Anschutz Exploration Corp. v. Town of Dryden

• Decision Date: 21 February 2012
• Citation: 2012 N.Y. Slip Op. 22037,940 N.Y.S.2d 458,35 Misc.3d 450
• Parties: ANSCHUTZ EXPLORATION CORPORATION, Petitioner, Plaintiff,For a Judgment Pursuant to Articles 78 and 3001 of the Civil Practice Law and Rules, v. TOWN OF DRYDEN and Town of Dryden Town Board, Respondents, Defendants.
• Court: New York Supreme Court

2012 N.Y. Slip Op. 22037
35 Misc.3d 450
940 N.Y.S.2d 458

ANSCHUTZ EXPLORATION CORPORATION, Petitioner, Plaintiff,For a Judgment Pursuant to Articles 78 and 3001 of the Civil Practice Law and Rules,
v.
TOWN OF DRYDEN and Town of Dryden Town Board, Respondents, Defendants.

Supreme Court, Tompkins County, New York.

Feb. 21, 2012.

[940 N.Y.S.2d 460]

The West Firm, PLLC, by Thomas S. West, Esq., Yvonne E. Hennessey, Esq., Albany, Attorneys for Petitioner–Plaintiff, Anschutz Exploration Corp.

Mahlon R. Perkins, P.C. by Mahlon R. Perkins, Esq., Dryden, Attorney for Respondents–Defendants,

[940 N.Y.S.2d 461]

Town of Dryden and Town of Dryden Town Board.

Knauf Shaw, LLP, by Alan J. Knauf, Esq., Rochester, Attorneys for Proposed Intervenor, Dryden Resources Awareness Coalition.Kendall Law, by Amy K. Kendall, Esq., Rochester, Attorneys for Proposed Intervenor, Dryden Resources Awareness Coalition.George A. Mathewson, Esq., Lake George, amicus curiae, pro se.Jordan A. Lesser, Esq., Albany, Attorney for Barbara Lifton, Assemblywoman, State of New York Assembly, amicus curiae.PHILLIP R. RUMSEY, J.

[35 Misc.3d 452] In this case of first impression, the court is asked to determine whether a local municipality may use its power to regulate land use to prohibit exploration for, and production of, oil and natural[35 Misc.3d 453] gas. The controversy arises from the proposed use of high-volume hydraulic fracturing (hydrofracking) to obtain natural gas from the Marcellus black shale formation which underlies the southern portion of New York State. The Town of Dryden is located in the Marcellus shale region.¹ In effect to prohibit hydrofracking, the Dryden Zoning Ordinance was amended on August 2, 2011 to ban all activities related to the exploration for, and production or storage of, natural gas and petroleum (the Zoning Amendment). Petitioner-plaintiff (Anschutz) owns gas leases covering approximately 22,200 acres in the Town—representing over one-third of its total area—that were obtained prior to enactment of the Zoning Amendment and has invested approximately $5.1 million in activities within the Town.² It commenced this hybrid CPLR article 78 proceeding/declaratory judgment action against the Town of Dryden and the Town of Dryden Town Board (collectively the Town) on September 16, 2011 seeking invalidation of the Zoning Amendment on the basis that it is preempted by the Oil, Gas and Solution Mining Law (OGSML). The Town timely answered and moved for dismissal of the article 78 proceeding and for summary judgment declaring the Zoning Amendment valid.

In light of the high degree of public interest in hydrofracking, the court received several inquiries about the procedure for filing amicus curiae briefs. All who contacted chambers were referred to Kruger v. Bloomberg, 1 Misc.3d 192, 768 N.Y.S.2d 76 (2003) and were advised that, absent consent from the parties, a motion would be necessary. Motions seeking leave to file an amicus curiae brief were timely filed by George A. Mathewson, Esq. and Assemblywoman Barbara Lifton.³ In

[940 N.Y.S.2d 462]

addition, a motion for leave to intervene was timely filed by Dryden Resources Awareness [35 Misc.3d 454] Coalition (DRAC). Prior to the return date, the court notified the parties and the non-party movants that the motions for leave to file amicus briefs and to intervene would be considered on submission. Inasmuch as the proposed intervenor would be entitled to participate in all aspects of the case as a party if the motion to intervene were ultimately to be granted, counsel for DRAC was permitted to participate in oral argument on the merits of the petition and the Town's motions.

MOTIONS FOR LEAVE TO FILE AMICUS CURIAE BRIEFS

The court has considered the following criteria in deciding whether to permit the filing of amicus curiae briefs: (1) whether the applications were timely; (2) whether each application states the movant's interest in the matter and includes the proposed brief; (3) whether the parties are capable of a full and adequate presentation of the relevant issues and, if not, whether the proposed amici could remedy this deficiency; (4) whether the proposed briefs identify law or arguments that might otherwise escape the court's consideration or would otherwise be of assistance to the court; (5) whether consideration of the proposed amicus briefs would substantially prejudice the parties; and (6) whether the case involves questions of important public interest ( see Kruger, 1 Misc.3d at 198, 768 N.Y.S.2d 76; see also Rules of Ct. of Appeals [22 NYCRR] § 500.23[a][4] ). No one factor is dispositive. Mathewson and Lifton both filed timely motions which indicated their interest in this proceeding/action and included their respective proposed briefs. Although the parties have very capably advanced their respective positions, there is no prejudice to them in permitting the proposed amici to be heard on this case of first impression involving a matter of important public interest ( see Kruger, 1 Misc.3d at 196, 768 N.Y.S.2d 76, citing Colmes v. Fisher, 151 Misc. 222, 223, 271 N.Y.S. 379 [1934]; Matter of Alfred Condominium v. City of New York, 2010 WL 7762750 [2010] ). Accordingly, the motions should be granted to the extent that the [35 Misc.3d 455] movants present arguments related to the issues in controversy. On that basis, Lifton's motion for leave to file an amicus curiae brief is granted. With respect to the arguments advanced by Mathewson, both parties correctly note that Points II–IV in his proposed brief are wholly unrelated to the matters at issue in this proceeding/action; ⁴ THEREFORE, HIS MOTIOn for leave to file an amicus curiae brief is

[940 N.Y.S.2d 463]

granted only to the extent that the court will consider the argument raised in Point I of his brief.

THE MOTION TO INTERVENE

DRAC identifies itself as an unincorporated association which has approximately 71 individual members who are residents or landowners in the Town of Dryden. It timely moved to intervene and submitted a proposed answer, affidavits from its president and five additional members, and a memorandum of law. Its motion is opposed by the parties. Inasmuch, as noted below, the court has granted the Town's motion to dismiss the article 78 proceeding, DRAC must show that it is entitled to intervene in the action under the more demanding standards applicable to actions set forth in CPLR article 10.

A party is entitled to intervene as of right only upon a showing that the representation of its interests by the parties is inadequate and that it may be bound by the judgment; both elements must be present ( see CPLR 1012[a][2]; St. Joseph's Hosp. Health Ctr. v. Department of Health of State of NY, 224 A.D.2d 1008, 637 N.Y.S.2d 821 [1996]; Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1012:3, pp. 156–157). Here, DRAC members have shown no substantial interest in the outcome of the action unique from those of any other resident or landowner in the Town of Dryden. As noted by the Town, it is the proper party to defend the Zoning Amendments which it enacted ( see St. Joseph's Hosp. Health Ctr.). The Town has met that duty by capably advancing its position ( see Matter of Spangenberg, 41 Misc.2d 584, 588, 245 N.Y.S.2d 501 [1963] ). Moreover, DRAC's submissions do not materially add to the defense advanced by the Town ( see Matter of Mayer, 110 Misc.2d 346, 441 N.Y.S.2d 908 [1981] ). Accordingly, DRAC is not entitled to intervene as of right.

[35 Misc.3d 456] With respect to permissive intervention pursuant to CPLR 1013, “[w]hile the only requirement for obtaining an order permitting intervention under this section is the existence of a common question of law or fact, the resolution of such a motion is nevertheless a matter of discretion” ( matter of pier v. board of assessmEnt revieW of the toWn of niskayunA, 209 A.D.2d 788, 789, 617 N.Y.S.2d 1004 [1994] ). The factors noted above also weigh in favor of exercising the court's discretion to deny permissive intervention. Accordingly, DRAC's motion to intervene is denied.⁵ The court will, however, grant DRAC amicus curiae status for the purpose of considering the arguments presented in its brief ( see Matter of Pace–O–Matic, Inc. v. New York State Liq. Auth., 72 A.D.3d 1144, 898 N.Y.S.2d 295 [2010]; Kruger, 1 Misc.3d at 196, 768 N.Y.S.2d 76).

THE ARTICLE 78 PROCEEDING

Enactment of the Zoning Amendment was a legislative act ( see Long Island Pine Barrens Soc., Inc. v. Suffolk County Legislature, 31 Misc.3d 1208[A], 2011 N.Y. Slip Op. 50534[U], 2011 WL 1348384 [2011]; see also Matter of Durante v. Town of New Paltz Zoning Bd. of Appeals, 90 A.D.2d 866, 456 N.Y.S.2d 485 [1982] ). Unlike challenges directed to the procedures followed in the enactment of an ordinance, challenges to the substantive validity of a legislative act may not be maintained in an article 78 proceeding ( see Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 202, 518 N.Y.S.2d 943, 512 N.E.2d 526 [1987];

[940 N.Y.S.2d 464]

Matter of Frontier Ins. Co. v. Town Bd. of Town of Thompson, 252 A.D.2d 928, 676 N.Y.S.2d 298 [1998]; Long Island Pine Barrens Soc., Inc.). Inasmuch as Anschutz challenges only the substantive validity of the Zoning Amendment—and not the procedures utilized in its enactment—the Town's motion seeking judgment dismissing that part of the petition and complaint which seeks relief under CPLR article 78 must be, and hereby is, granted.

THE TOWN'S MOTION FOR SUMMARY JUDGMENT (PREEMPTION ANALYSIS)

The Marcellus shale formation extends northeast from Ohio and West Virginia, through Pennsylvania, into southern and central New York.⁶ Geologists have long known that the entire formation contains vast quantities of natural gas—as much as [35 Misc.3d 457] 489 trillion cubic feet, or over 400 years supply for New York at its current level of use—however, the depth of the formation and the tightness of the shale made extraction difficult and...