Category Archives: Land Use

New York Appellate Court Affirms Enforceability of Local Ban Against Fracking

2687_104008550336_4278131_nIn two key decisions, New York’s Appellate Division, Third Department, affirmed two localities’ bans on fracking.  Specifically, in Cooperstown v. Town of Middlefield and in Norse Energy v. Town of Dryden, the Court reviewed whether the Supreme Court correctly rejected the energy companies’ argument that the localities’ bans on fracking were preempted by New York state law. In the respective appeals, several interests groups were granted leave to file amici curiae briefs, including environmental groups, towns, and industry.   The Court first recognized that the…

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Lawsuit By Industry Against New York State and Locality Progresses

A lawsuit brought by an energy company against the town of Avon and New York’s DEC is progressing in New York’s Seventh Judicial District.  Specifically, Lenape Resources seeks  in excess of $50 million from the town on the grounds that its ban on fracking is resulting in lost business related to its existing mineral rights.   According to Lenape’s John Holko, Lenape had successfully and without incident drilled in the area for decades until 2012 when the locality passed a one year ban on…

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NY Landowners Consider Takings Suit if DEC Misses Fracking Deadline

A group of landowners in New York are considering filing a lawsuit if the state fails to meet its February 27, 2013 deadline to release hydraulic fracturing regulations. The Joint Landowner’s Coalition of New York released a statement last Friday saying that they are “laying the ground work for a lawsuit against New York State for a de facto taking in case [Governor Andrew Cuomo] decides to delay the release yet again.” The Takings Clause of the Fifth Amendment provides that the government may not…

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Fracking

New York Court Invalidates Local Fracking Ban

In a third recent New York legal challenge to local ordinances banning or limiting fracking, New York Supreme Court Justice Ferris Loubous found that Binghamton’s two-year moratorium on fracking could not be upheld. Specifically, in Jeffrey v. Ryan, et al., Index No. 20012-001254 (Sup.Ct. Broome County, Oct. 2, 2012), petitioners-landowners filed an Article 78 proceeding seeking to invalidate local city ordinances that sought to prohibit natural gas exploration.   The landowners sought to preserve their opportunity to lease their land for fracking.  The respondents, including the…

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Marcellus Pipeline Related Eminent Domain Action Quietly Settles

In early summer, two railroads commenced a declaratory judgment action in the Middle District of Pennsylvania (Docket No. 12CV 1239) against an oil and gas company related to the gas company’s natural gas pipeline.   The railroads sought to stop the natural gas company’s use of eminent domain in order to build the pipeline through certain parts of northeast Pennsylvania.   Specifically, the railroads argued that the taking affected the railroads’ easements that had been in existance for many decades. The case settled quietly last month.   The…

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