October 6, 2011 —
Two towns in New York State, Dryden and Middlefield, have now been sued on account of zoning ordinances prohibiting natural gas drilling. That such suits would be filed has long been expected, but the timing raises tricky questions for towns like Tusten and Lumberland that are heading toward the home stretch of their draft zoning rewrites, with votes scheduled for later this year.
At Tusten’s first public hearing on September 26, consultant William Pammer announced that the rewrite committee planned to monitor the course of the suits and, on that basis, make a decision to accept, delete or modify the section that would prohibit high-impact industrial uses like natural gas drilling (Section 14). This is an eminently sensible approach. The fact that case law is actually in the process of being set in these two test cases certainly suggests that careful thought needs to be given to what the town is best advised to do, and when it should do it.
But while we believe that reasonable arguments can be made on both sides of the “adopt” or “remove” controversy, on balance, we think the town should include Section 14 in its final ordinance, even though we don’t expect the court cases to be decided by the time a vote is held.
The most obvious argument for removing Section 14 is simply, “Why take the risk?” But there would be risk involved in either decision, a fact that town resident Kevin Vertrees zeroed in on when he came to the microphone and quoted section 18.104.22.168 of the New York State Department of Environmental Protection’s (DEC) SGEIS in relation to applicants looking to receive a permit for natural gas drilling. The section says such applicants must identify whether their activity conflicts with local land use laws. If so, the DEC will further review the application to determine whether there could be significant adverse environmental impacts. But if the activity is either consistent with local land use laws, or not covered by them, the DEC will issue a permit without further ado. Section 14 makes the difference between these two cases.