Towns seek home rule protection

Penfield will be the latest town to consider a temporary ban on hydraulic fracturing, as the Town Board tonight is expected to vote on a one-year moratorium.

Town officials are concerned about the truck traffic drilling could bring to town as well as the impact on water quality, among other issues.

Neighboring Perinton already approved an outright ban on this form of drilling for natural gas, also known as fracking, and the city of Rochester and several other towns in the county also have moratoriums on the books.

Two of those — the towns of Mendon and Rush — are among the more than 50 municipalities in the state that are seeking permission to appear as friends of the court in a case involving a gas company and Central New York town of Dryden.

The New York Association of Towns and New York Conference of Mayors organizations also are included. Penfield is not.

The intent of the towns and other municipalities is to preserve their ability to determine the types of land uses allowed within its borders, or home rule, said John J. Henry, a partner in the Albany law firm of Whiteman Osterman & Hanna LLP representing the municipalities.

“The position is not pro- or anti-fracking,” Henry said. “Their concerns are to make sure they have the power to enforce zoning laws in their borders, just as they would any other activity.”

Henry equates the drilling operation to mining, which municipalities do have the ability to regulate.

“A town can’t regulate the day-to-day operation of a mine but can decide if it wants a mine in town and if so, where,” Henry said. “This situation is no different than mining.”

The Ulysses Town Board, which has banned fracking, had asked other towns to be part of the case and support the issue of home rule, said Mendon Supervisor John D. Moffitt.

The Mendon Town Board did approve a one-year moratorium earlier this year, but Moffitt said he is not for or against the drilling and is waiting for the state to complete a four-year study. A statewide moratorium is in effect until the study is complete.

“I want to hear what the state has to say about it before I form an opinion,” Moffitt said.

Jim Smith, a spokesman for the Independent Oil and Gas Association of New York, said the state is required to regulate gas drilling, not municipalities, and he expects moratoriums and bans will be struck down by the courts.

Monroe County, as well as other local counties, have not seen drilling and are unlikely to see drilling. If there is no drilling, there is no need for bans or moratoriums, Smith said.

“The things they are afraid of are not occurring where the drilling is,” Smith said. “It’s a Chicken Little-situation playing out in upstate New York.”

Drilling is taking place in the gas-rich Marcellus shale region, which includes parts of Pennsylvania, the Southern Tier of New York and parts of Ontario County, where several municipalities also have instituted temporary bans.

The towns of Gorham and Geneva are part of the case.

Monroe County does not lie in the Marcellus region, but is within the Utica shale region, which The Associated Press has reported is drawing attention from drilling companies mainly in Pennsylvania and Ohio.

Municipalities just want a say in how it determines land uses, “whether it’s fracking or something else,” Henry said.