2/4 Kyrs Cail on Land Use Law

2/4 Kyrs Cail on Land Use Law. Session on Effective Planning Tools, Municipal Law and Planning: A Local Perspective in Hydrofracking, Albany Law School, September 28, 2012.

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Transcript:

Chip Northrup:
So without further ado, who’s first? Krys.

Krys Cail:
Hi. I’m actually not a land use planner, although land use planning certainly was a big part of my curriculum when I studied planning. I have a masters in regional planning from Cornell University. I am, however, in practice a community and economic development planner.

I want to take a moment to mention just before we go on that part of your comprehensive plan process should involve economics. We’re not here to discuss that today, but if you have an interest in that please do talk to me later.

I’m just going to start right away on this because it was teed up beautifully by the previous panel. i’m calling this “from the ground up”… and I think that we have some rural elected officials here who are used to the idea maybe you might roll up your sleeves and get right involved with something, and I want to point out that when we talk about comprehensive planning, we are not necessarily talking about something that is only to be done by professionals or can’t involves some aspect of your town cooperatively doing some of the work.

So… for those of you who may be thinking, well,you know we just don’t have a budget for that. There are ways that you can make this less expensive and actually Ted is going to speak to some of those ways later.

But, when I say that getting land usage land use law in place is as easy as one, two, three; that is conceptually. You need to do it in the right order.

It doesn’t mean that you might not be, you know, looking like this guy up here. But do want to reiterate that an up-to-date comprehensive plan is the foundation supporting all local land use planning laws and if there’s one slide that may stick in your memory, this should be it because when you go home and say …what did we learn, what do we have to do back in my little town that we haven’t done yet, this is the place to start, this is number one.

Any potential major change in possible land use in your town or other municipality requires an update of your existing comp plans.

If you have a plan that somebody did back in nineteen eighty two and it’s sitting on the shelf you can’t be quite certain that the effects of the extractive industry under discussion here were not considered at that time.

Whether you want to do gas drilling and mining in in your community, whether you don’t want to do it, you still, if you have a land use plan, a comprehensive plan that that is old, you need to go back and update it. It’s not the world’s most difficult process but it absolutely has to be done.

f your town has managed without comp plan thus far now really might be the time to start looking at doing one, and this is true whichever direction you want to go with this because we’ve heard a bit about lawsuits.

I’ve got tell you lawsuits are coming from both sides, count on it. So regardless of what your goal is –perhaps you don’t know what your goal is– you still need to do the same process.

Nan’s going to cover the basics of how to create or update a comp plan,and Ted is going to talk about impact analysis. The nice thing about impact analysis is that it’s an opportunity for you to get together with some of your neighboring communities, perhaps with your county planning staff, possibly involve others, even other counties, and do some of the work together. If you do the work together, you can reduce costs, and that that’s going to be an important thing to consider because we understand where people are at with with their small town budgets. It isn’t always possible to do big project by yourself.

The comp plan is going to include an inventory of existing naturally and man-made conditions as well as a conceptual plan for the future.

One of the things that’s important to understand is the conceptual plan for the future needs to be participatory, Again, you don’t want to sit down with only, as in my previous question about road use agreements, only the incoming industry and ask what their needs are and neglect to include the views of industry that is already there. You don’t want to meet with one group of landowners, and not another.

So, always, when you’re doing comprehensive planning processes, the involvement of your community in an even-handed positive professional manner is the way that not only comes to the right conclusions about what exactly it is that your community wants to be in the future, but it also gives you an opportunity to defuse conflict and I think David Kay will speak to some of that a little bit later as well.

You can use a lot of state and county resources to help in conducting your inventory. Interestingly enough, a lot of the information you might need may already be there and you just need a little help locating it.

Sometimes those resources are…you can get help from local educational institutions. You might be able to get some classes or interns to help you with gathering together some of your materials.

One thing you should be very careful with, though, if you are going to work, you know, with educational institutions, is to make clear what your needs are. Don’t expect them to guide the process. And usually it’ll be best if you have a professional who can help guide their work. None of us would want to be a dentist’s first patient, you know, much as when i was a planning student I appreciated the chance to work with townships, I don’t recommend that you let a planning student write your first comp plan either.

You’re going to begin with context, and context is going to have something to do also with timing.

There is something called the Marcellus and Utica fairway. I don’t know, are people familiar with the term ‘fairway’? Anybody? Now, just some of us, OK.

The formation itself is vast and I’ll just go forward to this slide which shows it. This is the Marcellus formation. This is right straight out of the SGEIS, so this could be a part of your comprehensive plan and you could get it. It has no copyright, you could take it right from the SGEIS. You paid zero for that. OK?

You will see a portion that is shaded. OK?

So there is an area that is called the fairway, which is where the geologists have determined where they are most likely to get the most gas. Those will be the areas where pressure for drilling will be soonest. There was the possibility of a small scale five county area that, that’s in the fairway.

Again, with the Utica shale, the fairway is fairly similar. Again, this is important because you can use this information.

You’ll see here i have a close-up on Cayuga and Tompkins Counties, both of which have some area in the fairway and some area outside the fairway. That may make a difference for your township, whether you are in or outside the fairway.

Part of the reason for that is that the impacts are not necessarily co-located with the well head. Now, the tax revenues are. So this can be of great interest because if you have leased land in your community but you’re not in the fairway, and the neighboring community has leased land and they are, i wonder where they might put the temporary worker housing? So, you need to be aware of these things and take a look at that.

Again, the other way you might want to begin with the context is to locate your municipality within the ongoing policy decision making of your neighbors.

Ted will talk about how to cooperate with your neighbors, but you also just kind of want to be aware if you have bans in all of the communities surrounding you, that will make a difference in how you look at your policy decisions.

When there are other leases that have what are called surface rights, there may be very different things beyond gas drilling that go on, on those properties, and that we found in Tompkins County that many of those leases had surface rights.

Those might be in ancillary activities such as water or gravel mining or storage, temporary housing, equipment and materials staging areas, and also other kinds of compressor stations and pipelines, and that sort of thing. You’re going to want to look at what which of those things you may want to be including in your comprehensive plan one way or another,

And again, be even-handed. if you typically allow trailer parks you can’t say oh… well we’re going to have trailer parks but not trailer parks with Texas and Oklahomans. You obviously understand why there are some issues with doing that. We need to be even-handed, but you do want to look seriously at that these impacts because these have been extremely important impacts in some of the Pennsylvania areas.

So here is a map that shows currently in red you will see those municipalities that currently have a ban in place. in purple you see those who have put forward a moratorium.

And again, the best use of a moratorium in my opinion is when we’re not sure how we’re dealing with this. We’re going to just hit the pause button for a moment. We’re going to update our comprehensive plan using a good practice that involves all stakeholders in putting forward their opinions about this, and then we are going to make our decision and go forward.

So, you don’t have this sort of …well my husband’s from Oklahoma, so he always calls it “sooner syndrome”, where, you know, we’re going to give everybody a chance to stake their claim but the Oklahomans got there sooner. You don’t want that to happen you. You want to make sure that everybody’s on an even playing field.

The yellow on this map is areas where where there’s a citizen movement for a ban or a moratorium and again we have a lot of places across this state where people you know maybe they just feel like this is moving really fast, and town boards and planning boards and concerned citizens want a little chance to catch up and understand better, to decide what they think about it.

We do also have municipalities that are going out to make resolutions in support of hydrofacking. Again you will notice that those are mostly concentrated in the fairway area which is probably where people have been thinking about it the most.

Ah… but you know we have some even up in Lewis County that you know are outside of the area that is even in the Utica shale.

So we have things going here and you will want to be aware: What are my neighbors doing? What are their interests? So stay on top of that I have a particular interest in agriculture because I work in agriculture.

Again to stress that you don’t have to spend a lot of money to do some very good analysis, in this map we have the the bans and moratoria in green and … that is a public dataset and then those little brown dots are land use and land cover. And that is available from the U.S. government at no charge.

I’ve been using some of this just to take a look at issues about farmland. I don’t know if any of you have in your community an area that has an agricultural district. if you have an agricultural district, you need to maintain a certain amount of active farmland in order to maintain that district and its advantages.

You will want to look at how much farm land do we have; how much will this new activity take up. You need to know what are the implications there to existing industry…

And again you know i can’t say enough for GIS. It’s really useful. if you can have a planning consultant do it that’s by far the best if you can’t, GIS mapping is a really good job for your educational institutions. They have a lot of people who need to learn this work and and it would be good to have those maps made, no matter how you could get them.

Okay so you did your com plan, then it’s time to talk about an ordinance or resolution. I know a lot of you may have a lot of pressure from your constituents that they want action, now. But, step two is an ordinance or resolution. You need to be extremely careful that those local laws are adopted using proper procedure. In fact with local laws when towns are sued and I think Chip will backed me up on this, it’s often on procedural grounds rather than substantive grounds. So, dot every i, cross every t.

Reference your comp plan specifically in support of your action. iI’s not going to be important that you’ve made the best scientific decision. It is going to be important that your action is consistent with your comprehensive plan.

And also make your SEQRA review defensible and document that as well.

And then step three is planning to enforce. Local law is only useful if it is enforced. You have to make consideration of the enforcement a part of planning process. There are going to be violations, so you need to involve enforcers in how it is that you were going to enforce that law.

I think it also was important to have a clear channel for handling residen’ts reporting theree being violations because you are going to need their eyes and ears particularly in the rural areas to know when something is not being followed the way it should be.

.Thanks very much and listen up to Nan and Ted.