An unacceptable precedent
June 30, 2011 —
The Town of Cochecton is coming to the end of its comprehensive plan and zoning rewrite process. As noted in our March 3 editorial “Needed: a policy,” it has elected to handle the issue of gas drilling by ignoring it. Unfortunately, for at least one part of the town—the Upper Delaware Scenic and Recreational River corridor—that’s just not good enough.
And there is an alternative.
The Town of Tusten is also coming to the end of its zoning rewrite, and, with the help of the Community Environmental Defense Council (CEDC), it has essentially run a clinic over the past few months in how to construct state-of-the-art land-use laws in the State of New York with regard to heavy industrial uses. The Town of Lumberland, which was in fact the first in the area to invite the CEDC to give a presentation, and the Town of Highland are engaged in the same process. We would hope that Cochecton would be willing to take a look at their example. Indeed, we think it’s the only way that they can produce something that can be regarded as conforming with the requirements of the River Management Plan (RMP).
At issue is a clause in New York State environmental law that, for some time, conventional wisdom took as forbidding municipalities from placing any restrictions on gas drilling through zoning. Conventional wisdom, however, is shifting, both in the form of opinions from legal experts such as the Albany firm of Whiteman, Osterman and Hanna (which also happens to be the consulting firm for Sullivan’s Multi-Municipal Task Force) as well as the CEDC. Towns cannot control how drilling is done, but they can still regulate land use for purposes including the protection of the health, safety and welfare of their citizens. Should they define a class of uses—such as high-impact industrial use—that threatens these values, they can prohibit said uses. To whatever extent unconventional drilling practices meet those definitions, it would be prohibited in the zones in question.