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December 04, 2016
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Drilling down to zoning;upping the ante on bans and local control

Attorney David Slottje, who with his wife, attorney Helen Slottje, has helped four towns in Sullivan County craft local zoning ordinances intended to ban gas drilling, spoke to a group of residents about whether elected officials who claim neutrality on the issue of gas drilling were acting in good faith.

A resident from the Town of Callicoon asked this question: if a town conducted a survey for a comprehensive plan, and 88% of the residents who expressed an opinion were opposed to drilling and if the town then created a drilling-friendly comprehensive plan, would the officials be acting in bad faith? Slottje asked if the officials are currently in the process of writing the plan, and the answer was yes. Then, he said, “Let’s sue them,” which resulted in a round of applause.

It’s not clear if there will be a lawsuit or not, but the exchange was indicative of several in the crowd of 75 or so residents who expressed frustration with the elected officials of the towns of Callicoon, Delaware and Cochecton, which do not plan to take measures to prevent or limit drilling in the towns.

Slottje delivered his comments at the Delaware Youth Center on April 22. While towns across the state are waiting to see how the appeals of the Dryden and Middlefield cases turn out, which are cases in which the towns adopted drilling bans that were upheld in the lower court, Slottje is not convinced that the cases will ever make it through the appellate level court or the NY Court of Appeals. His view is that the people paying for the litigation are actually just trying to keep the cases alive until the NYS Department of Environmental Conservation (DEC) begins issuing permits.

Slottje said if a town doesn’t act to pass zoning ordinances before the DEC issues permits, and permits are issued in the town, it will become far more difficult and expensive to wage a legal battle to keep drilling out of the town.

He also said that most lawyers in the state believe the higher courts will find in favor of the towns and the bans will be upheld. The exception is the eight or so lawyers in the state that are working for drilling interests. In one specific example, he explained that one lawyer that he is aware of has a deal with owners of about 800,000 acres of land, and if that lawyer is successful in bringing drilling leases to those properties, the lawyer will receive a flat fee of $20 per acre, or up to a possible $16 million payoff—a sizable incentive to convince towns that they risk a lawsuit if they adopt drilling bans.

Slottje pointed out, however, that some 92 towns that he knows of have adopted bans or moratoria on gas drilling, and in nearly all cases, interested parties have warned that the actions will spark a lawsuit. But, in fact, no lawsuits have been brought except for in the initial towns of Dryden and Middlefield.

Blocking the exemptions

In crafting bans of moratoria for towns, Slottje said towns must word the measures carefully because of the numerous exemptions given to gas and oil industries. He said the most important environmental statutes at the federal level, and some at the state level, have lists of substances or compounds covered under the law, such as xylene, benzene, toluene, and so on, and the various laws classify them as hazardous or toxic in some way, which explains that the substances are dangerous. The laws go on to say that any person, or business, or organization that uses or handles or releases the substances must follow the rules and regulations