Delaware County Planning Board seeks to squash local gas moratoriums

So far, the "home rule" legal debate over whether towns have the authority to ban gas drilling has focused on two levels of government: The town and the state.

But county governments are increasingly concerned with the issue. A standoff between Delaware County and the town of Sidney is raising questions about how much authority counties have over gas drilling and over the local bans more and more New York State towns are seeking to pass.

On March 7, the Delaware County Planning Board voted to recommend disapproval of a local gas drilling moratorium from the town of Sidney, which has not been passed by the town and is still in its draft form. In a letter to the town (embedded below) the planning board cited four reasons for disapproval, writing that the law was not timely, was "cumbersome and difficult to read or understand," would have negative regional economic impacts, and could impose costs on town taxpayers.

The planning board also wrote that Sidney cannot pass the moratorium without a supermajority, or at least four votes from the town council.

In Sidney, where the five-member town council is deeply divided on this issue, there is little chance that a moratorium would get the four votes needed to overrule the planning board. But some moratorium supporters question the planning board's authority over the process, and the issue could end up in court.

Not just about drilling: Amphenol begs Sidney not to pass drilling moratorium

The political and economic realities of natural gas are especially complicated in Sidney.

High-tech manufacturer Amphenol, whose 1,100-worker plant is the largest employer in Delaware County, is building a new factory in the town, and wants to power it with natural gas.

The company was forced to relocate after last year's floods damaged their factory. Amphenol was persuaded to stay in Sidney with the help of a multi-million-dollar package of state and county financial incentives, including a promise that a pipeline would be built that could supply the new factory with natural gas.

Amphenol managers fear that a Sidney drilling moratorium would prevent the Leatherstocking Pipeline, which has also drawn opposition from anti-fracking Sidney residents, from being built.

At a March 8 town meeting in Sidney (around the 11:30 mark in the video above), Amphenol general manager Rick Aiken told the town council that a natural gas pipeline would save the company $1 million to $1.5 million a year over fuel oil.

Despite the county's aid package, Amphenol's rebuilding expenses are mounting much more rapidly than the company expected, Aiken said.

"We're in another state of decision here," he said. "I'm here to tell you that anything you do to discourage inexpensive energy for industry, and for Amphenol specifically, is going to make our decision push one way or the other."

Sidney village engineer John Woodyshek also argued against the moratorium.

"I think the action that's been going on here is playing with fire," he said. "It's not a game. It has consequences."

Woodyshek asked moratorium supporter Pete Cordes why he supported the law.

"Very simple. It's called water," Cordes retorted, getting a round of applause.

Sidney's fractious politics

Sidney politics have become increasingly divisive over the last few years, and not just over gas drilling. Town supervisor Bob McCarthy has become a polarizing figure in the town in the wake of a nationally-publicized incident in which he sought to have a local private Sufi cemetery disinterred.

A movement to impeach McCarthy sprang up after the incident, and in last November's election, two new town council members won their seats by running against McCarthy and his supporters.

The effort to pass a gas drilling moratorium has pitted new town council members Gaby Pysnik and Walter Goodrich, along with Pete Cordes, against McCarthy and Eric Wilson.

What next for Sidney drilling moratorium?

The moratorium's supporters in Sidney are revising the draft law to remove any potential obstacles to the Leatherstocking Pipeline or Amphenol's gas supply. The town council has not yet set a date for another hearing on the revised law.

At the March 8 meeting, town council member Cordes said that new language had already been added to the draft in response to the planning board's letter, clarifying that the moratorium would not stop the pipeline.

"It absolutely is written very clearly that it has nothing to do with gas lines, nothing's going to stop the gas lines. It was very vague in the first one," he said.

If the council passes the law 3-2, even though the county planning board requires them to have a supermajority, its supporters may file an appeal known as an Article 78, seeking to overturn the county's decision.

Helen Holden, a lawyer from the Community Environmental Defense Council in Ithaca who has been working with the moratorium's supporters to draft the law, told the council at the meeting that some of the county's concerns were being addressed by the new draft, and that others were beyond their jurisdiction.

"Two of the county concerns are not proper county concerns," she told the council, citing impacts on taxpayers and the timeliness of the law as issues that the town, not the county, has the authority to decide.

Holden's out-of-town address and affiliation with an anti-fracking organization raised some hackles at the March 8 meeting.

"Where are you from?" someone at the meeting asked her.

"Ithaca," she replied.

A groan went up from the audience.

Andes gas moratorium: On shaky legal ground?

The Delaware County town of Andes passed a similar drilling moratorium last November.

The county planning board never took action to try to prevent the Andes moratorium from becoming law, because they never had the opportunity. The town of Andes never sent the board a copy of the law for review.

However, the planning board did send the town a strongly-worded letter, in which they indicate disapproval and claim that the Andes moratorium may be on shaky legal ground because of the town's failure to send the law to the planning board:

Please keep in mind that moratoria have been invalidated by the courts in cases where the town did not appropriately refer the local law to the county planning board (e.g. B&L Development vs. Town of Greenfield, Caruso vs. Town of Oyster Bay, etc.).

Municipal lawyer David Merzig, who helped draft the Andes law, disagrees with the board's reading of the law. Merzig said that he believes towns have the authority under New York State law to enact drilling bans, and that there was no need to send the law to the planning board.

"I disagree with the determination that they made," he said. "This is not a zoning change."

Gas drilling: How much say does the county have?

If Sidney presses forward with trying to pass its gas moratorium over the objections of the county planning board, a court could end up deciding how much authority the county has over town home rule.

County officials say that the Sidney moratorium's supporters don't fully appreciate how sensitive the negotiations with Amphenol are, or how much impact the law could have on the county's largest employer.

"They don't get how close they came to losing 1,100 jobs out of this community," Delaware County IDA chair Jim Thomson told the Watershed Post. "We could be looking at an entirely different scenario -- one where they're packing their bags and leaving the area."

Delaware County Planning Board on Sidney gas moratorium