New York Zoning and Municipal Law Blog

This morning the New York DEC released proposed regulations for hydraulic fracturing for review and public comment. Hydrofracking, the process used to extract gas from shale, has been controversial due to the claimed adverse environmental effects of the process.

There are three general areas of regulatory proposals:

(1) surface area disturbance of State owned lands which includes among other proposals 6NYCRR Part 52.3 which reads:

"Notwithstanding any other provision of this title, surface disturbance associated with the drilling of a natural gas well subject to Part 560 of this Title on State lands is prohibited and no permit shall be issued authorizing such activity. This prohibition shall apply to any pre-existing leases and any new leases issued for oil and gas development on State lands. This prohibition, however, does not include subsurface access to subsurface resources located under State lands from adjacent private areas."

(2)Mineral resources regulation which include permitting requirements providing in part at 6 NYCRR 553:

"Section 553.3 is revised to read:

(a) The department shall issue a permit to drill, deepen, plug back or convert a well, if all applicable requirements are met and the proposed spacing unit conforms to statewide spacing provided in section 553.1 of this Title.

( b) For wells which meet statewide spacing requirements, issuance of a permit to drill, deepen, plug back or convert by the department shall establish the spacing unit for the permitted well.

[(a)] (c) For wells exempt from statewide spacing requirements or wells that do not meet such requirements as provided in Section 553.1 of this Title, an order establishing well spacing may be promulgated by the department to[ To] promote effective development, use or conservation of the natural resources of oil and gas[, an order establishing well spacing may be promulgated by the department]."

(3) Revisions to SPDES Permit regulations including 6 NYCRR Part 750-1.1 which provides:

"High-volume hydraulic fracturing (HVHF) operations, as defined in Section 750-3.2, require a SPDES permit in accordance with Subparts 750-1, 750-2, as well as additional provisions in Subpart 750-3. Provisions applicable to issued HVHF activities are set forth in Subpart 750-1, 750-2 as well as Sub-Part 750-3."

-Steven Silverberg

An appellate court held that a reduction in the size of a structure by over 30% was a proper condition to site plan approval. In Matter of Greencove Associates LLC v. Town Board of the Town of North Hempstead, the appellate division found that the reduction in the size of the proposed building was appropriate to preserve a landscape buffer between the shopping center and a residential neighborhood.

Petitioner had an existing shopping center which was required to maintain a landscape buffer at an average width of 22 feet. When it applied for a 10,000 square foot addition, Petitioner proposed reducing the buffer to between 4 and 5 feet behind the new building. The Nassau County Planning Commission, as part of its General Municipal Law review, recommended reducing the building to 6,800 square feet in order to maintain the buffer.

When the Town Board implemented the reduction of the building as a condition of approval, the Petitioner brought an Article 78 proceeding. In upholding the condition the Court stated:

"the contested condition was within the Town Board's power to impose and was not affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational. "[A] condition may be imposed upon property so long as there is a reasonable relationship between the problem sought to be alleviated and the application concerning the property" (Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d 531, 533; Matter of Mackall v White, 85 AD2d 696, 696). Here, the contested condition was a reasonable means of assuring that the existing landscaped buffer, which was designed to screen the adjacent residential neighborhood from the effects of the shopping center, would be preserved (see Matter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d at 533; Matter of Koncelik v Planning Bd. of Town of E. Hampton, 188 AD2d 469, 470). Although the proposed 10,000 square foot building was dimensionally code compliant (see generally Moriarty v Planning Bd. of Vil. of Sloatsburg, 119 AD2d 188, 191), a structure of such size could not be placed into the southwest corner of the lot without encroaching on the existing buffer."

-Steven Silverberg