November 2, 2011 —
Two lawyers spoke at length about the possibilities and risks of passing Article 14, a section of the new proposed zoning code that would prohibit gas drilling and hydraulic fracturing within the Town of Tusten at a meeting of the zoning re-write committee on October 27 at the town hall.
First Mark Sweeney, a land use attorney hired by the town, gave his assessment. He said the speakers at the various public hearings on the matter clearly preferred that Article 14 be included in the zoning rewrite and, therefore, it was possible that the town board could adopt it.
He also said it is possible that a ban on drilling would ultimately be upheld by the courts, because the treatment of gas extraction by the state is similar to the way mining is treated. Sweeney said, “Towns have restricted the operation of mines to certain areas or banned it altogether,” and those actions have been upheld by the courts.
He repeated several times, however, that the adoption of Article 14 could result in litigation. He noted that two suits regarding similar bans in the towns of Dryden and Middlefield are currently being fought in court, and he said, “Large gas companies are putting a lot of resources into knocking the bans out.”
He said, “The litigation that is underway was carefully selected, we believe, by the gas drilling industry to identify particular codes in areas that were particularly important to them. They could shop around because there are a number of towns that have adopted similar bans, and they were able to shop around and find the one that fit their case the best.”
He noted the possibility that a lawyer or law firm may offer to defend such a suit for a municipality pro bono, but he said, “With the gas drilling industry putting the amount of resources that they are, into the effort to knock down bans and litigate these cases, it may very well overwhelm an individual attorney or others that are handling it pro bono.”
On the other hand, Sweeney also cautioned that if the town waited to see the results of the other cases before enacting such a ban, it would face a different set of risks, specifically that a developer could gain a “vested right” to drill.
The other lawyer, David Slottje, executive director of the Community Environmental Defense Council, who has been advising the town on a pro bono basis, and who is working with the lawyers involved in the Dryden-Middleton cases, said “mainstream legal opinion is that the NYS Court of Appeals will agree that towns have the authority” to adopt zoning that bans drilling and fracking.
He spent a good deal of time explaining why it was imperative that if the town wanted to pass a ban it do so before the NYS Department of Environmental Conservation (DEC) finalized the Supplemental Generic Environmental Impact Statement and began issuing permits in the town.
Slottje said as a matter of law, if the town waits to pass a ban until after a permit is issued, the possibility increases that the town will lose a “regulatory takings” lawsuit brought by someone who wants to drill.
He said that the outcomes of the two cases before the courts would likely not be known for two years, and he said it is quite likely that the DEC will begin issuing permits before then. DEC commissioner Joe Martens had said the previous day that it was difficult to say when permits would be issued, but, said Slottje, “DEC is doing everything possible to fast track this.”
As to the possible cost of litigation, Slottje indicated that it might be limited. He noted that in the Dryden and Middleton cases, no damages were claimed or sought, and the only question being pursued was whether or not the towns have the authority to pass the bans.
Therefore, it is likely the only cost to the town with any possible litigation is the cost of legal representation, and he used a figure of $200,000 as a possibility. Like Sweeney before him, he then mentioned the possibility of pro bono work and referenced a letter to the town that he had been given before the meeting began. He said it was from a partner in a law firm in Manhattan who has been practicing litigation for 30 years, who offered to defend the town pro bono if a case arose because of the ban.
After the presentations, and a round of questions from the numerous residents in attendance, the eight members of the committee in attendance voted unanimously to recommend to the town board that it adopt Article 14, with some minor revisions. The yes votes included committee members Peg Harrison, the town supervisor, and Lisa Dowling, a member of the town board.
The board will consider the entire zoning update at the next town meeting on November 14.