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The Chronicle Express
  • Jerusalem passes fracking ban, asserts home-rule zoning authority

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  • The Town of Jerusalem is the first of all the townships on Keuka Lake to make the move beyond a moratorium and enact an outright ban on hydraulic fracturing in natural gas wells. Acting on the advice of an environmental legal team, they did so by strengthening the towns zoning laws, which they assert they have the legal right to do under New York's constitutional "home rule" laws.
    Speaking to a standing room only crowd at the Town Hall Feb. 15, Supervisor Daryl Jones' introduced a motion for the adoption of Town of Jerusalem Local Law H-2011 saying, "Early on, a survey was conducted that made it crystal clear that our residents overwhelmingly did not want drilling in our town. It became clear there was strong support in the Town's Comprehensive Plan that emphasized 'agriculture, tourism, and open spaces using the asset of clean water' More than 250 people took the time to write letters and complete the questionnaire."
    He continued, "Most important to me was the research and analysis that presented facts that fracking as it is currently done is not safe. It is not safe for the waters we drink. It is not safe for the crops we grow and the produce we eat. It is not safe for the livestock we raise. And it is not safe for the waters of Keuka Lake in which our children and grandchildren swim, fish, and play.
    Research proved without a doubt that property values, agriculture and tourism would suffer if fracking came to our town. The idyllic image of Mennonite wagons would be replaced with massive truck traffic of 18-wheelers loaded with waters that contain chemicals that threaten our well-being and waters.
    This research and the strong preference of our residents, our taxpayers, the people who elected me to office bring me to a clear conclusion; Hydrofrack drilling as it currently exists is not worth the risk in the town of Jerusalem."
    Jones thanked the leadership of Peter Gamba and Melanie Steinberg, as well as Jim Barre, Joe Hoff, Ed Seus, Deb Koop, Art Carcone, Art Hunt and Max Parson who, along with himself, collectively dedicated over 10,000 hours of research and organization to the effort. He also praised Helen Slottje and Phil Bailey for their work on the law.
    "Their draft ordinance was solid. Making sure that it was strong was important enough to have it reviewed thoroughly. Several attorneys reviewed the ordinance and agreed that it was well crafted and closed the openings that could result in future legal challenge. Slight modifications strengthened the ordinance and promoted the strong local control that our Planning and Zoning Boards wanted to retain."
    Two of the most significant parts of the amending law follow; (full copy viewable as PDF attached. Note: draft date should read 2/1/2012)
    Page 2 of 3 -     “A. It is the purpose of this Law to allow flexibility of land use, subject always to the restrictions, prohibitions, and requirements contained herein. Any use not specifically set forth as a permitted use in any district is hereby expressly prohibited in that district. A use specifically set forth as a permitted use in one district shall not be permitted in another district unless it is specifically set forth as a permitted use in said other district."
            § 160-141.  Explicitly Prohibited Uses; Prohibition Against Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes.
            A. Explicitly Prohibited Uses. The following uses and activities (being respectively defined in Clause C. below of this § 160-141) are hereby expressly and explicitly prohibited in each and every zoning district within the Town, and no building or structure shall be created, altered or erected, and no body of water, land or building thereon shall be used, for any of such uses or activities:
                (a) Disposal of Radioactive Material.
                (b) Injection well.
                (c) Land Application Facility.
                (d) Large Scale Water Use.
                (e) Natural Gas And/Or Petroleum Exploration Activities.
                (f) Natural Gas And/Or Petroleum Extraction Activities.
                (g) Natural Gas And/Or Petroleum Extraction, Exploration Or Production Waste
                     Disposal/Storage Facility.
                (h) Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes Dump.
                (i) Natural Gas Compression Facility.?
                (j) Natural Gas Processing Facility.?
                (k) Non-regulated pipelines.
                (l) Underground Injection.
                (m) Underground Natural Gas Storage.
               
    The motion was seconded and the board was polled, with just a single nay vote coming from board member Michael Folts. Upon the words "The motion carries," the audience spontaneously jumped to their feet and erupted into applause. Jerusalem is the first town in Yates County to specifically ban hydrofracking.
    While greeted with public acclaim, it not the only measure Jerusalem took against hydrofracking. The board voted unanimously to join and sign a legal statement of support filed by the town of Ulysses for the towns of Middlefield and Dryden, which have enacted similar bans.
       "WHEREAS, the Towns of Middlefield and Dryden have recently revised their zoning laws to prohibit heavy industrial    uses (including natural gas drilling) in their communities and such laws have been challenged in court by opponents claiming that the Towns do not have the power to regulate natural gas drilling as a land use; and
        WHEREAS, the Town of Ulysses has filed an amicus curiae or “friend of the court” brief in both lawsuits in support of its sister Towns in order to reassert the right of municipalities throughout New York State to determine what land uses are appropriate through the municipal home rule powers granted by the New York State Constitution and the New York Municipal Home Rule Law; and
    Page 3 of 3 -     WHEREAS, the Town of Ulysses will file another amicus brief when these lawsuits are appealed to New York appellate courts and has requested that other municipalities in New York State consider joining the Town of Ulysses’ brief as a powerful statement to the appellate courts, the New York State Department of Environmental Conservation, and the New York State Legislature about the importance of protecting municipal home rule in New York State and a municipality’s right to decide, for itself, whether natural gas drilling—or any other land use for that matter—is appropriate for its citizens."
    Though Folts voted nay on Jerusalem's ban, he did support the amicus curiae. In a later interview, Folts spoke of his reasons for opposing the ban. "The process they used for getting this law passed was rushed. I understand the sense of urgency, but even the Planning Board felt they weren't given enough time. It also takes in conventional drilling. I wanted a law that stopped fracking, at least for now, not all gas drilling." Folts also disclosed that he has gas leases  and wells on his land, as do many of his neighbors.
               
    In other business;
        •Truck - The 2007 Chevrolet 1500 4x4 extended cab pickup truck used by the Sewer & Water Dept. was declared surplus equipment, and will be offered for sale by bid on E-Bay.
        •Water usage agreement with the Finger Lakes Museum for the former Branchport School will be reduced by half now, and reassessed next year.
        •The Branchport Hamlet Plan is being wrapped up and will be presented at an Open House Feb. 29 at the Branchport Library from 7-9 p.m. It will soon be posted on the town's website as well.
        •Wind Farm Regulations - Changes suggested by the Yates County Planning Board are still being worked in, and the law should be ready for next month's meeting.
        •The Fence Law Committee believes it would be possible to draft a law to present to the board in the same time it would take to enact a moratorium. The board agreed and the moratorium proposal was set aside.
        •Appointments - Carol Goebel as Grievance Board Secretary, Earl Makatura as Zoning Board Alternate.

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