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Home Rule: How Communities Can Stand Up to Polluting Industries and Decide the Future of Their Towns

If you think that nothing can be done on the local level to combat big polluters like gas fracking companies, think again.

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There's no dispute. It's what lawyers call "black letter law." In a 1974 case known as The Village of Belle Terre, a case which, by the way, involved a New York State zoning ordinance, the United States Supreme Court specifically stated the town had wide latitude to use its zoning laws to protect the public welfare. The court held, and I quote, "The concept of public welfare is broad and inclusive. The values that it represents are spiritual as well as aesthetic. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled ... a quiet place where yards are wide, people are few, and motor vehicles restricted, are legitimate guidelines in a land use project. This goal is a permissible one. The police power is ample to lay out zones for family values, use values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people."

And the New York Board of Appeals, the highest court in the state of New York, reached the same conclusion in a case called Gernatt Asphalt. And in Gernatt, a town had used zoning to ban mining, and the people who wanted to mine challenged the ban, saying it was unconstitutional, exclusionary zoning. The court -- again, the highest court in New York -- rejected this challenge. The court said, "We have never held that the exclusionary zoning test, which is intended to prevent a municipality from improperly keeping people out, also applies to prevent the exclusion of industrial uses. A municipality is not obliged to permit the exploitation of any or all of its natural resources within the town as a permitted use if limiting that use is a reasonable exercise of police power to prevent damage to the rights of others, and to promote the rights of the community as a whole." That's the holding of the New York Board of Appeals, again, the highest court in the state of New York.

Okay. Well then, isn't such a ban inconsistent with state or federal policy? And yes, the state and federal government have indicated broad support for natural gas extraction, buying industry's promotion of this fossil fuel as somehow green, and have gotten even the national environmental groups so desperate to stop the pillage of mountaintop removal that they're willing to make the sacrifices that methane gas entails. But I digress.

We are not a nation or state of a single policy. Let us not ignore there are many articulated state and federal policies that support the prohibition of high-impact industrial uses in rural areas. I'm only going to talk about two state policies.

Let's start with, say, the State Constitution. Our constitution provides, "The policy of the state shall be to conserve and protect its natural resources and scenic beauty, and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.

"The legislature, in implementing this policy, shall include adequate provision for the abatement of air and water pollution, and of excessive and unnecessary noise, the protection of agricultural lands, wetlands and shorelines, and the development and regulation of water resources."

So, the proposed law would seem to be consistent with that.

Next, why don't we look at the Environmental Conservation Law, the very law that contains the article on oil, gas and solution mining. The policy of that entire law, and not just the section on gas drilling, provides, "The quality of our environment is fundamental to our concern for the quality of life. It is hereby declared to be the policy of the state of New York to conserve, improve and protect its natural resources and the environment, and to prevent, abate and control water, land and air pollution in order to enhance the health, safety and welfare of the people of the state, and their overall economic and social well-being.

 
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