Democracy is dangerous

Posted 5/4/11

The town board of the Town of Delaware, NY recently declined to pass a resolution that would have advocated for a key home-rule principle. Specifically, the resolution would have supported S3472 and …

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Democracy is dangerous

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The town board of the Town of Delaware, NY recently declined to pass a resolution that would have advocated for a key home-rule principle. Specifically, the resolution would have supported S3472 and A3245, New York State Senate and Assembly bills respectively, that would have reaffirmed the rights of municipalities to control land use within their own borders. Despite the fact that New York is a home-rule state, these rights could use some clarification, due to a clause in section 23-0303 of the Environmental Conservation Law (ECL) that some construe as superseding local rights with regard to the siting of oil and gas wells.

During the discussion, Noel van Swol, president of the Sullivan-Delaware Property Owners Association (and a resident of Fremont, by the way, not Delaware), argued against the resolution. He said that, though the bills in question may look like a support of freedom, they are really Trojan horses for those who would like to ban drilling entirely, and thus should be rejected.

Let’s look at the actual language of A3245 (the two bills are essentially the same). It would amend the controversial section of environmental law to add: “Nothing in this title shall be construed to prevent any local government from (A) Enacting or enforcing local laws or ordinances of general applicability except that such local laws shall not expressly regulate the oil, gas and solution mining industries regulated by state statute, regulation, or permit; or (B) enacting or enforcing local zoning ordinances or laws which determine permissible uses in zoning districts.”

This is the danger van Swol is warning us against. We are hard put to understand why. His charge that the legislation would result in a “hodgepodge” of legislation is unpersuasive: yes, there would be different laws in different towns, depending on what the people living there wanted. That’s what happens when you give people control of their own destiny rather than imposing mandates from a centralized authority. As for the charge that the town will be inundated with law suits if it tries to get in the way of drilling: nonsense. That’s the main point of changing the law: so that municipalities can go about their business without fear of suits. The only remaining argument is the fear that if towns could make up and enforce their own zoning with regard to gas drilling, some of them might not do it the way van Swol and his supporters want them to.

It would be interesting to know what would have happened to, say, our nation’s Bill of Rights, if our Founding Fathers had adopted this type of argument. One can imagine them rejecting the First Amendment, protecting freedom of speech, on the grounds that it would lead down the slippery slope to swearing in public, advocacy for women’s suffrage, Playboy Magazine and the publication of “Huckleberry Finn.” Allow everybody to express themselves freely, and the danger is that sooner or later they will say something you don’t like. Following van Swol’s reasoning, the only solution is to forbid freedom of speech altogether. Better to give up everybody’s rights than risk that somebody might do something with them that you don’t want done.

Home rule is a guarantee that the people who control matters of intimate local concern—like how the land in their neighborhoods will be used—live in the locality in question. It’s true that the people who are elected to office, pass the ordinances and serve on town planning and zoning boards will not agree with every resident of the town. Home rule, in practice, is not rule by unanimity, and some people—sometimes van Swol, sometimes others—will wind up unhappy. But in a democracy, home rule over time will represent the will of the majority of the people; if one administration steps out of line in this respect, another one can eventually reverse it.

You can see for yourself that there is nothing in the language of the bills that dictates what any individual town has to do, once it has been made clear that it has control over the location of gas and oil drilling within its borders. Some towns might wish to allow it everywhere; some might wish to ban it everywhere; and some are likely to adopt a mix of areas in which it is allowed by right or conditional use and others in which it is banned outright. It appears that van Swol, in his eagerness to guarantee that drilling will be allowed everywhere in his own town, wants to deny the people of other towns the right to make up their own minds.

The Town of Delaware has apparently not voted down the idea of adopting the resolution in question; they have only tabled it for further consideration. We hope they eventually figure out that, however dangerous democracy may be, it is nowhere near as dangerous as the alternative.

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