August 10, 2011 —
The Town of Lumberland recently conducted an informational meeting to answer questions on the proposed rewrite of its existing zoning law, a process prompted by the earlier update of the town’s Comprehensive Plan and performed by the Zoning Rewrite Committee over the past two years.
The committee is chaired by Lewis Powell, who also chairs the town’s zoning board. Powell invited questions from the large crowd. Most spoke in support of the town’s efforts to protect residents’ quality of life by establishing zoning that prohibits high impact industrial activities, and rounds of applause followed several speakers.
But builder Charles Petersheim, who owns property in the town, called the effort an “exercise to ban gas drilling,” and questioned the process. Powell invited Helen and David Slottje of the Community Environmental Defense Council (CEDC), who are serving as advisory legal counsel to the town on this matter, to address those concerns.
Helen began by clarifying what towns can and can’t do. “The law says that towns are prohibited from regulating the oil and gas industry,” she said. “All a locality can do is decide if that particular land use is prohibited in their town or not. A prohibition is not a regulation of the operational process of the industry. That’s why a town can seek, based on land use impacts, to prohibit a use.
“So the community has to make its decisions. Does this community want to allow industrial heavy impact activities in residential areas, historic areas, farming areas and river areas, or is there no place, or a limited place in this town for heavy industrial use? Zoning protects everyone’s property values by limiting incompatible uses and deciding what uses are harmonious or inharmonious with a community’s vision. All of this zoning is based on a community’s comprehensive plan.”
Helen cited the long comprehensive planning process that took place in Lumberland to identify the goals of the community—to preserve its rural character, to preserve the historic district, to preserve the quiet and tranquility. “That’s what this zoning was designed to do, to protect everyone’s property values,” she said.
Petersheim continued, “I think the theory that this zoning is based on is questionable at best and that it puts the town in a compromising position that it can’t afford to take.”
David addressed the issue of whether or not the town has the legal authority to take such action. “This was a different issue a year and a half ago,” he said. A lot of things have changed, including what boards like this know about this process. The only lawyers who question a town’s ability to do this are lawyers who represent gas companies and lawyers who represent people who have leased to gas companies and are glad they did so.”
David added that the “highly conservative” NY State Association of Towns affirms this issue. The first of that organization’s 2011 Legislative Resolutions calls upon the governor and members of the state legislature to preserve and strengthen home rule and further resolves to strongly oppose any state initiative to weaken or eliminate New York’s long-standing tradition of home rule and local government authority.
“This is not a case where we’re going against what the law says,” said David. “And this new law provides very specifically that anyone aggrieved by this, and who desires to engage in any of these activities that are prohibited by this new law if it gets passed, has a safety valve. They can go for a use variance with the town’s zoning board of appeals and the law provides a crystal clear set of steps to do so.”
Keith Gilmour, a resident of Glen Spey, applauded the town for its efforts. “So many people here have worked so hard to do something to protect us all. Anyone who educates themselves about drilling knows that it has many terrible impacts on communities. We have to protect ourselves and support the town. The people in this room are concerned about their health, their welfare, their property value and what we love here.”
Petersheim asked why some are raising money locally for a potential defense fund. “What is it in this document that is motivating people to create a pledge drive?” he said.
Helen responded, “It’s not a town action, and it’s not part of the zoning. I have heard there are people coming forward to address threats by the gas industry that they’re going to steamroll their way into towns and sue towns that don’t allow them to do what they want.”
In fact, concerned citizens groups in the towns of Lumberland, Highland and Tusten organized a pledge drive earlier this year. [Learn more at http://www.riverreporteron  line.com/news/207/2011/06/29/pledging-protect-way-life.]
In order to meet deadlines pertaining to the New York State Environmental Quality Review process and a grant that expires at the end of September, the town is scheduling a special meeting on August 31 to set a public hearing on the proposed local law on September 21. The zoning rewrite committee has added an additional public informational meeting on September 1 for the public to ask questions of the rewrite committee.
The proposed rewrite can be seen at www.townoflum  berland.org/pdf/zba/Draft_TB_PB_and_ZBA2_pics.pdf. Hard copies are available in the town office. Questions should be directed to Powell at 845/856-4679. Written comments should be sent to the town clerk, Virginia Horn at the Lumberland Town Hall, 1054 Proctor Road, Glen Spey, NY 12737 (Attention Zoning Rewrite).