Home Rule: How Communities Can Stand Up to Polluting Industries and Decide the Future of Their Towns
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Well, we like to think, "It's my property and I can do whatever I want." That's only true if you can do what you want without negatively impacting other property owners because, after all, they have the right to enjoy their property as well. No one has the right to conduct a nuisance. It's not a property right enjoyed by industry, so nothing's been taken. But still, you might say, "Well, even so, the town can get sued and would have to defend the lawsuit."
So, we built into the proposed law a requirement that an administrative challenge be brought before the town as a condition before bringing any lawsuit alleging any sort of taking. So, if a landowner were to claim, "This is an unconstitutional deprivation of my property rights, substantive due process, or equal protection," they have to bring a claim in front of the town. And both federal and state courts require that administrative remedies be exhausted prior to filing for judicial relief.
So, a town would not be in a position where it was blindsided by a court case seeking damages. A town would be in a position to evaluate the merits of a claimant's case and to pursue an appropriate course in advance of a court filing. In other words, a town would be in a position to control its own destiny as to whether to stand its ground or retreat. If it retreats at the administrative remedy stage, then there's no court case, and of course no damages.
In conclusion, we don't believe the legal strategy that we have outlined is particularly novel or out of the box. It doesn't involve challenging the holding of any published judicial decision, and there's absolutely no reported New York case at any level that says that what we're suggesting cannot or should not be done. Well, of course, no one can guarantee that a lawsuit will not be filed. We believe it is much more likely than not that a town would prevail in a lawsuit if one were brought challenging the law, and moreover there's this Administrative Remedy provision which should act to place a town in control of its own liability destiny should any real risk of a damage award arise.
I hope that we have addressed the concerns and questions that you may have about whether or not a proposed law that would prohibit high-impact industrial uses is a worthwhile approach in the first place, and that we can next turn to a discussion of what such a law would actually look like in towns like yours. Thank you very much.
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Sabrina Artel is the creator and host of Trailer Talk, stories from America's kitchen table. Her weekly radio show explores community engagement through conversations about culture, politics, the arts and the environment. To find out more about Trailer Talk's Frack Talk Marcellus Shale Water Project please visit Trailer Talk .