There is a new wrinkle to passage of the Home Rule/ Local Control Bill – Seward has introduced his own bill on the same day Lifton’s bill passed the Assembly. (Language is pasted below)

Senator Seward has gotten a lot of pressure to take prime sponsorship (which was offered to him three weeks ago) of Lifton’s bill and he has been hammered for declining this substantive leadership role.  By introducing his own language as the clock runs out,  he is trying to  answer his critics on the  prime sponsorship issue and distance himself from responsibility for advancing the Lifton bill (why would I do that when I have my own).  Even if we were to see rapid progression of Seward’s bill through the senate it would need at least three days to mature – we have two days left in session at most. (And it seems unlikely that the Governor would provide a message of necessity to speed things up) There may be some other options later this year, if they return for other business, but I think the introduction of S5830 has put a punctuation on the Senate’s refusal to act on fracking.

I believe the Assembly has enough determination to call Seward’s bluff and attempt to match his version and pass it, but time is not on their side this session either.

The language in Seward’s bill is serviceable and I think will have the same effectiveness as Lifton’s.  At the very least it provides a good foundation for next year.  At this point Seward is not going to push a bill that isn’t his, and I think calls to his office asking to him to push his own bill couldn’t hurt.  I like the idea of having him know the public is watching his every move, even if he is just going through the motions.

Thanks,

Roger Downs, Sierra Club

Comment from Dryden Town Board Member:  Jason Leifer

.the Bill that Seward put forth today — S5830 — is an unacceptable alternative to S3472.   In paragraph 2(b), which permits a ban but also permits a Town to allow drilling via a special use permit, the Town’s hands are tied with the special use permit conditions.   The Town will not be able to establish setbacks and do other things, but the Town also loses some authority over its local roads when compared to current law (i.e., no bonding, etc…).   Also, while theoretically a Town could refuse to issue a Special Use permit, it would have to be for a reason other than not wanting a well at that location since when something is allowed by special use permit it is seen as a permitted use in that zoning district.

The end result of Seward’s new Bill — S5830 — would be to leave Towns with no choice but to ban drilling if they want to retain the most local control.  I’m not sure that’s what he is trying to accomplish but who knows.

http://open.nysenate.gov/legislation/bill/S5830-2011

Jason Leifer

Comment from Krys Cail:

Hm.  Am not sure that Jason has this quite right– of course, it depends on the Town’s individual zoning language on Special Use permits, but, generally, Special Use permits are supposed to indicate that a use may be allowed in a particular zone if the body stipulated (sometimes it is the Planning Board, sometimes the Town Board) chooses to issue a special permit.

All of this is a bit more complicated than people might wish it were.  Townships that have comprehensive plans that allow heavy industry in some zones may have a tough row to hoe in court if they specifically prohibit gas drilling– under either bill.  Towns that zone drilling to one, heavy industry area only may be accused of spot zoning if the zoning is put in place after leases have been signed in other parts of the town.  And have to defend their zoning law.

I will be in touch with Jason to discuss this further.

Krys

 

=====================================================================================

S5830  SEWARD   No Same as
ON FILE: 06/20/11 Environmental Conservation Law
TITLE….Allows local governments to enact or enforce certain laws and ordinances relating to oil, gas and solution mining; repealer

06/20/11 REFERRED TO RULES

——————————————————————————–

SEWARD
Rpld & add S23-0303 sub 2, En Con L
Allows local governments to enact or enforce certain laws and ordinances relating to oil, gas and solution mining.
——————————————————————————–

STATE OF NEW YORK
________________________________________________________________________

5830

2011-2012 Regular Sessions

IN SENATE

June 20, 2011
___________

Introduced  by  Sen.  SEWARD — read twice and ordered printed, and when
printed to be committed to the Committee on Rules

AN ACT to amend the  environmental  conservation  law,  in  relation  to
allowing  local governments to enact or enforce certain laws and ordi-
nances governing oil, gas and solution mining; and to  repeal  certain
provisions of such law relating thereto

The  People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

1    Section 1. Subdivision 2  of  section  23-0303  of  the  environmental
2  conservation  law  is REPEALED, and a new subdivision 2 is added to read
3  as follows:
4    2. For the purposes stated herein, this section  shall  supersede  all
5  other  state and local laws relating to the oil, gas and solution mining
6  industries; provided, however, that nothing in  this  section  shall  be
7  construed to prevent any local government from:
8    a.  enacting or enforcing local laws or ordinances of general applica-
9  bility, except that such local laws or  ordinances  shall  not  regulate
10  oil,  gas and solution mining regulated by state statute, regulation, or
11  permit; or
12    b. enacting or enforcing local zoning ordinances or laws which  deter-
13  mine  permissible  uses in zoning districts. Where oil, gas and solution
14  mining is designated a permissible use in a zoning district and  allowed
15  by  special  use  permit,  conditions placed on such special use permits
16  shall be limited to the following:
17    (i) ingress and egress to public thoroughfares controlled by the local
18  government;
19    (ii) routing of drilling and drilling-related  transport  vehicles  on
20  roads controlled by the local government;
21    (iii) requirements and conditions as specified in the permit issued by
22  the  department  concerning  setback from property boundaries and public

EXPLANATION–Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13192-03-1

S. 5830                             2

1  thoroughfare rights-of-way natural  or  man-made  barriers  to  restrict
2  access, if required, dust control and hours of operation; and
3    (iv)  conformance  to  road construction standards as may be otherwise
4  provided for by local law; or
5    c. enacting or enforcing local laws or ordinances regulating oil,  gas
6  and solution mining not required to be permitted by the state.
7    § 2. This act shall take effect immediately.