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.