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Tusten committee recommends drilling ban

By Fritz Mayer
November 2, 2011

Two lawyers spoke at length about the possibilities and risks of passing Article 14, a section of the new proposed zoning code that would prohibit gas drilling and hydraulic fracturing within the Town of Tusten at a meeting of the zoning re-write committee on October 27 at the town hall.

First Mark Sweeney, a land use attorney hired by the town, gave his assessment. He said the speakers at the various public hearings on the matter clearly preferred that Article 14 be included in the zoning rewrite and, therefore, it was possible that the town board could adopt it.

He also said it is possible that a ban on drilling would ultimately be upheld by the courts, because the treatment of gas extraction by the state is similar to the way mining is treated. Sweeney said, “Towns have restricted the operation of mines to certain areas or banned it altogether,” and those actions have been upheld by the courts.

He repeated several times, however, that the adoption of Article 14 could result in litigation. He noted that two suits regarding similar bans in the towns of Dryden and Middlefield are currently being fought in court, and he said, “Large gas companies are putting a lot of resources into knocking the bans out.”

He said, “The litigation that is underway was carefully selected, we believe, by the gas drilling industry to identify particular codes in areas that were particularly important to them. They could shop around because there are a number of towns that have adopted similar bans, and they were able to shop around and find the one that fit their case the best.”

He noted the possibility that a lawyer or law firm may offer to defend such a suit for a municipality pro bono, but he said, “With the gas drilling industry putting the amount of resources that they are, into the effort to knock down bans and litigate these cases, it may very well overwhelm an individual attorney or others that are handling it pro bono.”

On the other hand, Sweeney also cautioned that if the town waited to see the results of the other cases before enacting such a ban, it would face a different set of risks, specifically that a developer could gain a “vested right” to drill.

The other lawyer, David Slottje, executive director of the Community Environmental Defense Council, who has been advising the town on a pro bono basis, and who is working with the lawyers involved in the Dryden-Middleton cases, said “mainstream legal opinion is that the NYS Court of Appeals will agree that towns have the authority” to adopt zoning that bans drilling and fracking.

Heat

Fritz Mayer lays out the issues well, but he not only avoids the heat that was generated between the two lawyers, but the reasons for the heat.

To compliment Mr. Mayer, the lawyers did agree that they agreed with each other at least 90% of the time on the subject, but the heat was generated by the emphasis put forth by Mr. Sweeney that litigation would likely ensue, and that it would be expensive. Let's not split hairs here, Mr. Sweeney most likely did not say that litigation "would" ensue, but he repeated, repeatedly, that the extraction companies have billions, and that a lawsuit could most certainly result. He stressed this over and over, and implied, can the town afford it? It seemed as if he was saying that even though the Town really really wanted to ban heavy industry, they ought to think ten times before standing up for what they believe in.

Mr. Slottje attacked that strongly, and simply from the financial angle. He laid out his case, and while doing so, took some leading, insinuating shots at Mr. Sweeney.

In the end though, I was more offended by Mr. Sweeney's over the top repitition, than I was by Mr. Slottje's characterization of Mr. Sweeney, and excited presentation. Mr. Sweeney was sufficiently offended to make up for all of us, as it should have been. He responded to Mr. Slottje, and Mr. Slottje apologized.

In the end, they both served their purpose, and the audience got what it wanted, unless it wanted high volume, slick water, multi-stage hydraulic fracturing and drilling into shale, on the ballfield off of Bridge Street.

I do wonder how much Mr. Sweeney's company was paid for their services, and how much, if any, David Slottje was paid. Was Mr. Slottje paid at all, or, is he just the passionate defender of local zoning rights that he seems to be?