Agenda - Planning Commission - 12/06/2012

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November 10, 2012 I Volume 6 I Issue 21 Zoning Bulletin Ordinance was a moratorium and held that the Ordinance was invalid because it failed to meet the criteria necessary for a properly enacted moratorium. In so holding, the court found that the Ordinance was, in fact, a moratorium because it met the hallmark definition of a moratorium: it was a temporary ban on development or certain land uses. The City had argued that although the Ordinance was effective for a finite period, it was "not literally a moratorium because [the Ordinance] was not literally a zoning ordinance." Again, the City maintained that the Ordinance was enacted pursuant to their police powers, and not as a zoning law. The court concluded that the two-year "sunset" rendered the City's claims that the law was solely an exercise of their police powers "illusory". "This activity [(i.e., natural gas drilling and exploration)] cannot be so detrimental that it must be banned, but only for two years, particularly when it is clear that the City is not engaging in any investigation, studies or other activities in the interim in order to determine if there is a way to alleviate any harm to the people of the city from this future activity," said the court. The court found the Ordinance's inclusion of a "sunset" provision led to "no other rational conclusion except that the law [was] a moratorium." The court said that for the Ordinance to be valid as a moratorium, the City had to show that its actions were: (1) in response to a dire necessity; (2) reasonably calculated to alleviate or prevent a crisis condition; and (3) that the City was presently taking steps to rectify the problem. The Court found that the Ordinance failed to meet the criteria for a properly enacted moratorium: First, there had been no showing of a dire need. There could be no showing of dire need, noted the court, since the New York State Department of Environmental Conservation ("DEC") had not yet published the new regulations that were required before any natural gas exploration or drilling could occur in the state. Since there were no regulations, no peiiuits were being granted. Second, since the DEC was not yet issuing permits, there was also no crisis nor a crisis condition that could possibly be shown by the City at this time, said the court. Finally, the court concluded'that the "City clearly did not enact this law so that it could take steps to study or alleviate any problems that may be caused by gas drilling, exploration or storage." Accordingly, the court declared the Ordinance invalid. See also: Anschutz Exploration Corp. v. Town of Dryden, 35 Misc. 3d 450, 940 N.Y.S.2d 458 (Sup 2012) (holding ECL § 23-0303(2) does not supersede local government's rights to regulate the use of the lands within their jurisdiction). See also: Cooperstown Holstein Corp. v. Town of Middlefield, 35 Misc. 3d 767, 943 N.Y.S.2d 722 (Sup 2012) (holding ECL § 23-0303(2) does not supersede local government's rights to regulate the use of the lands within their jurisdiction). See also: Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 364 N.Y.S.2d 160, 323 N.E.2d 697 (1974). 10 ©2012 Thomson Reuters