New York Gas Well Zoning
Local ordinances apply to gas wells throughout theUnited States. Zoning applies to gas wells in New York State both by statute and by case law.
Thestate regulates
how
a gas well is drilled, zoningcontrols
where
they may be prohibited. The courtrulings in both
Anschutz v
Dryden
and
CooperstownHolstein v Middlefield
are clear on that.
To that end,the New York Department of EnvironmentalConservation (DEC) has consistently deferred to localordinances.
The DEC has always acknowledged that land use planningand land use ordinances are the proper responsibility of municipalities.
This policy of deference to local ordinances
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Environmental Forum: “Sustainable Development and Mining”, Perspectives on New1
is identical to those of other states and has been clearlyarticulated at land use and legal conferences by the head of the DEC’s oil and gas section: The DEC has token safeguards for the built environment –because it defers to local ordinances to supply thoseprotections.
For instance, there are no setbacks fromhousing proposed for shale gas wells, which would fall underthe GEIS setback of only 100 feet. Such a setback of a shalegas well from a house would be illegal under any zoningordinance that addresses gas well setbacks.
In that regard,New York has the worst regulations in the United States.
New York towns have had to take action to protect theirwater sources and the built environment – includingprotecting housing that is subject to being forced intoparticipating in gas wells,
which would render the houseuninhabitable,
and un-financeable.
The DEC regulates gas drilling as an
activity,
but not as towhere gas wells may be located within the context of alawfully adopted land use ordinance –
that is the proper roleof municipalities
– like Denver, Santa Fe, Fort Worth, Ithaca,Buffalo, Syracuse, Albany, Dryden, Middlefield. etc. Land use
York’s Mined Land Reclamation Law Albany Law School April 17, 1998 Gregory H.Sovas, Director, Division of Mineral Resources, DEChttp://www.dec.ny.gov/docs/materials_minerals_pdf/albanyla.pdf
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planning and land use laws are done locally. Across thecounty, municipalities regulate all oil and gas land uses thatdo not fall under the controls of eminent domain.
While head of the DEC’ mineral management section,Gregory Sovas wrote that :“DEC has consistently advocated a strengthenedand enhanced role for local governments in the review andcontrol of mining operations that can have significant,localized environmental impact, particularly with regard todust, noise, and traffic.”
A DEC Administrative Law judge wrote this in a June 16,1997 ruling on Amenia Sand & Gravel, Inc.:"Impacts on real property values is not a matter to beadjudicated at a DEC hearing. Local governments, throughtheir ability to regulate land uses by zoning, are the properagencies to deal with impacts to real estate values andconsequent impacts to a community's tax base...As amatter of home rule, it is the Town's prerogative andresponsibility to ensure compliance with its own laws. Itwould be inappropriate for the State Department of Environmental Conservation to attempt to usurp suchpowers from the Town. Even in instances where the DECapproves projects, such approvals are only indications thatthe proposals meet the requisite State standards to receivea permit. All DEC permits are conditioned on the basis thatan applicant must comply with any and all other applicablelaws and regulations, and that a DEC approval does notabsolve an applicant from making proper applicationand receiving whatever other approvals are applicable,whether at the federal or local government levels."
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Gregory H. Sovas, “New Mined Land Amendments Provide Opportunities for LocalGovernments.” Talk of the Towns, Fall, 1991, pages 16 and 21.
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New York Gas Well Zoning
New York zoning applies to gas wells
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