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Norse v Dryden-App Div Decision 2 May 2013

Norse v Dryden-App Div Decision 2 May 2013

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New York appellate court affirms s Home Rule
New York appellate court affirms s Home Rule

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Categories:Types, Business/Law
Published by: James "Chip" Northrup on May 02, 2013
Copyright:Attribution Non-commercial


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State of New York Supreme Court, Appellate Division Third Judicial Department
Decided and Entered: May 2, 2013515227________________________________In the Matter of NORSE ENERGYCORPORATION USA, Appellant-Respondent,vTOWN OF DRYDEN et al.,OPINION AND ORDERRespondents.DRYDEN RESOURCES AWARENESSCOALITION,ProposedIntervenor-Respondent- Appellant.________________________________Calendar Date: March 21, 2013Before: Peters, P.J., Stein, Spain and Garry, JJ.__________The West Firm, PLLC, Albany (Thomas S. West of counsel),for appellant-respondent. Knauf Shaw, LLP, Rochester (Alan J. Knauf of counsel), forproposed intervenor-respondent-appellant.Deborah Goldberg, Earthjustice, New York City, for Town ofDryden and another, respondents.Cynthia Feathers, Glens Falls, for New York Farm Bureau,amicus curiae.
-2-515227Sidley Austin, LLP, Washington, D.C. (Joseph R. Guerra ofcounsel), for American Petroleum Institute and others, amicicuriae.Levene, Gouldin & Thompson, LLP, Binghamton (Scott R.Kurkoski of counsel) for Business Council of New York State, Inc.and others, amici curiae. Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry ofcounsel), for Town of Ulysses and others, amici curiae.Jordan A. Lesser, New York State Assembly, Albany, forMember of the Assembly Barbara Lifton, amicus curiae.Susan J. Kraham, Morningside Heights Legal Services, Inc.,New York City, for Vicki Been and others, amici curiae.Nancy S. Marks, Natural Resources Defense Council, New YorkCity (Katherine Sinding of counsel), for Catskill Mountainkeeperand others, amici curiae.Tooher & Barone LLP, Albany (John L. Barone of counsel),for A&E Management & Contracting, Inc., and others, amici curiae.__________Peters, P.J.Cross appeals from a judgment of the Supreme Court (Rumsey,J.), entered February 22, 2012 in Tompkins County, which, in aproceeding pursuant to CPLR article 78 and action for declaratoryjudgment, among other things, partially granted respondents'motion for summary judgment declaring that certain amendments tothe Town of Dryden zoning ordinance are not preempted by the Oil,Gas and Solution Mining Law.In August 2011, the zoning ordinance of respondent Town ofDryden (hereinafter the Town) was amended to ban all activitiesrelated to the exploration for, and the production or storage of,natural gas and petroleum. The amendment occurred in the midst
-3-515227of growing local concern over the proposed use of high volumehydraulic fracturing, commonly known as "hydrofracking," torecover natural gas from underground shale deposits.
Petitioner's predecessor in interest, Anschutz ExplorationCorporation, a driller and developer of oil and natural gas wellsthat owned leases covering approximately 22,200 acres of land inthe Town of Dryden, Tompkins County, thereafter commenced thiscombined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment seeking invalidation of the zoning amendmenton the ground that it was preempted by the Oil, Gas and SolutionMining Law (see generally ECL 23-0301 et seq. [hereinafterOGSML]). Following joinder of issue, respondents moved for
summary judgment declaring that the OGSML does not preempt thezoning ordinance amendment. Anschutz opposed the motion andurged Supreme Court to grant summary judgment in its favor.Subsequently, Dryden Resources Awareness Coalition(hereinafter DRAC), an association of approximately 71 residentsand landowners in the Town formed "to educate and protect theDryden community from the impacts and hazards associated withhydraulic fracturing," moved to intervene and defend the zoningordinance. Both respondents and petitioner opposed DRAC'smotion. Supreme Court denied DRAC's motion and granted summaryjudgment to respondents, concluding that, with the exception of aHydrofracking involves a process by which a mixture of
fresh water and chemical additives are pumped under high pressureinto shale formations beneath the ground. This process istypically accomplished by drilling multiple horizontal wells outfrom a vertical well. Once in the shale, the mixture disturbs,among other things, deposits of methane gas and is then returnedto the surface, where it is stored or transported in order toretrieve the methane. Currently, there is significant concernregarding the environmental effects of hydrofracking,particularly the risk of groundwater contamination.During the pendency of this appeal, Anschutz assigned
its interest in certain oil and gas leases in the Town topetitioner, who was thereafter substituted in the proceeding byorder of this Court (see CPLR 1018, 1021).

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