Using Local Laws to Protect Health, Safety & Community Assets

1. Using Local Laws to Protect Health, Safety & Community Assets Workshop for Local Government Officials Tully, NY August 8, 2011 Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org hslottje@cedclaw.org dslottje@cedclaw.org

2. Overview • Disclaimer: Educational – Not Legal Advice • Using Zoning Laws to Prohibit Uses • Using (non-zoning) Police Power-based Laws • Using a Moratorium (while municipality considers above options)

3. Where Do We Get the Power to Do This?

4. NYS Constitution • In general, local governments only have the lawmaking powers that the Legislature has conferred upon them. • Article IX of the NY State Constitution declares that effective local self-government and intergovernmental cooperation are purposes of the people of this State, and provides that “every local government shall have the power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law except to the extent that the legislature shall restrict the adoption of such a local law.”

5. Municipal Home Rule Law • In 1964 a “home rule package” was adopted consisting of Article I of the State Constitution, the Municipal Home Rule Law, and the Statute of Local Governments. • Municipal Home Rule Law § 10(11), (12) vests towns with the police power to enact laws relating to the “protection and enhancement of its physical and visual environment” and for the “protection, order, conduct, safety, health and well-being of persons or property therein.” • In keeping with the provisions of the constitution, the MHRL prohibits localities from adopting local laws inconsistent with the State Constitution or any general law of the State.

6. Police Power • Local governments have police power – preserve health, safety and welfare. NY Municipal Home Rule § 10(6) • Even municipalities without zoning have land use powers using the Municipal Home Rule Law, and SEQRA can provide support to findings. • Every citizen holds his or her property subject to the reasonable exercise of the police power of a municipality. People v. Murphy, 195 NY 126 (1909) A person’s ability to pursue what is otherwise lawful may be curtailed if “this infringement and deprivation [is] reasonably necessary for the common welfare.” See People v. Bunis, 9 NY2d 1 (1961)

7. Restrictions on Local Power • A municipality cannot adopt local laws that are inconsistent with the State Constitution or any general law of the State. MHRL §10(1)(ii)

8. Is it true that the Oil and Gas Drilling Law statute preempts LOCAL control?

9. Oil & Gas Statute New York State Oil & Gas Law, ECL §23-0303(2): “The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”

10. what does ‘supersede all local laws relating to regulation of gas mining’ even MEAN?

11. l& Gas Statute

12. NY Court of Appeals What does “relating to the regulation of” mean for preemption purposes? The Court of Appeals has said unequivocally – albeit in a slightly different context – that the legal effect of language virtually identical to ECL 23-0303(2) is that while a town may not regulate the operational processes of the industry which is the subject of such language, the town may prohibit the industry altogether.

13. NY Court of Appeals What does “relating to the regulation of” mean for preemption purposes? The slightly different context where the highest court of the state has spoken on this issue is the context of mineral mining – as opposed to gas mining. Applying all traditional rules regarding statutory interpretation, there is no reason why the language in the gas drilling statute (ECL 23-0303(2)) should be interpreted any differently than the language in the mineral mining statute.

14. Does ECL 23-0303(2) preempt Use of Local Laws of General Applicability to Prohibit Unconventional Gas Drilling? So we believe municipalities are NOT preempted, and that if, as, and when the Court of Appeals has occasion to answer this question, it will hold that a municipality is preempted from regulating the operations and processes of gas drilling, but is NOT preempted from prohibiting drilling outright, throughout the entire town. Who agrees with us? Funny you should ask!

15. It turns out that over the last year this position has become pretty much mainstream, at least among lawyers who have actually looked at the question and have an opinion. Examples: Bond Schoeneck & King (5/12/11 legal opinion): “This author does not perceive any sound basis for [believing that the gas drilling preemption language will be construed any differently than the mining statute preemption language]. […] However, as a cautionary note, there is virtually no caselaw interpreting the Preemption Provision.” (click on ‘gas drilling memo’ at http://www.middlefieldny.com/Documents%20Forms/documentsforms.htm)Whiteman Osterman & Hanna (6/24/11 A of T presentation) Does ECL 23-0303(2) preempt Use of Local Laws of General Applicability to Prohibit Unconventional Gas Drilling?

18. Zoning • The Statute of Local Governments § 10(6) gives towns the power to “adopt, amend and repeal zoning regulations,” as does Article 16 of the Town Law. • Purposes of zoning set forth in Town, Village and City Law, and include lessen traffic congestion, secure safety, promote health and welfare, provide adequate light and air, prevent overcrowding, facilitate adequate services. • May use zoning to prevent uses for which the physical and financial resources of the town are inadequate. Golden v. Town of Rampano, 30 NY2d 359 (1972)

19. Comprehensive Plan • Zoning must be accomplished in accordance with a comprehensive or well-considered plan. • Gen. City Law §§ 20(25), 28-a; Town Law §§ 263, 272-a; Village Law §§ 7-704, 7-722

20. Must we Update our Comprehensive Plan? Not necessarily; broad objectives are fine.

21. Evaluating the Existing Comprehensive Plan No need to specifically address or contemplate unconventional gas drilling, but should not contain language that would be inconsistent with a ban (such as, “Our Village aspires to be the unconventional gas drilling Capital of New York state”). It is sufficient if there is a rational reason to believe that the goals and aspirations contained in the Plan will be advanced by what you have in mind (i.e., a prohibition on certain uses.)

22. Evaluating the Existing Comprehensive Plan [Town] is a rural community in the Finger Lakes region that takes great pride in its agricultural heritage and character, natural resources, and small-town atmosphere. [Town] is defined by a rich diversity of natural features and open spaces. Residents have expressed a strong desire to preserve the quality of these natural features and resources. The Comprehensive Plan includes as an Objective that the Town should “preserve and protect the Town’s rural characteristics and agricultural lands”

23. Evaluating the Existing Comprehensive Plan The exploration for natural gas, the extraction of natural gas, the underground storage of natural gas, and the storage, transfer, treatment or disposal of natural gas exploration and production wastes in the urban environment of [CITY} is inconsistent with the City’s on-going comprehensive planning goals which have a long-range focus on the safety and well-being of community residents. The City has worked to craft a plan that reflects community values and a desire of residents to make [CITY} a global model for sustainable revitalization and urban livability. [CITY}’s economy is also driven by the [XX] colleges and universities located within its borders. Hospitals, colleges, universities and other not-for-profit entities have been targeted as drivers of employment, and such employers are not attracted to industrial cities.

24. Changed Circumstances “The only, and the narrow, issue before us is whether in the absence of a formal amendment of the 10-year-old plan, the Village Board was authorized, as it clearly intended to do, to take into account what it found to be drastic intervening changes and in the light thereof to continue to follow a new comprehensive planning strategy. None of the authorities cited to us stands for the proposition that formal amendment of a comprehensive plan must precede its adaptation to current conditions and planning considerations. . . . The record indicates[…]that specific findings were made by the Board of Trustees of Mount Kisco at the time which supported its action. It is apparent from the record that the Board of Trustees considered the welfare and economic stability of Mount Kisco as its first concern[…].” Town of Bedford v. Village of Mount Kisco, 33 NY2d 178 (1973)

25. Comprehensive Plan The law does not define or require that comprehensive plan to be limited to the particular piece of paper (or on-line document) that is titled “Comprehensive Plan.” To the contrary, the law is clear that a town’s ‘comprehensive plan’ is in fact the document titled “Comprehensive Plan,” togetherwith updates and supplements, which may include various goals and standards adopted by the town board.

26. Comprehensive Plan § 345-5 of the Existing Zoning Law is hereby amended so as to delete the text of the present definition of “COMPREHENSIVE PLAN” in its entirety, and to replace the same with the following text: “The Comprehensive Plan adopted by the Town Board of the Town of [XX] for the future preservation and development of the Town pursuant to § 272-a of the New York State Town Law, as the same may from time to time be amended, updated, and supplemented, including without limitation by planning policy statements, goals, and standards adopted by the Town Board.”

27. Validity of Zoning “Both the New York Court of Appeals and the Supreme Court have made clear that a municipal zoning ordinance predicated on the State's delegation of the police power will be struck down only if the ordinance bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare.” Great Atlantic and Pacific Tea Co. v. Town of East Hampton, 997 F.Supp. 340 (EDNY 1998)

28. Requirements for Local Actions • Determination must have a rational basis – not arbitrary and capricious. • The law must be designed in good faith to accomplish the general public good for which it is adopted. • Consider problems presented, and respond with reasonable and uniformly applicable provisions to deal with them, intended to promote the welfare of the general community welfare (as opposed to particular individuals).

29. Findings of fact • WHEREAS peer reviewed research done by Stephen Osborn, AvnerVengosh, Nathaniel Warner and Robert B. Jackson from both Duke University and the Nicholas School for the Environment titled Methane Contamination of Drinking Water Accompanying Gas-Well Drilling and Hydraulic Fracturing looked at 68 water wells across Pennsylvania which showed levels of methane with the chemical profile of shale-gas in groundwater were 17 times higher on average in water wells located within a kilometer of active hydrofracking than water wells where there was no hydrofracking (http://www.nicholas.duke.edu/hydrofracking/methane-levels-17-times-higher-in-water-wells-near-hydrofracking-sites); and 

30. Findings of fact • WHEREAS, significant numbers of Town residents depend on groundwater as their primary water source based on a 2009 survey (52% response rate) which indicates 75 properties obtain their water from Cayuga Lake and 450 properties from water wells; and • WHEREAS chemicals used in the hydraulic fracturing process are not of public record due to trade secret protection, it is difficult to impossible to evaluate risks that might be associated with this process; and • WHEREAS long-term studies of the cumulative impacts of long-term high volume slick water hydraulic fracturing (HVSWHF) operations on a community’s water, air, health and economy have not been completed; and

31. Findings of fact WHEREAS according to preliminary results of an economic study conducted by Susan Christopherson at Cornell University (http://www.greenchoices.cornell.edu/downloads/development/marcellus/Marcellus_Prelim_Results.pdf) an average of 890 -1340 truck trips per well site cause a high potential for road degradation. […]; and

32. Findings of fact WHEREAS according to preliminary results of an economic study conducted by Susan Christopherson at Cornell University (http://www.greenchoices.cornell.edu/downloads/development/marcellus/Marcellus_Prelim_Results.pdf) Bradford County, Pennsylvania saw an increase in demand on health, educational, administrative, emergency response, and environmental monitoring services and an increase in public safety costs; and

33. Findings of fact WHEREAS the process of HVSWHF has been linked to chronic diseases such as respiratory ailments, neurologic impairments and the high likelihood that exposure to fracking chemicals many of which are highly toxic can cause cancer (http://earthworksaction.org/oil_and_gas.cfm, http://www.huffingtonpost.com/2011/03/08/wyoming-ait-pollution-gas-drilling_n_833027.html, http://www.circleofblue.org/waternews/2010/world/epa-announces-study-to-re-examine-the-health-risks-of-hydrofracking); and

34. Findings of fact The Town’s rich natural and visual environment is a valuable asset that creates a sense of identity and well-being for residents of the area. Preserving and protecting the scenic and other natural resources of the Town is important for both a healthy environment and vibrant economy. Aesthetic issues are real and evoke strong reactions from people. They deeply affect the way people feel about a place – whether or not students will want to come here for school, businesses will want to locate, or people will want to live in and visit a place.

35. Findings of fact Allowing the activities prohibited by § 345-38 of the Local Law would impair the existing character of the Town, because by their very nature such activities have the potential to produce a combination of negative impacts upon the environment and people living in or in proximity to the communities in which they are located. Such negative impacts may include, without limitation, traffic, noise, vibrations, fumes, damage to roadways, degradation of water quality, degradation of air quality, decreased availability of affordable housing, damage to and loss of agricultural lands and soils, damage to and loss of open space, natural areas, and scenic views, decreased recreational opportunities, and damage to the tourism industry.

36. Drafting the Zoning Amendment prohibiting certain Uses We favor a ‘belt and suspenders’ approach.

37. Drafting the Zoning Amendment prohibiting certain Uses The ‘belt’ component involves confirming that (i) your code provides that any use not expressly allowed is prohibited; and (ii) a use you did not intend to be ‘allowed’ can not sneak in through a back door or open window in your code.

38. Drafting the Zoning Amendment prohibiting certain Uses On the issue of confirming that your code provides that any use not expressly allowed is prohibited, it’s not enough to locate such language in your code and then move on. Your lawyer must read the entire code to satisfy herself that there are no inconsistencies or ambiguities.

39. Drafting the Zoning Amendment prohibiting certain Uses Here’s an actual example of an otherwise well-drafted code that provided in one subsection that any use not specifically allowed was prohibited, but then in another subsection of the very same section provided that: “If a proposed use is not specifically listed in any category of uses or within any zoning district […]the [PB] shall render a formal determination as to whether the use is permitted…”

40. Drafting the Zoning Amendment prohibiting certain Uses § 345-11 of the Existing Zoning Law is hereby amended so as to delete present Clauses A. and B. thereof in their entirety, and to replace the same with the following text: “A. Any Use Not Specifically Permitted is Prohibited. Any use not specifically set forth as a permitted use (whether as of right or by special use permit) in any district shall be expressly prohibited in that district. A use specifically set forth as a permitted use in one district shall not be permitted in another district unless it is specifically set forth as a permitted use in said other district. […] “

41. Special Uses Special uses are allowed uses – their inclusion in a zoning code is equivalent to a legislative determination that they are proper for the zone. As a general matter, a town cannot deny the application on the ground that it is not in harmony with the purpose and intent of zoning. A reviewing board is thus required to grant the permit unless there are significant negative impacts. North Shore Steak House Inc. V. Board of Appeals of Incorporated Village of Thomaston, 30 NY2d 238 (1972)

42. Drafting the Zoning Amendment prohibiting certain Uses Another back door where a use you thought was prohibited can sneak into your town is a variance provision that is not drafted tightly enough. (At the ZBA level in many municipalities, there is often confusion about the differing legal requirements between area variances and use variances, and as a result many use variances are granted improperly. So we insert language which minimizes the chances that a use variance will be improperly granted.)

43. Drafting the Zoning Amendment prohibiting certain Uses

44. Drafting the Zoning Amendment prohibiting certain Uses

45. Drafting the Zoning Amendment prohibiting certain Uses

46. Drafting the Zoning Amendment prohibiting certain Uses Open windows: ‘allowed’ uses that may be susceptible to an argument that they include a use you did not intend. Examples: ‘mineral mining,’ ‘industry,’ even ‘governmental uses’

47. Drafting the Zoning Amendment prohibiting certain Uses

48. Drafting the Zoning Amendment prohibiting certain Uses The ‘suspender’ component involves specifically articulating certain uses you wish to prohibit. Options: Industry-specific prohibition; Impacts-specific prohibition; No suspenders; my belt works just fine, thank you

49. Drafting the Zoning Amendment prohibiting certain Uses If you go with the approach of explicitly prohibiting certain uses, this is where what the lawyer does can make a critical difference in enforceability. The law must not be so broad as to prohibit conduct which is either Constitutionally protected or is beyond what is reasonably required to address the harm you’re concerned about, and must be sufficiently detailed to reasonably apprise people as to just what conduct is prohibited.

50. Definitions The rule is that “(r)egulations limiting the use of property must be strictly construed, and if there is any doubt as to their meaning it must be resolved in favor of the property owner.” Since the zoning ordinance under review does not define “distribution center”, and it is unclear precisely what is meant by these words, the resulting ambiguity must be resolved against the municipality and in favor of the property owners.” Town of Huntington v. Barracuda Transport Co., Inc., 435 NYS2d 354 (2nd Dept. 1981)