ALL IN THE FAMILY: When Family Members Disagree Over Land Use

Conflict in family relationships is inevitable.

It happens in strong families and broken ones. It happens over something as simple as where to vacation, or circumstances as complicated as deciding upon the best use of real property. As speculation grows over the future of hydrofracking in New York State, we’re seeing more and more situations where joint landowners are at odds over property matters. Here’s some guidance on how to keep the peace, even when you disagree.

First, be sure all family members understand the issue. The “issue” is the problem or topic that leads to a conflict. Issues form the basis for the agenda of negotiations. They may be emotional issues, substantive issues, or even procedural issues. For example, are the disputing family members concerned about whether to lease the property, or is the disagreement really about clarifying ownership? Is the family member against leasing property for oil exploration, or does he simply want more information about safety practices? He might just want to slow down the process of deciding what to do with the property. Conflicts sometimes get so heated that no one remembers what drove the participants apart in the first place. It’s always a good idea to identify the issue before the conflict takes on a life of its own.

Second, get a clear understanding of each family member’s position. A position is a specific proposal or solution that a person adopts to meet interests or needs. It’s usually a pre-selected outcome that someone arrives at after considering what’s important to him or her. For example, a position might be that John will consider leasing property if the family is paid $500 per acre. Or, Susan refuses to negotiate with a gas company unless the family is part of a landowner coalition. Both John and Susan have identified a specific desired outcome, even if no one is sure about the reasons underlying that proposal.

Third, dig down to the root of the matter and seek to understand the interests that may be at play. For example, Uncle Joe may say he’s against a proposed lease offer, but in reality he wanted a say-so over the terms. He might feel as though he’s losing control over his interest in the property. Another family member may be considering a divorce, and is worried about the impact of future lease royalties on her financial picture. A more experienced family member may believe that he or she should be consulted on every decision—large or small—simply by virtue of his or her age. There are situations where an adult child stops a deal from going forward because it’s the first time this person has been able to manipulate a smarter or stronger sibling. Emotional and psychological interests always impact people’s decisions. Sometimes people aren’t even aware of these deeper interests. And often people have conflicting interests. We encourage clients to think like the other family member – to put themselves in the other’s shoes. What might be driving the other person’s position? Is there a health concern? An ego issue? A conflict stemming from childhood?

Resolving a family dispute is easier after the issue is accurately stated, the positions are known, and the interests are explored.  If co-owners can reach consensus, great.  If not, consult an attorney on what rights you have vis-à-vis your co-owners, even if they are all in the family.

NORSE ENERGY v. DRYDEN et al.: Important Decision Affecting Hydrofracking in New York State Argued Before the State’s Highest Court

The highest court in New York State recently heard oral argument in Norse Energy Corporation USA v. Town of Dryden, et al., an important case involving zoning laws and hydrofracking. The lower court, the Third Department, upheld local zoning ordinances that effectively ban hydrofracking in the town of Dryden. A decision is expected this summer.

Factual Background

In August 2011, the Town of Dryden amended its zoning ordinances to ban all activities related to the exploration for, and the production or storage of, natural gas and petroleum. The zoning amendment, made against a backdrop of growing local concern about the proposed use of high volume hydraulic fracturing to recover natural gas from underground shale deposits, essentially prevented hydrofracking activities within Town limits.

Anschutz Exploration Corporation challenged the zoning amendment. Anschutz is a driller and developer of oil and gas wells that owned leases covering over 22,000 acres of land within Dryden’s borders. It sued Dryden in an effort to have the amendment declared invalid. During the pendency of the litigation, Anschutz assigned its interest in certain oil and gas leases to Norse Energy Corporation. Norse argued that the zoning amendment is preempted by the Oil, Gas and Solution Mining Law (ECL 23-23-0301 et seq. (OGSML)). Essentially, the OGSML regulates

Legal Issues

Dryden and the other Defendants moved for summary judgment declaring that the OGSML does not preempt the zoning ordinance amendment. Norse opposed the motion, and moved for summary judgment in its favor.

In a Decision and Order dated May 2, 2013, the Third Department held that the OGSML does not preempt, either expressly or impliedly, a municipality’s power to enact a local zoning ordinance “banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.” The Third Department began its analysis with the statute itself, noting that the OGSML contains an express preemption provision. The provision provides that it shall supersede all local laws or ordinances “relating to the regulation of the oil, gas and solution mining industries … [emphasis added].” Regulation, the court wrote, can be defined as “authoritative rules dealing with details or procedure.” The court found that the OGSML does not preempt Dryden’s amended zoning ordinance because nowhere does it seek to regulate the details or procedure of the oil, gas and solution mining industries. In other words, the zoning law has nothing to do with the technical operational activities of the oil, gas and mining industries. Rather, it falls within the area of traditional land uses that are the subject of a local municipality’s zoning authority. The court did acknowledge, however, the inevitable “incidental effect” that the zoning ordinance will have upon these industries.

Future Impact

There are other aspects to Dryden that could shift the hydrofracking debate in a new direction. The amended zoning ordinance, as written, bans traditional vertical drilling and other oil or gas exploration activities, some of which may have been ongoing for years within the Town’s borders before the amendment was passed. The Court of Appeals may choose to address the overbreadth issue, and potentially strike the amended ordinance on that ground alone.

There is also a constitutional element. Norse Energy owns lease rights covering thousands of acres of land. To the extent that the amended ordinance severely restricts or interferes with those lease rights, it may constitute a “taking” under the Fifth Amendment, such that it violates due process rights under the Fourteenth amendment, or other applicable law. Norse Energy would be entitled to just compensation.

No one can predict with certainty whether or how the Court of Appeals will address these issues. But one thing is clear. The scope of the impending decision will be of utmost importance to industry stakeholders, local businesses, landowner coalitions, residents, and interest groups on all sides of the hydrofracking debate as they navigate murky legal waters.