Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje,...

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Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org [email protected] [email protected] Workshop for Local Government Officials Tully, NY August 8, 2011

Transcript of Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje,...

Page 1: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Using Local Laws to Protect Health, Safety & Community Assets

Helen Slottje, Esq. & David Slottje, Esq.

Community Environmental Defense Council, Inc.

CedcLaw.org

[email protected] [email protected]

Workshop for Local Government OfficialsTully, NY August 8, 2011

Page 2: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 3: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Where Do We Get the Power to Do This?

Page 4: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.”

Page 5: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 6: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 7: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 8: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 9: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.”

Page 10: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 11: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.
Page 12: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 13: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 14: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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!

Page 15: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Does ECL 23-0303(2) preempt Use of Local Laws of General Applicability to Prohibit Unconventional Gas Drilling?

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)

Page 16: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.
Page 17: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.
Page 18: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 19: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 20: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Must we Update our Comprehensive Plan?

Not necessarily; broad objectives are fine.

Page 21: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.)

Page 22: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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”

Page 23: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 24: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 25: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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,” together with updates and supplements, which may include various goals and standards adopted by the town board.

Page 26: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.”

Page 27: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 28: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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).

Page 29: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Findings of fact• WHEREAS peer reviewed research done by Stephen Osborn,

Avner Vengosh, 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

Page 30: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 31: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 32: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Findings of factWHEREAS 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

Page 33: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 34: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Findings of factThe 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.

Page 35: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Findings of factAllowing 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.

Page 36: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

We favor a ‘belt and suspenders’ approach.

Page 37: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 38: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 39: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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…”

Page 40: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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. […] “

Page 41: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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)

Page 42: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.)

Page 43: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

Page 44: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

Page 45: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

Page 46: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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’

Page 47: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

Page 48: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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

Page 49: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

Page 50: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

DefinitionsThe 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)

Page 51: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes --- Any of the following in any form, and whether or not such items have been excepted or exempted from the coverage of any federal or state environmental protection laws, or have been excepted from statutory or regulatory definitions of “industrial waste,” ”hazardous,” or “toxic,” and whether or not such substances are generally characterized as waste: (a) below-regulatory concernradioactive material, or any radioactive material which is not below-regulatory concern, but which is in fact not being regulated by the regulatory agency otherwise having jurisdiction over such material in the Town, whether naturally occurring or otherwise, in any case relating to, arising in connection with, or produced by or incidental to the

Page 52: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

exploration for, the extraction or production of, or the processing, treatment, or transportation of, natural gas, petroleum, or any related hydrocarbons; (b) natural gas or petroleum drilling fluids; (c) natural gas or petroleumexploration, drilling, production or processing wastes; (d) natural gas or petroleum drilling treatment wastes (such as oils, frac fluids, produced water, brine, flowback, sediment and/or any other liquid or semi-liquid material); (e) solution mining brine or mineral brines; (f) any chemical, waste oil, waste emulsified oil, mud, or sediment that was used or produced in the drilling, development, transportation, processing or refining of natural gas or petroleum;

Page 53: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

(g) Soil contaminated in the drilling, transportation, processing or refining of natural gas or petroleum; (h) drill cuttings from natural gas or petroleum wells; or (i) any other wastes associated with the exploration, drilling, production or treatment of natural gas or petroleum. […]The definition of Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes does not include (i) recognizable and non-recognizable food wastes, or (ii) waste generated by Agriculture Use.

Page 54: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

HIGH-IMPACT TRUCK --- A truck or tractor, as defined in the Vehicle and Traffic Law, with a minimum of three axles, and/or ten wheels, and capable of hauling a gross vehicle weight of 34,000 pounds or more. High-impact truck does not include exempted vehicles. HIGH-FREQUENCY, HIGH-IMPACT TRUCK TRAFFIC --- Any one of the following: (a) more than twenty (20) one-way trips by high-impact trucks to or from the site of the proposed use during any twenty four (24) hour period at any time during the duration of the use; or (b) more than fifty (50) one-way trips by high-impact truck to or from the site of the proposed use during any seven (7) day period at any time during the duration of the use; or (c) more than seven hundred (700) one-way trips by high-impact truck to or from the site of the proposed use during any three hundred sixty five (365) day period during the duration of the use.

Page 55: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Drafting the Zoning Amendment prohibiting certain Uses

EXEMPTED VEHICLES --- Any of the following: (a) vehicles for agricultural use, (b) school buses or other mass transit buses, (c) emergency vehicles, (d) military vehicles driven by active duty military personnel, or (e) trucks used in the construction, repair or maintenance of state, county, or Town roads or other public structures or property. LARGE SCALE WATER USE --- Any water withdrawal or sequestering water use of over 100,000 gallons of water in any thirty (30) day period from water resources within the Town. Large scale water use does not include water withdrawn for agricultural use, for emergency uses such as fire fighting, or for drinking, recreational, cooking, washing, or sanitary purposes and used within the Town.

Page 56: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

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.

• 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)

Page 57: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does such a law look like?

“2.2. Activities ProhibitedA. Subject only to the provisions of Clause B. below of this Section 2.2, it shall be unlawful for any Person to use, cause, or permit to be used any land, body of water, building, or other structure located within the Town for any of the following: (i) any Natural Gas And/Or Petroleum Exploration Activities; (ii) any Natural Gas And/Or Petroleum Extraction Activities; or (iii) any Natural Gas And/Or Petroleum Support Activities.”

Page 58: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does such a law look like?“B. The prohibitions set forth above in Clause A. of this Section 2.2 are not intended, and shall not be construed, to: (y) prevent or prohibit the transmission of natural gas through utility pipes, lines, or related appurtenances for the limited purpose of supplying natural gas utility services to residents of or buildings located in the Town; or (z) prevent or prohibit the incidental or normal storage or use of lubricating oil, heating oil, gasoline, diesel fuel, kerosene, or propane in connection with legal Agriculture, residential, business, commercial, and other uses within the Town, so long as such uses do not involve any Natural Gas And/Or Petroleum Exploration Activities, Natural Gas And/Or Petroleum Extraction Activities, or Natural Gas And/Or Petroleum Support Activities.”

Page 59: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does such a law look like?• NATURAL GAS AND/OR PETROLEUM SUPPORT

ACTIVITIES --- Shall mean and be any one or more of the following: (a) Natural Gas Compression Facility; (b) Natural Gas Processing Facility; (c) Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes Disposal/Storage Facility; (d) Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes Dump; (e) Injection Well; (f) Land Application Facility; (g) Non-Regulated Pipelines; (h) Underground Injection; (i) Underground Natural Gas Storage; or (k) disposal of radioactive material.

Page 60: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does such a law look like?

NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION WASTES DUMP --- Land upon which Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes, or their residue or constituents before or after treatment, are deposited, disposed, discharged, injected, placed, buried or discarded, without any intention of further use.

Page 61: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Moratorium

Page 62: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Moratorium• May be adopted as a “stop gap or interim measure where it is

reasonably designed to temporarily halt development while the municipality considers, inter alia, comprehensive zoning changes.” Cellular Telephone v. Village of Tarrytown, 624 NYS2d 170 (2nd Dept. 1995)

• Enactment of moratorium requires following same legal procedures as had to be followed when the legislation that it suspends.

• Moratorium is a Type II Action and is exempt from SEQRA• 6 NYCRR § 617.5(c)(30)

Page 63: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Requirements• Moratorium found to be roughly equivalent to zoning law and

therefore subject to notice, hearing and other procedural requirements required under state and local zoning laws. B & L Development Corp. v. Town of Greenfield, 551 NYS2d 734 (Sup. 1990)

• Limited Duration – no bright line test.

Page 64: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does a moratorium look like?

“A. From and after the date of this Local Law, no application for a permit, special permit, zoning variance, building permit, site plan approval, subdivision approval or other Town-level approval shall be accepted, processed, approved, approved conditionally, or issued for the construction, establishment, or use or operation of any land, body of water, building, or other structure located within the Town for any of the following: (i) any Natural Gas And/Or Petroleum Exploration Activities; (ii) any Natural Gas And/Or Petroleum Extraction Activities; or (iii) any Natural Gas And/Or Petroleum Support Activities.”

Page 65: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does a moratorium look like?

“B. 1. From and after the date of this Local Law, no Person shall use, cause, or permit to be used, any land, body of water, building, or other structure located within the Town for any of the following: (i) any Natural Gas And/Or Petroleum Exploration Activities; (ii) any Natural Gas And/Or Petroleum Extraction Activities; or (iii) any Natural Gas And/Or Petroleum Support Activities.”

Page 66: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does a moratorium look like?

“C. This moratorium and prohibition shall be in effect beginning on the effective date of this Local Law and shall expire on the earlier of (i) that date which is [nine (9) months] [?] after said effective date; or (ii) the effective date of a Town Board resolution affirmatively stating the Town Board has determined that the need for this moratorium and prohibition no longer exists.”

Page 67: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What does a moratorium look like?Section 7. HARDSHIP USE VARIANCE.The Board of Appeals of the Town is hereby authorized to accept and review (after public notice and hearing and in accordance with the requirements of law and of this Local Law) requests for a hardship use variance from application of the provisions of this Local Law by persons aggrieved hereby.

No such use variance shall be granted by the Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.

Page 68: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Can’t OurTown BeChallenged?

Page 69: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Yes, there could be a lawsuit.

Page 70: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Property Rights

• Property rights are ALWAYS subject to limitations to prevent injury to rights of community and neighbors.

• “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 powers to prevent damage to the rights of others and to promote the interests of the community as a whole.”

Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 NY2d 668 (1996)

Page 71: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Public Health, Safety & Welfare• An ordinance regulating property use will therefore be upheld

unless it is “clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, moral, or general welfare.” Village of Euclid v. Ambler Realty Co., 272 US 365 (1926)

Page 72: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

What Sort ofChallenges MightBe Brought?

Page 73: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

The Law Isn’t a Good Idea

‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.’ Rodgers v. Village of Tarrytown, 302 N.Y. 113 (1951)

Page 74: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Takings

• “As the United States Supreme Court has noted, ‘the submission that [a property owner] may establish a taking simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable.” Briarcliff Associates Inc. v. Town of Cortlandt, (quoting Penn Central Transp. Co. v. City of New York, 438 US 104.)

Page 75: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Constitutional Challenges• Equal Protection, Substantive Due Process, Procedural Due

Process, § 1983 Challenge• Ripeness• Party challenging an ordinance has the burden to negative

every conceivable [rational and legitimate] basis which might support the ordinance. Tuan Anh Nguyen v. INS 533 US 53 (2001)

Page 76: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Constitutionality Presumed• An ordinance regulating property use will be upheld unless it

is “clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, moral, or general welfare.” Village of Euclid v. Ambler Realty Co., 272 US 365 (1926)

Page 77: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Constitutional Challenges• “There are two types of constitutional challenges to a statute

[or other legislative act]: facial challenges, in which a statute is alleged to be unconstitutional on its face, i.e. in all circumstances, and ‘as applied’ challenges, in which a statute is alleged to be unconstitutional under the particular facts of the plaintiff’s case. A legislative enactment may be struck down as unconstitutional on its face if the plaintiff demonstrates that it is ‘arbitrary and/or unreasonable, and not rationally related to a legitimate government interest. Rational-basis review is properly applied to legislation that does not implicate any suspect classification or impinge upon the exercise of a fundamental right.” Casciani v. Nesbitt, 659 F.Supp.2d 427 (W.D. NY 2009)

Page 78: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Equal Protection• The Equal Protection Clause of the Fourteenth Amendment, §

1, commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Of course, most laws differentiate in some fashion between classes of persons. The Equal Protection Clause does not forbid classifications. It simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.

• F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). See also City of Cleburne, Tex. v. Cleburne Living Center, 473 US 432 (1985)

Page 79: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Equal Protection• “Statutes create many classifications which do not deny equal

protection; it is only ‘invidious discrimination’ which offends the Constitution.” Ferguson v. Skrups, 372 US 726 (1963)

Page 80: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Basis for Discrimination

• In general, the Equal Protection Clause is satisfied so long a there is a plausible policy reason for the classification, see United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174, 179, 101 S.Ct. 453, 459, 461,

66 L.Ed.2d 368 (1980), the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66

L.Ed.2d 659 (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., 473 U.S., at 446, 105

S.Ct., at 3257. . . . the State has a legitimate interest in local neighborhood preservation, continuity, and stability. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

Nordlinger v. Hahn, 505 US 1 (1992)

Page 81: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Equal Protection Con’t New York

“A duly-enacted local law is clothed with the presumption of constitutionality that applies to state legislation (see 41 Kew Gardens Rd. Assoc. v.

Tyburski, 70 N.Y.2d 325, 520 N.Y.S.2d 544, 514 N.E.2d 1114). For purposes of equal protection review, a legislative classification, such as the one at bar, that neither makes distinctions on the basis of a suspect class nor impairs a fundamental right, must be upheld if the challenged classification is rationally related to achievement of a legitimate state purpose (see Miriam Osborn Mem. Home Assn. v. Chassin, 100 N.Y.2d 544, 762 N.Y.S.2d 867, 793 N.E.2d 404; Trump v. Chu, 65 N.Y.2d 20, 489 N.Y.S.2d 455, 478 N.E.2d 971). ‘In determining whether a reasonable objective is promoted by the classification, the courts are not bound by the stated purpose of the statute. ‘Instead, a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification’ ‘(Miriam Osborn Mem. Home Assn. v. Chassin, supra at 547, 762 N.Y.S.2d 867, 793 N.E.2d 404, quoting Port Jefferson Health Care Facility v. Wing, 94 N.Y.2d 284, 704 N.Y.S.2d 897, 726 N.E.2d 449, cert. denied 530 U.S. 1276, 120 S.Ct. 2744, 147 L.Ed.2d 1008).”

Korotun v. Incorporated Village of Bayville, 809 NYS2d 533 (2nd Dept. 2006)

Page 82: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Due Process• The touchstone of due process is whether a law is reasonable in

relation to its subject matter and is adopted in the interests of the community (see West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 581 81 L.Ed. 703). While there is, of course, a strong presumption of constitutionality , the measure must bear ‘some fair, just and reasonable‘ relation to the ‘promotion of health, comfort, safety and welfare of society ‘

Niagara Recycling Inc. v. Town of Niagara, 443 NYS2d 939 (2nd Dept. 1981)

Page 83: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Procedural Due Process• A law fails to meet the requirements of the Due Process

Clause if it is so vague and without standards that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” People v. Scott, 26 NY2c 286 (1970)

Page 84: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Substantive Due Process• Violation of the federal and state constitutional guarantee that

the state not deprive it of property without due process of law.

• Two elements.• (1) valid property interest in a benefit that is entitled to

constitutional protection. • (2) the government action was wholly without legal justification.

• Supreme Court has said that only the most egregious official conduct can be said to be arbitrary in the constitutional sense. City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 US 188 (2003)

Page 85: Using Local Laws to Protect Health, Safety & Community Assets Helen Slottje, Esq. & David Slottje, Esq. Community Environmental Defense Council, Inc. CedcLaw.org.

Community Environmental Defense Council, Inc. is a501(c)(3) public interest law firm and isfunded entirely by charitable donations/grants.Online at Cedclaw.org

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