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January 15, 2014

Lower Court Strikes Down Local Gas Drilling Moratorium

Landowners have prevailed in the latest case involving the local regulation of natural gas drilling.  On January 9, 2014, the Supreme Court for the County of Delaware declared a one-year moratorium enacted by the Town of Sidney invalid, because the Town had failed to comply with several procedural requirements.

The court struck down the law on two grounds.  First, the Town Board failed to pass the law by a super-majority vote after being presented with a protest petition.  Under New York’s Town Law, a local law must be passed by a super-majority vote when the board is petitioned by landowners that collectively hold 20% or more of the land in the town.  The Town of Sidney received a petition from 107 landowners that accounted for 26.1% of the acreage in the Town but only passed the moratorium by a simple majority vote.  This is the first time a gas drilling moratorium has been challenged under the Town Law’s “protest petition.”

The court also held that the local law is a land use regulation subject to the requirements of the Town’s zoning ordinance, which requires consultation with the planning board for any proposed change in the zoning law.  The Town failed to refer the moratorium law for report and recommendation by the planning board.  Accordingly, the court ruled that the law was defective.

The court did not address petitioner’s substantive arguments challenging the local law on Constitutional grounds as a violation of the Commerce Clause.  The case is Grafe-Kieklak v. Town of Sidney (N.Y. Sup. Ct. Delaware County).

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