Agenda - Planning Commission - 12/06/2012

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Zoning Bulletin November 10, 2012 I Volume 6 I Issue 21 Case Note: The Opponents had also argued that the Ordinance: was a zoning law that was required to be referred to the Broome County Planning Board prior to enactment; and was superseded by state Environmental Conservation Law ("ECL') § 23- 0303 (governing mineral resources). The City contended that: because the Ordinance was enacted pursuant to the City's police powers, the City was not required to refer the local law to the Planning Board prior to enactment; and the Ordinance was not superseded by ECL § 23-0303. Citing prior New York case law, the court concluded that ECL § 23-0303 "does not supersede local government's rights to regulate the use of the lands within their jurisdictions"; the Ordinance was not superseded by ECL § 23-0303. Further, the court agreed that a municipality could enact laws pursuant to its po- lice powers to protect the health, safety, and welfare of its citizens, and that it does not have to do so through a zoning law. If the Ordinance was not a zoning law, then the City would have no obligation to refer the Ordinance to the County Plan- ning Board. However, the court determined that the City 'failed to provide any evidentiary proof that would provide a justification, based upon the health and safety of the community, for the banning of gas exploration, storage and extraction. Instead of proof the City [has] produced only conclusions." Those conclusions —that the law was enacted pursuant to the City's police power —could not, said the court, "change the true character of [the Ordinance]." The court then went on to declare the Ordinance as an invalid moratorium on a particular land use. Case Note: In its decision, the court recognized "that the issue of gas exploration, extraction and storage is a controversial issue currently being debated throughout the state, and that there may be fierce opposition to gas exploration, extraction and storage by some members of the community. " However, the court said that "the City can- not just invoke its police power solely as a means to satisfy certain segments of the community. Rather, the [C]ity must satisfy the well[ -]established legal require- ments that show a dire emergency; that the moratorium is reasonably calculated to alleviate a crisis; and that they are taking steps to solve the problem." Zoning News from Around the Nation NATIONWIDE On October 5, 2012, the U.S. Supreme Court agreed to hear the ©2012 Thomson Reuters 11