Two towns in New York State, Dryden and Middlefield, have now been sued on account of zoning ordinances prohibiting natural gas drilling. That such suits would be filed has long been expected, but the timing raises tricky questions for towns like Tusten and Lumberland that are heading toward the home stretch of their draft zoning rewrites, with votes scheduled for later this year.

At Tusten’s first public hearing on September 26, consultant William Pammer announced that the rewrite committee planned to monitor the course of the suits and, on that basis, make a decision to accept, delete or modify the section that would prohibit high-impact industrial uses like natural gas drilling (Section 14). This is an eminently sensible approach. The fact that case law is actually in the process of being set in these two test cases certainly suggests that careful thought needs to be given to what the town is best advised to do, and when it should do it.

But while we believe that reasonable arguments can be made on both sides of the “adopt” or “remove” controversy, on balance, we think the town should include Section 14 in its final ordinance, even though we don’t expect the court cases to be decided by the time a vote is held.

The most obvious argument for removing Section 14 is simply, “Why take the risk?” But there would be risk involved in either decision, a fact that town resident Kevin Vertrees zeroed in on when he came to the microphone and quoted section 8.1.1.5 of the New York State Department of Environmental Protection’s (DEC) SGEIS in relation to applicants looking to receive a permit for natural gas drilling. The section says such applicants must identify whether their activity conflicts with local land use laws. If so, the DEC will further review the application to determine whether there could be significant adverse environmental impacts. But if the activity is either consistent with local land use laws, or not covered by them, the DEC will issue a permit without further ado. Section 14 makes the difference between these two cases.

There are two things to note here. First, the DEC clearly assumes that many towns will have zoning provisions covering natural gas drilling activities. Further, it respects and endorses them by demanding that natural gas companies inform the DEC about them, and saying that it will look into the matter further if there is a conflict. In affirming the importance of home rule, section 2.4.15 of the SGEIS even cites a New York State court decision saying that “‘[t]he power to define the community character is a unique prerogative of a municipality acting in its governmental capacity’ and, that, generally, through the exercise of their zoning and planning powers, municipalities are given the job of defining their own character.’”

Yes, the DEC has conceded that the matter will ultimately have to be decided in court and, therefore, it cannot, at present, go so far as to say it will always uphold local zoning. But the repeated assumptions and endorsements of home rule in the SGEIS strongly suggest that this state agency, whatever its current legal constraints, believes that localities should in principle have a say over the location of gas drilling. The DEC itself does not have the capacity to define the law; but as the relevant regulatory agency its stance sets part of the context for any court deliberation.

Note, in addition, that the procedures the DEC has put in place do provide recourse for areas of particular environmental sensitivity, which includes large portions of river valley towns—not only the river corridor of the Scenic and Recreational River, but drainage areas of its tributaries. And the period of review that would be required by the DEC in cases of incompatible zoning could help delay action on any application until the state legislature or courts have clarified the law.

Adopt Section 14, and there is a chance that the town will be sued. We think that chance has diminished, given that test cases in the sweet spot of the Marcellus have already been filed, but it is admittedly greater than zero. But remove Section 14, and there is a chance that drilling will be put on a fast track—and then very likely grandfathered in, even if the courts eventually confirm the primacy of home rule. There are risks both ways, and we can’t prove mathematically that one is greater than the other.

What we do know is that the Town of Tusten has put the integrity of its rural ambiance and small-town character at the heart of its comprehensive plan, and it is those values that the removal of Section 14 puts at risk. Avoiding financial risk is certainly a worthy goal. But the town needs to consider whether there’s something even more important at stake, and judge accordingly.

[A second public hearing on Tusten’s zoning rewrite will be held on Monday, October 10 starting at 5:30 p.m.]