NYS Appeals Court Upholds A Community's Right to BAN Certain Industrial Uses

Yesterday I received from a couple sources an article about the NYS Court of Appeals upholding a community’s right to ban fracking and apparently other industrial uses in their communities using local zoning ordinances.

Geee anyone you know stand  by that argument for the last 8 years!!!!   Gee da ya think!!!

 This morning the Cape Vincent blog JLL had posted it as well.  Not sure what his point was in posting this article and court case. He supported the CV govt that basically caved in to having our home rule taken away.  The antithesis of what this case is about even though the state laws are slightly different.

The title of this article reads:

“Court Rules That New York Towns Can Ban Fracking”

You can read the article and links to the detailed court decision at the link below.

http://ecowatch.com/2014/06/30/new-york-towns-ban-fracking/?utm_source=EcoWatch+List&utm_campaign=fd167ba96c-Top_News_6_28_2014&utm_medium=email&utm_term=0_49c7d43dc9-fd167ba96c-85363217

The wind controversy in Cape Vincent has begun to fade after BP leaving, but this decision is still very pertinent to Cape Vincent and its zoning law and wind zoning regulations and home rule we are left with.

Now keep in mind there are different laws involved here between fracking which is handled in state law as mining, and wind development over 25 MW that now falls under Art. 10 and electric generation. 

But the parallels are so  striking, and the arguments extremely relevant to Art 10 and what CV just went through with Art. 10 and BP that this case is really hard to ignore.  The arguments here are so close and so relevant it boggles the mind that the Hirschey govt didn’t have the brass to ban a land use (industrial wind) that was very clearly and obviously a huge detriment to our community’s health, safety and welfare, and aesthetics.  Sounds like they might have had a sympathetic court.   Instead of standing up to once and for all protect our community and region, they caved in and   appeased the wind industry, Art 10 and Albany.

I stood strongly for banning industrial wind in our zoning ( but I was called a lunatic and nut case) for opposing Article 10’s right to preempt our zoning.  I took that stance on the same basic arguments that the highest court in NYS is now validating, even though it is on a slightly different law context, yet making an unmistakable case to uphold a BAN!!!

Our govt caved and left us vulnerable, when they should have stood their ground on a ban and the entire issue of home rule.

Here is a direct quote from the court decision.

“The Towns, joined by other amici curiae, respond that the courts below correctly concluded that they acted within their home rule authority in adopting the challenged local laws.  They urge that the ability of localities to restrict the industrial use of land with the aims of preserving the characteristics of their communities and protecting the health, safety and general welfare of their citizens implicates the very essence of municipal governance.  They further contend that, when analyzed under the principles set forth in our precedent, the OGSML and its supersession clause do not extinguish their zoning powers. Unlike our dissenting colleagues, we believe that the Towns have the better argument.”

The court of appeals also stated the following

“The Legislature likewise authorized towns to enact zoning laws for the purpose of fostering "the health, safety, morals, or the general welfare of the community" (Town Law § 261; see also Statute of Local Governments § 10 [6] [granting towns "the power to adopt, amend and repeal zoning regulations"]).  As a fundamental precept, the Legislature has recognized that the local regulation of land use is "[a]mong the most significant powers and duties granted . . . to a town government" (Town Law § 272-a [1] [b]).We, too, have designated the regulation of land use through the adoption of zoning ordinances as one of the core powers of local governance (see DJL Rest. Corp. v City of New York, 96 NY2d 91, 96 [2001]).  Without question, municipalities may "enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of [the community]" (Trustees of Union Coll. in Town of Schenectady in State of N.Y. v Members of Schenectady City Council, 91 NY2d 161, 165 [1997]”

Now I took a lot of grief for my stance to ban wind.  I also took a lot of grief for not writing the NYPSC during the BP Art 10 fiasco.  But actually I did write the PSC, but it was not a begging letter to save CV or the 1000 Islands.  As I remember it was letter  # 144 or thereabouts.

Instead my letter was basically a legal argument for home rule and against Art 10.  Basically the same argument the court gives in the second quote to uphold a fracking ban.  The legislature recognizes that one of the most important powers given to towns is their zoning power, then to turn right around and negate it is arbitrary and extremely inconsistent.  Hammering Art 10 is only a breath away from this, yet apparently our govt didn’t get it!!!

And consider this.  Our law appeases wind energy and actually allows for some of it which is still completely absurd, not to mention a violation of our comp plan’s intent to prtect and preserve our scenic resources. 

But in the end our law was never tested to see if Art 10 or the court would uphold it.  There was NO decision, so to say the town took the right course as some are promoting in their fantasy is also absurd because it was never tested.

BP instead (thankfully) just walked away. 

 Think about it. We could have just as well really protected our community and banned industrial wind and sent a very clear message to wind developers and the state, instead of a weak appeasement and invitation, and with no challenge and have that on the books, and it would be completely in compliance with our comp plan.

But what are we left with???  An absurd law that allows some wind development, even though that is insane for our community and region.  Even Clayton oppsed our wind zoning regulations as not protective enough of the area.

AND after all that then it was clearly demonstrated that the promoters and drafters of the law couldn’t even read it or apply it correctly.  Yeah, that doesn’t give me a lot of confidence that they actually knew what the hell they were doing in the first place by appeasing the Art 10 process, and willing to sacrifice our community to it so willingly!

So that is what we are left with, and then reading this court decision from the highest NYS court just makes me shake my head!

And of course the real absurdity in all this is our CV zoning does ban fracking, but with no science or study to back it up, which would most likely be a disaster for our region…but not industrial  wind that would bring basically a similar land use disaster after all the years or experience to see industrial wind's proven disaster right on our doorstep!!!  That is exception logic!!!