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February 24, 2012

Middlefield wins 'home rule' case in court

Victory comes on the heels of similar ruling for Dryden

Joe Mahoney

COOPERSTOWN — In a major setback for the natural gas industry, a state judge today upheld the legality of the town of Middlefield's ban on drilling for natural gas, marking the second victory of the week for home rule advocates out to stop hydrofracking.

Acting State Supreme Court Judge Donald Cerio, in an 11-page decision, said there was "no support" for claims that the state Legislature, by enacting the Environrmental Conservation Law in 1981, intended to "abrogate the constitutional and statutory authority vested in local municipalities to enact legislation affecting land use."

The lawsuit aimed at upending revisions to Middlefield's zoning law that were enacted last year was brought by Jennifer Huntington, owner of Cooperstown Holstein Corp., a company that has leased nearly 400 acres in the town to a gas drilling company.

Huntington's lawyers have claimed the ban strips landowner of their mineral rights and that the Environmental Conservation Law places all regulation authority over drilling with the state Department of Environmental Conservation.

Cerio, who was assigned the case after Otsego County judges recused themselves, wrote: "There is no language contained with the legislative history which serves to support plaintiff's claim tha the supersession clause enacted was intended to impact, let alone diminish or eliminate, a local municipality's right to enact legislation pertaining to land use."

The decision came on the heels of a similar one issued Wednesday by State Supreme Court Judge Donald Rumsey, who upheld the town of Dryden's move to ban gas drilling.

Unlike the Dryden case, in the Middlefield litigation, several local organizations, as well as the Village of Cooperstown, were permitted to files friend of the court briefs, backing the town's arguments that it was entirely within its authority to update its zoning law to keep out gas drillers.

"We are extremely pleased by Judge Cerio's forceful and clear decision supporting home rule," said Nicole Dillingham, president of the Board of Directors of Otsego 2000, one of the environmental groups supporting Middlefield.

"The towns have the power to regulate land use within their borders," she said. "There can be no doubt of this after reading Judge Cerio's decision."

Middlefield Town Attorney David Clinton said, "The people who are proponents of our law are obviously jubilant tonight. I'm sure there are going to be some people who see this as a lost economic opportunity. But the gas is not lost. It's still here."

Advocates of the drilling ban have argued that hydrofracking was inconsistent with the town's rural character and that the activity could lead to toxic contaminants ending up in ground water. Brewery Ommegang, which also submitted a friend of the court brief in support of the drilling ban, had indicated it would have consider relocating if drilling began on Huntington's land.. The brewery is within close proximity of the Cooperstown Holstein tract.

Thomas West, an attorney for Huntington who also represented the gas company that lost the Dryden case, could not be immediately reached for comment.

West said earlier this week that Anschutz Exploration Corp., which sued Dryden after that town enacted a fracking ban, has not yet decided whether it will appeal the Rumsey ruling.

Clinton said the two cases could be rendered moot if legislation proposed by Sen. James Seward, R-MIlford, that would clarify that local governments are empowered to have home rule in zoning heavy industry, is passed by both houses of the Legislature and signed into law by Gov. Andrew Cuomo. Cuomo last year lifted a moratorium on permits for gas drilling and the Department of Environmental Conservation coulud begin to award permits to drillers later this year after completing its review of draft rules that would govern hydrofracking.