Delaware Town Board and Local NY Zoning Can Regulate Gas Drilling


I usually try hard not to say,  “I told you so.”  More,  I usually try not to end an opinion with something that sounds like,  “Nanny, nanny, poo, poo.”

First, it’s unseemly and impolite.

Second, it’s obnoxious.

Third,  it doesn’t make friends or influence people.

With that in mind,  “I told you so!”

Last month,  I suggested  the Delaware Town Board  could use its zoning prerogatives to protect the health, wealth, welfare  and happiness of   The Town of Delaware by creating  protected  areas within its jurisdiction where gas drilling would be banned.  The suggestion was met with a  scoffing  opinion that  I just didn’t understand  New York’s  Municipal Home Rule statute.

The next afternoon,  at  the monthly meeting of the Sullivan County Legislature,  I and others  repeated the  silly notion of local zoning controls being used to regulate the siting of gas wells.  The Board was voting on a resolution to ban drilling from County-owned property.  Some citizen speakers wanted the County to expand the  ban to areas of the  privately-held sector.  Once again,  the idea was  met with  head-shaking and  a some impatience by certain legislators.

Usually,  when I know I’m right and others just don’t get it,   my first instinct is to shake them by their cheeks until their brains rattle with sense.  After 40+ years  of being an active citizen,  I’ve learned that that is an ineffective tactic.

So here’s an idea:   this Wednesday,  April 21st at 7:00 PM in the  Delaware Town Hall in Hortonville,  the Town of Delaware will hold  its monthly Board meeting.  After reading  Breathing’s re-cap of last month’s meeting,  some residents  organized support for the Town Resolution Supervisor James Scheutzow  had presented at the March  Town Board about gas drilling.  They even put a petition in support of the resolution at The Callicoon Wine Merchant and Windy Hill cheese shop(s).  (The resolution can be read in its entirety here.)

The petition is still there and has garnered an impressive number of signatures.  (If you live in the Town of Delaware,  you’re eligible to sign it and besides,  the two shops are a pleasure to visit.)

The thing is,  since those meetings last month,  the New York State Assembly has begun considering several  bills our New York State counties, towns and villages must recognize when dealing with the issue of drilling.

First, on April 2, 2010, NYS Assembly bill 10490 was referred to the New York Assembly’s  Environmental Conservation Committee (EnCon).  The Bill  will establish a moratorium on gas drilling in New York State until 120 days after the Environmental Protection Agency releases its study of the gas industry and its  impacts.

To my way of thinking,  all  citizen-generated resolutions about gas drilling must  incorporate this commonsensical piece of proposed legislation.

Second — and my personal favorite  — on April, 13, 2010,  NYS Assembly Bill  10633 was referred to the Assembly’s EnCon Committee.  This  “home rule” bill makes explicit the notion that  local governments  have and will have zoning control over where gas drilling occurs in their jurisdictions no matter what powers of jurisdiction a  State authority may  claim. (Obviously, local zoning ordinances cannot discriminate,  but if a  local government has a   bona fide rationale for instituting  protections and does not over-reach or regulate too restrictively, their actions are likely to  be upheld in New York State courts.)

In a bold effort to support local sustainability, to protect local resources and to prevent harm to our residents,  members of the State Assembly are making it clear that localities have the right and duty to defend and protect their local resources and residents.

No longer will  New York State villages, towns  and counties with zoning boards have the right or leeway to blame the State when gas wells or other potentially injurious enterprises  sprout up in their school yards or rural residential areas as is threatened, for example, across the River in Damascus, Pennsylvania.

Inaction will no longer be an option for local governments in New York.  It  will now be clear that if local governments do not regulate gas drilling enterprises within their jurisdictions, they are choosing to support  the short term pecuniary interests of a few lessors over the long-term and communal interests of  the land, water and people they are obligated to defend and protect.

So, instead of ending this  with “I told you so,”  I will ask  citizens throughout New York State  to petition  their local governments to adopt resolutions and/or ordinances that:

  • support  A10490’s  requirement that a moratorium be effected in New York State until 120 days after the Environmental Protection Agency submits its report on hydraulic fracturing;  and
  • amend  or enact zoning laws which preserve and protect the local citizenry and their natural resources.

An example of a zoning ordinance written  in Nockamixon, PA is available here. Although  Pennsylvania and New York State regulations are often baffling  in their differences,   the language of the Ordinance is instructive;  as is a reading of this article and its links which help explain  the legal reasoning that New York  and Pennsylvania  State courts might bring to considerations of local zoning ordinances that regulate drilling. An important legal tenet is that the decision of a  State Supreme Court may be cited as precedent in other states in the absence of  more weighty legal decisions.  That does not  mean the precedent will stick,  but it does mean it will be treated with value  when a different state court weighs similar legal issues.

9 thoughts on “Delaware Town Board and Local NY Zoning Can Regulate Gas Drilling

  1. Victoria Lesser

    You go girl, this is great…Finally there could actually be a light at the end of this very dark tunnel….With your help and the community being awakened we just might be able to save ourselves from the lies and destruction of the natural gas money making industry….Thank you for this

  2. Jaime Chimner

    You go girl!!!! To have a community start to wake up is a big deal. 5 years later mine still hasn’t gotten their heads out of the sand! Someone has to try and save us!!!!!Thank you

  3. Ward in the Woods

    Listen to Liz, be active, and protect yourselves from
    the industry spin trying to rush you into something so
    ‘un-changeable.’ Never been to your state, but the pictures
    i’ve seen are beautiful. Don’t chance promised riches,
    for a few, that will endanger so many and so much.
    Speaking from experience in Texas,
    Ward in the Woods

  4. Ramona Jan

    I am so happy for the NY side and it’s obvious strides to ban the drilling. However, we all share the same river and PA is going at it. (You’ve seen the pink markers for thumping). Once NY gets a ban, I hope that you will help us reverse the madness on the PA side. Thanks.

  5. lizbucar Post author

    Dear Ramona,

    I agree: when the River’s polluted, it won’t ask which side originated the poisons. That’s why and as you know, most of us working in NY have been working with Pennsylvania also. The reason so many folks respond to Breathing from Texas and elsewhere is because I’m hoping that what we’re learning or doing here can be adjusted to PA and other states. For instance, I would hope citizens in PA, Ohio, West Virginia, etc. would go to their state’s Attorney General’s website and search as I did in NY for AG opinions about conflicts of interests. I hope citizens in Damascus, PA will sit down with lessors to talk about the Frack Act and a Severance Tax. Just because someone’s leased their mineral rights does NOT automatically mean they’re pro-drilling. There are lessors within miles of you who support the Frack Act and a Severance Tax with all the fervor that you do. It’s a place to begin a coalition.

    The news today is better in NY than in PA. The political climate is somewhat different. But we have a pro-drilling governor, our state lands are under threat and the wolves are howling at our doors, too. There is no guarantee we’ll get the temporary moratorium.

    I’ve seen the orange thumping markers, I wrote an article about the imminence of thumping in Damascus and I was at a meeting in PA last night. I suggested people take pre-thumping pictures of their properties against the possibility that their properties are damaged by the thumping. (As I hope you’re aware, there have been reports of damage to foundations, drywall, etc. in Dimock and Texas.) There are “NO SEISMIC THUMPING” on this property” signs floating around Damascus. Consider posting your property! One suggestion was that perhaps, if you have posted your property to that effect, when the trucks come you can call the police and complain of trespass. I have NO idea if that’s a good plan.

    Also, some of us are working on the question of PennDOT’s legal jurisdiction to permit the seismic testing in Pennsylvania and we can use all the help you can give.

    You have State Senators who are working to stop the leasing of public lands. Perhaps you could find out what they need from you and how they can help bolster your efforts in Damascus with the school and your Town and Zoning Boards. They’re hanging out in thin air and they’re easy targets for the gas industry. It’s one reason why it’s imperative that residents here protect the backs of our representatives who have taken unequivocal stands for local control of local resources. Best, Liz

  6. A. Squeaky Wheel

    Hey Liz,

    Thanks for linking to my blog. I’ve just started it hoping to cover Centre County, where a third has Marcellus under it, but most, including State College does not. While conflict of interest is not all I’m interested in, it’s definitely a huge issue here and elsewhere. I am trying to dig up information about an unreported aquifer incident from 2008, but I keep running into people who think their careers and/or personal investments would be threatened by talking to me about it.

    I also have another new blog called Faces of Frackland, where I’m trying to show the personal side of this. So many people read news accounts of incidents or abstract discussions of law, policy, and enforcement, but they seldom see the people involved. I hope to post a picture and a story most weekdays.

  7. John Kavaller

    Liz– As usual–you have presented a clear focus and agenda. Thank you for your dedication, research, writing skills, and activism.

    For Squeaky–It is not surprising that some folks who “know” the truth fail to disclose the truth. Whistle blowers rarely succeed and are often destroyed by the factions they sought to expose.

    Cover-ups and pay-offs are part and parcel of normal business practice. Ineptitude, understaffing, and the inability to respond appropriately, often precludes our representatives from conducting business in the best interest of those they represent.

    If we do not mind the store, who will?

    John Kavaller

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