Featured post

Policy Making in the Towns of Colden, Holland and Wales

Gas Drilling Decision Making in the Towns of Colden, Holland and Wales

by Ronald Fraser

Small Town Civics Administrator

          Land Use Planning in Erie County   New York’s Constitution, Municipal Home Rule Law, Town Law and the Statutes of Local Governments delegate to towns the power to plan for, and control, land uses to ensure public safety, health and the general welfare of their citizens.  While state statues establish basic standards and procedures to be followed, they do not prescribe how towns must conduct an effective land use control program.  The responsibility to set up and implement an effective planning and zoning process rests with town board members.

As noted below, rural towns have several well-known impediments to fulfilling their land use planning and zoning responsibilities.  This study has been prepared for use by Southtown public officials and citizens to better assess and understand the strengths and weaknesses of the land use planning and zoning procedures in their towns – procedures that impact their safety, health and general welfare.

The 1996 UB report, Governance in Erie County: A Foundation for Understanding and Action, identified the shortcomings of land use planning in the county, including the Southtowns, this way.

“[State] legislation enables localities to execute and administer laws regulating land use, however it does not require them to do so in any particular way….It should be noted that nowhere is it required that planning be administered by professionals.  As a condition of appointment, planning board members need not have any planning experience, opening the way for appointments that are primarily political.  In most jurisdictions in the county there are ‘non-professional’ planners serving ‘non-professional’ boards.…In the vast majority of smaller towns and villages these activities of planning and zoning remain essentially volunteer efforts of citizen review, recommendation, and regulatory oversight….the paucity of professional planners in most municipalities should be evaluated to determine the effect of largely non-professional planning practice on the quality of such planning functions as land use and subdivision controls.  Although citizen participation in land use planning, subdivision controls, zoning decisions and platting is an example of direct participation in the fundamental property relations of a liberal democracy, the lack of rationality and coherent direction in town and village development has been raised as an issue in many of the 44 municipalities of Erie County. …In sum, planning in Erie County is in a conflicted state, requiring change.”

After almost 20 years, little seems to have changed.  Most towns with limited professional staffs, still depend on part-time, non-professional, poorly trained planning boards.  As a result, the quality of the land use decision making process in the Southtowns can, and does, vary widely.

The Public Policy Issue.  Table One compares how officials in three towns have addressed the same public issue, namely:  Is high volume, horizontal hydraulic fracturing (HVHF) for oil and natural gas — a heavy industrial land use — an activity that should be welcomed or prohibited in our town?  Are the risks to human health and the environment associated with HVHF drilling harmonious with the town’s rural lifestyle, its future development and the land use policies found in the town’s official comprehensive land use plan – the official document that guides the town’s zoning ordinances?

Since the HVHF drillers saturate oil and gas fields with dozens of well pads, with six or more wells per pad, the risks associated with HVHF drilling is enormous.  The health and environmental risks associated with one HVHF well (each well using up to eight million gallons of toxic fracking fluids) is hundreds of times higher than one old-fashioned shallow Southtowns well using 20,000 gallons of toxic drilling fluids.

How Table One was Constructed.   Table One draws on town documents and interviews with town officials and my personal experiences in the Town of Colden.  Town supervisors in both Holland and Wales were consulted.  The planning board chairman and the planning board meeting minutes in Holland were also consulted, as were file documents in Wales.   Members of citizens organizations in Wales and Colden were consulted as well.  For Colden, most of the information is drawn from my personal experiences with the special hydrofracking committee (I was the chairman) and the town’s environmental board (I am a member) and related documents.

Table One.

Town of Colden Town of Holland Town of Wales
Drilling Moratorium Yes. Four moratoriums enacted from April 2012 to March 2015. No. Yes. One six month moratorium enacted in May 2011.
Citizen Organization Yes. Colden Well Being organized in 2011 held monthly meetings and with a mail survey in 2013 found 400 residents opposed to HVHF in Colden.  CWB sponsored three well-attended, public HVHF workshops.CWB recommends banning HVHF in Colden. No formal organization.Concerned citizens did conduct research and brought their concerns to the town board. Yes. Protect Our Water Rights, (POWR) formed in 2011.Met monthly and sponsored community education events in Wales and other towns.Recommended banning HVHF in Wales.
Town Board Established a special Hydrofracking Committee in 2012 composed of technically qualified citizens (health, planning and environmental professionals). A well researched,  written report, was delivered to town board,  April 2013, recommending prohibiting HVHF in Colden.May 2013, the town board sent the committee report to the Planning Board for review.On July 17, 2014, the Town Board heard from officials from Seneca Resources, the HVHF drilling-arm of National Fuel, at an open-to-the-public meeting. Members met with National Fuel officials, talked with DEC and neighboring towns about HVHF.Concluded HVHF and old-fashioned gas wells pose a similar risk to town’s water supplies.In 2011 sent a draft local law allowing HVHF in Holland — with water testing special use permit restrictions — to the Planning Board for review. Formed a committee of town board members to study HVHF drilling.Conducted in-depth research of HVHF risks.
Planning Board To date, the Planning Board has not, as mandated by the Colden local law,  reviewed the Hydrofracking Committee report as requested by the town board.

Nor, as required by the Colden ethics law, have the planning board members filed public disclosures of their personal relationships, financially and otherwise, with the oil and gas industry.

On July 1, 2014, the Planning Board sponsored a private, unannounced meeting in Hamburg, NY with officials from the New York Independent Oil and Gas Association, an industry lobbying organization, to discuss HVHF.

Focused on the need to protect the town’s drinking water aquifer.Concluded all drilling is a risk to water supplies & endorsed the town board’s draft law. No significant role.
Outside Consultants No significant role. Both National Fuel and the town’s attorney advised the town that it did not have the legal authority to impose water testing regulations on drillers. Town relied on advice from the Community Environmental Legal Defense Fund to draft the law banning HVHF drilling.
Conservation/Environmental Board Endorsed the Hydrofracking Committee’s report and officially recommended to the Town Board that HVHF drilling be prohibited in Colden. No significant role. No significant role.
Comprehensive Land Use Plan In large part, the Hydrofraking Committee and Environmental Board both based their recommendations to prohibit HVHF on the polices, values and vision contained in Colden’s 1992 Comprehensive land use plan and its zoning ordinance. The town’s  1994 comprehensive land use plan calls for protecting the town’s water supply.  The impact of other HVHF risks to other sections of the plan not seriously considered. No apparent reference to the town’s 2002 comprehensive land use plan.
Public Hearing to approve the new town law No public hearing held. Yes. Citizens expressed their concerns for the impact of HVHF drilling on their water wells. Yes. Citizens  supported the ban on HVHF drilling.
Special Town Research Committee Established? Yes. The citizen-staffed Hydrofracking Committee. No. No.
Town Board Actions The town board has yet to officially & seriously address HVHF or to give due consideration to the recommendations to ban HVHF from both the town’s Hydrofracking Committee, the Environmental Board, the citizen organization, Colden Well Being and many citizens, over the years, expressing opposition to HVHF at the open-floor sessions held during monthly town board meetings. In August 2012 the town board passed a local law “To provide for the construction of oil and gas wells,” and requiring all drillers to follow a special use permit water testing process meant to show when and where water wells have been polluted due to drilling.There is some concern in the town whether or not this local law can be effectively implemented and enforced. In June 2011, the town board passed a local law prohibiting HVHF drilling in Wales.

 

Questions for Southtown Officials

Question 1.  In your judgment, what are the strengths and weaknesses of the decision making process used in Colden, Holland and Wales?  If your town decides to address the HVHF issue, which of these decision models would you use?

Question 2.  Why have these three towns addressed the HVHF issue, while eight other Southtown governments have not done so?

Featured post

New York State Petroleum Council’s Weird View of the Fracking Debate

By Ronald Fraser, Small Town Civics Administrator

Public policies protecting the health and safety of citizens of New York from the known risks associated with high volume, horizontal hydrofracking drilling for gas and oil are now being hashed out.  To further this public debate, not to confound it, one would hope that the New York Petroleum Council would supply factual information to readers of the Buffalo News and other newspapers.

Let’s take a closer look at a recent Letter to the Editor of the Buffalo News from the New York Petroleum Council.  How well does the information supplied to Buffalo News readers by the Petroleum Council stack up against easily acquired facts.   

Does the Petroleum Council’s Buffalo News letter dated July 5, 2014 — rebutting an article by Ronald Fraser appearing on June 24th –  inform readers or does it mislead the reader with arguments that might, at first, seem correct but which prove, upon examination, not to be so.

A copy of  Fraser’s June 24th article appearing in the Buffalo News may be found at www.smalltowncivics.com at the “In the News” section of the BOOKSHELF page.

 

The New York Petroleum Council’s July 5, 2014 letter in the Buffalo News What the Letter Says How Does the Letter Stack Up Factually and Logically?
     
Paragraph One “In his June 24 Another Voice, ‘Oil Industry is Already Seeking Exemption from State Rules,’ Ronald Fraser continues to perpetuate myths and untruths associated with the oil and gas industry that has operated here since 1860” To start a letter with a logical fallacy – an ad hominem attack on the writer of the June 24th article — tips off the reader that what follows will not likely deal honestly with the relevant public policy issues at stake.The important public issues in this debate, not the messenger, are what really matters.
Paragraph Two “The State Department of Environmental  Conservation has done an exemplary job in monitoring and enforcing the regulations and laws of our state, particularly the New York State Oil, Gas and Solutions Mining Law.  We’ve never had the problems other states have experienced.” The DEC’s past performance monitoring old-fashioned, low risk wells is logically irrelevant to whether the agency is capable of protecting New York citizens and the environment from risks hundreds of times greater that are associated with high volume fracking wells.In fact, as shown in Fraser’s article, the DEC needs hundreds of additional staffers and well inspectors to properly control the high volume, hydrofracking drilling industry.Also, what happens in other states is logically irrelevant.  We are concerned with what the drilling policies ought to be in New York.
Paragraph Three “The fact is that the oil and gas industry is highly regulated under numerous state and federal laws. The so-called Halliburton loophole is an Internet myth. The federal Safe Drinking Water Act was always intended to regulate disposal of wastes below ground” Hardly an Internet myth, the oil and gas industry, in 2005, pressured the U.S. Congress – with help from a former Halliburton executive, Vice President Dick Cheney — to pass a law that exempts that one industry from the Safe Drinking Water Act.High volume hydrofracking for gas and oil should be regulated by the SDWA for this simple reason:  high volume hydrofracking oil and gas drillers are, in fact, disposing about 75% of their toxic drilling wastes below ground.Each fracked high volume oil and gas well permanently leaves in the ground millions of gallons of the toxic drilling fluids – the very environmentally dangerous wastes the Safe Drinking Water Act was passed in 1974 to prevent.
Paragraph Four “Fraser talks ‘about thousands of private settlements and non-disclosure agreements,’ but fails to say that all enforcement information, including inspection reports, is available to the public in New York.” Mixing apples and oranges does not inform the reader.While DEC inspection reports are public documents, they seldom, if ever, result in legal proceedings against a driller  to compensate property owners for drilling-related damages to private property and water supplies.  These reports deal mainly with technical drilling procedures set by DEC, not private property owner claims for damage against the drillers.DEC reports are no substitute for understanding the drilling errors hidden in private agreements.
Paragraph Five “With regard to home rule, legislation in 1981 clarified the split of authority between state and local governments.  The state’s mandate for spacing wells and protecting the correlative tights of landowners based on geology does not respect political boundaries.  Every mineral rights owner has the right to recover minerals from beneath his property as a property right.” The Council surely knows this paragraph is an utterly false statement meant to mislead the reader.Mineral owners and drillers do not have unlimited exploitation rights but must abide by the limits set by local land use planning and zoning laws – powers granted by the New York Constitution, subsequent state statutes and several court rulings.The state’s highest court, the Court of Appeals, recently, once again, ruled that local municipalities have the authority to prohibit landowners from drilling for gas or oil within the municipal boundaries.The court recently reaffirmed its 1996 ruling in Gernatt Asphalt Prods. v Town of Sardinia, with these words: “A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole.”

 

 

 

Featured post

Gas Drilling in the Town of Colden

  Introduction

This is the third in a three-part series of postings looking at how three Southtown town governments — Colden, Holland and Wales — have gone about deciding whether to welcome or ban heavy industrial, high volume, horizontal hydraulic fracturing (HVHF) gas drilling in their towns.

Descriptions of the decision making process used in the Towns of Wales and Holland were recently posted.  With this account for the Town of Colden the next step, in an upcoming posting, will be to compare and contrast the decision making processes used in each of the three towns.  The strengths and the weaknesses of each approach will we identified.

How did the Town Boards, advisory boards, citizens groups and outside experts work together, or not, in assessing whether HVHF should be welcomed or banned?  Where did the leadership for addressing this issue come from — the Town Boards, advisory boards, citizen groups or outside experts — and upon what level of research did each Town Board base their decisions?

By comparing how each town has addressed this important public issue, other Southtown elected board members can make a more informed decision on how they will address HVHF gas drilling in their towns.

Reminder  

According to the New York Constitution, the reason towns exist is to provide their citizens an, “Effective local self-government…”  To achieve that goal, the Constitution gives towns the power to provide for the, “…protection, order, conduct, safety, health and well-being of persons or property therein.”

Policy Options

Recent New York court cases involving the Towns of Middlefield and Dryden have confirmed that towns do have the legal authority to adopt comprehensive or master land use plans and to implement these plans by enacting zoning ordinances to prohibit land use activities — including HVHF gas drilling — that are not compatible with the policies contained in the town’s adopted land use plans.  These court cases also confirmed that the state Department of Environmental Conservation (DEC), has the authority to regulate how drilling takes place where it is permitted by local law.

Both the Towns of Middlefield and Dryden used their land use planning and zoning powers to ban HVHF gas and oil drilling in their towns.  Two lower courts, the Supreme Court and the Appellate Division of the Supreme Court, have upheld the authority of New York towns to do so.

Gas drillers have appealed both the Middlefield and Dryden cases to the state’s highest court, the Court of Appeals.  Oral arguments before that court are scheduled in June and a ruling is expected later this year.

Town of Colden

Moratorium.   Drilling moratoriums give town decision makers the time needed to assess the nature of the environmental and health risks associated with HVHF drilling.

Two years ago, in April 2012, the Town of Colden passed the first of two local laws each establishing a six-month moratorium on the use of land for HVHF in the Town of Colden, stating that:       “The  Town Board finds that the commercial extraction of natural gas and oil by hydraulic fracturing or horizontal gas well drilling in the rural environment of the Town of Colden may violate the rights of residents and impose a significant threat to their health, safety and welfare [and] the activity may pose a threat to some, if not all, of the natural water supply upon which the Town of Colden relies as its sole source of water.” 

In April 2013 the Town of Colden passed a one-year extension to the second six-month drilling moratorium. 

And recently, in March 2014, the Town of Colden extended the gas drilling moratorium once again for one year. 

Citizen Action.  In 2011, about a dozen concerned citizens formed Colden Well Being, a local organization that met monthly to discuss gas drilling issues, available research and to meet with similar groups in neighboring towns.  In 2013, Colden Well Being conducted a mail survey of all 1,300 homes in Colden.  Over 400 Colden residents responded that they were opposed to HVHF and wanted a ban on the practice. 

 Town Board.  The Colden Town Board has enacted four local moratoriums on HVHF drilling in the town.  But, with one exception, members of the Colden Town Board have not demonstrated the continuing leadership needed to successfully deal with the complex HVHF environmental and health issues facing the town.


To its credit, in August 2012, the Colden Town Board established a special  Hydrofracking Committee to study HVHF drilling and to compile a list of zoning concerns to be incorporated into the town’s zoning ordinance.  The Hydrofracking Committee delivered an extensive report to the Town Board, titled, ‘Gas Drilling in the Town of Colden,’ dated April 11, 2013. That report recommends that the Colden Town Board amend its zoning ordinance to prohibit HVHF drilling in the town.


To date, except to enact the moratoriums, the Town Board has not placed the topic of HVHF in Colden on the agenda at any monthly town meeting.  Its only follow-up action was to send the Hydrofracking Committee report to the town’s Planning Board in May 2013 requesting that the Planning Board review the report and provide the Town Board its recommendations regarding the report’s recommendation to amend the town’s zoning ordinance in accord with the town’s Master Land Use Plans. 

A year has passed and the Planning Board has still not complied with the Town Board’s request.  It is unclear why the Town Board has allowed the advisory Planning Board to disregard its request for timely advice upon which to decide an important land use issue facing the town.  And the Planning Board has offered no explanation for its inaction.


Planning Board.  Colden’s local law directs the Planning Board, upon receiving a proposed zoning amendment, to issue an advisory report in which the Planning Board fully states its reasons for recommending or opposing the adoption of the proposed amendment and whether the proposed amendment is in harmony with the town’s master or comprehensive land use plans.

Why has the Colden Planning Board not complied with the town’s legally adopted procedures for reviewing the Hydrofracking Committee’s zoning recommendations?  The Planning Board has not offered a reason for their failure to do their duty over the past year.  If the Planning Board favors HVHF gas drilling in the town, it ought to make its case and send its report to the Town Board for consideration.  This has not happened.  In effect, the Planning Board has stonewalled the town’s official deliberation procedure for resolving an important public issue facing the town.  The Planning Board has denied not only the Town Board its advice, it has denied all Colden citizens what they expect — a town government that effectively deals with public safety issues.

Hydrofracking Committee. After nine months of thorough research, the Hydrofracking Committee presented to the town board its report, Gas Drilling in the Town of Colden, dated April 11, 2013.  This report assesses the environmental and health related risks associated with HVHF and, in accord with New York State planning and zoning guidance, carefully reviewed whether HVHF gas drilling is compatible and harmonious with the land use standards and policies contained in the town’s adopted master land use plans. 

The Committee report recommends that HVHF drilling is not compatible with the town’s adopted land use planning policies and that the town’s zoning ordinance be amended to prohibit HVHF drilling in the Town of Colden.

Environmental Board.  After reviewing the Hydrofracking Committee’s report, Gas Drilling in the Town of Colden, and finding it to be an objective and factual source of information, the Colden Environmental Board on July 2, 2013, unanimously passed a motion to recommend to the Colden Town Board that HVHF drilling be prohibited in the town.  The Environmental Board Chairperson followed-up this action with a letter to the Town Board dated July 10, 2013, calling on the Town Board to act and safeguard the wellbeing of the town’s residents and benefit the health and safety of the community.

At the February 7, 2014 meeting of the Colden Environmental Board, a motion was unanimously passed recommending to the Town Board specific draft language to amend the town’s zoning ordinance prohibiting HVHF drilling in the town.  The Environmental Board Chairperson followed-up this action with a letter to the Town Board dated April 7, 2014 once again calling on the Town Board to act and safeguard the wellbeing of the town’s residents and benefit the health and safety of the community.

Outside Consultation.  On a number of occasions, town officials considered calling upon the Community Environmental Defense Council for advice, but a working relationship was not developed.

Lessons Learned

The absence of Town Board leadership has meant the HVHF issue has been addressed at the advisory level only.  The result: two official town advisory bodies — the Environmental Board and the Hydrofracking Committee — and an organized citizen advisory body — Colden Well Being — and many independent town residents speaking out against HVHF gas drilling at monthly Town Board meetings during the past two years, all agree that HVHF gas and oil drilling in the Town of Colden should be prohibited. 

Still, without Town Board leadership the official deliberative process for addressing the HVHF issue has ground to a halt.

          

Featured post

Gas Drilling in the Town of Holland

Introduction

This is the second in a series of postings looking at how Southtown town governments have gone about deciding whether to welcome or ban heavy industrial, high volume, horizontal hydraulic fracturing (HVHF) gas drilling in their towns.  A description of the decision making process used in the Town of Wales was recently posted and a look at the Town of Colden will follow shortly.

How did the Town Boards, advisory boards, citizens groups and outside experts work together, or not, in assessing whether HVHF should be welcomed or banned?  Where did the leadership for addressing this issue come from — the Town Boards, advisory boards, citizen groups or outside experts — and what level of research preceded the town’s decision?

By comparing how each town has addressed this important public issue, other Southtown elected board members can make a more informed decision on how they will address HVHF gas drilling in their towns.

Reminder.   According to the New York Constitution, the reason towns exist is to provide citizens “Effective local self-government…”  To achieve that goal, the Constitution gives towns the power to provide for the, “ …protection, order, conduct, safety, health and well-being of persons or property therein.”

Policy Options.  Recent New York court cases involving the Towns of Middlefield and Dryden have confirmed that towns do have the legal authority to adopt comprehensive or master land use plans and to implement these plans by enacting zoning ordinances to prohibit land use activities — including HVHF gas drilling —  that are not compatible with the policies contained in the town’s adopted land use plans.  These court cases also confirmed that the state Department of Environmental Conservation (DEC), has the authority to regulate how drilling takes place where it is permitted by local law.

Both the Towns of Middlefield and Dryden used their land use planning and zoning powers to ban HVHF gas and oil drilling in their towns.  Two lower courts, the Supreme Court and the Appellate Division of the Supreme Court, have upheld the authority of New York towns to do so.

Gas driller have appealed both the Middlefield and Dryden cases to the state’s highest court, the Court of Appeals.  Oral arguments before that court are scheduled in June and a decision is expected later this year.

Town of Holland

 Moratorium.  The Town of Holland did not enact a HVHF drilling moratorium to  give town officials time to study HVHF drilling issues.

Citizen Action,  A formal citizens organization was not formed In the Town of Holland to study the environmental and health related risks associated with HVHF drilling.  However, a number of citizens did actively research gas drilling issues and did advise town officials of their views and concerns.

Town Board.  Town Board members noted that existing low volume, shallow and vertical gas wells and gas storage wells in the town had been hydrofracked in the past without serious problems.  The Board met with National Fuel officials to discuss gas storage wells in Holland; discussed HVHF wells with the DEC; contacted towns in Pennsylvania familiar with HVHF gas wells; and talked with persons in neighboring Town of Colden who expressed that they had no concerns surrounding HVHF gas wells.  The Holland Town Board members concluded that their focus should be on protecting the water aquifer serving the town.

In addition, the town board heard from a Town of Wales citizens group called, Protect Our Water Rights, that stressed that HVHF gas wells were the source of grave environmental and human health risks.  Holland Town Board members generally discounted the views presented by the Wales citizens.

In January 2012 the Town Board sent a draft local gas drilling law to the Planning Board for review.  Feeling the need to act and acknowledge the need to protect the town’s aquifer, the Holland Town Board in August 2012 passed a local law that treats both low volume, shallow and vertical gas wells and the prospect of HVHF wells, in a similar fashion.

Planning Board.  The Holland Planning Board began actively assessing the risks to the town’s water aquifer from HVHF gas drilling and ways to protect the aquifer as early as August 2011.  Board members attended a public forum presented by the Town of Wales citizens group called Protect our Water Rights.

By November 2011, Planning Board members agreed that their purpose was not to ban HVHF, but to protect the town’s aquifer.  In January 2012 the Planning Board received a draft local gas drilling law from the Town Board for review.  The Planning Board concluded that the town should use a special use permit process to control drilling by both low volume, shallow and vertical drillers and HVHF gas drillers.

The Holland Planning Board endorsed the draft local law saying it allows the town, using the special use permit process, to look at each individual drilling application/permit issued by the DEC to determine its possible effects on the town’s aquifer.  The Board acknowledged that the law could be amended at a future date, if necessary.

Outside Consultation.  National Fuel, in May 2012, sent the Town of Holland a letter stating that, in the company’s opinion, the town’s special use permit requirements placed on gas drillers in the proposed local law are, in general, preempted by the DEC drilling regulations.

In addition, the town attorney advised the Planning Board that the town has no authority to regulate how drilling is to be conducted.  That authority rests with the DEC and, in the case of gas storage wells, the federal government.

Conservation/Environmental Board.  It is not clear if the Town of Holland complied with the State Environmental Quality Review Act and completed an environmental assesment prior to enacting Local Law 2-2012.

Comprehensive/Master Land Use Plan.  The town’s 1994 adopted comprehensive land use plan was not consulted during the town’s consideration of Local Law 2-2012.

Public Hearing.  At a May 2012 public hearing six towns’ people spoke to the proposed local law.  All but one speaker addressed his or her comments to water well issues.

Town Board Action

August 2012, the Holland Town Board passed Local Law 2-2012 with the stated purpose:  “To provide for the construction of oil and gas wells.”  The law requires that all oil and gas drillers — low volume, shallow and vertical and HVHF — must apply to the town for a special use permit in which the town will require appropriate restrictions, including measures to protect the town’s drinking water sources and repair road damage.

The law states, “The objective of the special use permit is to assure that the proposed use is in harmony with such zoning Local Law and will not adversely affect the neighborhood if such requirements are met.”

Lessons Learned

The Town Board took the lead in assessing the HVHF issue in the Town of Holland, with advice from the Planning Board.  Early on in their deliberations, both the Town Board and the Planning Board focused their attention on risks to the town’s water sources. Other known environmental and health risks associated with HVHF drilling were not seriously addressed.

In addition, both the Town and the Planning Boards treated the water-related risks associated with low volume, shallow and vertical gas drilling and modern, high volume industrial-style HVHF gas drilling as essentially one in the same– both requiring a simple special use permit to “…promote the health, safety, and general welfare of the Town…”

The End

Featured post

Gas Drilling in the Town of Wales

Introduction

This is the first in a series of postings looking at how Southtown town governments have gone about deciding whether to welcome or ban high volume hydraulic fracturing (HVHF) gas drilling in their towns.  The Towns of Holland and Colden will be the topic of future postings.

How did the Town Boards, advisory boards, citizens groups and outside experts work together, or not, in assessing whether HVHF should be welcomed or banned?  Where did the leadership for addressing this issue come from — the Town Boards, advisory boards, citizen groups or outside experts?

By comparing how each town has addressed this important public issue, other Southtown elected board members can make a more informed decision on how they will address HVHF gas drilling in their towns.

Reminder.    “Effective local self-government…” is, according to the New York Constitution, the reason towns exist, and to achieve that goal, the Constitution gives towns the power to provide for the, “ …protection, order, conduct, safety, health and well-being of persons or property therein.”

Policy Options.  Recent New York court cases involving the Towns of Middlefield and Dryden have confirmed that towns do have the legal authority to adopt comprehensive or master land use plans and to implement these plans by enacting zoning ordinances to prohibit land use activities that are not compatible with the policies contained in the adopted plans.

Both the Towns of Middlefield and Dryden used their land use planning and zoning powers to ban HVHF gas and oil drilling in their towns.  Two lower courts, the Supreme Court and the Appellate Division of the Supreme Court, have upheld the authority of these towns to do so.

Gas driller have appealed both the Middlefield and Dryden cases to the state’s highest court, the Court of Appeals.  Oral arguments before that court are scheduled in June and a decision is expected later this year.

Town of Wales

 Moratorium.  Once the HVHF issue appeared on the town’s radar, the Town Board passed a six month HVHF drilling moratorium in May 2011 to give the town officials time to study the pros and cons of HVHF drilling.

Citizen Action,  Town of Wales citizens formed POWR (Protect our Water Rights) to educate town citizens and neighboring towns on the dangers associated with HVHF and to make many presentations to the Town Board at standing room only meetings.

POWR sponsored well-attended education events open to the public in East Aurora, Gowanda and Springville.  POWR researched the health and environmental risks associated with HVHF and recommended that the Town Board ban HVHF in Wales.

Town Board.  Town Board members readily formed their own committee to study the impact of HVHF drilling in Wales.  In particular, two Town Board members personally conducting in-depth research into the nature of HVHF gas drilling.  Other Town Board members were also engaged and actively supported the efforts of these research leaders.

Planning Board.  No significant role in assessing this issue according to Wales officials.

Outside Consultation.  The Independent Oil and Gas Association of New York made a presentation to the Town Board.  In addition, the town relied heavily on technical advice from both the Community Environmental Legal Defense Fund and the Community Environmental Defense Council.

The Community Environmental Defense Council was recently awarded the worldwide Goldman Prize ($150,000) for environmental excellence citing Helen Slottje’s work resulting in more 172 fracking bans and moratoriums in New York state.

Conservation Board.  Erie County officials advised the town that prior to a town decision on HVHF a full environmental assessment must be conducted to identify environmental risks associated with HVHF.

Town Board Action

June 2011, the Town Board passed Local Law 3-2011 which states, in part: “The Town Board of the Town of Wales finds that the commencial extraction of natural gas and oil by hydraulic fracturing or horizontal gas well drilling in the rural environment of the Town of Wales violates the rights of residents, and poses a significant threat to their health, safety and welfare…The Town Board believes that the protection of residents and the natural environment constitute the highest and best use of the police powers that this Town possess…Thus, the Town Board hereby adopts this local law…and bans commercial extraction of natural gas and oil utilizing hydraulic fracturing and horizontal gas well drilling within the Town of Wales.

Lessons Learned

During a six month HVHF drilling moratorium, Town Board members supplied the pivotal leadership in Wales, in concert with a strong citizens action group, to carefully assess the environmental risks, especially to the town’s water resources, and health related risks associated with HVHF.  As a result of this assessment, the Town Board then enacted its current HVHF drilling ban.

Featured post

From the Buffalo News

The attached April 7, 2014 article from the Buffalo News, and the April 1st posting on this site titled “Gas Drilling in the Towns of Colden, Holland and Wales,” introduce an important and timely public policy topic for the Southtowns.

In future posts, we will take a closer look at how citizens and the town boards in Colden, Holland and Wales have addressed the issue of high volume hydraulic fracturing for natural gas.  The lessons learned in these towns may very well help citizens and elected officials in other Southtowns decide how they will tackle the gas drilling issue.

Buffalo News Southtown planning April 7, 2014

Featured post

Gas Drillling in the Towns of Colden, Holland & Wales

Question

Of the eleven Southtown governments, three towns have taken the lead and officially addressed the high volume hydraulic fracturing (HVHF) land use issue.  Can you name the towns and describe the public policy response taken by each town?

*****

This is the first in a series of posts concerning how three Southtown governments — the Towns of Colden, Holland and Wales — have addressed the HVHF issue.  In future posts the actions taken by each town will be examined in greater detail.

Town officials can learn a lot by identifying, comparing and contrasting the strengths and weaknesses of the different approaches used in Colden, Holland and Wales.  In addition, an examination of what has been tried elsewhere will help officials in the other eight Southtown towns decide what will work best in their towns.

Let’s start by getting acquainted with “Fracktracker” a Cornell University data base that tracks, state wide, which municipalities have banned HVHF drilling, which municipalities have invited in HVHF drillers, and which municipalities have enacted a HVHF drilling moratorium while they decide what to do.

To open up the below “fracktracker.org” link, right click on the link and choose to open the link in a new tab.  A list of maps will appear.  Scroll down and open the third from the bottom file named “February 13, 2014″ by clicking on the blue “post” button.

The first map to appear will show the municipalities in New York that have acted to either ban HVHF drilling or have a HVHF drilling moratorium in effect.  Here you will find the Towns of Wales and Colden as well as the cities of Buffalo and Niagara Falls.

Scroll down further and another map appears showing the municipalities that have officially acted to allow HVHF drilling in their jurisdictions.  Here you will find the Town of Holland.

fractracker.org-New_York_Maps

Let me know if you have trouble viewing these maps.

Featured post

Emerald Ash Borer Watch

Questions

Did anyone else from the Southtowns  attend this, the first of a two part, training session?

Are there active EAB detection volunteer groups in the Southtowns?

*****

On March 22nd I attended the Emerald Ash Borer (EAB) detector training program held at the Department of Environmental Conservation’s (DEC) Reinstein Woods nature center located in Depew.

While there are no confirmed sighting of the EAB in the Southtowns — the EAB has been confirmerd in Lackawanna, Lancaster, Cheektowaga — the DEC, the New York Invasive Species Outreach Program and the WNY Emerald Ash Borer Taskforce want to attract and train Southtown officials and resident volunteers to identify and report suspected EAB activity.

*****

For more information:

NY Invasive Species: http://nyis.info/eab

WNY EAB Taskforce: Contact Sharon Bachman, 652-5400×150 or sin2@cornell.edu

*****

A March 2012 Erie County EAB Survey by DEC found that:

The Towns of Holland, Wales , Evans and Brant reported having a tree inventory.

No Southtown had an EAB management plan.

In the towns of Colden, Eden, Brant and Collins, the town mangers were aware of the EAB risks.

The Towns of Colden, Concord, Eden, Brant and Collins had EAB community volunteers.

Town reporting they were prepared to handle and properly dispose of EAB infected trees — Concord and Sardinia.

Town reporting they were not prepared to handle and properly dispose of EAB infected trees — Colden, Wales, Holland, Brant, Eden, Evans and Collins.

The End

A Concerned Southtowner

 

Featured post

Property Taxes: Gov. Cuomo vs. Sen. Grisanti

Post Number 5, March 17, 2014

QUESTIONS

Why is there so little support for state Senator Mark Grisanti’s property tax reduction plan — one that beats Governor Cuomo’s plan by a country mile?

What are Southtown elected officials — and citizens — waiting for?

*****

 When it comes to taxes, we have a crisis of agreement.  Everyone, from elected officials in the Southtowns to state legislators to Governor Andrew Cuomo, everyone wants to cut property taxes for Southtowners.   The only question is how to do so.

Recent Buffalo News articles tell us Governor Cuomo is actively promoting his tax reduction plan.  If, he says, local Southtown governments reduce spending on special districts by one to three percent through district mergers and shared service deals, then residents would be rewarded with tax rebate checks.  Mr. Cuomo’s plan is less a tax reduction strategy than an attempt to improve government efficiency in the Southtowns.   “I frankly want to pressure them [local governments] to cooperate with their neighboring local governments,” said Mr. Cuomo.

You recently received your town property tax bill for 2014.   If your bill looks like mine, about 50% of the total amount due is the County Service Tax — most of which goes to pay Erie County’s state-mandated share of Medicaid costs — about $211 million in 2012.

Medicaid is, in my mind, a worthwhile federal health care program for low income people.  The question is not the program itself, but who pays for it.    Citizens in all of the Southtowns receive Medicaid health services.  According to an Erie County report, between 1,000-2,400 residents in the Town of Evans & Village of Angola area receive assistance. The same numbers apply to the Town of Concord & Village of Springville area. All other Southtowns have lower Medicaid enrollments.

If the goal is really to reduce property taxes in the Southtowns, why aren’t our elected officials putting pressure on the governor to cooperate with local governments and have Albany pick up the entire cost of Medicaid in Erie County?  Doesn’t a tax cut in the neighborhood of 40% sound a lot better than a two percent tax cut?

A bill to remove the state-mandated Medicaid costs now borne by Erie County residents, Senate bill 1588 sponsored by Senator Mark Grisanti, has been hung up in the Senate Social Services Committee in Albany since January 2013.  Why aren’t the Southtown elected officials putting pressure on state legislators to pass S-1588?

Erie County pays about 15% of the total costs of Medicaid services provided in the county. According to a 2011 New York’s Citizens Budget Commission report, A Poor Way to Pay for Medicaid: Why New York Should Eliminate Local Funding for Medicaid, New York alone places such a huge Medicaid cost burden on its local governments.  In 22 states local governments pay nothing.  In 19 other states the local funding requirement is less than one percent.  In eight states local governments pay from 1.4% to 8.4% of Medicaid costs.

 The End

A Concerned Southtowner

Featured post

Gas Drilling in the Southtowns — The Moral Dimension

Post Number 4, March 6, 2014

Questions

Does Mr. Tillerson, CEO of profit-driven Exxon Mobil — one of the biggest natural gas drilling companies in the U.S.A. — have the ethical and moral right to impose hardships upon Southtown communities and citizens that he finds, personally, unbearable?

Does Governor Cuomo, the elected guardian of New Yorkers’ welfare, have the ethical and moral right to serve as Mr. Tillerson’s co-conspirator?

What should Southtown citizens, and their elected officials, do to protect themselves from powerful gas drillers like Exxon Mobil?

*****

You may have heard about Rex Tillerson, the $40 million a year Exxon Mobil CEO who wants a half-built water tower near his home in Bartonville, Texas, removed.  Why?  According to his lawsuit, the water tower:

“Will create a constant and unbearable nuisance to those that live next to it…will have lights on at all hours of the night, traffic to and from at unknown and unreasonable hours, noise from mechanical and electrical equipment [and, the tower operator] will sell water to oil and gas explorers for fracking shale formation leading to traffic with heavy trucks, creating a noise nuisance and traffic hazards.”

While Mr. Tillerson fears these “unbearable nuisances” will lower property values in his upscale neighborhood, his company has put up big bucks to make sure similar nuisances become a reality in the backyards of thousands of New Yorkers, including Southtowners.

According to the January 2014 Common Cause report, Deep Drilling, Deep Pockets in New York State, in 2012, “Exxon Mobil wrote a $2 million check to [the Hamburg, NY, based] Independent Oil and Gas Association of New York (IOGA-NY) to fund a pro-fracking advertising campaign.”

For years IOGA-NY has been lobbying Governor Cuomo to issue hundreds — some say thousands –of drilling permits for heavy industrial, high volume hydraulic fracturing mega-gas wells in New York.  Each of these wells, as Mr. Tillerson and Governor Cuomo know, will create a constant and unbearable nuisance for Southtowners living nearby, will have lights on at all hours of the night, traffic to and from at unknown and unreasonable hours, and create dangerously loud noise from mechanical and electrical equipment.

In addition to these so-called “nuisances,” toxic drilling chemicals used to hydraulically fracture these gas wells pose even more serious risks to the environment, air and water, and human health.

 A Concerned Southtowner

The End

Featured post

The Frackers are Coming!!! The Frackers are Coming!!!

Post Number 3, February 27, 2014

Mills has big plans for the Southtowns” February 22, 2014 Springville Journal

Newly elected chairman of the Erie County Legislature, John Mills, told the Journal he is ready to go to work in the neglected Southtowns, that “He believes it has been too long since needs in the southern third of the county have been fully addressed,”

This is very good news.  Facing what is perhaps the most important and complex land use decision in decades — to allow or ban high volume hydraulic fracturing (HVHF) drilling for natural gas in their jurisdictions — Southtown officials urgently need all the planning technical assistance they can get.

Towns have the land use control authority to allow or ban HVHF, but many do not have the needed planning expertise to evaluate the health and environmental risks associated with HVHF and make a rational decision as to what is in their town’s best interest.

The Problem

A 1996 University at Buffalo study, Governance in Erie County: A Foundation for Understanding and Action, sized up the quality of town planning this way:

“It should be noted that that nowhere is it required that planning be administered by professionals.  As a condition of appointment, planning board members need not have any planning experience, opening the way for appointments that are primarily political.  In most jurisdictions in the county there are ‘non-professional’ planners serving ‘non-professional’ [town] boards….the paucity of professional planners in most municipalities should be evaluated to determine the effect of largely non-professional planing practice on the quality of such planning functions as land use and subdivision controls….In sum, planning in Erie County is in a conflicted state, requiring change.”

*****

Fast forward 12 years.  The same problems were again identified by the NYS Legislative Commission on Rural Resources (a joint Assembly-Senate commission in Albany) in their report, A 2008 Survey of Land Use Planning and Regulations in NYS.

“Many members of local planning and zoning boards serve without special training in the basic procedures which the successful use of state and local planning and zoning laws require.  A high percentage also serve without accessible or affordable technical assistance.  Yet these responsible local officials must deal with complex legal procedures and technical issues pertaining to land use planning and development.”

BOTTOM LINE:  These studies confirm that successful town planning depends on trained planning board members and support from technical experts, as needed.

The Challenge

In the coming months Governor Cuomo and New York’s Department of Environmental Conservation (DEC) may decide to open up New York to gas drillers using the heavy industrial technology know as high volume hydraulic fracturing (HVHF).  The governor has said he would respect town land use zoning ordinances prohibiting HVHF, where they exist, and not issue HVHF drilling permits in those towns.

In towns that do nothing, or officially invite HVHF drillers into their towns, the DEC would be authorized to issue HVHF drilling permits in those jurisdictions.

Elected officials in each Southtown will soon be responsible for making this land use decision — to allow or ban HVHF drilling in their towns.  But, based on past experience, it is unlikely these towns possess the planning expertise to make such a demanding and complex land use decision in accord with New York laws governing master planning and zoning implementation procedures.  THESE TOWN OFFICIALS NEED HELP

The Solution

Hidden in plain sight on the Erie County Department of Environment and Planning website is this long-standing, but seldom used, offer of planning assistance to the Southtowns.  It reads:

“LOCAL PLANNING ASSISTANCE.  Department personnel provide technical assistance to municipal boards, such as planning and zoning boards, as well as to municipalities updating their master plans or zoning.  If you need technical assistance, please contact the Planning Division.”  (716) 858-8390.

Mr. Mills to the rescue.  To make good on his promise of help for the Southtowns, one day soon Mr. Mills might visit the Erie County Department of Environment and Planning and convince its commissioner, Maria R. Whyte, of the urgent need to make technical planning assistance available to the Southtowns.

The End

A Concerned Southtowner