New In Cooperstown, Attorney Devises Anti-Fracking Strategy

By JIM KEVLIN : COOPERSTOWN

The Freeman’s Journal
Attorney Michelle Kennedy addresses a recent meeting on fracking.

When attorney Michelle Kennedy’s husband joined Bassett Hospital, the young family from D.C. identified a house they liked in the Town of Middlefield.
Researching the deed, she discovered gas leases had been signed for adjoining properties.  The couple backed away from the house.
But from that personal experience came a strategy for townspeople worried that hydrofracking for natural gas would destroy their property values, families’ health and lifestyles.
If Comprehensive Master Plans and land-use regulations can control how close a shed can be to a road, reasoned Kennedy – she has opened a law office in the Key Bank building on Main Street – why can’t it control something with much greater impact on the community?
Her research led her to conclude they can, and the towns of Middlefield and Otsego, on the forefront of the resulting initiative, are on the verge of toughening up their zoning regulations to make explicit:  Natural-gas drilling is an industrial use and we don’t want it.

In her research, Kennedy discovered two cases where the state Court of Appeals, New York’s highest court, supported two towns’ efforts to regulate less-than-pleasant uses:
• Free Run Gravel Products vs. Town of Carroll.
Free Run’s operation was permitted under the state Mine Land Reclamation Law, but the court in 1987 found the town’s zoning law was an “act of general applicability” with only “incidental impact” on gravel mining, and thus overruled the state law.
• Gernatt Asphalt Products Inc. vs. the Town of Sardinia.
In 1996, this decision expanded the same reasoning – a zoning law of “general applicability,” not targeted at a specific operation, can stand – to oil, gas and solutions mining.

Outside the state, in 2009 the Pennsylvania Supreme Court, in Huntley & Huntley vs. Borough of Oakmont, determined zoning laws, aimed at preserving the character of a residential community and promoting compatible land uses, can be applied to natural-gas drilling.
Representing 32-member Middlefield Community Action, many from the Beaver Meadow neighborhood, Kennedy attended the Tuesday, March 8, meeting in the hamlet that was so crowded a P-A system was set up outside.
That was where Scott Kurkowski, attorney for the Joint Landowners Coalition of New York State, bluntly told the town board it would be sued if it adopted language tightening a zoning provision that prohibits industrial uses in the rural town.
On the 8th, the Middlefield board could not act because the county Planning Board had not yet signed off.  Monday, March 14, that occurred by a 6-1 vote, with county Rep. Betty Ann Schwerd, R-Edmeston, voting nay.
Meanwhile, another packed meeting occurred Tuesday, March 1, in the Otsego Town Hall in Fly Creek, where all but two of dozens of speakers favored tougher regulations on gas drilling.
The town board and town Planning Board and Zoning Board of Appeals planned a joint meeting Wednesday, March 16, to hammer out the language.
Otsego Town Supervisor Meg Kiernan said that, absent objections, the tighter regulations could be in place by mid-May.