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.
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.”
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.
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.