In the Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant,v.Town of Dryden et al., Respondents.BriefN.Y.June 3, 2014~---------- -- - ---------- To Be Argued By: John L. Barone Time Requested: 10 Minutes New York State Court of Appeals NORSE ENERGY CORP., USA, Appellant, -against- TOWN OF DRYDEN and TOWN OF DRYDEN TOWN BOARD Respondents. APL-2013-00245 BRIEF OF AMICI CURIAE BREWERY 0Ml\.1EGANG, LTD., et al. ("NY BUSINESSES") John L. Barone, Esq. Meave M. Tooher , Esq. Tocher & Barone, LLP Robinson Square 313 Hamjlton Street Albany, NY 12210 Tel: (5 18) 432-4100 Fax: (518) 432-4200 Attorneys for Amici Curiae which include Brewery Ommegang and twenty-five other independent businesses and organizations further identified throughout this Brief Dated: April 16, 2014 DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Brewery Ommegang Ltd. is a New York corporation that is a wholly-owned subsidiary of Duvel Moortgat N.V., a Belgium corporation. Duvel Moortgat USA, Ltd. is a Delaware corporation that is a wholly-owned subsidiary of Duvel Moortgat N.V. Boulevard Brewing Company is a Delaware corporation that is also a wholly-owned subsidiary of Duvel Moortgat N.V. No other parents, subsidiaries or affiliates exist. DISCLOSURE STATEMENT (22 N.Y.C.R.R., § 500.l[f]) Proposed Amici, A&E Management & Contracting, Inc. is a New York corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Arm-of-the-Sea Production, Inc. is a New York not-for-profit corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Beaverkill Angler, LLC is a New York single member limited liability company with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f1) Proposed Amici, Bravo Original Ceramic Designs is a New York sole proprietorship with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Cleinman Performance Partners, Inc. ("CPP") is a New York corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Cooperstown Cheese Company, LLC is a New York limited liability company with an informal, non-legal affiliation with Dutch Girl Cheese. No parents, subsidiaries or affiliates are associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, The Cleaver Company, Inc. ("The Cleaver Co.") is a New York S-corporation with a D/B/ A called The Green Table. Green Table Farms, LLC is a New York limited liability company that is an affiliate of The Cleaver Co. No parents or subsidiaries are associated with The Cleaver Co. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici> The Dirt Diva is a New York sole proprietorship with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Dutch Ale House, Inc. is a New York corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Dutch Girl Cheese is a New York sole proprietorship with an informal, non-legal affiliation with the Cooperstown Cheese Co. No parents, subsidiaries or affiliates are associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Etsy, Inc. is a Delaware corporation. Etsy Ireland Limited, Etsy UK Limited, Etsy Canada Limited, Etsy Germany GmbH and Etsy Australia Pty. Ltd. are all wholly-owned subsidiaries of Etsy, Inc. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Fairytale Farm is a New York sole proprietorship with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Homescapes, Inc. D/B/ A Gold Petals is a New York S- corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Hudson Valley Dessert Company is a New York sole proprietorship with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Hunt Country Vineyards, LLC is a New York limited liability company with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, The Inn at Cooperstown is a partially-owned subsidiary of SMK Enterprises, LLC a New York limited liability company. SMK Hospitality, Inc. is a New York S-corporation with a D/B/ A for The Inn at Cooperstown. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, King Ferry Winery, Inc. is a New York corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Northeast Organic Farming Association of New York, Inc. (NOFA-NY) is New York a not-for-profit corporation. NOFA-NY Certified Organic, LLC is a New York limited liability company which has an operating agreement with NOFA-NY. No parents or subsidiaries are associated with NOFA- NY. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Our Bookshop is a New York sole proprietorship with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Park Slope Food Coop, Inc. is a New York cooperative corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Partition Street Wine Shop, Inc. is a New York corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Promo-to-go, LLC D/B/ A Earthgirl Pottery is a New York limited liability company. Earthgirl Flowers is an affiliated D/B/ A of Promo-to- go, LLC. No parents or subsidiaries are associated with Promo-to-go, LLC. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Silver Thread Vineyard, LLC is a New York limited liability company with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Singlebrook Technology, Inc. is a New York corporation with no parents, subsidiaries or affiliates associated with it. DISCLOSURE STATEMENT (22 N.Y.C.R.R. § 500.l[f]) Proposed Amici, Tuthilltown Spirits, LLC is a New York corporation. William Grant and Sons, Inc. is a Delaware Corporation that owns the Hudson Whiskey Brand and is affiliated with Tuthilltown Spirits, LLC. No parents or subsidiaries are associated with Tuthilltown Spilits, LLC. TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF INTEREST ................................................................................. 2 ARGUMENT ........................................................................................................... 3 MAIN STREET ......................................................................................................... 3 POINT I - LOCAL MUNICIPALITIES IN NEW YORK ARE ENTITLED TO EXERCISE DELEGATED ZONING POWER TO PRESERVE THEIR EXISTING NATURAL RESOURCES AND COMMUNITY CHARACTER AGAINST POTENTIAL NEGATIVE IMPACTS FROM THE OIL AND GAS INDUSTRY ............................................. 7 A. Towns may regulate land use in an effort to protect their existing natural resources and promote the interest of the community as a whole ...... 7 B. Towns have the authority to examine the significance of industrial activity, including impacts on community character, in relations to their land use regulations, in addition to and separate for the State Environmental Quality Review Act.. ............................................................ 11 C. Hydrofracking is a heavy industry that poses potential significant risks to the natural resources of a municipality ..................................................... 16 POINT II - MUNICIPAL HOME RULE, LOCAL ZONING AND LAND USE CONTROLS PROVIDE A LOCALITY THE CRITICAL AUTHORITY TO PRESERVE THE RECIPROCAL DEVELOPMENT OF THE LOCAL ECONOMY WITHIN ITS COMMUNITIES .......................................... 20 A. Varying Industries and Businesses Across the State Sustain Local Economies ..................................................................................................... 22 1. Agriculture .................................................................................... 23 2. Food and Beverage ....................................................................... 27 I 3. Real Estate .................................................................................... 35 4. Recreation, Arts, and Entertainment .......... « ................................. 37 5. Retail and Services ....................................................................... 39 6. Tourism, Historical, and Cultural Resources ............................... 40 a. Hudson Valley and Catskill Mountains .............................. 40 b. Susquehanna and Mohawk Valleys - Central NY Region. 41 c. Finger Lakes Region ........................................................... 43 B. New York State Home Rule Preserves the Ability of Local Governments to Protect Local Economies .............................................................................. 46 C. Municipalities May Determine Whether A Land Use Conforms With Its Zoning, Particularly Where It May Be Directly Related To Its Sustainable Economies ..................................................................................................... 4 7 POINT III - THE LOWER COURT'S DECISION THAT LOCAL GOVERNMENTS ARE NOT PREEMPTED BY ECL § 23-0303(2) FROM ENACTING LAND USE LAWS THAT BAN HYDROFRACKING SHOULD BE UPHELD IN ACCORDANCE WITH THE AUTHORITY DELEGATED TO MUNICIPALITIES FOR GOVERNANCE OF LOCAL LAND USE ............ 50 A. Municipalities are expressly delegated the authority to govern local land use ......................................................................................................... 50 B. Statutory construction of ECL §23-0303(2) does not support preemption of local laws ............................................................. · .................. 52 CONCLUSION ....................................................................................................... 56 11 TABLE OF AUTHORITIES Cases Page(s) Anschutz Exploration Corp. v. Town of Dryden 35 Misc. 3d 450 (Sup. Ct. Tompkins Cnty. 2012) ......................................... 21, 55 Cooperstown Holstein Corp. v. Town of Middlefield 106 A.D.3d 1170 (3d Dep't 2013) .......................................................... 21, 47, 53 Cooperstown Holstein Corp. v. Town of Middlefield 35 Misc. 3d 767 (Sup. Ct. Otsego Cnty. 2012) ......................................... 46-47, 55 Curtis-Wright Corp. v. Town of E. Hampton 82 A.D.2d 551, 442 N.Y.S.2d 125 (2d Dept. 1981) .............................................. 9 DlL Rest. Corp. v. City of New York 96 N.Y.2d 91, 749 N.E.2d 186 (2001) ................................................................... 7 Frew Run Gravel Products Inc. v. Town of Carroll 71N.Y.2d126, 524 N.Y.S.2d 25 (1987) ................................................. 47, 51, 54 Matter of Gernatt Asphalt Products Inc. v. Town of Sardinia 87 N.Y.2d 668 (1996) ............................................................................ 8, 9, 10, 52 lil Realty Corp. v. Costello 658 N.Y.S.2d 92, 239 A.D.2d 580 (2d Dep't 1997) ........................................... 51 Kasper v. Town of Brookhaven 142 A.D.2d 213 (2d Dep't 1988) ........................................................................... 7 Morton v. Mancari 417 U.S. 535 (1974) ............................................................................................. 54 Norse Energy Corp. USA v. Town of Dryden 108 A.D.3d 25 (3d Dep't 2013) .................................................................... passim Matter of Schilling v. Dunne 119 A.D.2d 179 (2d Dep't 1986) ........................................................................... 7 Town of Huntington v. Park Shore Country Day Camp 47 N.Y.2d 61, 416 N.Y.S.2d 774 ......................................................................... 51 111 Town of LaGrange v. Gionvenetti Enterprises 123 A.D.2d 688, 507 N.Y.S.2d 54 (2d Dep't 1986) ........... ; ................................ 51 Traver v. Traver 1 Code Rep. 112 (1848) ....................................................................................... 54 Village of Belle Terre v. Boraas 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974) ........................................... 52 Village of Chestnut Ridge v. Town of Ramapo 45 A.D.3d 74, 841N.Y.S.2d321 (2d Dept. 2007) .............................................. 11 Village of Euclid v. Ambler Realty Co. 272 U.S. 365 (2d Dep't 1926) .......................................................................... 7, 52 Wal-Mart v. Planning Bd. of Town of North Elba 238 A.D.2d 93 (3d Dept. 1998) ..................................................................... 11, 12 New York Statutes Ag. & Markets Law § 385 ....................................................................................... 26 ECL § 23-0303(2) ............................................................................................ passim ECL § 27-1107 ........................................................................................................ 55 General City Law§ 28-a(2)(b) ...................................................... : ........................ 50 Mental Hygiene Law§ 41.34 ................................................................................... 55 Muncipal Home Rule Law § 10 ............................................................................... 8 Muncipal Home Rule Law§ lO(l)(ii)(a)(ll) .................................................... 7, 50 Muncipal Home Rule Law§ 10(l)(ii)(a)(12) ........................................................ 51 Statutes § 97 ............................................................................................................ 53 Town Law§ 272-a (l)(b) ....................................................................................... 50 Village Law§ 7-722(l)(b) ..................................................................................... 50 N.Y. Constitution Art. IX §2(c) .............................................................................. 50 N.Y. Constitution Art. IX §3(c) ............................................................................. 55 N.Y. Constitution Art. IX §3(e) .............................................................................. 55 State Environmental Quality Review Act ("SEQRA") ......................... 11, 12, 15, 48 IV Local Statutes Town of Dryden Comprehensive Plan (Dec. 8, 2005) ........... : ........................ 8, 9, 12 Town of Dryden Right to Farm Law - Local Law #1 (1992) ................................ 26 Town of Dryden Zoning Ordinance, August 2, 2011 ............................................. 45 Town of Mamakating Zoning Local Law .......................................................... 36-37 Town of Middlefield Master Plan (2011) ................................................ 9-10, 12, 27 Town of Middlefield Zoning Law (June 14, 2011) ............................................ 5, 43 Town of Ostego Land Use Law (adopted April 12, 2000, last amended Dec. 14, 2011) ............................................................................. 5-6 Town of Rockland Draft Comprehensive Plan ...................................................... 38 Town of Rockland Zoning Ordinance (2003) ......................................................... 39 County of Tompkins County Community Impact Assessment (Dec. 15, 2011) ............................................................................................ passim Other Authorities About Cooperstown. VILLAGE OF COOPERSTOWN, NY, Web .................................... 4 Burke, Monte. "North America's Top 10 Trout-Fishing Towns", FORBES, Web (Aug. 19, 2009) .................................................................... : ........................ 37 Bums, Ken. The Story of the Game, PBS, Web ........................................................ 3 Cain, Stephanie, Drill Finger Lakes Drill? WINE SPECTATOR, Web (May 14, 2010) .......................................................................................... 32 Economic Impact of Grapes, Grape Juice and Wine: $4.8 Billion, NEW YORK WINES, Web (Feb. 18, 2014) ............................................................................ 31 The Economic Impact of Tourism in New York, CATSKILL CITIZENS FOR SAFE ENERGY, Web .................................................................................................... 42 Explore the Historic Leathers tocking Region of New York State, NEW YORK STATE DESTINATIONS, Web .......................................................................................... 42 Focus on the Future - Progress Report , Mid Hudson Regional Economic Development Council, (Sept. 2012) .......................................................... 34, 41 v Fracking Runs Afoul of Hometown U.S.A., Earthjustice Quarterly Magazine, Web (2012) .................................................................................................... 3, 30 Goldsmith, Barrett. McClendon to business journalists: 'Get the real story'. SOCIETY OF AMERICAN BUSINESS EDITORS AND WRITERS, Web (2011) .............. 16 Governor Cuomo Hosts Second New York State Wine, Beer, Spirits and Cider Summit, Gov. ANDREWM. CUOMO, Web (April 8, 2014) ........................... 28, 29 Hazlewood, Lynn, Where to Eat in the Hudson Valley, HUDSON VALLEY MAGAZINE, Web ................................................................................................. 34 THE INN AT COOPERSTOWN, Web (2014) ................................................................... 5 Katz, Jeff, What is Cooperstown?, THE VILLAGE OF COOPERSTOWN, NY, Web .... 42 Mayell, Hillary. Human "Footprint" Seen on 83 Percent of Earth's Land. NATIONAL GEOGRAPHIC, Web (Oct. 8 2010) ..................................................... 40 Mendenhall, Kate, NOFA-NY's DEC SGEIS Comments, NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW YORK (Dec. 20, 2011) ..................................... 23 Myers, Kenneth, The Catskills: Painters, Writers And Tourists In The Mountains 1820-1895, Forward and Introduction (University Press of New England, 1988) ......................................................... 38 National Baseball Hall of Fame and Museum, WIKIPEDIA (April 6, 2014) .............. 4 New York Winery Survey 2008, USDA NATIONAL AGRICULTURAL STATISTICS SERVICE, Web (October 2009) U.S. Organic Industry Overview, ORGANIC TRADE ASSOCIATION, Web (2011) ..... 23 Jake Palmateer, Oneonta Common Council Bans Gas Drilling, THE DAILY STAR, Web, (June 8, 2011) ......................................................................... ; ................. 40 Revised Draft Supplemental Generic Environmental Impact Statement ("rdSGEIS") ................................................................................................ passim Schenkel, Andrew. Baseball Hall of Fame blacklistsfracking, MOTHER NATURE NETWORK. Web .................................................................................................... 6 Second Home Owner Study, Sullivan County Division of Planning and Environmental Management, (Oct. 2008) ........................................................ 36 Senate Passes Bills to Grow Craft Brewing Industry in New York, NEW YORK STATE SENATE, Web (June 18, 2012) ................................................................ 28 Town History, MIDDLEFIELD, NY, Web .................................................................. 41 VI Table 4: Total acreage of certified organic pasture and cropland by State 1997 and 2000-11, USDA, Web (Sept. 27, 2013) .................... : ................................ 24 Trezise, Jirn. $3. 76 Billion Generated for New York's Economy. NEW YORK WINES, Web (May 09, 2011) ............................................................................. 32 The Ultimate Fishing Town in the USA. ROSCOE CHAMBER OF COMMERCE, Web .................................................................................................................... 37 Who We Are, THE BEA VERKILL ANGLER, Web ...................................................... 37 vu PRELIMINARY STATEMENT Amici Curiae Brewery Ommegang, Ltd., et al., respectfully submit this brief in support of the Respondent in the above-referenced appeal in order to provide this Court with an additional unique perspective in reviewing the decisions of the courts below. Amici Curiae, Brewery Ommegang, et al. (individually "Amicus", collectively, "NY Businesses" or "Amici"), are independent businesses and organizations that engage in a variety of operations and services within New York State, supporting local, regional and statewide economies. The Amici on this brief are: A&E Management & Contracting, Inc.; Arm-of-the-Sea Production, Inc.; Beaverkill Angler, LLC; Bravo Original Ceramic Designs; Brewery Ommegang, Ltd.; The Cleaver Company, Inc; Cleinman Performance Partners, Inc.; Cooperstown Cheese Company, LLC; The Dirt Diva; Dutch .Ale House, Inc.; Dutch Girl Cheese; Etsy, Inc.; Fairytale Farm; Gold Petals/Homescapes, Inc.; Hudson Valley Dessert Company; Hunt Country Vineyards, LLC; The Inn at Cooperstown; King Ferry Winery, Inc.; Northeast Organic Farming Association of New York, Inc. ("NOFA-NY"); Our Bookshop; Park Slope Food Coop, Inc.; Partition Street Wine Shop, Inc.; Promo-to-go LLC; Silver Thread Vineyard, LLC; Singlebrook Technology, Inc. and Tuthilltown Spirits, LLC. Amici NY Businesses, have a compelling interest in preserving their local government's home rule authority in administering land use controls for the 1 betterment and preservation of the local economy. Accordingly, NY Businesses urge this Court to uphold the decision of the Appellate Division, Third Department finding that local control and regulation of zoning and land use coexists with, and is not preempted by, state regulation of industrial operations, activities, and processes under the Oil, Gas and Solution Mining Law ("OGSML"). Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d 25, 37-38 (3d Dept 2013) lv. to appeal granted, 21 N.Y.3d 863, 995 N.E.2d 851 (2013). STATEMENT OF INTEREST The Amici are independent businesses or organizations operating successfully in municipalities throughout New York State - including Respondent Towns of Dryden and Middlefield1 - that may endure high-volume hydraulic fracturing ("hydrofracking"). Together, the NY Businesses represent the vital industries of (i) agriculture, (ii) arts and entertainment, (iii) construction and real estate, (iv) food and beverage, (v) health and well-being, (vi) hospitality, (vii) recreation and tourism and (viii) services and retail. The Businesses present to the Court a unique perspective on the value of zoning. All of the Amici share a stake in preserving a municipality' s home rule authority to protect sustainable enterprises through the exercise of State-delegated zoning powers over potentially 1 The identical amicus blief is being submitted in both Norse Energy Corp. USA, v. Town of D1yden and Town of Dryden Town Board, APL-20l3-00245~ Coopersio-wn Holstein Corp. v. Town of Middlefield, APL-2013-00242. These two actions have proceeded through the lower courts together, raising the same Home Rule issues. 2 detrimental land uses. Home rule powers over zoning enable municipalities to cultivate, fund and emphasize certain industries in their respective communities over extended periods of time, in some cases decades. Consequently, these industries become the fabric of a community's character, sustaining the local economy, and in many instances distinguishing a region as a recognjzable source of a particular service, product or pastime. ARGUMENT MAIN STREET New York Courts have recognized the unique components of community character and the inimitable abil ity of a municipality to identify and protect that character. One outstanding example demonstrating how a local economy and community character are inextricably interwoven is the Village of Cooperstown, located within the Towns of Middlefield and Otsego. Each year hundreds of thousands of baseball fans inake the pilgrimage to these Towns2 to celebrate "America's national pastime,''3 experience Doubleday Field, and visit one of the most well-known destinations located on "Main Street" in small town America - 2 Fracking Runs Afoul of Hometown. U.S.A., EARTHJUSTICE (Fall 2012), http://earthjustice.org/features/campaigns/fracking-runs-afoul-of-hometown-u-s-a. 3 Burns, Ken, The Story of the Game, PBS, http://www.pbs.org/kenbums/baseball/pastime (last visited Apdl 11, 2014). 3 the National Baseball Hall of Fame.4 "The word Cooperstown is often used as shorthand (or a metonym) for the National Baseball Hall of Fame and Museum."5 Businesses in Middlefield and Otsego thrive on the influx of tourism stemming from the baseball sports industry. This unique local industry has become the fabric of the community and requires preservation. As much as the economy of Cooperstown relies on the business of baseball, the Village's website identifies itself as a "delightful small town of rural traditions, restored historic buildings, and myriad cultural attractions that visitors tend to remember just as much [as the Hall of Fame ]."6 This "village of museums," which was settled in the late 18th century by the son of novelist James Fenimore Cooper, also showcases the Farmers' Museum, depicting rural life from 1845, and the Fenimore House Museum's folk art collections. 7 Other cultural attractions in Cooperstown include the Glimmerglass Opera, the New York State Historical Association, the National Art Association Show, and the Otesaga Hotel - built in 1909 and listed in the National Register of Historic Places.8 Cooperstown's Main 4 About Cooperstown, THE VILLAGE OF COOPERSTOWN, http://cooperstownny.org/about- cooperstown/ (last visited April 11, 2014). 5 National Baseball Hall of Fame and Museum, WIKIPEDIA (April 6, 2014, 20:23), http://en.wikipedia.org/wiki/National_Baseball_Hall_of_Fame_and_Museum. 6 About Cooperstown, THE VILLAGE OF COOPERSTOWN, http://cooperstownny.org/about- cooperstown/ (last visited April 11, 2014). 7 Id. 8 Id. 4 Street offers unique shopping opportunities9 and quaint lodging such as The Inn at Cooperstown, an Amicus herein, built in 1874 as the annex to Cooperstown's posh Hotel Fenimore and fully restored in 1985. 10 These Main Street businesses and organizations, carefully cultivated in the community to complement the baseball attractions, establish an economic base distinguished by its individuality, drawing a variety of patrons. In recognition of the unique character of the Cooperstown area, the Town of Middlefield identifies its overall community goals through the Middlefield Zoning Law, enacted "to protect and promote ... the economy, aesthetics and general welfare of the Town of Middlefield and its citizens and ... to protect the environment, to protect surface and ground water resources, to sustain the viability of farmland, ... [t]his Local Law is made with reasonable consideration of the character of the various districts, and their unique suitability for particular uses." Town of Middlefield, N.Y., Town of Middlefield Zoning Law, p. 2 (Jtme 14, 2011). In the same manner, the Otsego Land Use Law provides: "[t]his Local Law ... regulates the use of land in the Town of Otsego in order to provide for orderly economic growth while protecting the health and safety of citizens and visitors, the quality of the environment, and the historical and natural character of the Town." Town of Ostego, N.Y., Town of Ostego Land Use Law, p. 4 (adopted April 12, 9 Id. 10 THE INN AT COOPERSTOWN, http://www.innatcooperstown.com (last visited April 14, 2014). 5 2000, last amended Dec. 14. 2011). The Otsego Land Use Law also prohibits "industrial uses" and "the generalized extraction of any and all minerals" including "gas and oil." Town of Ostego, N.Y., Town of Ostego Land Use Law, p. 47, 55-56 (adopted Apr. 12, 2000, last amended Dec. 14, 2011). In passing land use controls eliminating heavy industry (such as the oil and gas industry) from within their borders, towns such as Otsego and Respondent Middlefield uphold the intent of their respective overall land use laws, and in doing so use their home rule powers to preserve the economic foundations of these communities. The most recognized organization of Cooperstown, the Baseball Hall of Fame, concludes that hydrofracking will negatively impact the area's businesses and the overall local economy. 11 The Hall of Fame has voiced support for a resolution from the Village of Cooperstown Chamber of Co.mmerce opposing hydrofracking within the Village's borders: As a member of the Cooperstown Chamber of Commerce, the [Hall of Fame] supports the Chamber's recent resolution that hydrofracking . . . could cause serious damage to the qualities that make Cooperstown a world-renowned tourist destination and a unique community .... Like the [Chamber] and virtually every other area business, the Museum [Hall of Fame] concludes that hydrofracking could present an unacceptable risk to the local environment, the economy 11 See, Andrew Schenkel, Baseball Hall of Fanie blacklists fracking, MOTHER NATURE NETWORK (Mar.28, 2011), http://www.mnn.com/earth-matters/energy/blogs/baseball-hall-of- fame-blacklists-fracking. 6 and the quality of life for both local residents and tourists.12 POINT I LOCAL MUNICIPALITIES IN NEW YORK ARE ENTITLED TO EXERCISE DELEGATED ZONING POWER TO PRESERVE THEIR EXISTING NATURAL RESOURCES AND COMMUNITY CHARACTER AGAINST POTENTIAL NEGATIVE IMPACTS FROM THE OIL AND GAS INDUSTRY. A. Towns may regulate land use in an effort to protect their existing natural resources and promote the interest of the community as a whole. "One of the most significant. functions of a local government is to foster productive land use within its borders by enacting zoning ordinances." DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91 , 96 (2001). A municipality has the authority to govern as it sees fit. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926). Municipal officials may exercise a broad airay of powers with respect to the nature of the community, including protecting and enhancing the "physical and visual environment." Municipal Home Rule Law § 10,(l)(ii)(a)(l1), Matter of Schilling v. Dunne, 119 A.D.2d 179, 184 (2d Dep' t 1986); see, Kasper v. Town of Brookhaven, 142 A.D.2d 213, 217 (2d Dep't 1988) ("We have repeatedly noted in matters similar to that at bar that towns may enact zoning laws pursuant to the broad powers granted them in Municipal Home Rule Law § 10 in addition to the more limited powers set forth in the Town Law [citations omitted]"). 12 /cl. 7 In lieu of locally adopted land use controls and zoning, Appellant would have this Court force certain municipalities to accept non-conforming industrial land uses (i.e., hydrofracking) in and around rural areas and other incompatible districts. However, "a municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole." Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 684 (1996). The Town of Dryden has a long-standing Comprehensive Plan in place. Dryden's Comprehensive Plan states its overall goal is to "preserve the rural and small town character of the Town of Dryden, and the quality of life its residents enjoy as the town continues to grow in the coming decades." . Town of Dryden Comprehensive Plan, p. 32 (Dec. 8, 2005). Objectives to achieving this goal include protecting important natural open space resources, environmentally sensitive areas, unique flora and fauna, and scenic resources in Dryden. Tompkins County Community Impact Assessment ("TCCIA") (Dec. 15, 2011), p.16. 13 The Town of Dryden Comprehensive Plan notes that "the environmental resources of the Town of Dryden, including air, water, and soil, are of relatively high quality 13 The Tompkins County Council of Governments released a Tompkins County Community Impact Assessment - TCCIA - regarding hydrofracking in 2011 to assist communities in the County in preparing for natural gas development. 8 and are essential to a good quality of life, public health, and a thriving economy." Dryden Comp. Plan, p. 5. The Dryden Town Board found that heavy industrial uses, such as gas exploration and extraction in the rural environment of the Town, pose a significant threat to the health, safety, and general welfare of its residents "since widespread environmental and human health impacts have resulted from natural gas exploration and extraction in other areas through the deposit of toxins into the air, soil, water, environment, and in the bodies of residents." TCCIA, p. 17. In acting to prevent potential irreversible damage to its natural resources and promoting the interest of the community as a whole, Dryden reasonably exercised its police powers by enacting a zoning law that prohibits hydrofracking. Matter of Gernatt, 87 N.Y.2d at 684; see, Curtis-Wright Corp. v. Town of E. Hampton, 82 A.D.2d 551, 556-557 (2d Dep't 1981) (upholding a local zoning ordinance where developers conceded they "failed to consider any impact of higher density development on the water quality or the general ecology of the area in their studies," Town has a legitimate concern affording a "basis in police-power reason for enactment of the challenged ordinances.") The Town of Middlefield also has a Master Plan with similar goals. The Master Plan of the Town of Middlefield, among its general goals, establishes "that improvement of land be encouraged and fostered in a manner that benefits the 9 community as a whole, but that development of land in a manner which threatens the health or well-being of the community as a whole be prevented." Master Plan for the Town of Middlefield at p. 1 (adopted 1989, updated 2011). Like Dryden, the Town of Middlefield has determined that hydrofracking threatens the health and well-being of the community, and enacted a zoning law that prohibits hydrofracking activity. This legislative act by Middlefield was a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole. Matter of Gernatt, 87 N.Y.2d 668. Amici respectfully submit that this comi affirm the lower court decision with respect to a municipality's ability to enact zoning laws that effectively ban the use of land for hydrofracking. The OGSML does not address tr~ditional land use concerns such as industry suitability for a particular community or neighborhood. The authority to evaluate those uniquely local concerns and establish permissible and prohibited uses of land should be left to local governments in accordance with Municipal Home Rule. Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d at 34. 10 B. Towns have the authority to examine the significance of industrial activity, including impacts on community character, in relation to their land use regulations, in addition to and separate from the State Environmental Quality Review Act. "The power to define the community character is a unique prerogative of a municipality, acting in its governmental capacity." Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 93-94, 841 N.Y.S.2d 321 (2d Dep't 2007). The adoption of local plans serve as "evidence of a community's desires for the area." Matter of Palumbo Block Co., 2001 WL 651613 at *2 (N.Y. Dep't Envtl. Conserv.) (June 4, 2001) (citations omitted); See also, Vill. of Chestnut Ridge, 45 A.D.3d at 93-94 ("all of the other incidents of local government, including its electoral and legislative processes, management policies, and fiscal decisions, are ultimately aimed at determining and maintaining the community that its residents desire"). Community character is uniquely and intimately linked to the area's natural, cultural, historic, aesthetic and community resources. Wal-Mart v. Planning Bd. of Town of North Elba, 238 A.D.2d 93, 97 (3d Dep't 1998) (where a permit was not issued due to the proposed use expected to adversely impact (i) adjoining and nearby properties and (ii) aesthetics, the court held that the town was "entitled to consider factors outside the scope of ... SEQ RA, insofar as they bear on matters legitimately within the purview of the Town Land Use Code.") In the Towns of Dryden and Middlefield, where local land use regulation has been enacted, there is a Comprehensive Plan in place that details each 11 community's desire to preserve its rural and small town character including its agricultural. resources. These Plans specifically recognize the expressed desire of the citizenry to conserve and protect the Towns' natural resources, including environmental resources such as water, forest and viewshed as well as the sense of place that many of its residents enjoy. See, Dryden Comprehensive Plan, p. 3; See, Town of Middlefield Master Plan, p. 1-2. These carefully articulated goals support both Towns' decision to prohibit activities within their respective borders that are at odds with these goals, such as heavy industry and hydrofracking. The Third Department upheld the authority of a municipality to deny a conditional use permit and site approval for the construction of a large retail store based upon, among other factors, impacts to the community character. Wal-Mart, 238 A.D.2d 93. In Wal-Mart, the Court held that municipalities are "entitled to consider factors outside the scope of the environmental review mandated by SEQRA [State Environmental Quality Review Act], insofar as they bear on matters legitimately within the purview of the Town Land Use Code." Id., p. 97. Recognizing the unique nature of the resource that the Town of Lake Placid presents, the Court further observed that "with respect to the store's likely impact upon community character, it appears that the evidence ... that other communities have suffered no decline in commercial property values after a Wal-Mart store opened is of little probative value, for most of the areas studied are not truly 12 comparable to the Lake Placid region, a premier resort and tourist community." Id. at 97. "As a matter of home rule, it is the Town's prerogative and responsibility to ensure compliance with its own laws .... It would be inappropriate for the [New York State Department of Environmental Conservation ("DEC")] to attempt to usurp such powers from the Town. Even in instances where the DEC approves projects, such approvals are only indications that the proposals meet the requisite State standards to receive a permit." Matter of Amenia Sand and Gravel, Inc., 1997 WL 1879249 at *21 (N.Y.Dep't Envtl. Conserv.) (June 16, 1997) (emphasis added); see, Wal-Mart, 238 A.D.2d at 97. Thus, notwithstanding that the DEC is the lead agency on the review of hydrofracking to develop the Marcellus Shale, towns retain the right of review to evaluate the impacts of hydrofracking upon their community in the context of their own laws and ordinances. Matter of Amenia Sand and Gravel, Inc., at *13; Ruling of ALJ Helene Goldberger, N.Y. Dep't Envtl. Conserv., Matter of American Marine Rail, LLC (Aug. 25, 2000) (adopted local plans should be afforded deference in assessing impacts of a project). In the case of hydraulic fracturing, the State is performing a generic state- wide assessment. Planning and community character issues need to be examined and evaluated on a community-by-community basis. The DEC's Revised Draft Supplemental Generic Environmental Impact Statement on the Oil, Gas and 13 Solution Mining Regulatory Program ("rdSGEIS") fails to conduct such an analysis, and instead uses a regional summary approach for only three regions in the State. TCCIA, p. 11. None of the three regions include Tompkins County, where the Town of Dryden is situated. Id. Therefore, the County Council of Governments performed the TCCIA, analyzing the Tompkins County Comprehensive Plan as it relates directly to the potential effects of hydrofracking on the county and its municipalities. In the spirit of home rule, this level of assessment on a county and municipal basis is necessary for towns and local communities to effectively examine the significant impacts posed by hydrofracking. Moreover, the State has recognized that community character impacts from hydrofracking cannot be accounted for on a regional or local level in the rdSGEIS: A sense of place and community character cannot be described for New York State as a whole due to the vast area it covers and the range of differences in communities across the state. Residents of a single place share their history, resources, and common concerns and have a similar way of life . . . [b ]ecause they encompass numerous counties and municipalities with diverse land uses, planning goals, and identities, it is difficult to fully describe community character at the regional level. Each community within these regions has its own set of distinctiveness, authenticity, and identity. rdSGEIS 2011, pp. 2-173, 2-174. The State's rdSGEIS then provides a brief section elaborating on only three regions of the state. The document further provides: 14 Id., p. 6-317. While some of these impacts are expected to be significant, the determination of whether these impacts are positive or negative cannot be made. Change would occur in the affected communities, but how this change is viewed is subjective and ... [t]his section, therefore, seeks to identify expected changes that could occur to the economic and social makeup of the impacted communities, but it does not attempt to make a judgment on whether such change is beneficial or harmful to the local community character. Further, the issue of "community character" cannot be viewed in isolation, and includes a myriad of diverse components beyond "economic and social makeup" of the impacted communities. An assessment of the impact on community character will intertwine and overlap with the criteria examined by the State under SEQRA, including such issues as noise, aesthetics, viewshed, traffic and cultural resources. Matter of Palumbo Block Co., 2001 WL 651613 at *3. While SEQRA considers community character, municipalities have been afforded the power through zoning to address any shortcomings of the SEQRA analysis and in this instance, the deficiencies of the rdSGEIS as stated herein. Tompkins County, for example, suggests that in assessing community character, towns should examine whether a proposed action diminishes public enjoyment or appreciation of an inventoried resource, such as a scenic viewshed or a residential neighborhood, or if it will impair the character or quality of an inventoried place such as a tourist attraction, park or open space. TCCIA, p. 103. Because community character is 15 uniquely defined by the municipality itself, the impact of activities such as hydrofracking are best evaluated on a local basis to determine whether a given activity is compatible with a town's land use and zoning laws as well as its comprehensive plan. C. Hydrofracking is a heavy industry that poses potential significant risks to the natural resources of a municipality. Amici NY Businesses utilize, and in many cases rely upon, the natural resources that exist in their community to operate successfully. Not surprisingly therefore, they have grave concerns regarding the significant risks and potentially negative impacts posed to these local resources by hydrofracking. In the rdSGEIS, the DEC concludes that hydrofracking operations could have significant adverse impacts on the environment. DEC rdSGEIS, Executive Summary, p. 9 (2011). Chesapeake CEO, Aubrey McClendon, on April 8, 2011 acknowledged to members of the press: There are issues with drilling wells, but they don't come from fracking . . . [ w ]e can tear up a road, we can be noisy, we can create dust, we can hurt somebody, and sometimes there is a lack of transparency about operations. All those are legitimate concerns but fracking is not the story. 14 These comments regarding the debate of impacts specifically from the 14 Barrett Goldsmith, McClendon to business journalists: 'Get the real story', SOCIETY OF AMERICAN BUSINESS EDITORS AND WRITERS (2011), http://sabew.org/2011/04/mcclendon-to- business-journalists-get-the-story/. 16 underground process of hydrofracking acknowledge the impacts localities are forced to consider and possibly endure should fracking be permitted in their communities. Whatever the underground risks from the hydrofracking process, at least one representative of the oil and gas industry has acknowledged that natural gas development exposes local communities to real significant impacts on their quality of life on the surface, properly addressed through local land use regulation. Among the potential significant adverse impacts identified by New York State are those related to (i) water resources, (ii) ecosystems and wildlife, (iii) air resources, (iv) visual, noise, and community character and (v) transportation, inter alia. See, DEC rdSGEIS, Executive Summary at p. 9-18. (i) The identified adverse impacts on water resources can arise from: 1) water withdrawals affecting surface or groundwater, includjng wetlands; 2) polluted stormwater runoff; 3) surface chemical or petroleum spills; 4) pit or surface impoundment failures or leaks; 5) groundwater contamination associated with improper well drilling and construction; and 6) improper waste disposal. See, DEC rdSGEIS at p. 6-1. (ii) DEC has identified numerous potential adverse impacts on terrestrial habitats, including forests, grasslands and shrublands: [hydrofracking] operations have the potential to draw substantial development into New York, which would result in unavoidable impacts to habitats (fragmentation, loss of connectivity, degradation, etc.), species 17 Id. at 14. distributions and populations, and overall natural resource biodiversity. Habitat loss, conversion, and . fragmentation (both short-term and long-term) would result from land grading and clearing, and the construction of well pads, roads, pipelines, and other infrastructure associated with gas drilling. (iii) As detailed in the TCCIA, "[a]ir quality impacts from [hydrofracking] include emissions from a variety of stationary and mobile sources." TCCIA, p. 57 (Dec. 15, 2011). The variety of potential air pollution sources change during different phases of operation, with one of the largest sources of air pollution being engines used by trucks and heavy equipment. Id. Other sources include "exhaust from drilling rigs; venting and flaring of natural gas; exhaust from multiple diesel- powered pumps (to achieve necessary pressure in the well); vehicular traffic; volatile chemicals that escape into the air from waste pits; fugitive emissions from leaks in pipe connections and other equipment; dehydrators that remove water from natural gas and separators that may vent large volumes of methane and volatile organic compounds (VOCs); sulfur removal systems; and diesel powered compressors and pumps operating 24 hours a day." Id. at 57. (iv) Adverse impacts relating to noise and viewsheds will also result from hydrofracking activity. The rdSGEIS states that moderate to significant noise impacts may be experienced within 1,000 feet of a well site during the drilling process, which typically takes four to five weeks working 24 hours per day to 18 complete. See, DEC rdSGEIS p. 6-289. Visual impacts would typically result from the introduction of new landscape features into the existing settings suffounding well pad locations that are inconsistent with (i.e., different from) existing landscape features in material, form, and function. The introduction of these new landscape features would result in changes to visual resources or visually sensitive areas and would be perceived as negative or detrimental by regulating agencies and/or the viewing public. DEC rdSGEIS, p 6-263. ( v) The introduction of hydrofracking will be accompanied by a significant increase in the level of heavy truck traffic compared to cuffent transportation conditions. TCCIA, p. 70. Indeed, in its comments to the rdSGEIS submitted to the DEC, the Environmental Protection Agency ("EPA") stated that truck traffic will be fairly continuous, should be treated as a continuous source of emissions and that the DEC should document the estimated number of trucks that will be needed per year for general well maintenance; a failing of the rdSGEIS. 15 The DEC noted that that truck traffic associated with hydrofracking is estimated at up to three times higher than the truck traffic associated with drilling a vertical well. See, DEC rdSGEIS p. 6-301 and 6-302 (Table 6.60). Such traffic has the potential to damage roads, increase the risk of accidents, and increase maintenance and capital costs. See, DEC rdSGEIS p. 18; TCCIA pp. 70-74. Furthermore, the cumulative impact of well construction activity and related truck traffic would 15 EPA Comments on the rdSGEIS, January 11, 2012. 19 cause impacts on the character of the nlfal communities where much of this activity would take place. See, DEC rdSGEIS, p. 18. At an average of 2400 truck round-trips per well, (as per GDTFs Build-out), and further multiplied by the number of wells at build-out, the resulting industrialization of the community will be evidenced by potential significant increases in emissions, noise, dust and overall air quality degradation. TCCIA pp. 59, 68. (vi) An analysis of community character is discussed at length, supra, at pages 11-15. The multitude of potential negative impacts of high-volume hydraulic fracturing upon existing natural resources and community character are properly evaluated and addressed by local municipalities through the exercise of their delegated zonmg power. POINT II MUNICIPAL HOME RULE, LOCAL ZONING AND LAND USE CONTROLS PROVIDE A LOCALITY THE CRITICAL AUTHORITY TO PRESERVE THE RECIPROCAL DEVELOPMENT OF THE LOCAL ECONOMY WITHIN ITS COMMUNITIES Businesses in towns across the state face multiple challenges when confronted with transformations in their communities such as residential growth or commercial expansion. The overall effect on a town's economic base from the potential presence of any industry is an issue to be evaluated on a local level. However, the proliferation of shale development using the technique of 20 hydrofracking generates a potential for major industrial impacts at the local level which can irretrievably alter the character of a community and its economy. The courts below highlighted the lack of a clear legislative intent to preempt local zoning authority in the OGSML, as that regulatory scheme fails to provide a mechanism for consideration of local concerns. See, Anschutz Exploration Corp. v. Town of Dryden, 35 Misc. 3d 450, 466-67 (Sup. Ct. Tompkins Cnty. 2012), aff'd, Norse Energy Corp. USA, 108 A.D.3d 25, 34-35 (3d Dep't 2013) (finding no clear expression of legislative intent to preempt local control over land use). In Both the Towns of Dryden and Middlefield, these local concerns prompted the Towns to use municipal home rule and zoning powers to prohibit hydrofracking as a land use in an effort to protect the character and environmental integrity of their respective communities against the potential disruptive and negative economic impacts stemming from the oil and gas industry. Accordingly, NY Businesses support the rulings below that the OGSML does not preempt local zoning power to regulate uses of land, including the power to completely ban operations related to oil and gas production within a municipality's borders. Norse Energy Corp. USA, 108 A.D.3d at 38; Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (3d Dep't 2013) lv. to appeal granted, 21 N.Y.3d 863 (2013). These same home rule and zoning powers have enabled Dryden and Middlefield to cultivate, fund and preserve certain industries within their respective communities 21 over extended periods of time, and in some cases for decades. These industries have become the fabric of the community's character, sustaining the local economy and in some instances distinguishing a municipality as a recognizable source of a particular service, product or pastime. A. Varying Industries and Businesses Across the State Sustain Local Economies. Industries such as agriculture, food and beverage, real estate, recreation, arts and entertainment, retail and services, tourism, historic preservation and cultural resources, and others, all rely to some degree on their respective community's character to generate sustainable business. In many towns across New York State, unique natural resources, small hamlets, distinctive economic bases and rural quality are central elements to shaping that character. It is the local governments that are best suited to assessing the economic sustainability of businesses developed around such character. Accordingly, businesses that have developed in municipalities located above shale formations targeted by the oil and gas industry have heightened concerns regarding their respective local government's ability to preserve home rule authority in administering land use controls that protect and bolster the local economy. 22 1. AGRICULTURE Agriculture is one of New York's largest industries, contributing heavily to the state's economy and workforce, as approximately one-quarter of the state's total land is utilized as farmland. Letter from the Northeast Organic Farming Association of New York to the DEC. (Dec. 20, 2011). 16 The Regional Economic Development Council for the Hudson Valley and Catskill region recently reported that the $800 million agricultural industry in the region possesses job potential that spans the private, public and not-for-profit sectors. Mid-Hudson Regional Economic Development Council, 2012 Progress Report, p. 14 (Sept. 17, 2012). This region is among the national leaders in the Community Supported Agriculture (CSA) movement and its proximity to the New York City market will continue to bolster the region's growing farm to market economy. Id. Further, the growth of local and regional food markets is strengthening as a result of considerable interest in natural and organic farming -one of the fastest growing segments of U.S. agriculture. Organic Trade Ass'n, 2011 Organic Industry Survey 5 (2011 ). 17 Since 2002, the number of certified organic farms in New York State increased from approximately 218 to more than 800, the fourth highest in the 16 Kate Mendenhall, NOFA-NY's DEC SGEIS Comments, NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW YORK (Dec. 20, 2011), http://www.nofany.org/Policy%20W ark/Comments %20%2526amp%3 B %20Testimony. 17 U.S. Organic Industry Overview, ORGANIC TRADE ASSOCIATION (2011), www .ota.com/pics/documents/2011 OrganicindustrySurvey .pdf. 23 nation with a concentration of organic farms in the Marcellus Shale region. See, TCCIA, p. 61; See, United States Department of Agriculture, Economic Research Service, Data Sets, Table 4: Certified organic pasture and cropland, 2011, by state. 18 "The number of actual certified organic farms represents a fraction of the farms practicing natural farming methods and many of these farms are working towards organic certification." TCCIA, p. 61. Amicus herein, Northeast Organic Farming Association of New York, Inc. ("NOFA-NY") is "an organization of consumers, gardeners, and farmers creating a sustainable regional food system which is ecologically sound and economically viable."19 The organization represents many farmers across the state that have grave concerns regarding the proliferation of the oil and gas industry and potential negative impacts to land, air and water from hydrofracking. In a December 20, 2011 letter to the DEC ("Letter"),20 NOFA-NY expressed among its concerns: 1. Effects of fragmentation of farmland due to access roads, pipelines and other infrastructure. (Letter, p. 2) 2. Effects of settling and subsidence of ground associated with hydrofracking on drainage, both natural drainage and fields 18 Table 4: Total acreage of certified organic pasture and cropland by State 1997 and 2000-11, USDA (Sept. 27, 2013), http://www.ers.usda.gov/datafiles/Organic_Production/StateLevel_Tables_/PastrCropbyState.xls 19 About NOFA-NY, NORIBEAST ORGANIC FARMING ASSOCIATION OF NEW YORK, https://www.nofany.org/about (last visited April 11, 2014). 2° Kate Mendenhall, NO FA-NY' s DEC SGEIS Comments , NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW YORK (DEC. 202011 ), http://www.nofany.org/Policy%20W ork/Comments %20%2526amp%3B %20Testimony. 24 drained by installed drainage tiling, and impacts drainage changes may have on soil structure and crop productivity. (Letter, p. 5) 3. Short and long-term assessment of available water resources for agriculture, residential and drilling and hydrofracking activities, by specific (i.e., town-level or smaller) area. (Letter, p. 5) 4. Effects of competition for products used by both the agricultural and gas industries. Anecdotal evidence suggests a loss of availability of certain products or a significant price increase on products, which would negatively impact farm production and profit margins. (Letter, p. 2) 5. Long-term impacts of impaired air and water quality on the health of soil, livestock, honeybees, fruit, vegetables, and other agricultural crops and production. As elevated ozone, in particular, has more serious impacts on per-acre productivity for some crops than it does on others (example: grapes) .... (Letter, p. 5) 6. Effects on the organic certification of certified organic farms. Because organic farmers must uphold higher environmental standards and provide adequate records that their farmland has not been contaminated by prohibited substances. (Letter, p. ·6) 7. A recent Duke Study has shown there to be a significance of Methane contamination in shallow drinking water systems within a ldlometer of an area that has been horizontally hydrofracked. Livestock watering and irrigation systems use an even more fragile and sensitive surface water, not just water from wells. (Letter, p. 4) The perceived risks and impacts from hydrofracldng can result in a chilling effect on the market for local exports of goods - especially organics - that rely on consumer expectations as to the purity of local natural resources. Another Amicus herein, Park Slope Food Coop, is an approximately 15,000 member wholesale buyer of New York State agricultural products purchasing upward of $3 million 25 worth of organic farm products annually. In an open letter to Members of the New York State Senate, Assembly, former Governor Patterson and then Governor-Elect Cuomo, dated December 8, 2010, the Park Slope Food Coop stated that it will start researching alternatives to products from New York State farms in locales where hydrofracking occurs. TCCIA, p. 61; Mary Esch, Fracking Poses Mixed Bag for Farmers in New York, Pittsburgh Post-Gazette (May 21, 2012). For communities heavily invested in organic farming, an acceleration of natural gas development could result in a collapse of the local economy. A vital industry across the State and particularly to many small communities, the protection of farmland for agricultural use is a valid exercise of municipal police powers. The Town of Dryden has recognized the importance of its agricultural community for decades. The Town is a ~'Right to Farm" community, and has been since 1992. See, Town of Dryden Local Law 1 of 1992 (adopted by the Town Board, Town of Dryden, Resolution #130, effective July 20, 1992). Designation as a "Right to Farm" community acknowledges a community's commitment to sound agricultural practices. N.Y. Ag. & Mkts. Law § 385. In enacting a Comprehensive Plan, the Town continues to recognize the value of its agricultural resources, specifically stating: "Dryden has long been supportive of local agriculture, as evidenced by the Town's Right to Farm Law, and zoning that has permitted agriculture in all districts." Comprehensive Plan, p. 32. The Town 26 specifically identifies as one of its goals in enacting the Comprehensive Plan : "[to] [p ]romote the long-term economic viability of the agricultural community in the town, and preserve agricultural land resources ... " Id. Similarly, Middlefield's Master Plan states, ''[s]ince the time of the settlement of the Township, farming has constituted the economic backbone of the· community ... [i]t is the specific goal of this Planning Board ... sustain the viability of farm lands where possible and to encourage and foster improve1nent that does not diminish farm lands." Middlefield Master Plan, pp. 1-2. By enacting land use laws in conjunction with their comprehensive plans, towns can promote the industries best suited to their communities. 2. FOOD AND BEVERAGE New York: has a host of businesses and products that put our state on the map as a leader in agriculture-based beverages, including our award-winning craft breweries and wineries that stretch from the Finger Lakes to Long Island, as well as the small, artisanal distilleries and cider-makers that are just starting up. The initiatives Governor Cuomo is proposing to bolster New York State's beverage industry will help to ensure that small businesses can continue to grow. Not only do these proposals encourage entrepreneurship, but they help businesses succeed and stay here in New York. Senate Majority Leader Dean G. Skelos.21 21 Governor Cuomo Hosts Second New York State Wine, Beer, Spirits and Cider Summit, Gov. ANDREW M. CUOMO (April 8, 2014), http://www.governor.ny.gov/press/04082014-second-wbsc- summit. 27 On June 18, 2012, the state Senate passed three bills embodying a three-way agreement among the Senate, Assembly and Governor Cuomo. Together this legislation acts to protect an important tax benefit for small breweries and distilleries that produce in New York, creates a license that allow craft brewers and distillers to open restaurants or sell new products and exempt breweries and distilleries that produce small batches from paying an annual State Liquor Authority fee.22 These bills represented the beginning of a statewide initiative to facilitate the continuing growth and expansion of the craft beer and spirits, hard cider and winery industries that have historic roots throughout New York State. In continuing this initiative, Governor Cuomo hosted the second New York State Wine, Beer, Spirits and Cider Summit on April 8, 2014, where he announced the launch of the State's $6 million marketing and promotional commitment to raise the profile of New York's beverage producers, a dramatic increase from the campaign launched at the first summit in 2012.23 Agriculture and tourism have the potential for tremendous growth in New York, and over the past few years we have seen that our investments in the farm- based beverage industry are resulting in new opportunities for small business owners throughout the 22 Senate Passes Bills to Grow Craft Brewing Industry in New York, NEW YORK STATE SENATE (June 18, 2012), http://www.nysenate.gov/press-release/senate-passes-bills-grow-craft-brewing- industry-new-york. 23 Governor Cuomo Hosts Second New York State Wine, Beer, Sprits and Cider Summit, Gov. ANDREW M. CUOMO (April 8, 2014), http://www.govemor.ny.gov/press/04082014-second-wbsc- summit. 28 State ... [t]oday's summit [on Aptil 8, 2014] was all about creating jobs and stimulating the economy, and I . am confident that by working alongside our partners in the private sector our producers will be able to thtive and compete anywhere in the world." Governor Andrew M. Cuomo.24 In Middlefield, Amicus Brewery Ommegang was built in 1997 on a former hop farm in the fertile Susquehanna River Valley in Central New York. Affidavit of Larry Bennett, Director of Creative Services for Brewery Ommegang, m Support of Motion to Appear as Amici Curiae (hereafter "Bennett Aff."), 1 5. It was the first farmstead brewery built in the U.S. in over 100 years; reviving a role Middlefield played in the 19th Century, when New York was the lead producer of hops in the U.S., with Cooperstown at the epicenter of hops production. Bennett Aff., 15. The Brewery is now a $30,000,000 plus annual business which is in the middle of a carefully planned long-range growth program and is investing heavily in both infrastructure and personnel. Bennett Aff., 1 3. In 2007, Ommegang produced about 6,000 barrels of beer; today, it produces 60,000 barrels. Bennett Aff., 13. The company has a proven track record of high growth and job creation locally. Mohawk Valley Regional Economic Development Council 2012 Action Plan, p. 12 (Sept. 14, 2012). Ommegang brews internationally award-winning Belgian-style beers, using traditional methods. Bennett Aff., q( 1. The Brewery markets across the United 24 Id. 29 States and operates an extensive year-round 136-acre facility that houses a Belgian-style farmhouse brewery, packaging and bottling plant, warehouses, tasting room, visitor center and cafe/restaurant. Bennett Aff., 111-2. Its on-site operations, which includes concerts, festivals, and Belgian-themed cultural events, attract over 60,000 people per year. Bennett Aff., 111-2, 12. The Brewery, along with five other establishments, now comprises the Cooperstown Beverage Trail, New York State's first official cuisine trail; and last year alone, the trail received more than 100,000 visitors. Bennett Aff., 1 4. In 2010, Lan-y Bennett expressed Ommegang's grave concerns related to hydrofracking in Middlefield: "Ommegang' s strongest beer contains 90 percent water, so if the water were contaminated, we would be forced to move . . . [ w ]ithout water, we're out of business."25 Three months after. those comments, Ommegang publicly spoke out against hydrofracking within Middlefield' s borders.26 If Ommegang were to leave Middlefield due to the presence of the oil and gas industry and potential water contamination iisks from hydrofracking, the area would lose over one hundred (100) jobs as well as the revenue from the influx of tomists drawn to the brewery for beer and events. Bennett Aff., 12. The Town of 25Fracking Runs Afoul of Hometown. U.S.A., EARTHJUSTICE (Fall 2012), http://earthjustice.org/features/ campaigns/fracldng-runs-afoul-of-hometown-u-s-a. 26 Id. 30 Middlefield' s position that the oil and gas industry is incompatible with the current community character is a mainstay to the Town's goals of growing and preserving its economic base. New York's wineries are another growing industry in the region impacted by hydrofracking. According to a study conducted by the Napa Valley-based Stonebridge Research Group LLC, the New Yorlc grape, grape juice and wine industries contributed over $4.8 billion in economic benefits to the economy of New York State in 2012 and provided 24,900 full-time jobs. See, The Economic Impact of Grapes, Grape Juice, and Wine on the New York Economy, 2012 Stonebridge Research Group LLC (Feb. 2014).27 Another study, conducted by New York Agricultural Statistics Service (NASS), shows consistent industry growth over the past 25 years. See, National Agriculture Statistics Service, New York Winery Survey 2008 (October 2009).28 This long-term study measured growth in the number of wineries, total production, tourism, and other similar indices. Highlights of the NASS study include findings that: (i) The number of new wineries in the 2000 decade exceeded the total created in the previous 170 years, with many in nontraditional regions of the state. 27 Econoniic Impact of Grapes, Grape Juice and Wine: $4.8 Billion, NEW YORK WINES (Feb. 18, 2014 ), http://www.newyorkwines.org/ Articles? ArticleID=4205 28 New York Winery Survey 2008, USDA NATIONAL AGRICULTURAL STATISTICS SERVICE (October 2009), http://www.nass.usda.gov/Statistics_by_State/New _ York/Publications/Special_Surveys/Winery/ winerypub2008. pdf. 31 (ii) Tourist visits to New York wineries in 2008 approached 5 million, up 21 % from 2003, despite record high gas prices and a recession. (iii) Of 169 responding wineries, 124 made investments during 2006-2008 averagmg nearly $400,000. Jim Trezise29 The Finger Lakes region is a major wine producing region of New York, known for both its wineries and its pristine beauty. Towns and vineyards across the region are addressing concerns to protect their local economy, much of which is based upon wine production. 30 Like traditional farmers, vineyard owners stress the importance of preserving the quality of water resources. Art Hunt, owner of Amicus herein, Hunt County Vineyards in Jerusalem, New York, and president of the Keuka Lake Association stated with regard to hydrofracking, "My family has been here for six generations, and I want to continue farming for another six ... [n]o way do I want to jeopardize that."31 Hunt worries about potential environmental damage in and around Keuka Lake and the surrounding vineyards, "[t]his is one of the most beautiful areas of the country with water so clean you can drink out of [the lake] .... " 32 29 These statistics are synthesized from the NASS, New York Winery Survey 2008, as reported in the article by Jim Trezise, "$3.76 Billion Generated for New York's Economy" (May 09, 2011), NEW YORK WINES, http://www.newyorkwines.org/Articles?ArticleID=3152. 30 Stephanie Cain, Drill Finger Lakes Drill? WINE SPECTATOR (May 14, 2010), http://www.winespectator.com/webfeature/show/id/42679. 31 Id. 32 Id. 32 In Tompkins County, unfiltered groundwater is the source of drinking water for approximately 45 percent of County residents. This is just one example of the high quality of water in the Finger Lakes region relied upon by the vineyard industry for grape growing and wine producing. TCCIA, p. 42. By way of comparison, the rdSGEIS specifically protects the New York City and Syracuse watersheds finding that because of ... the unique issues presented by high-volume hydraulic fracturing operations within the drinking watersheds for the City of New York and Syracuse, the SGEIS would not apply to activities in those watersheds. Those areas present unique issues that primarily stem from the fact that they are unfiltered water supplies that depend on st1ict land use and development controls to ensure that water quality is protected. rdSGEIS, Executive Summary, p. 20. As discussed supra, the rdSGEIS failed to perform a regional assessment that included Tompkins County. Therefore, it is left to the towns of Tompkins County and the surrounding areas to assess the potential local impacts to vital resources such as water and to utilize "strict land use and development controls to ensure that water quality is protected. " Id. Local governments have moved forward to fill the vacuum left by the gaps in the rdSGEIS. Dryden, Middlefield, and the home of Art Hunt's vineyard - the Town of Jerusalem - have enacted zoning ordinances explicitly prohibiting the land use of natural gas extraction, exploration or 33 production wastes in an effort to protect the water quality of their respective residents and businesses. See, Town of Jerusalem Zoning Ordinance§ 160-141. From breweries to distilleries to restaurants, "foodies" are flocking to the Hudson Valley to sample the menus at the wide variety of top-flight restaurants in a region which is looking to compete with the fame of California's Napa Valley as a dining destination. 33 Hudson Valley restaurants are amping up their offerings for diners. The farm-to-table concept - in which chefs seek out ingredients for their dishes from local farmers - is becoming standard practice in the region. The words "grass fed" and "organic" are showing up on more and more menus. And many chefs seem to be experimenting with different foods and their . 34 presentation. - The Hudson Valley and Catskills continue to be home to a vibrant artisanal food and beverage economy. Mid Hudson Regional Economic Development Council, Focus on the Future - Progress Report, p. 71 (Sept. 2012). As an example, New Paltz and the surrounding area provide patrons with breweries, distilleries, main street shops, fine-dining restaurants and off in the horizon, the famed Shawangunk Ridge. The "Gunks," as this ridge is commonly known, is a world renowned 33 Lynn Hazlewood, Where to Eat in the Hudson Valley, HUDSON VALLEY MAGAZINE, http://www.hvmag.com/core/pagetools.php?pageid=8273&url=%2FHudson-Valley- Magazine%2FMarch-2011 %2FWhere-to-Eat-in-the-Hudson-Valley%2F&mode=print (last visited April 11, 2014) 34 Id. 34 attraction for climbers, hikers and bikers who also frequent the local artisanal food and beverage economy. Further north, the Town of Saugerties is the home to NY Businesses Amici; Hudson Valley Dessert Company, Dutch Ale House and Partition Street Wine Shop. The three businesses help fill the niche for the artisanal food and beverage industry, sharing Main Street with the various quaint businesses in and around the center of town, including two additional Amici on this brief, Arm of the Sea Productions, Inc. and Our Bookshop. These five NY Businesses, and many other businesses in the food and beverage industry rely on a sustainable economy based upon natural resources, agriculture, tourism and recreation. They count on their respective municipalities to assess and protect their community against an incompatible industry such as oil and gas. 3. REAL ESTATE Moving across the Catskills, Amicus A&E Management & Contracting, Inc. ("A&E") in the Town of Mamakating, Sullivan County, relies on town character and an economy based upon sustainable businesses, including agriculture, tourism, recreation and the second home real estate market, for reliable sources for A&E' s building contracting business. The local economy of Mamakating is dependent on the Town's character and natural resources as a draw for urban dwellers and seasonal residents seeking second home getaways and/or permanent homes for retirement. A study prepared by the Division of Planning and Environmental 35 Management of Sullivan County in 2008 confirmed that the second home industry continues to play an economic and social role in the County. Sullivan County Division of Planning and Environmental Management, Second Home Owner Study, p. 5 (Oct. 2008). Id. at 10. The presence of second home development has yielded growth in municipal tax incomes and increased spending in local businesses, which has benefited Sullivan County, following the decline of the resort hotel industry. For instance, an economic impact analysis of the Chapin Estate [located in Town of Bethel] by AKRF revealed that with 41 completed and occupied homes in the development, the home owner expenditures ... have the potential to add more than $1.5 million in spending dollars to the County's economy. The report went on to say that the second home market may play a major role in the County's economic development. Id. The Town of Mamakating Zoning Law strictly limits industrial development and use within Town borders to two of thirteen zoning districts, neither of which are residential districts. See, Town of Mamakating, N.Y., Town of Mamakating Zoning 199 Attachment 3, Schedule I, Table of Use and Bulk Requirements, (July 1, 2008). Differing somewhat from Dryden and Middlefield, Mamakating limits - rather than bans - the industrial activity to certain zoning districts. Through careful land use planning, the Town has reinforced its commitment to maintaining 36 its rural character and protecting residential distlicts, thereby bolstering the local businesses sustained by the second home market economy. 4. RECREATION, ARTS AND ENTERTAINMENT Forty-five miles northwest of Mamakating, located in the Hamlet of Roscoe, Town of Rockland, Amicus Beaverkill Angler, LLC has been proudly serving Catskill area fly fishermen since 1979.35 Roscoe sits in the heart of the Catskill Mountains and is known as "Trout Town, USA." See, Monte Burke, North America's Top 10 Trout-Fishing Towns (Aug. 19, 2009);36 Roscoe Chamber of Commerce, The Ultimate Fishing Town in the USA, (2010).37 Forbes Magazine in designating Roscoe one of North America's top 10 trout-fishing towns, notes "The hallowed Beaverkill River - a favorite haunt of the late Arnold Gingrich and the New York City literary set - and the charming Willowemoc. River flow right through town ... 'Roscoe is the hub of an area that has great trout fishing and a long literary history,' says Paul Weamer, author of Fly Fishing Guide to the Upper D l R . ,,38 e aware zver .... 35 Who We Are, THE BEA VERKILL ANGLER, http://beaverkillangler.com/about.htrnl (last visited April 11, 2014). 36 Monte Burke, North America's Top 10 Trout-Fishing Towns, FORBES (Aug. 19, 2009), http://www.forbes.com/2009/08/19/trout-fishing-trips-lifestyle-sports-fly-fishing.html. 37 ROSCOE, NY, http://www.roscoeny.com (last visited April 11, 2014). 38 Monte Burke, North America's Top 10 Trout-Fishing Towns, FORBES (Aug. 19, 2009), http://www.forbes.com/2009/08/19/trout-fishing-trips-lifestyle-sports-fl y-fishing.htrnl. 37 In addition to the tourists that flock to the Town of Rockland for flyfishing, writers and painters have produced literature and art in the region since the 1800s. See, Kenneth Myers, The Catskills: Painters, Writers And Tourists In The Mountains 1820-1895, Forward and Introduction (University Press of New England, 1988). Further, the Catskill region has been recognized by the National Geographic Society as the "last of the wild" in the northeast and a "natural candidate for conservation measures." See, Hillary Mayell, Human "Footprint" Seen on 83 Percent of Earth's Land, (Oct. 25, 2002)39 Local businesses throughout the Town of Rockland rely on revenue generated from thousands of tourists and outdoor enthusiasts attracted to this famous region, well established as a historical and recreational treasure. As one of those businesses, the Beaver Kill Angler is a trusted source of area information, services for people fishing these historic rivers, and flies. 40 The Town of Rockland acknowledges the importance of its resources in its Draft Comprehensive Plan: "The Town also includes lakes, rivers and other natural resources of outstanding value. These must be properly managed as community economic and recreational assets." Rockland DRAFT Comp Plan, p. 1-1. The potential negative impacts 39 Hillary Ma yell, Human "Footprint" Seen on 83 Percent of Earth's Land, NATIONAL GEOGRAPHIC (Oct. 8, 2010), http://news.nationalgeographic.com/news/2002/l 0/1025 _02 l 025 _HumanFootprint.html. 40 VVho We Are, THE BEAVERKILL ANGLER, http://beaverkillangler.com/about.html (last visited April 11, 2014). 38 from the operations of the oil and gas industry to natural resources such as the rivers, aquatic ecosystems (including aquatic species such as plants, insects, trout, etc.), wildlife and forest habitat, are distinct concerns for Rockland as reflected in its comprehensive plan. See, Town of Rockland, N.Y., 2003 Zoning Ordinance E. l(d), p. 40 (oil and gas production is a prohibited use within District W-1, the Aquifer Protection Overlay District). 5. RETAIL AND SERVICES On October 12, 2011, about 200 business leaders came together in Cooperstown to honor Oneonta resident, Al Cleinman and his company, Cleinman Performance Partners (NY Businesses Amicus herein). In a statement released by the Otsego County Chamber, organizers refer to Al Cleinman as "an inspiration to all," and further describe the company as "a real Upstate success story," adding: "It's a privilege to present this award to this job-creating company." Cleinman Performance Partners, Cleinman Perfomiance Partners recognized by local business community (2011). Cleinman addressed the audience stating, I have a deep, deep appreciation forour County's culture; our history and our environment. .. As a serial entrepreneur, I have been involved in the development of almost two dozen companies and divisions of companies that have employed hundreds of people; both in this county and others ... Indeed, of 95 million businesses in the United States, only about 17 ,000 employ more than 500 people ... When it comes to our economy, LITTLE IS BIG! 39 Cleinman Performance Partners is yet another example of a successful business in upstate New York that contributes to local sustainable economics. The Common Council of the City of Oneonta, where Cleinman Performance Partners is based, passed an ordinance banning oil and gas development within City limits based upon one of several factors. According to Eighth Ward Council member, Alderman Kevin Hodne, hydraulic fracturing would result in an "economic disaster'' for the area as the high concentration of drilling rigs and equipment would affect tourism and the service industry.41 6. TOURISM, HISTORICAL AND CULTURAL RESOURCES Amici NY Businesses represent industries located in unique places across the state, distinguished by the paiticular character of the hamlet communities in which they exist. The proximity of these businesses to and conpection with local as well as regional resources, create sustainable tourist-industry based economies. Hudson Valley and Catskill Mountains Towns, businesses and residents located in the Hudson Valley and Catskills thrive amid the region's world-class natural beauty, spectacular public parks, pivotal places from American history, cultural attractions, and proximity as well as 41 Jake Palmateer, Oneonta Common Council Bans Gas Drilling, T HE DAILY STAR (June 8, 201 1), http://www.thedailystar.com/localnews/xl261855813/0neonta-Cornmon-Council-bans- gas-drilling. 40 transportation links to Manhattan. These communities share in tremendous assets for attracting and retaining new and existing employment and economic opportunities. See, Mid Hudson Regional Economic Development Council, Focus on the Future - Progress Report, p. 14 (Sept. 2012). The current strategy for the region is to preserve, enhance, and restore natural assets, including revitalization of former industrial waterfronts, urban tributaries and historic resources, to boost growth of the current $5 billion tourism industry. Id. This strategy promotes continued growth and development of resource-related sectors, including the agricultural economy and related food distribution, as well as artisanal food and beverage industries. All of these industries are creating new tourist destinations and a strengthened business climate for sustainable development throughout towns in the region. Id. Susquehanna and Mohawk Valleys - Central NY Region Tucked away in the northern extent of the Catskill Region and within the Central New York Region, the Town of Middlefield runs along the east side of Otsego Lake, the beautiful "Glimmerglass" of James Fenimore Cooper's Leatherstocking Tales.42 "It is a gently hilly area divided by the meandering Cherry Valley Creek and Red Creek as they wind their way to the Susquehanna 42 Town History, MIDDLEFIELD, NY, http://www.middlefieldny.com/history.html (last visited April 11, 2014). 41 River."43 The rich aesthetic, historical and cultural resources are heralded on the Town's website. The Village of Cooperstown's website similarly boasts "[i]t is a magical place to live, a wonderful place to raise a family and the perfect setting to start a business away from the hectic lifestyle of huge cities and traffic-filled suburbs."44 The Leatherstocking Region is rich in history and tradition. Museums, performing arts centers, reconstructed villages, farmsteads, folk art treasures as well as geological and natural wonders (e.g., majestic caverns, scenic waterfalls, clear lakes and rolling hills) "are just a few of the attractions that draw thousands of visitors each year."45 "According to a 2010 economic impact study, 'tourism in Central New York is a $1.7 billion industry, supporting over 31,000 jobs."' Tourism Economics, An Oxford Economics Company, The Economic Impact of Tourism in New York, 2010 Calendar Year Central New York Focus, p. 27.46 The report further indicates that travelers spend across a diverse range of sectors, including without limitation, recreation, retail and services, lodging and second homes. In 2010, tourism 43 Id. 44 Jeff Katz, What is Cooperstown?, THE VILLAGE OF COOPERSTOWN, NY, http://cooperstownny.org (last visited April 11, 2014). 45 Explore the Historic Leatherstocking Region of New York State, NEW YORK STATE DESTINATIONS, http://www.newyorkstatedestinations.com/leatherstocking/ (last visited April 11, 2014). 46 The Economic Impact of Tourism in New York, CATSKILL CITIZENS FOR SAFE ENERGY, http://catskillcitizens.org/learnmore/NYSTourismimpactCentralNew Y ork.pdf (last visited April 11, 2014. 42 generated $507 million in direct labor income and $869 million in additional revenues including indirect and induced impacts. Id. at 29, 32. Together, "10.2% of all employment in Central New York region is generated by tourism." Id. at 35. Otsego County, where Middlefield is located, is the county second most dependent upon tourism for its economy, with approximately 14% of all employment in the County sustained by visitors. Id. Middlefield's Zoning Law preserves this rural character and economy of the Town and the villages within its borders by requiring "the protection and enhancement of Middlefield' s physical and visual environment; to lessen congestion in the streets ... to prevent overcrowding of land; [and] to protect surface and ground water resources .... " Middlefield Zoning Law, p. 2. The stated "purpose" of the Middlefield Zoning Law is "to protect. and promote . . . economy, aesthetics and general welfare of the Town of Middlefield." Id. Accordingly, in furtherance of this purpose, the Town used its home rule powers and effectively banned oil and gas drilling within its geographic borders by enacting the June 2011 zoning law. See, Norse Energy Corp. USA, 108 A.D.3d at 27. Finger Lakes Region In August 2011, the Town of Dryden enacted a similar amendment to its Zoning Law, prohibiting the development of natural gas within the Town limits. 43 The TCCIA released by the Tompkins County Council of Governments in 2011 commented that gas exploration and extraction - which generates significant truck traffic and emissions - is an industrial use not suitable for the Town of Dryden and not recommended in its Comprehensive Plan. TCCIA, p. 17. "The overall goal of the Plan [which was adopted in 2005] is to 'preserve the rural and small town character of the Town of Dryden' ... and the Plan notes that the 'environmental resources of the Town of Dryden, including air, water, and soil, are of relatively high quality and are essential to a good quality of life, public health, and a thriving economy."' Id. at 16. The TCCIA further states, "[i]n terms of economic development, the Comprehensive Plan recognizes the importance of preserving agricultural resources, providing goods and services in the villages, and allowing for development of light industrial, warehousing, and research. and development enterprises ... while preserving Dryden's rural and small-town character." Id. In assessing the entire County of Tompkins, higher education is the largest industry (Cornell University and Ithaca College), followed by manufacturing, high- tech, utilities, agriculture and tourism. TCCIA, p. 14. The TCCIA notes that Tompkins County continues to emerge as a regional cultural center with tourism flourishing "as Ithaca and Tompkins County become recognized as the most exciting gateway to the Finger Lalces region." Id. The Town of Dryden borders Ithaca to the east sitting at the eastern boundary of Tompkins County and acting as 44 part of that same gateway to Ithaca, the County and the Finger Lakes Region. Generally speaking, gateways help define the edge of a community, providing a point of entrance to let the traveler know he/she has "arrived" in the community. Dryden Zoning Ordinance, Appendix E, Design guidelines 14 of 15. Similarly, hamlets and towns which are "gateways" to a region develop their own community character and economy based upon the traits and the characteristics of the region. The communities of Tompkins County represent unique places distinguishable from other communities by the particular character of the hamlet communities and their proximity to and connection with Ithaca and the Finger Lakes region. The Town of Dryden is best suited to determining that this character will be negatively impacted by hydrofracking occuning within its borders. Tourism is the seventh largest employment sector in the County, generating 2,366 jobs, tourism spending of $156 million and approximately $22.5 million in State and local tax revenues annually. TCCIA, p. 67. Tourists are regularly drawn to Cornell University and Ithaca College, downtown Ithaca and its shops, bars and restaurants, the State parks, waterfalls and gorges, the local wineries, Cayuga Lake; the Farmers Market and the Johnson Art Museum. As a gateway to the Finger Lakes, the Comprehensive Plan of Dryden and Tompkins County is organized around symbiotic principles devoted to economic development and environmental protection: 45 The [County Comprehensive] Plan recommends that 'the local economy should be enhanced by building on important community assets, such as a highly educated workforce, an entrepreneurial spirit, dynamic academic institutions, and a high quality of life.' The economic growth of the region depends on the export sectors, which include 'education, manufactured goods, high-tech products and services, and tourism.' Agriculture contributes to rural character and quality of life, which in tum 'attracts skilled workers employed at the more urban job centers, as well as professionals with home-based businesses.' Tourism, which draws visitors and supports cultural, historical, and commercial resources throughout the county, increases economic stability and attracts workers and businesses to the area. The Plan recommends that 'a diversified rural economy centered around the working rural landscapes of farms and forests, and the livelihoods of those who depend upon them, should be preserved and enhanced.' TCCIA, p. 15. B. New York State Home Rule Preserves the Ability of Local Governments to Protect Local Econon1ies The NY Businesses support the principle that the home rule powers of the Towns of Dryden, Middlefield and all other municipalities throughout the state are intended to preserve the ability of local governments to assess and protect the unique economic interests and overall livelihoods of the occupants of their respective communities. The Dryden and Middlefield zoning laws are an "exercise of the municipality's constitutional and statutory authority to enact land use regulations even if such may have an incidental impact upon the oil, gas and solution drilling or mining industry." Cooperstown Holstein Corp., 35 Misc. 3d 46 767, 779 (Sup. Ct. Otsego Cnty. 2012), ajf'd, Cooperstown Holstein Corp., 106 A.D.3d 1170 (3d Dep't 2013). These zoning laws do not conflict with the state's interest in establishing uniform policies for the operation of the oil and gas industry or the state's declared policy with respect to the related resources. Id. The NY Businesses support the holding of the Appellate Division, Third Department that the OGSML may be harmonized with those statutes that grant a town's "powers to regulate land use through zoning powers expressly delegated in the Statute of Local Governments." Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d at 35 citing Matter of Frew Run, 71 N.Y.2d at 134. C. Municipalities May Determine Whether a Land Use Conforms with its Zoning, Particularly Where It May Be Directly Related to its Sustainable Economies. As demonstrated herein, local businesses across the state. are prospering in towns that have established sustainable economies. The Fann Bureau brief, an amicus in support of Appellants, misleadingly argues that communities throughout upstate will miss out on great economic opportunity by restricting or eliminating the oil and gas industry from these areas. In certain instances, such as Dryden and Middlefield, the municipalities have determined - with the support of members of their farming communities - that whatever contributions the oil and gas industry may make to the local economy, the risk of negative impacts to the existing economic base is not worth the reward. Municipalities are best suited to evaluate 47 the potential impacts on their local community. They should be permitted to use their home rule powers to evaluate whether the speculation of economic gains from the oil and gas industry pose overall risk or reward to their respective communities, and act accordingly. In looking at socioeconomic impacts, the DEC failed to adequately address potential negative impacts to these local community issues. The Economic Assessment Report, which is an addendum to the SGEIS on hydrofracking, contained a mere 7 pages - out of a 251 page report - that mentioned potentially adverse socioeconomic impacts from hydrofracking. See, Economic Assessment Report.47 The DEC has acknowledged this gap in the SEQRA process: "[t]he only considerations given to economic impacts in relation to the balancing required by SEQRA have been to consider beneficial economic impacts which may offset adverse environmental impacts .... " Matter of Amenia Sand and Gravel, 1997 WL 1879249 at *21 (Emphasis added). In a comprehensive analysis of the econormc implications of Marcellus Shale development completed at the Cornell University Department of City and Regional Planning, David Kay states: We conclude that existing evidence about the Marcellus shale gas operations is inadequate to make confident predictions about the numbers of jobs that will be 47 NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, htttp://www.dec.ny.gov/energy/75370.html (last visited April 14, 2014). 48 created, business expansion, or revenue generation. Gas development is already directing new money into the Marcellus region, and the prospects for substantial short- term economic gain for some local businesses and property owners are real. Many economic development opportunities will also arise. On the other hand, mixed economic results are also occurring even in the short run. The rising tide is not likely to lift all boats: there will be losing communities, and individuals who are displaced or left behind. Moreover, the experience of many economies based on extractive industries wan1s us that short-term gains frequently fail to translate into lasting, community- wide economic development. Most alarmingly, a growing body of credible research evidence in recent decades shows that resource dependent communities can and often do end up worse off than they would have been without exploiting their extractive reserves. TCCIA, p. 96. Towns with businesses that are reliant upon the (i) umque and distinguishable natural, aesthetic, cultural and historic resources and (ii) tourism and agriculture based economies of their respective regions, have a distinct interest in using their home rule powers to eliminate or restrict the oil and gas industry to preserve the local character and resources which continue to provide local employment opportunities and economic prosperity. A town which has invested in its natural resources and community character should not be compelled to accept into that community a completely different industry which is at odds with its current economies and character. Without unambiguous preemption in the statute and clear legislative intent to preempt a town's home rule, there is no basis for usurping such authority from the Towns of Dryden and Middlefield. 49 POINT ID THE LOWER COURT'S DECISION THAT LOCAL GOVERNMENTS ARE NOT PREEMPTED BY ECL § 23-0303(2) FROM ENACTING LAND USE LAWS THAT BAN HYDROFRACKING SHOULD BE UPHELD IN ACCORDANCE WITH THE AUTHORITY DELEGATED TO MUNICIPALITIES FOR GOVERNANCE OF LOCAL LAND USE. A. Municipalities are expressly delegated the authority to govern local land use. The power of municipalities to enact land use ordinances and laws (Home Rule) is a vested constitutional right. N.Y. Const., Art. IX, § 2(c).48 Home Rtde further confers upon a municipality the police power authority to enact laws for the protection of its environment as well as the safety, health and well-being of persons or property within its borders. Municipal Home Rule Law § lO(l)(ii)(a)(ll) and (12).49 Additionally, the leg.is1ative grant for municipalities to undertake local comprehensive planning and to regulate land use.for the purpose of protecting the general welfare of its citizens is codified in the New York's Village, Town and General City laws. Village Law§ 7-722(1)(b); Town Law§ 272-a(l)(b); General City Law § 28-a(2)(b ). New York Courts have repeatedly held that a legally permitted activity can 48 N.Y. Const., Art. IX, §2(c) provides: "In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government ... " 49 Localities are at1thorized to enact Jaws for the "protection and enhancement of its physkal and visual environment" and for "the government, protection, order, conduct, safety, health and well- being of persons or property therein ... " 50 be prohibited through a municipality's exercise of its power to regulate land use through its zoning powers. See generally, Matter of Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126, 524 N.Y.S.2d 25 (1987); Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668 (1996). Municipalities clearly have an interest in and the power to address the impacts an otherwise permitted activity would have on the general public. The prohibition of an otherwise permitted activity will still be valid if it sufficiently relates to a town's concerns of the effects the activity would have on the public health, safety, and welfare of its residents. See, Town of LaGrange v. Gionvenetti Enterprises, 123 A.D.2d 688, 689, 507 N.Y.S.2d 54, 55 (2d Dep't 1986) (an ordinance is not inconsistent with the ECL merely because it prohibits something which the State would consider acceptable, e.g., the storage and. transfer of trash); See, JIJ Realty Corp. v. Costello, 658 N.Y.S.2d 92, 239 A.D.2d 580 (2d Dep't 1997) (upholding a zoning ordinance which prohibited storage of hazardous waste, as consistent with the Petroleum Bulle Storage Code and thus not preempted by State law). Municipalities also have an affirmative duty to exercise their police powers to insure those interests are protected, even under the perception of harm and not necessarily from its likelihood. See, Town of Huntington v. Park Shore Country Day Camp, 47 N.Y.2d 61, 66 (1979) ("it is a legislature's right and, particularly in matters of zoning and planning, its obligation as well to anticipate 51 future problems and to enact measures to guard against them, though in fact the anticipated events may never come to pass" [emphasis added]).50 Undoubtedly, hydrofracking raises concerns of public health, safety, and welfare. NY Businesses respectfully submit that, in accordance with established precedent allowing local zoning to prohibit otherwise permissible land uses, the court below correctly upheld the local zoning laws of Dryden and Middlefield prohibiting the development of natural gas within the boundaries of the towns. Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d 25, 37-38; Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (3d Dept 2013). These legislative acts are a valid exercise of a town's municipal power to regulate land use, thereby anticipating and protecting their community from the potential adverse impacts of the oil and gas industry. B. Statutory construction of ECL § 23-0303(2) does not support preemption of local zoning laws. NY Businesses concur with the finding of the court below that the OGSML does not preempt, either expressly or implicitly, a municipality's power to enact local zoning ordinances prohibiting natural gas development so In examining the purposes for which a locality may utilize local zoning, the Supreme Court of the United States has noted that the fact that a municipality uses its police powers to lay out zones that exclude an offensive or dangerous industry does not invalidate the zoning ordinance. See, Vill. of Belle Terre v. Boraas, 416 U.S. 1, 4-5, 94 S. Ct. 1536, 1538-39, 39 L. Ed. 2d 797 (1974); citing, Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-88, 394, 47 S. Ct. 114, 118-20, 71 L.Ed. 303 (1926). "It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Vill. of Belle Terre v. Boraas, 416 U.S. at 4-5. 52 within its borders such as the zoning laws enacted by the towns of Dryden and Middlefield. The OGSML provides: The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law. ECL § 23-0303(2). Contrary to the arguments raised by the Appellants in their Reply brief, a determination that local land use regulation is not preempted by the OGSML is not reliant upon MLRL precedent or the Oil and Gas Compact. It is fundamental principles of statutory construction that led the lower courts, and it is submitted will lead this court, to uphold the local zoning ordinances at issue in the current matter. Under established principles of statutory construction, all parts of a statute are to be construed together. N.Y. Statutes § 97. ECL § 23-0303(2) contains an exception clause that states it ". . . shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law." The exemptions are only relevant, however, if the challenged local laws or ordinances constitute "regulation of the oil, gas and solution mining industries" in the first instance and, thus, would otherwise be preempted. See, 53 ECL § 23-0303(2). Further, the exemption language cannot be read to expand the prohibition of the enacting clause so as to supersede the local zoning ordinances challenged in this appeal. "[S]uch a construction would permit the exception to annul the enacting clause; which is contrary to the settled principles of construing statutes." Traver v. Traver, 1 Code Rep. 112 (1848). The enacting clause of the OGSML must be read in accordance with its plain meaning, which does not prohibit a local government from regulating land use. 51 "By construing ECL 23-0303(2) as preempting only local legislation regulating the actual operation, process and details of the oil, gas and solution mining industries," the OGSML may be harmonized with those statutes that grant the zoning power to local municipalities. Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d at 35; see also, Anschutz Exploration <;orp. v. Town of Dryden and Town of Dryden Town Board, 35 Misc. 3d 450,467 citing Matter of Frew Run, 71 N.Y.2d at 134.52 "When two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551 (1974). The Court below properly preserved the efficacy of both the Environmental Conservation Law and Home Rule. 51 In fact, several other oil- and gas-producing states permit localities to prohibit drilling within their borders, including California, Illinois, and Texas. See, Respondent Town of Dryden's Brief, p.49. 52 See, N.Y. Stat. Law§§ 370, 391, 398 (McKinney). 54 Even if, however, this Court finds that the text of the OGSML is ambiguous on the question of preemption, the ambiguity is resolved by applying the presumption against state preemption of local law. N.Y. Const., Art. IX § 3(c); Proposed Amici Curiae Brief By Professors Vicki Been, et al., pp. 8-10.53 Article IX, § 3(e) necessarily implies that a State statute's preemption clause, where ambiguous, be narrowly construed, because towns' "[r]ights, powers, privileges and immunities" are defined by those state laws that abrogate such powers just as much as by state laws delegating such powers. Id. Put simply, local government powers cannot be "liberally construed" unless state statute preemption clauses are narrowly construed. Id. The plain language of Article IX, § 3(c), therefore, calls for a presumption against preemption when state statutory text is ambiguous. Id. When the Legislature has intended to expressly preempt local zomng authority it has done so. See, e.g., ECL § 27-1107; Mental Hygiene Law§ 41.34. No such express preemption is found in the OGSML. Thus, the lower court correctly held that absent a clear expression of legislative intent, the OGSML does 53 Article IX §3(c) of the New York Constitution requires a presumption against state statutory preemption of local law as it provides that "[r]ights, powers, privileges and immunities granted to local governments by this article shall be liberally construed." This constitutional requirement has also been codified by section 51 of the Municipal Home Rule Law, which provides that home rule powers "shall be liberally construed." 55 not preempt local zoning authority. See, Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d at 34-35. CONCLUSION For the foregoing reasons, and the reasons set forth in the decision of the lower court, this Court should uphold the authority of a local municipality to enact local zoning laws to protect a sound economic base, sense of community, and the health and welfare of its residents. Dated: Aplil 16, 2014 Albany, NY 56 TOOHER & BARONE, LLP ' ohn L. Barone, Esq. Meave JVI. Tooher, Esq. Attorneys for Proposed Amici Robinson Square 313 Hamilton Street Albany, NY 12210 Tel: (518) 432-4100 Fax: (518) 432-4200