February 20, 2013 —
The argument has been made that a “silent majority” of the residents of the Town of Callicoon favor opening the town to gas drilling, but who can hear a silent majority? Is listening to a silent majority like listening to the wind? We would argue that, by definition, a silent majority in this land of free speech cannot be heard, and that therefore their unknown and unknowable opinion should not be used as justification to determine an outcome particularly when important decisions are to be made.
The argument has repeatedly been put forth that in voting current officials into office in prior elections, during which their views on gas drilling were made known, residents clearly made their preferences known about gas drilling. But there are problems with this argument: one is that certainly not all of the town’s voting residents were aware of the position of the candidates regarding gas drilling. Indeed some residents have said they have become aware of the issue only in the past six or eight months.
The other problem with the argument is that in previous elections when residents voted for officials to govern the town, they were not asked to vote on a policy about gas drilling and fracking in the town. It may very well be the case that a number of residents who voted for the current town officials, would vote for them again, but would also like them to ban or restrict fracking. Further, whenever the residents have been asked directly to express their views on gas drilling, either in polls, surveys, public hearings or via petitions, a convincing majority—two to one, or three to one—has expressed the view that they want to ban it or severely restrict it.
One argument used against a drilling ban is that it will invite a lawsuit, and it might. In fact the towns of towns of Dryden and Middlefield have passed zoning statutes that effectively ban gas drilling and they have been sued. But so far in both cases, lower courts have ruled that the towns have the right to exclude drilling if they so desire, and many analysts expect the higher courts to follow suit.
But back to the issue of the Town of Callicoon: if the town adopts the comprehensive plan as currently written, there is quite likely to be a lawsuit launched from the other direction. It’s impossible for us to know what the legal strategy of the lawyers would be, but we would like to see a court address the question of whether, specifically when it comes to the adoption of a comprehensive plan, elected officials are allowed to ignore the expressed will of the majority of the public.
Certainly in many decisions in New York State, elected officials are perfectly free to ignore the will of the majority and, in fact, some officials make it a point of honor that they do not govern by opinion polls, but rather make their decisions based on what they believe is best for their communities. And sometimes elected officials should be commended for standing on principles and holding fast to unpopular decisions.
But the adoption of a comprehensive plan is a unique proposition. The New York State Department of State (DOS) website has a document defining the creation and purpose of a comprehensive plan. (See: tinyurl.com/9wcw4r7). It says, in part, “Defining a town, village or city’s sense of place and its vision through a plan requires extensive community input. If the comprehensive plan is adopted pursuant to the [related] statutes, at least one public hearing is required during preparation and another one prior to adoption. Additional hearings or meetings ensure that all interested citizens have the opportunity to participate.”
Town of Callicoon officials have held the requisite public hearings, but if officials then ignore the expressed will of the majority, what is the point?
Language in DOS related documents repeatedly says it is the vision that the community has for the future of the town that is the basis for determining the contents of a comprehensive plan, not the vision of the elected officials.