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January 24, 2013

Luiz C. Aragon, Commissioner Sullivan County Division of Planning and Environmental Management 100 North Street Monticello, NY 12701 Re: GML 239-m Review of the Town of Callicoon Comprehensive Plan Dear Commissioner Aragon: We are writing to you on behalf of a number of residents of the Town of Callicoon (the Town) who are concerned that the Town is acting prematurely, improperly, and illegally with its plans to adopt the draft Town of Callicoon Comprehensive Plan (the Comp Plan). As set forth in greater detail and for the reasons set forth below, we are requesting that the Sullivan County Division of Planning and Environmental Management (County Division of Planning): (a) reject the submission presently in front of the Department as not ripe for consideration due to the failure of the Town to submit a full statement of such proposed action as required by GML 239-m; and/or (b) recommend disapproval of adoption of the Comp Plan by the Town due to significant negative county-wide and inter-community impacts, as provided for by GML 239-m; and/or (c) comment on the Comp Plan and advise the Town that it has failed to assure full opportunity for citizen participation, that the Comp Plan, as presently drafted, is not in the best interest of the people of the town (as compared to a minority of large landowners), and that the Comp Plan does not promote or protect the public health, safety and welfare of the citizens of the Town, as required under Town Law 272-a.

I. The Town Board has failed to submit a Full Statement of the Such Proposed Action to the County Division of Planning as mandated by General Municipal Law 239-m. Therefore, any consideration by the County Division of Planning is premature. General Municipal Law 239-m (GML 239-m) is intended to provide for county planning department review of therein defined proposed actions for intercommunity or county-wide considerations. [GML 239-m(4)(a)]. In order for a county planning department to undertake a meaningful review of the proposed action, GML 239-m requires that the county has received a full statement of such proposed action. A full statement of such proposed action is specifically defined by GML 239-m to mean all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to the state environmental quality review act under article eight of the environmental conservation law and its implementing regulations. In the case at hand, the full statement of such proposed action (FSPA), would mean, at a minimum: 1) Resolution from the special board that prepared the Comp Plan to the Town Board that recommends its adoption. The Town Board passed a resolution forming a Comprehensive Plan Committee and directing the committee to prepare a proposed revised comprehensive plan. Town Law 272-a(4) authorizes this delegation of legislative authority by the board, but the law also requires that such board, shall by resolution, recommend such proposed plan or amendment to the town board. Thus this resolution is required to be submitted to the referring body (the Town Board) and is therefore a required component of the FSPA. 2) Environmental Assessment Form that has been completed and adopted by the Lead Agency. It is our understanding on January 9, 2013, the County Division of Planning advised the Town Clerk that the informational packet was incomplete and failed to include SEQR Information Environmental Assessment Form and any necessary supporting materials. It is also our understanding, that on January 10, 2013 the County received a fax transmittal of a purported complete Environmental Assessment Form (EAF) from the Town Clerk. This EAF states on its face that it was prepared by the Town of Callicoon

Town Board as Lead Agency. Upon information and belief, as of January 10, 2013, the Town Board had not passed a resolution declaring itself to be lead agency. Upon information and belief, the Town Board did not complete or authorize the Town Supervisor to sign the EAF as the responsible officer in the Lead Agency. Upon information and belief, the Town Board specifically tabled a Lead Agency resolution at its January 14, 2013 meeting. Upon information and belief, the Town Board did not hold any public meetings between December 18, 2012 (when the incomplete packet was approved for submission to the county) and January 10, 2013 (when an EAF completed by the Town Board as Lead Agency was submitted to the County). Town Law 60 provides that in every town the supervisor and the town councilmen shall constitute the town board. Under the provisions of Town Law 63, every act, motion, or resolution of the Town Board shall be taken by a vote at a public meeting. Town Law 64 provides that the Town Board shall have and exercise all the powers conferred upon the town and such additional powers as shall be necessarily implied therefrom. The power of the town supervisor is set forth in Town Law 29 and primarily relates to the holding and disbursement of town funds, and provides no basis to authorize a supervisor to make a lead agency determination and complete an EAF without an action of the duly constituted and convened Town Board. Therefore, Supervisor Bose has clearly acted in excess of his statutory powers as supervisor, and the EAF that the County has received is facially invalid. 3) Resolution from the Comprehensive Plan Committee and/or the Town Board to adopt the Agricultural and Farmland Protection Plan of the Town of Callicoon as an addendum to the Comp Plan. Upon information and belief, the via a January 8, 2013 email addressed to Ms. Jacksy of the County Division of Planning, the Town Supervisor formally request[ed] that the Agricultural and Farmland Protection Plan of the Town of Callicoon be adopted as an addendum to the Comprehensive Plan. As discussed above, the Town Supervisor does not have authority to add to (or subtract from) the Comp Plan other than acting by resolution of the duly constituted and convened Town Board at a public meeting. If the Town desires to make the Agricultural and Farmland Protection Plan (AFPP) an addendum to the Comp Plan, then the Town Board must officially resolve to so modify the draft Comp Plan prepared by the Comprehensive Plan

Committee. The email from the Town Supervisor is facially insufficient to request, formally or otherwise, a revision to the Comp Plan. Furthermore, it is unclear exactly how the AFPP came to be in its present form. The AFPP contains the sentence: [e]nsure that zoning allows for the review and permitting of gas drilling to the full extent feasible under state laws and requirements. Upon information and belief, at least three of the farmers who serve on the drafting committee had no knowledge of this provision or its inclusion in the AFPP. 4) Materials submitted to the Town Board for its consideration at the Town Boards Town Law 272-a(6)(b) Public Hearing on the Comp Plan Town Law 272-a requires that in the event that a special committee has prepared a proposed comprehensive plan (as is the case here), that the town board shall, within ninety days of receiving the planning board or special boards recommendation on such proposed plan or amendment, and prior to adoption of such proposed plan or amendment, hold a public hearing on such proposed plan or amendment. The materials submitted to the Town Board at the public hearing must be included and submitted by the Town Board to the County Division of Planning as part of the FSPA. The Town Board is mandated to hold the hearing and public is required to have the opportunity to submit comments to the Board for its consideration. These comments are part of the materials submitted to the referring body in connection with the proposed action and therefor must be included in the FSPA informational packet. Upon information and belief, this statutorily mandated hearing is being held the evening of February 6,, 2013 and thus minutes, a summary, and/or copies of the materials that will be submitted to the Town cannot yet have been submitted to the county. Therefore, the informational packet provided by the Town to the County does not meet the legal requirements for a full statement of the proposed action. II. Adoption of the Comp Plan and/or the Agricultural and Farmland Protection Plan (purportedly proposed as addendum to the Comp Plan) of the Town of Callicoon would have negative inter-community and county-wide impacts, and the County Division of Planning should recommend disapproval of the Comp Plan. AFPP It states that the Town should [e]nsure that zoning allows for the review and permitting of gas drilling to the full extent feasible under state laws and requirements.

1) Gas drilling results in heavy truck traffic and damage to roads. The Comp Plan specifically acknowledges: Heavy truck traffic and damage to existing roads are major concerns associated with this [gas drilling] or any other new industry. (Comp Plan at p. 20) The Town cannot limit this heavy truck traffic to its Town borders. Such traffic will have to travel through other municipalities in Sullivan County to reach and then leave the Town. 2) Gas drilling may result in pollution of drinking water. The Comp Plan states it is possible that natural gas drilling may come to the town in the future. Because of the high volume of water and the chemicals used for hydraulic fracturing, there is concern for the safety of the areas drinking water. The storing of water used during the hydraulic fracturing process also presents a potential source of pollution of our water supply. (Comp Plan, p. 24). The Comp Plan itself says there are principal aquifers, citing mapping by the NYS DEC. (Comp Plan, p. 23) (www.dec.ny.gov/imsmaps/ERM/viewer.html)Pollution of ground water, surface waters, rivers and streams does not follow municipal boundaries. The refusal of the Town to limit polluting activities as land uses within its borders will negatively impact surrounding home values, agricultural lands, and high quality waters in surrounding municipalities.

3) The Comp Plan would allow for man camps to be located in the Town, with significant negative inter-community and regional impacts. The Comp Plan provides: Review the zoning regulations on campgrounds, boarding homes, mobile home parks and other relevant sections, to ensure that they adequately address new housing needs that could accompany potential new large-scale industrial uses, and to protect the character of the town from any adverse impacts that could come from transient housing developments. (p. 49) The transient, largely male work forces that accompany gas drilling do not have ties to the community, and their presence typically leads to increased criminal activity including prostitution, increased drug activity, and property damage. These negative impacts would not stop at the border of the Town. Examples of such negative impacts are provided by headlines from newspapers published in areas that have been subjected on high-impact shale gas extraction: 5

Drilling boom brings surge in crime to small towns The Times Herald Record, October 26, 201, Associated Press Horseheads prostitution linked to gas drilling industry Ithaca Journal, February 20, 2012, Jeff Murray Hooker Hunt In Wetzel County The Intelligencer, April 7, 2012, J.W. Johnson Jr. Bakken Oil Booms, Police Expect Rise In Drug Trafficking, Prostitution, Gun Crimes On Northern Plains Huffington Post, April 23, 2012, Matthew Brown- AP Prostitution arrests becoming routine in ND oil town Minot Daily News, July 10, 2012 4) Adoption of the Comp Plan by the Town would result in significant negative inter-community and county wide impacts and is inconsistent with the vision of the Countys future as expressed in County planning documents. Contrary to the Countys development policies, the Comp Plan proposes to allow gas drilling sites or other incompatible industrial uses to be located next to any and all property in the communities that surround Callicoon. The Comp Plan specifically acknowledges the possible negative environmental impacts that follow inappropriate division of land uses when it states: If not regulated by zoning, new industrial and commercial uses could be sited in incompatible locations, jeopardizing neighborhood character and potentially harming our roads and environment. (Comp Plan, p. 39). The Town specifically acknowledges the possibility of negative inter-municipal impacts to each and every one of the towns surrounding Callicoon. And yet, the Comp Plan proposes to that the Town should [e]nsure that zoning allows for the review and permitting of gas drilling to the full extent feasible under state laws and requirements. This proposed allowance of uncontrolled, unlimited, and widespread industrial land uses will have negative impacts on each and every one of the communities surrounding Callicoon, and is contrary to the Countys policies on focused development along infrastructure corridors and maintaining rural character in other areas. The County hosted an Economic Development Charrette in 2010, and published a Report of the proceedings. As part of the Charrette, an Economic Development Project Action Plan was proposed which includes the following action item: The Division of Planning through cooperation with local governments should develop a county wide land use

plan that will focus development along infrastructure corridors while maintaining rural character and developing second home and recreational opportunities in Prime Agricultural Area[s] and Natural Asset Areas. (Report, p. 8) The Charrette recommendations specifically addressed the topic of gas drilling, noting that issues of water quality, gas drilling, quarrying, forest use, natural resource protection and sustainability of resources require a coordinated strategy that will provide local municipalities with tools to address these issues, balancing economic growth with long term sustainability. (Report, p. 17) The Comp Plan makes no effort at balancing, focusing, or limiting wide spread industrial gas drilling across the entire town. This proposed land use plan by the Town will have significant negative impacts across the county and should be disapproved by the County Division of Planning.

III. The County Division of Planning should provide comments to the Town Board that the Town Board has failed to comply statutory requirements in its preparation and consideration of the Comp Plan. 1) The Town has failed to assured full opportunity for citizen participation in the preparation of the Comp Plan. Town Law 272-a authorizes towns to adopt a Town Comprehensive Plan. Town Law states :[a]mong the most important powers and duties granted by the legislature to a town government is the authority and responsibility to undertake town comprehensive planning Town Law provides that [t]he participation of citizens in an open, responsible, and flexible planning process is essential to the designing of the optimum town comprehensive plan. [272-a(1)(e)] Town Law provides that (as is the case here) that the town board has appointed a special committee to prepare the proposed comprehensive plan that the committee shall hold one or more public hearings and such other meetings as it deems necessary to assure full opportunity for citizen participation in the preparation of such proposed plan or amendment. The Executive Summary of the Comp Plan itself provides: The comprehensive planning process is founded upon the towns collective vision for our future. Despite this language, and the statutory intent of citizen involvement, the Town Board appears to have affirmatively kept the public at bay from meetings on the Comp Plan. For example, the Comprehensive Planning

Committee held what amounted to a secret and not public workshop on April 27, 2011. At the regular Town Board Meeting on April 9, 2011, Town resident Al Shoop specifically asked if the public workshop on the Comp Plan had been scheduled and was told No. Another resident, former Town Supervisor Linda Babicz had written to the Town, expressing her concerns about the draft Comp Plan and she specifically asked to be informed about when the workshop would be scheduled. Just weeks later, Mr. Shoop and Ms. Babicz were among the many Town residents who were surprised to learn, after the fact, that a public workshop had been held on April 27, 2011. Not only were concerned residents kept in the dark about the workshop, but the local media had not been notified about the upcoming meeting. A second Comprehensive Plan Committee workshop was eventually held in 2012 but on that occasion the only Committee member who addressed the questions submitted in writing by the public was planner Nan Stolzenberg, who is not a resident of the Town. Ms. Stolzenberg did her best to answer questions of a generic nature, but time and again she indicated that she was not in a position to respond to questions concerning the specific content of the Town of Callicoon draft Comp Plan. Committee Chair (and Town Council Member) David Kuebler (as well as other members of the Committee) refused to answer any questions about Comp Plan. Mr. Kueblers promise to post the unanswered questions along with responses on the Town website has never been fulfilled. The Comp Plan fails to implement to the shared visions citizens have for the Town. The Comp Plan (together with AFPP) would promote high-impact industrial development, gas drilling, and man camps. It is impossible to read the responses to the community survey conducted by the Town and honestly conclude that residents favor any sort of high-impact industrial development, much less fracking. The qualities rated most important by residents are farmlands and farming, protected streams and wetlands and protected scenic views. In short, most residents want, above all, to maintain the Towns rural character. 2) The (unauthorized) Environmental Assessment Form submitted by the Town Clerk fails to adequately mitigate and consider alternative plans that would negate the negative environmental impacts of the high impact uses that the Comp Plan encourages. The Town has failed to use the comprehensive planning process to determine whether or not natural gas drilling should be an allowed or a prohibited land use, and whether or not natural gas drilling supports the goals of the community. Rather, without engaging in any analysis or 8

supporting rationale, the Comp Plan explicitly acknowledges the possibility of gas drilling occurring in the Town, despite also explicitly acknowledging the possible negative environmental impacts from this determination. A full review of environmental impacts likely to result from the adoption of the Comp Plan would require the Town to consider these negative impacts and possible ways to eliminate them, including consideration of the alternative of prohibiting natural gas drilling as a land use within the Town as a whole, or in certain zoning districts within the Town. The Town seeks to avoid such an analysis by refusing to consider the reality of the extent and nature of the impact of its proposed policy to [e]nsure that zoning allows for the review and permitting of gas drilling to the full extent feasible under state laws and requirements. The Comp Plan purports to recognizes the concerns shared by many of the citizens of the town about the impacts that could be associated with heavy industry and high intensity uses, in particular the operation of natural gas wells, and activities associated with their operation, (Comp Plan, unnumbered page 32), the Town has nonetheless failed to fulfill its obligation under state law to consider the environmental impact of encouraging such high intensity uses in its EAF. Presently less than 1% of land usage in the Town is Commercial, (Draft Plan at p. 14), and that there is only one industrial operation in the Town of Callicoon ASA Precisions, a small machine shop occupying 15000 square feet in two buildings. (Comp Plan, p. 19). The Comp Plan acknowledges: Heavy truck traffic and damage to existing roads are major concerns associated with this or any other new industry. (Comp Plan. p. 20) The EAF fails to adequately consider this impact. The Comp Plan states: it is possible that natural gas drilling may come to the town in the future. Because of the high volume of water and the chemicals used for hydraulic fracturing, there is concern for the safety of the areas drinking water. The storing of water used during the hydraulic fracturing process also presents a potential source of pollution of our water supply. (Comp Plan, p. 24). The EAF fails to adequate consider this impact. The Comp Plan acknowledges the possible negative environmental impacts that follow inappropriate division of land uses when it states: If not regulated by zoning, new industrial and commercial uses could be sited in incompatible locations, jeopardizing neighborhood character and potentially harming our roads and environment. (Comp Plan, p. 39). However to the extent that the Town recognizes this risk and then fails to use the Comprehensive Plan to provide the basis for appropriate segregation of 9

high impact activities such as gas drilling from residential and sensitive agricultural uses, at a minimum the Town must review in the EAF the possible negative environmental impacts that the Town acknowledges may occur. The Comp Plan states: the Agricultural and Farmland Protection Plan (AFPP) is an integral part of this comprehensive plan update. Thus the implementation steps set forth in the Agricultural and Farmland Protection Plan are to be construed as steps in the implementation of this comprehensive plan update. (Comp Plan at p. 38) Furthermore, the Town Supervisor has purported to formally request that the AFPP be adopted as an addendum to the Comp Plan. Therefore, the environmental review process and completion of the EAF must explicitly consider and discuss the entire AFPP, including but not limited to the implementation steps set forth in the AFPP. In the Area for Lead Agency Use Only, the Town supervisor asserts The project will not result in any large and important impact(s) on the environment, therefore a negative declaration will be prepared. This is demonstrably false. Creating new industrial zones to accommodate a highimpact industry such as shale gas extraction will have a major impact on a hilly, heavily wooded Town that is replete with springs, streams, ponds, lakes, wetlands, floodplains and creeks. Under Description of Action the Town states that the Draft Plan contains a summary of public input gathered through a multi-year effort. This is false. The Plan completely ignores comments on the Draft Plan submitted by approximately 466 stakeholders in the form of letters, emails and petitions. Similarly the Draft Plan ignores the comments made by 54 members of the community at a Comprehensive Plan Public Hearing in June 2012. It also ignores the results of a citizen-sponsored postcard survey of Town property owners and voters that elicited responses from 997 stakeholders. (The results of this survey were tabulated by the editors of two local newspapers.) The Site Description in the EAF falsely states that the Town is not located over a primary, principal or sole source aquifer. The Comp Plan itself says there are principal aquifers, citing mapping by the NYS DEC www.dec.ny.gov/imsmaps/ERM/viewer.html) (Comp Plan, p. 23) If the Town were to comply with the law and the long form EAF is completed in a manner that accurately reflects the negative environmental impacts that the Comp Plan acknowledges may come to pass in the absence of proactive Town land use planning, then the only reasonable course of action is for the Town to make a Positive Declaration and proceed to the preparation of a full

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environmental impact statement. We ask that the County remind the Town of its obligations to comply with all state statutes, including SEQRA. Conclusion For all of the reasons outlined above, we respectfully request that the County Division of Planning: (a) reject the Town of submission for review of its Comp Plan by the County as not ripe for consideration due to the failure of the Town to submit a full statement of such proposed action as required by GML 239-m; and/or (b) recommend disapproval of adoption of the Comp Plan by the Town due to significant negative county-wide and inter-community impacts, as provided for by GML 239-m; and/or (c) comment on the Comp Plan and advise the Town that it has failed to assure full opportunity for citizen participation, that the Comp Plan, as presently drafted, is not in the best interest of the people of the town (as compared to a minority of large landowners), and that the Comp Plan does not promote or protect the public health, safety and welfare of the citizens of the Town, as required under Town Law 272-a.

Thank you very much for your consideration of our requests. Please contact me if you have any questions or would like further support or background on any of the matters discussed herein. Sincerely, Community Environmental Defense Council, Inc.

David F. Slottje and Helen H. Slottje cc: Town Clerk, Town of Callicoon Town Supervisor, Town of Callicoon Kate Sinding, Esq., Natural Resources Defense Council Clients 11