Dateline: 19 June 2012
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The entire board was present for the June meeting, as were ten members of the Sempronius community. Also in attendance was attorney David Slottje of the Community Environmental Defense Council. Our town attorney, Mr. Marangola, was scheduled to be at the meeting but was unable to make it.
Attorney Slottje gave a powerpoint presentation to the board. It was titled (as shown in the picture above) Using Local Land Use Authority to Protect Health, Safety, & Community Assets.
Mr. Slottje explained that well established state law allows towns to enact laws to protect people and property in the town. It’s called Municipal Home Rule Law and it vests towns with the power to enact laws for the “protection and enhancement of its physical and visual environment” and for the “protection, [...] safety, health and well-being of persons or property therein.”
Beyond the right to enact protective local laws, town boards have an obligation to do so, as stated in this quote from a court case (Town of Huntington v. Park Shore Country Day Camp, 47 NY2d 61 (1979):
“It is a legislature’s right, and, particularly in matters of ... [land use] and planning, it’s obligation as well to anticipate future problems and to enact measures to guard against them, though in fact the anticipated events may never come to pass.” (emphasis added)
David Slottje then made the following recommendation:
Towns which are not certain whether fracking as presently practiced is appropriate for their community—because residents are divided, or members of the Town Board are undecided—should preserve their options by considering the enactment of a specific but common land use law called a moratorium, and in such event the moratorium should be enacted before DEC begins issuing drilling permits.
David further stated:
Town board consideration as to whether a moratorium should be enacted, or a decision to enact a moratorium, does NOT mean that the Board members have made up their minds about whether gas drilling is an appropriate land use in the Town.
Rather, the only thing it means is that they believe that it is in the best interests of the Town—as a whole—to study/gather more information during the moratorium period, to help them make an informed decision.
Attorney Slottje explained that a moratorium is a law with a designated time span. A ban is more permanent, but then emphasized that no law is entirely permanent. Any law can be changed (repealed) at a later date when the situation warrants. For example, if hydrofracking technology becomes safer.
David Slottje said he has worked with 100 municipalities to provide protective laws, either moratoria or bans. Then he discussed the towns of Dryden and Middlefield, which were sued for their protective laws prohibiting hydrofracking. David mentioned that he worked with Dryden to establish their law.
The lawsuit in the Dryden case was brought by a gas company. The Middlefield case was brought by a land owner. Both cases were decided earlier this year and in both instances the town laws were upheld.
A notice of intention to appeal those decisions was filed, but as of three days ago, no papers have been filed to perfect any such appeal. On 6/13/12, the "topgun" gas company attorney, Tom West, stated: It could be “tall order” to prevail after two trial courts have ruled against us.
He further stated, “The odds are against us.”
David Slottje told the board that he is confident that if an appeal is eventually pursued (and it is questionable if that will happen) the town laws will stand because NY Home Rule Law is so clear in granting protective power to towns.
Attorney Slottje stressed that waiting on a moratorium is not a prudent option for the town to take:
Waiting to pass a moratorium or protective law until after the DEC begins issuing drilling permits deprives the municipality of the single protection for local control that the DEC has built into its draft SGEIS— the right to say that a proposal to frack in the town is “inconsistent with local land use laws.”
The next powerpoint stated...
Moreover, waiting is NOT the ‘fiscally prudent’ thing to do. We believe that waiting to pass a protective law until after permits issue actually exposes the municipality’s taxpayers to hundreds of thousands or even millions of dollars of potential liability. Liability that does not exist or at least is dramatically lessened if a municipality passes its protective law BEFORE the DEC begins issuing permits.
Mr. Slottje said that if the town of Sempronius adopted a protective law written by him, and was sued, he would defend the town at no cost, just as he is providing his services to our town and others at no cost ( I explained why and how he does this in a previous report—Click Here to read it). He also said that in every single town that has considered a protective law, someone has threatened to sue the town if they do so. That was certainly the case with our town. But this has actually come to pass in only the two towns mentioned, and both towns won their cases. It is doubtful that anyone in our town will actually follow through with the threat (unless they have money to throw away).
There was, of course, much more discussed than I have reported on here. If you would like a copy of the entire powerpoint presentation, just send me an e-mail request (hckimball@bci.net) and I'll get a pdf copy to you.
After the presentation, David Slottje asked if there were any questions. I think I may have been the only person to ask a question. I asked about road protection options. David answered my questions about the road protection options and his answers brought a lot of clarity, at least to my mind they did. I hope to report on road protection options in a later post here.
After David Slottje left, a member of the 7-person Citizen Committee spoke to the board at length, saying that he had read the moratorium law for our town (as prepared by attorney Slottje and discussed at the last two board meetings) and that he thought it was very poorly written. He used the words “archaic” and "cookie cutter" to describe the law. He said that it was worded so that landowners with leases could be charged with serious crimes. He also disparaged David Slottje, questioning his motives and professional abilities as an attorney. He advised the board to get a more competent lawyer.
In response to this man’s comments, I considered mentioning that he had not been to two previous meetings where the law was discussed. And I wondered why he had not made his comments while attorney Slottje was still in the meeting and taking questions. Additionally, I considered pointing out that our town attorney, Mr. Marangola, has spoken very highly of David Slottje (and his moratorium law) at two board meetings.
But I held my tongue because I saw no purpose in being argumentative. Besides that, I wanted to get to something else that was on my mind (and in so doing I addressed the man’s comments). That will all be discussed in part 2 of this report......