county planning board or agency or regional planning council; the provisions of the state environmental quality review act under article eight of the environmental conservation law and its implementing regulations which are codified in title six part six hundred seventeen of the New York codes, rules and regulations and any other general laws relating to land use and any amendments thereto.

4. Public hearing. The public, including those served notice pursuant to subdivision two of this section, shall have an opportunity to be heard at the public hearing.   Those parties set forth in paragraphs (a), (b), (c) and (d) of subdivision two of this section, however, shall not have the right of review by a court as hereinafter provided.

Section 265 of New York State Town Law

1. Such regulations, restrictions and boundaries may from time to time be amended. Such amendment shall be effected by a simple majority vote of the town board, except that any such amendment shall require the approval of at least three-fourths of the members of the town board in the event such amendment is the subject of a written protest, presented to the town board and signed by:

(a) the owners of twenty percent or more of the area of land included in such proposed change; or

(b) the owners of twenty percent or more of the area of land immediately adjacent to that land included in such proposed change, extending one hundred feet therefrom; or

(c) the owners of twenty percent or more of the area of land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land.

The provisions of the previous section relative to public hearings and official notice shall apply equally to all proposed amendments.

So, adjoining communities, adjoining counties and landowners have rights after all!  Adjoining communities and counties must be officially notified in advance and have an opportunity to comment at public hearings on proposed natural gas bans, something that does not appear to have taken place in the case of any the Slottje/Park Foundation inspired bans.  Similar provisions apply to Village Law (§7-706,708) and the General Municipal Law referral requirements, of course, apply to towns, villages and cities.

Interestingly, the Binghamton City ban is already being challenged on procedural grounds.  Process protects everyone’s rights and the Slottjes have run roughshod over process trying to get as many special interest bans enacted as quickly as possible for political theater.  It looks as if several, maybe most, of those bans are legally vulnerable if challenged because such notice may have never been provided. That’s what you get when you purchase legal advice at the dollar store.

There  is a much, much bigger problem for natural gas opponents, however, and that is to be found in the requirement for a three-fourths majority vote (four votes on any town or village board) for any zoning regulation protested in writing by the owners of 20% or more of affected land.  Because the Slottje/Park Foundation bans affect entire communities, this means the owners of 20% of all land in the town.

Let’s put this in perspective.  According to court filings, Anschutz Exploration Corporation has leases on 22,200 acres or 37% of the land in the Town of Dryden (60,300 acres in total).  Therefore, if but 54% of those landowners with leases had filed a written protest, four votes would have been required to override.  Now, that particular vote was unanimous so it’s an academic matter, but it will be much more than academic in many situations outside of the Ithaca area, that community being one where NIMBYism has a special hold on the minds of otherwise intelligent people.

Section 265 of the Town Law can be a powerful tool to combat single-minded political opportunists who seek election for the purpose of imposing their particular ideologies and political will upon others regardless of Constitutional protections and property rights.  Landowner groups in towns considering bans need to be aware of this option and be ready to move whenever local officials are ensnared in the Slottje/Park Foundation trap.

Some towns, like the City of Binghamton, will try to argue bans and moratoria are not zoning, but zoning statues and legal protections of landowner rights cannot be skirted while doing land use regulation under some euphemistic alternative language.  They still have to meet state regulations or specifically supersede them under the authority of the Municipal Home Rule Law.  This law, importantly, does not overrule all aspects of Town Law and certainly doesn’t excuse non-compliance with the Town Law where, as in most cases, towns have failed to specifically supersede those provisions.    Moreover, towns must seriously consider intergovernmental impacts of their zoning decisions.  Rote compliance with process, without serious reflection on those impacts, is not enough.

Land use regulation, as the reader has by now observed, is far from a simple thing, especially in New York State, where arcaneness is a virtue in all law and all policy.  The Slottjes, it appears, may be in over their head.  But, that’s no surprise, is it?  When your master is the Park Foundation and your goal is to stop natural gas development any way you can, reason is the casualty and risk is the reward.

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