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October 24, 2016
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Towns pass pro-drilling resolutions; expert weighs in on open meetings laws compliance

UPPER DELAWARE VALLEY — It’s becoming fairly clear that local zoning laws are going to play a role in whether gas drilling is going to occur in any given town or village.

In an interview with National Public Radio in early July, Governor Andrew Cuomo said, “I think it’s inarguable that one should take into consideration home rule, and if you have communities that have an expressed desire to proceed, I think that should be taken into consideration if you decide to go down this road at all. Obviously, if a community says that they oppose it, that should be taken into consideration.”

With that as background, several New York communities have passed resolutions recently that affirm the rights of residents to exploit any natural gas that may exist beneath their properties. In two of those towns, residents charged the resolutions were passed in violation of Open Meetings Law.

On July 10, the Town of Hancock passed a resolution that was described by a resident who attended the meeting as a “detailed affirmation of fracking.” The resolution was not posted on the website in advance of the meeting, as required by NYS Open Meetings Law, which was updated in February, but the language of the law leaves a bit of room for wiggle. It says the posting must be done if “practicable.”

However, Robert Freeman, executive director of the NY Committee on Open Government (COOG) and widely considered to be the foremost expert on the law, said that, these days, if a municipality has a website, it’s not going to be very difficult to update it, and if it does not, the municipality has the obligation to provide copies of the resolution to people who request it.

He said that the Open Meeting Law was updated to provide the public with the opportunity to become familiar with resolutions before they come up at a meeting and to avoid surprises.

Town of Hancock Supervisor Sam Rowe said, in an email, “I’ve been supervisor for 11 years, and we have never posted any of our resolutions on our website or in printed form.”

He added, “The resolution was the result of having several residents request that we have a moratorium and several residents for resolution in favor. Basically, it says that we are in favor if it can be done safely. Also it says that the town doesn’t have the financial resources for a legal battle that towns are facing because of bans. Our hope was to have something that would please both anti- and pro-gas parties.”

Another complaint was that the resolution did not appear on the agenda. Freeman said the law makes no mention of agendas, and if a town has one, it can choose to follow it or not.

There was also a complaint that the meeting was changed without posting the change on the website. The COOG website says, “If a meeting is scheduled at least a week in advance, notice must be given to the public and the news media not less than 72 hours prior to the meeting. When a meeting is scheduled less than a week in advance, notice must be given to the public and the news media ‘to the extent practicable’ at a reasonable time prior to the meeting. Notice to the public must be accomplished by posting in one or more designated public locations, and posting online.”

At the meeting in the Town of Fremont, in which a similar resolution was passed on July 12, again the resolution was not made available to members of the public before the vote was taken, but was handed to some people on the board afterward.
Resident Kate Bowers said that, in her view, some residents in favor of drilling were informed of the vote in advance, while those opposed were not.

She said in a statement, “No matter how anyone feels about drilling, this was not the way to bring forth a resolution or conduct the business of a town meeting. Obviously, many knew about this resolution besides Paul Kellam (the council member who introduced it). Otherwise, why did they attend this particular meeting and never any others? I am truly disappointed that they used our town meeting to put forth their own agenda. When other towns in Sullivan County worked on their bans, they held many open comment periods, collected several comments, and the public was heard. Even if you disagreed with it, you had your chance to air your opinions and facts. We, in Fremont, had that taken from us.”

Supervisor George Conklin could not immediately be reached for comment.

Some 40 municipalities in the state have passed or are considering preemptive laws that essentially favor gas drilling. Some of them are based on the premise that passing any sort of ban on high-impact hydraulic fracturing would be a premature use of a town’s resources given that the final rules covering the process have not yet been released by the NYS Department of Environmental Conservation, though that is expected to happen soon.

On the other side of the ledger, about 110 municipalities have passed bans or moratoria on drilling, while there are movements for bans in about 70 other communities.