Lawyer: 1981 document forbids local land-use laws

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March 23, 2012

Lawyer: 1981 document forbids local land-use laws

By JOE MAHONEY Staff Writer The Daily Star Fri Mar 23, 2012, 03:30 AM EDT

COOPERSTOWN -- A lawyer involved in the attempt to scuttle the Middlefield ban on natural gas extraction said Thursday he has uncovered documents from three decades ago that support his contention that state lawmakers wanted to stop local governments from enacting land-use laws impeding drilling activities.

Lawyer Thomas West of Albany also told The Daily Star that he is inclined to appeal last month's decision by Acting State Supreme Court Justice Donald Cerio upholding the legality of the Middlefield zoning law, which keeps out gas drilling. But he said he is first going to present what he called the new information to the judge, hoping it will prompt him to reconsider the 11-page decision he issued Feb. 24.

"We're going to go back to Judge Cerio and try to straighten this out," West said in a telephone interview. "If he doesn't, well, that's why God made appellate judges."

West said that, with the assistance of a retired state Department of Environmental Conservation employee, he came across an archived bill memorandum after Cerio's ruling was issued.

He said the 1981 document goes to the heart of the case because Cerio had emphasized in his decision that he found "no support" for claims that the Legislature, by enacting the Environmental Conservation Law that year, had intended to abrogate the authority of local municipalities to enact land-use legislation.

In response to a request to provide a copy of the bill memo to The Daily Star, West said he would make the information available after he presents it to the judge.

The Middlefield lawsuit, brought against the town by dairy farm operator Jennifer Huntington, is one of two major legal challenges to efforts by local governments to ban gas drilling.

The other involves a similar local law enacted by the town of Dryden. In that case, a gas company, also represented by West, had its arguments similarly rejected.

David Clinton, the attorney for the town of Middlefield, said he expected that the legal team for Huntington would challenge the ruling.

"We're ready to move forward if they appeal," Clinton said. He said attorneys for the town carefully researched the legislative history of the 1981 law and did not find anything that indicated it was the intention of the Legislature to supersede the ability of municipalities to zone out drilling.

Gas-industry advocates have warned town governments not to enact such laws, arguing that the 1981 law empowers the state as the sole regulatory authority over gas and oil extraction.

Middlefield and Dryden were among the first local governments in New York to enact such bans while the DEC reviews draft rules that could be put into effect if and when the state allows horizontal hydrofracking for shale gas to begin in New York.

So far, Middlefield Town Supervisor Dave Bliss said, the town has incurred $73,246 in legal fees arising from the case. Supporters of the ban have donated $56,782 to the town for its legal expenses, leaving a gap of $16,464 that would have to be plugged by town funds, unless more contributions come in, Bliss said.