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Municipal Preemption
! Municipalities are preempted by State law from regulating natural
gas drilling except:
(1)local roads
(2) real property taxes
! ECL 23-0303(2) states:
The provisions of this article shall supersede all local laws or
ordinances relating to the regulation of the oil, gas and solution
mining industry; but shall not supersede local government
jurisdiction over local roads or the rights of local governments under
the real property tax law.
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What Can a Municipality Do
Under the Preemption?
(1) Establish a local road preservation program
(2) Possibly adopt zoning laws related to natural gas drilling
discuss pending lawsuits
(3) Adopt other local laws of general applicability
(4) Participate in the NYSDECs permitting process for
natural gas wells
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Why Should a Municipality Establish a
Road Preservation Program?
Anticipated Traffic Impacts (from SGEIS Section 6.11)
! General rule of thumb: a single large truck = 9,000 automobiles
! Truck traffic will be two (2) to three (3) times greater than for a
vertical well
! DEC estimates 3950 one way heavy truck trips and 2840 one way
light truck trips PER HORIZONTAL WELL (Section 6.11.1.1-Table 6.62)
! If multiple wells are developed at a single well pad, these trips will
repeat for each well (see SGEIS Figure 6.22)
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Why Should a Municipality Establish a
Road Preservation Program?
Anticipated Traffic Impacts (from SGEIS Section 6.11)
! Local roads are not typically designed to sustain a highlevel of vehicle trips or loads (Section 6.11.3)
! In 2010, natural gas companies had spent $200 million in
repairing roads damaged in Pennsylvania from gasdrilling operations
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Authority to Regulate Local Roads:
! The NY Constitution and the Municipal Home Rule Law (MHRL) give
municipalities the power to adopt local laws related to the acquisition,
care, management and use of its highways, roads, streets, avenues and
property. N.Y. Const. art 9, 2(a)(6) and MHRL 10(1)(ii)(a)(6).
! ECL 23-0303(2) allows municipalities to regulate local roads used in
gas drilling operations
! NY Vehicle and Traffic Law (VTL) allows municipalities to regulate
roads
! VTL imposes limitations on municipalities to require permits and fees for
road use
! Under MHRL municipalities can adopt laws requiring payment of road
damage caused by users
Municipal Regulation of Roads
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! Municipal Powers Under VTL:
! Exclude trucks and commercial vehicles from certain roads
! Establish truck routes for trucks in excess of 10,000 pounds
(gross weight)
! Exclude trucks and commercial vehicles in excess ofany
designated weight, length or height! Exclude trucks with gross weight over four tons to prevent
road damage and issue permits based on hardship
! Adopt local laws and ordinances with respect to traffic as
local conditions may require
Municipal Regulation of Roads
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! Municipal Limitations Under VTL:
! Section 1604 generally prohibits municipalities
from requiring any tax, fee, license or permit
for use of public highways or excluding an owner
or operator from the free use of publichighways
EXCEPT as authorized in the VTL
Municipal Regulation of Roads
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Who Pays for Highway Repairs?
! Generally, the Town Law and Highway Law set forth
comprehensive rules for budgeting and funding for
local road improvements, maintenance and repair! Municipal burden to raise funds via general taxes
! Imposition of general fees for future road
maintenance and improvement upon private parties
based on use of public roads has been ruled invalid! Albany Area Builders Assn v. Town of Guilderland, 74 N.Y.2d 372
(1989) attempt by Town to impose fees upon developers for road
improvements found invalid as preempted by State regulation of
these areas
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Who Pays for Highway Repairs?
! Municipalities have power to seek damages for
damage caused to public highways (but not general
fees)
! Developers often recognize the need not only to
undertake repairs at their cost but to upgradeexisting roads to accommodate their construction
traffic
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Past Experience on Handling Road Repairs
for Large Scale Construction Projects
Wind Park Development
! Issues
! Large numbers of oversize, overweight, over-width vehicles for turbine
deliveries
! High volume gravel and concrete truck traffic
! Project footprint covered most or all of town and used many town roads
! Town roads lacked sufficient surfaces, widths and turning dimensions
! Solutions! Road use agreements between developers and municipalities
! Use of expert engineering consultants to monitor road conditions and
identify necessary repairs! Consultants fees paid by developers
! Repairs paid by developers
! Security/bonding for repairs in event developer failed to perform
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Road Preservation Program Goals
Goals:
! Avoid or minimize damage to local roads resulting from construction
traffic
! Ensure municipality not burdened with costs of repairs to roads
resulting from such use
! Ensure that users who may cause damage to local roads:
! Identify its haul routes! Cooperate in assessing condition of such roads identified
! Undertake any upgrades to accommodate traffic and repairs as
needed during construction
! No fees or taxes levied only security/bonding to ensure work can
be completed if developer fails to do so
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3 Basic Options for
Road Preservation
1. Post roads, issue permits (where allowed), and
obtain security for damage
2. Rely on voluntary Road Use Agreements (RUAs)
3. Adopt local road use and preservation laws
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Posting Roads
Posting Roads:
! Must be done by local law, ordinance, order, or regulation of Town Board
! Restrictions much be reasonable and not arbitrary and capricious
Pros:
Relies on authority granted by
VTL 385(15)(b) (power to
issue permits foroverweight/oversize vehicles)
and VTL 1660 (10), (11), (17),
and (28) (power to establish
truck routes and exclude trucks
from designated highways).
Cons:
Time Consuming to monitor road use and enforce
May be subject to challenge if restriction is not
reasonably related to public safety or protection of roadsor thresholds are arbitrary
May exclude traffic that is not damaging
May allow traffic that is damaging. Weight alone is not
the problem; the problem is weight combined with
frequency
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Voluntary RUAs
Voluntary RUAs
! Contract entered into between municipality and developer in relation to a specific project
! Have been successfully used in connection with large construction projects such as wind
farms and gas pipelines
! Primary mitigation measure for road impacts identified in SGEIS (Section 7.11.1.3)
Pros:
Provides a natural and cooperative framework
to address road damage and repair
Are not triggered by particular thresholds
(weight or number of trucks) all developers
traffic is covered
Allows municipality to require developer to pay
for all costs of implementing program: pre-use
analysis, upgrades, post-use analysis, repairs,
legal fees, etc.
Cons:
Subject to negotiation municipality may
not get everything it wants or needs
Not every developer whose traffic may
damage roads will be willing to enter into
an RUA
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Whats in a good RUA?
! Freedom for Developer to choose haul routes and traffic volume
! Developer agreement to pay for towns consultants to oversee and
implement agreement terms
! Developer to pay for agreed upon upgrades to haul route and for
repairs as needed until project completion
! Reasonable and specific mitigation measures and means of
evaluation of road for damage during and at completion of project
! Proper insurance to be provided
! Contact information for all parties to ensure good communication
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Road Preservation Law
Road Use and Preservation Law
! May be adopted as local law or ordinance
! Must be reasonably related to public health, safety, or general welfare
Pros: Cons:
Allows regulation of all traffic
that can damage roads
May be subject to legal challenges
Can provide for significant
penalties for violations
Must be carefully drafted
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Road Preservation Supported
by Engineering
Any road preservation program should be based on an engineering
standard in order to predict anticipated damage and measure actual
damage.
Engineering standards provide for an objective approach to:
! Establish security/escrow amounts
! Discriminate between developers traffic and baseline traffic
! Discriminate between developers traffic and traffic of other heavy
users
! Determine appropriate upgrades and repairs
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Zoning
Can a municipality use zoning to ban gas drilling as a land use?
! 20 municipalities have adopted zoning bans prohibiting natural
gas drilling
! 49 municipalities have adopted moratoria on natural gas
drilling pending further study
! Some municipalities classified natural gas drilling as a heavy
industrial use and prohibited it. DEC considers gas drilling to
be a heavy industrial use
! Two zoning bans have been challenged in court
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Zoning
(2) Cooperstown Holstein Corporation v. Town of
Middlefield (Sup. Court Otsego County)
(September 2011)
! Holstein owns and leases almost 400 acres of land
in the Town to natural gas drilling companies.
! Town enacted a new zoning law which prohibited
heavy industrial users (including oil and gas drilling)
in the Town.
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Zoning
Municipal Arguments:
(1) Municipalities have the legal authority to adopt zoning to
regulate land uses (like gas drilling).
(A) Article IX, Section 2 of the NYS Constitution provides
broad home rule authority for municipalities to adopt
local laws that:
! Relate to the property, affairs or government of the
local government
! Are not inconsistent with the NYS Constitution and
general State laws
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Zoning
(B) Statute of Local Governments confers to municipalities
the rights to:
! Adopt zoning regulations
! Comprehensively plan
(C) Zoning authority also found in Municipal Home Rule Law,
Town Law, Village Law and General City Law
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Zoning
(2) Plain language of the preemption statute:
! ECL 23-0303 expressly preempts all local laws
relating to the regulation of the oil, gas and solution
mining industry.
! Zoning regulations do not relate to the regulation of
natural gas drilling. Zoning relates to local land useand is not expressly preempted.
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Zoning
(3) Legislative history of the preemption statute:
! The legislative history does not indicate that the State
Legislature intended to preempt local zoning powers.
(4) Purpose of the preemption statute:
! ECL 23-0303 prevents a patch work of differing
municipal regulations related to the operations of gasdrilling.
! Zoning regulates land uses; it does not regulate the
operation of gas drilling or frustrate the purpose of the
preemption provision.
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Zoning
(5) Municipalities expend significant resources developing comprehensive plansto guide land use development in their communities. Gas drilling may conflictwith these plans.
(6) Natural gas drilling has thrived and co-existed with zoning controls in otherstates (Texas, Colorado, etc.) Why not in New York?
(7) Each municipality should decide for itself under its home rule powers whether
natural gas drilling should be a permitted land use within its borders.NYSDEC and private companies should not make this decision for amunicipality.
(8) Courts have examined similar preemption language in the sand and gravelmining context and upheld a municipalitys right to ban mining through zoningpowers.
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! Interpreting Almost Identical Preemption Statutes--
(1) Mined Land Reclamation Law (1974-1991):
This title shall supersede all other State and local laws relating
to the extractive mining industry. ECL 23-2703
(2) Oil, Gas and Solution Mining Law (1972-present):
This article shall supersede all other local laws or ordinances
relating to the regulation of the oil, gas and solution mining
industries. ECL 23-0303
Zoning
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Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126
(1987)
! A sand and gravel mine challenged the Towns zoning code
which permitted mining only in certain areas of the Town.
! The Court of Appeals made 7 critical holdings:
(1) The supersession of all local laws relating to the extractive
mining industry was not intended to preempt the Towns
zoning law establishing zoning districts where mining was
permitted or prohibited.
Zoning
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(2) Zoning laws relate not to the regulation of the mining
industry but to the regulation of land uses generallyan
entirely different subject matter.
(3) By regulating land use a zoning ordinance inevitably exerts
an incidental control over any of the particular uses or
businesses which may be allowed in some districts but not
others.
(4) Local laws of general application which are aimed at
legitimate concerns of a local government will not be
preempted if their enforcement only incidentally infringes on
a preempted field.
Zoning
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(5) There is nothing in State law that was intended to preempt
the Towns zoning law.
(6) Allowing such an intent would drastically curtail the Towns
Municipal Home Rule Law powers to adopt zoning laws in
the best interest of the Town.
(7) The purpose of the mining preemption was to prevent local
governments from enacting laws that would conflict and
frustrate the States encouragement of mining through
standardized regulations. Zoning laws do not conflict with
this purpose.
Zoning
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Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668 (1996).
! Sardinias zoning law prohibited mining anywhere in the Town. A mining company
challenged the ban.
! The mining company argued that if land within the Town contained extractable
minerals, State law obliges the Town to permit them to be mined somewhere in the
Town.
! Court of Appeals made 2 critical holdings:
(1) the State law does not preempt the Town from adopting a zoning law that
bans mining as a land use in the Town.
(2) a Town is not obliged to permit the exploitation of any and all natural
resources within the Town as a permitted use if limiting the use is a
reasonable exercise of its police powers to prevent damage to its citizens
and to promote the interests of its community.
Zoning
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Final Thoughts:
! Whether or not a municipality can adopt zoning bans
(or moratoria) related to natural gas drilling is now in
the hands of the courts.
! Lower court decisions could be issued by the first half
of 2012. Appeals likely. Final appellate court
decisions expected in late 2012 or 2013.
Zoning
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! NY Court of Appeals held:
Local laws of general applicationwhich are aimed at legitimate
concerns of a local governmentwill not be preempted if their
enforcement only incidentally infringes on a preempted field. Frew RunGravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987).
! ECL preemption overrides all local laws relating to the regulation of
gas drilling. It does not override other expressly granted State
powers duly delegated to the municipality.
Other Municipal Laws
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! State laws allow municipalities to adopt local laws on a variety of topics. These laws may
incidentally infringe on gas drilling and may not be preempted.
! Wetlands Protection Laws (ECL Article 24, Title 5)
! Flood Plain Protection Laws (ECL Article 36)
! Solid Waste Management Laws (ECL Article 27)
! Air Pollution Laws (ECL 19-0709)
! Tree Preservation Laws (GML 96-b)
! Water Basin Laws (GML 99)
! Building Code Laws (Executive Law Article 18)
! Real Property Taxes (ECL 23-0303(2) & Real Property Tax Law)
! Road Protection Laws (VTL & ECL 23-0303(2))
! Miscellaneous local laws
! These local laws must apply equally to everybody in the Town. They cannot apply to gas
drilling only.
Other Municipal Laws
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Wetlands
! ECL 24-0501 each local government may adopt, amend, and upon
filing of the appropriate freshwater wetlands map, implement a
freshwater wetlands protection law or ordinance in accordance with
this article to be applicable to all freshwater wetlands wholly or
partially within its jurisdiction.
! Natural gas well sites and their access roads may impact wetlands.
! The Courts have upheld local wetlands laws as having only incidental
effect on preempted mining operations. Patterson Materials Corp. v. Town ofPawling, 264 A.D.2d 510 (2d Dept. 1999).
Other Municipal Laws
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Flood Plains
! DECs SDGEIS: the SGEIS supports a finding that the [NYSDEC] not
issue permits for high volume hydraulic fracturing operations of any
well pad that is wholly or partially within a 100-year flood plain.
! ECL 36-0101 land use regulation is principally a matter of local
concern; therefore local governments have the principal responsibility
for enacting appropriate land use regulations that will meet federalstandards and permit the sale of flood insurance in such
communities.
! Municipalities adopt flood damage prevention local laws to regulate
development in flood plains.
Other Municipal Laws
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Solid Waste
! ECL 27-0711 nothing in this titleshall preclude the right of any governing body of
atown to adopt local laws, ordinances or regulations [relating to solid waste] which
are not inconsistent with this title or with any rule or regulation which shall be
promulgated pursuant to this title.
! These ECL provisions allow municipalities to adopt local solid waste laws that are as
stringent, if not more stringent, than State solid waste laws.
! Municipalities have adopted local solid waste laws regulating recycling, disposal of
solid waste, land clearing waste, etc.
Other Municipal Laws
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Air Pollution
! ECL 19-0709 nothing in this articleshall preclude the right of any governing
body of atown to adopt local laws, ordinances or regulations [relating to air
pollution] which are not inconsistent with this article or with any code, rule or
regulation which shall be promulgated pursuant to this article
! These ECL provisions allow municipalities to enact local laws to control air
pollution
! Municipalities have adopted local air pollution control laws regulating
incinerators, brush burning, fuel burners, etc.
! Natural gas well sites may generate air emissions related to fugitive dust
emissions on roads, etc.
Other Municipal Laws
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Tree Preservation
! GML 96-b anytown is hereby empowered to provide for the protection and
conservation of trees and related vegetation. Such legislative body may require
appropriate conditions applicable to any activity involving the removal or destruction of
trees or the substantial alteration of grade level around trees may include, where
appropriate, requirements that the activity be done as specified in an approved
landscape plan and that the removed trees be replaced by the planting of the same or
alternate species of trees, and may provide, in connection therewith, required plantings
for screening purposes. Such regulations, special conditions and restrictions, adopted in
the exercise of the police power, shall be reasonable and appropriate to the purpose.
! The Courts have upheld local tree preservation laws as having only incidental effect on
preempted mining operation. Seaboard Contracting & Material, Inc. v. Town of Smithtown, 147A.D.2d 4 (2d Dept 1989).
! Natural gas well sites and their access roads may clear forested areas.
Other Municipal Laws
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Water Basins
! GML 99 the governing board of any town may by local
law, ordinance or resolution regulate the construction,
maintenance or use of open wells, cesspools, cisterns,
recharging basins, catch basins or sumps and may require
that such installations be suitably covered or surrounded
with protective fencing.
! Natural gas well sites could use water impoundments.
Other Municipal Laws
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Building Code
! Executive Law 381(2) every local government shall administer and
enforce the uniform fire prevention and building code
! Many municipalities adopt local laws providing for the administration
and enforcement of the State building code.
!
State Building Code applies to industrial structures including oil andgas facilities.
! Town building inspectors may have to issue building permits for
structures on gas drilling sites and conduct inspections.
Other Municipal Laws
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Miscellaneous Local Laws
Legal Authority
! Town Law 130 the Town Boardmay enact, amend and repeal ordinances,
rules, and regulations not inconsistent with law for the following purposes:
(1) Building Code
(2) Plumbing Code
(3) Electric Code
(4) Fire prevention
(5) Dumping grounds
(6) Use of streets and highway
(7) Location and construction of driveways
(8) Smoke, gas and wastes
(9) Excavated lands
(10) Unsafe buildings and collapsed structures
Other Municipal Laws
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Other local laws could include:
! Steep slopes (Paterson Materials case)
! Timber harvesting (Paterson Materials case)
! Historic preservation (City of Buffalo v. National Fuel Corp., 1 Misc. 3d 857 (Buffalo City Court 2003)*reversedgrounds unknown*
! Stream protection
! Stormwater control
! Farm land protection
! Nuisance control (noise, light, air pollution, water pollution, etc.)
! Curb cuts
! Many different types of local laws are possible.
! Any local laws must be drafted properly by your Town Attorney to ensure
that they dont run afoul of the preemption in ECL 23-0303(2)
Other Municipal Laws
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Municipal Considerations in NYSDECs SDGEIS(subject to changes in SFGEIS)
! DEC will limit simultaneous construction of well pads in a Town and wells in close proximity to
each other.
! DEC will consider these measures in consultation with local governments to lessen cumulative
community character impacts.
! DEC will notify local governments of each drilling permit application for high volume
hydrofracturing.
! Well drillers must certify in their DEC permit application that the drilling is consistent with local
land use and zoning laws including comprehensive plans. If not, additional DEC review is
triggered.
! DEC created the Hydraulic Fracturing Advisory Panel to develop recommendations to avoid
and mitigate impacts to local governments and communities. Municipalities should notify the
Panel of potential concerns and issues.
Municipal Participation in NYSDEC
Permitting Process for Natural Gas Wells
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Comments or questions?
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