How is a ban different from a moratorium?
The Moratorium was adopted to provide time and space to work on six issues related to the impacts of gas extraction, including investigating language and policy for a ban. During this window of time the Town Board and Caroline community will consider the impact of these six actions on gas extraction and the community, assess the need for any of these six actions and, if desired, develop the wording of any local laws or policies. While this work is going on, no gas extraction is allowed, except in hardship cases. This purpose is quite different from a ban which states that certain gas extraction and related activities are prohibited within all or parts of Caroline as described in the law, with exceptions also described in the law. So, in short, a moratorium is a temporary prohibition, and a ban is a permanent prohibition, though both are in effect land usage regulations.
Is a ban permanent or can it be undone? How?
Any law is permanent, unless its language provides for a sunset, like a moratorium law does. Any law can be rescinded by a later adopted local law. The law which rescinds a previous law may modify the original law or completely rescind it. Both the original law and a rescinding subsequent law follow the same process for adoption.
What happens to the moratorium once we have a ban?
The Moratorium stays in place until its sunset date or until it is rescinded, which a ban of gas drilling law could do. The scope of what types of activities and where they are allowed may be different between these two actions. Whichever law is most restrictive would be the rule until the Moratorium is rescinded or sunsets.
Do we still have to work on all the other projects indicated in the moratorium (road use agreement, industrial site plan, critical environmental areas, aquifer protection, and pipelines) or will a ban take care of everything?
The Moratorium doesn’t require the Town Board to take any action. It only states the desire, not the requirement to consider these six areas: Road Preservation, Aquifer protection, designating Critical Environmental Areas, regulations for gas pipelines not regulated by other levels of government, Industrial Site Plan Review, and Ban local law. None of these items are “protected” or covered by any current legislation, including the Moratorium. And none of them would be protected or covered by a Ban.
However, if the Town does want to consider other legislation to address the impacts of heavy industrial processes within or passing through the Town, then the validity and enforceability of the moratorium will be enhanced by steady, meaningful, and diligent progress upon those items that the Town Board or the Town Citizens may desire.
Why not wait and do the ban later, when the moratorium is nearing its end and the other work is finished?
Developing a local law of the seriousness and potential impact of a ban local law is not a decision the Town Board, or the community, should take lightly. There is not a cookie cutter model law on the shelf to select from and Caroline has unique diversity of needs and interests. Both of these reasons should indicate a deliberate process in developing ban law language which takes time.
Further, the Dryden and Middlefield cases shows that there are still appeals and other issues on the horizon relative to the courts or the NYS legislature; particularly as to their roles in clarifying or parsing out what part citizens and local governments may play in this process.
Finally, by diligently working and adopting such legislation as is then ready, the Town shows that it is proceeding materially and diligently towards fulfilling the purposes for which the moratorium was adopted – the need for time and study.
How can the town take away my rights as a property owner?
Both the US Supreme Court and the NYS Court of Appeals have determined that community’s rights override private property rights, if the local community through their local government board, determines so. As the United States Supreme Court stated in Town of Belle Terre v. Borass, 416 U.S. 1 (1974):
the concept of public welfare is broad and inclusive…. The values that it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the [local] legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.
416 U.S. at 6. See also, Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y. 2d 668 (1996), where the Court of Appeals, New York State’s highest court held as follows:
We have never held, however, that the … [‘exclusionary zoning’] test, which is intended to prevent a municipality from improperly using the zoning power to keep people out, also applies to prevent the exclusion of industrial uses. A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police power to prevent damage to the rights of others and to promote the interests of the community as a whole.
In short, any level of government has limitations as to how far into the realm of property rights it may intrude before triggering constitutional concerns. However land use rules that prohibit the opening or operation of a uranium processing facility in the middle of a residential neighborhood are commonly held as appropriate.
Thus, in the context of zoning, the US Supreme Court has long recognized that some property rights yield to the collective good, so long as the regulation in question is a proper use of the police power of government and is in any reasonable manner rationally related to the underlying legislative goals that such a law or land use regulation seeks to achieve. This reasoning is reflected in the decisions cited above.
To the extent the question seeks to differentiate between a property right related to a use of land versus a hereditament of the land, the law is not 100% settled in this area – - and it never will be as the question is always the scope of governmental intrusion measured against the impact upon the constitutional protections for property, and not as measured against the mere right to own property. Hence, in NYS the current law is stated by the Gernatt Asphalt Products, Inc., case cited above.
Does banning gas drilling constitute a illegal taking? Aren’t we setting ourselves up for a lawsuit that the town can’t afford?
It all depends on the specifics of the case; the law that is developed, and the reasons for the lawsuit. There is case law that is instructive here. Our attorney has reviewed a number of legal decisions and suggests the Town would prevail as not having done an illegal taking, but case specifics are important in relation to past decisions for both sides. Anyone considering such action should check with an attorney with experience in takings issues.
What happens to current gas leases if a ban is put in place? Will those leases ever legally expire or will there always be a lien? What are the implications of this to the landowner? To the town?
Yes, the leases will legally expire as primary terms are not perpetual.
- If the lease expires by timing out or being surrendered there is no right of a lessee to drill.
- If a ban is in place (and assuming NYS Courts continue to uphold them) there is no right of a lessee to drill.
- The secondary issue is hiding in the implied suggestion that the ban may extend the life of the lease. This may occur, but it will not permit the lien to be perpetual. If the NYS force majeure litigation determines that a ban is not a force majeure event, then that will be the answer. As of now the law is a unclear.
Can a ban apply to some parts of Caroline but not others?
Yes if that is the determination of the deliberative process
Can a ban be written so that it allows some types of drilling but not others?
The Town is advised to stay away from regulating the gas extraction process as that is the purview of the State. The current local law clearly makes that distinction.
Can a ban be written so that some geologic formations can be drilled but not others?
The Town is advised to stay away from regulating the gas extraction process as that is the purview of the State. The current local law clearly makes that distinction.
Does a ban prohibit subsurface drilling from, say, Tioga County into land in Caroline?
It can and the initial wording does.
Will the Town be sued if it passes a ban?
If Supreme Court Judge Rumsey’s decision on Home Rule is upheld through appeal, then the Town would not likely be sued on those grounds. If the decision is overturned, the Town Board can weigh the judge’s decision to determine its prudent course of action. The Town can be sued for “takings” by leasees and/or lease holders as discussed above.
What will be the Town Board’s process for developing language for Ban local law?
The first draft was crafted around the language of the Moratorium. It was not done by a committee of the Town Board. Therefore, the Town Board and public are encouraged to ask questions about this local law on April 25th at 7 PM at the Speedsville Community Center on the Speedsville Square. The Town Board will discuss the questions and comments heard and will develop a plan for any future work on study areas or modifying the law’s language.
