Town of Delaware Board; Home Rule; Conflict of Interests; Public’s Right to Know

NY Court of Appeals case law interprets provisions of the ECL [Environmental Conservation Law] to conclude that a town’s zoning. ordinance does not “relate to the regulation” of the industry, as prohibited by subdivision 2 of S 23-0303 of the environmental conservation law, but rather serves to regulate the location, construction and use of buildings and land within the town, as delegated to local government by Article IX of the State Constitution.

Dear Readers,  After three weeks  without my laptop,  I’m  b-a-a-ck.  As always, I’ve provided Town of Delaware meeting notes according to  how the meeting unfolded.  Although  Town Clerk McBeath’s  notes are generally excellent (as was commented by an audience member this past meeting)  Breathing has the wherewithal to provide more context for a more  (hopefully!) complete understanding of the issues discussed.   If you’re a Reality TV fan,  come on down  to the Delaware Town Hall on the third Wednesday of each month at 7:00 PM. The meetings have been packed recently and…lively!   Despite the sometimes contentious nature of  discussions,  it’s  important to note how many fine people are contributing productively to the life of our Town.  Take especial note of  the grants being written and improvements being planned.


According to a spokesperson for Mr. James “Jimmy”  Hughson (Jeff Sanitation and J. Hughson Excavating companies),  New York State’s Department of  Environmental Conservation (NY-DEC) has informed the garbage hauler he must move his collection facility indoors as part of  a required upgrade.   The upgrade of  Mr. Hughson’s proposed  “private transfer station”  (located east of Jeffersonville on the  East Branch of the Callicoon Creek)  is being considered by the Town’s Planning Board as a Special Non-conforming Use under  the Town’s  ZoningLaw.  Mr. Hughson’s spokesperson said the proposal will provide more storage capacity, will not increase the amount of garbage accepted at the site and will  reduce the number of truck trips.    “Mr. Hughson will collect the trash and sort it at his facility.”

When Town Assessor, Linda Schwartz,  commented to Mr. Hughson that she didn’t understand why he  would undertake the project because it sounded as if   his costs would increase  due to the upgrade while his profits would decrease due to his hauled-tonnage remaining  the same,   Mr. Hughson shrugged.

Town Clerk, Tess McBeath,  who sits on the County’s  Solid Waste Task Force,  explained that the County has proposed simplifying management of the solid waste stream by instituting  “single stream recycling.”  (Instead of  individual  households separating plastics, glass, metals, etc.,  as is done currently,   a  “sorting” company would do the separating and also transport the recyclables out of state.)  “The County isn’t looking to put haulers  out of business,”  Ms. McBeath continued.  “…it’s  asked for  $6.5 million  to build a transfer station….”

In 2009, according to the Times Herald Record,  Mr. Hughson was charged by the DEC for illegal dumping at the site.  In 1988,  the DEC ordered Mr. Hughson to cap and close  a landfill (near the current site)  which was owned and operated by him.*

The Town Board unanimously agreed to write a letter of recommendation in favor of Mr. Hughson’s  proposal.

Local businessman, Robert DeCristofaro, reported  what he believes are several discrepancies in his sewer assessment and the Board agreed to review the Town’s  billing.

While making her Town Clerk’s report,  Ms. McBeath  said,  “Many older, disabled folks come into my office.  I’ve asked several times that the Town Highway Department install handicapped parking signs that it already has so  those folks don’t have to walk so far.”   She then asked the Town Board to help her get the additional signs erected.

Highway Superintendent William Eschenberg interrupted Ms. McBeath.  “You stop.  You just stop right now.  I don’t work for you. You don’t like me and I don’t like you. There’s a sign out there.  If  they can’t read one sign they won’t be able to read three.”

To which Ms. McBeath responded,  “You forget who pays your salary.  This isn’t about me; this isn’t personal,”  and asked several times to be permitted to continue with her report.

While the back-and-forth between the two Town officials continued for several minutes — and the Board sat mum —   audience members called for Mr. Eschenberg to allow the Clerk’s report to resume.  When a local resident said,  “I don’t understand what’s happening here,” and told Mr. Eschenberg he was “being rude,”  the Highway Superintendent replied,  “I know you don’t understand” and asked the audience member to go outside with him so the matter could be explained.

Finally,  Ms. McBeath said to Supervisor Scheutzow,  “I need direction, Jim,”  and  Mr. Scheutzow replied,  “I’ll deal with it.”

Ms. McBeath also reported that the Town collected $2,580 in building fees during the month of May 2010.  (According to data obtained by Breathing with a  Freedom of Information Request,  eight fewer permits have been issued to-date this year than during the same period in 2009.    However,  as of 6/18/10,  fees  have totaled, apparently,  $13,519  an approximate $6,000 increase over the first six months of 2009.)

Mr. Eschenberg asked for, and received,  permission to  put the Town’s heating oil purchase out to bid.

The Building Inspector,  Mr. Howard Fuchs,  was not in attendance and so no report was made.

Tax Assessor, Linda Schwartz, reported  the Town’s  equalization and assessment rates  have increased to 57%.  (That means   Town property holders  will be paying taxes on  57%  of their  property’s value — a larger percent than last year.)

As reported by  the Town’s  Grants Coordinator, Ms. Kara McElroy,  The Town has received six proposals for  its  sewer project and must decide by  June 30, 2010 who will receive the bid.  In addition,  the Town of Delaware and three other River Towns are applying for a share in  a Scenic Byway Grant which will total $25,000.

Mr. Michael Chojnicki  reported that the hamlets of Callicoon, Narrowsburg and Barryville have applied for a $750,000  Community Development Block Grant.  Each Hamlet  would receive $250,000 and Callicoon  would use the funds for lights,  parking lot re-pavement (in the Klimchok lot),  shoring up the retaining wall near the same location, improved parking in front of the movie theater,  sidewalks and nicer connections between Upper and Lower Main Streets.

The Town Board awarded a municipal trash removal contract to Thompson Sanitation but when audience member Jim Hughson pointed out that  Thompson’s bid was significantly higher than Sullivan First’s,  the Board unanimously  rescinded  its decision.  New bids will be accepted and subsequently opened on  July 21, 2010 at 6:55 PM.


Mr. Roy Tedoff  read an excerpt of NYS Assembly Bill  A10633 which states, in part,

“Currently, local government officials are confused  about whether  their  local  zoning  ordinances are preempted by state law and regulation in relation to the oil, gas, and solution mining industries.  NY Court of Appeals  case  law  interprets  provisions  of  the  ECL  [Environmental Conservation Law] to conclude  that  a town’s zoning. ordinance does not “relate to the regulation” of the industry, as prohibited by subdivision 2 of S 23-0303  of the  environmental  conservation  law, but rather serves to regulate the location, construction and use of buildings and land within the town, as delegated to local government by Article IX of the State Constitution. This legislation clarifies that current  local  zoning  law,  and  local zoning  laws  enacted  in  the  future, will dictate where oil, gas, and solution mining is a permissible use, even with a regulatory program  at the state level.”

Mr. Tedoff  then said,  “Since the Town Board can use its zoning power,  you should.  It’s a no-brainer….We  voters  have a right to know where the Town stands on the drilling issue.”

Mr. Tedoff then asked  members of the Town Board to reveal  any interest in drilling either they,  their associates or family members have.

Mr. Scheutzow replied,  “Whose business is it to know?  Next, you’ll want to know what my bank  statement is.”

(According to Section 808 and Section 811 of New York State’s General Municipal Law,  Mr. Scheutzow, council members  and other public officials in the Town of Delaware are subject to annual financial disclosure requirements.)  Also according to Section 808,  the Town can appoint a Board of Ethics to review possible ethics violations and  to be the repository of  Town officials’  financial disclosures.  Section 808,  also allows that  if such a Town Board of Ethics is not established,  the County Ethics Board can be appealed to for an opinion.  (Breathing has found no evidence that  the Town of Delaware  established a Board of Ethics but has asked for clarification with  a Freedom of Information request.)

Breathing has  already provided some information on  the issue of conflicts of interest and public officialsSection 809 of the General Municipal Law also requires disclosures by public officials and Section 812 details the information officials are required to disclose  (Financial Disclosure Form NYS GML).  In fact,  according to the Town of Delaware’s own  Code of Ethics,

The rules of ethical conduct of this Resolution as adopted, shall not conflict with, but shall be in addition to any prohibition of Article 18 of the General Municipal Law or any other general or special law relating to ethical conduct and interest in contracts of municipal officers and employees.

(e) Disclosure of interest in legislation. To the extent that he/she knows thereof, a member of the Town Board and any officer or employee of the Town of Delaware, whether paid or unpaid, who participates in the discussion or gives official opinion to the Town Board on any legislation before the town Board, shall publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he/she has in such legislation.

(f) Investments in conflict with official duties. He/she shall not invest or hold any investment directly or indirectly in any financial, business, commercial or other private transaction, which creates a conflict with his official duties.

Section 5. Distribution of Code of Ethics. The Supervisor of the Town of Delaware shall cause a copy of this Code of Ethics to be distributed to every officer and employee of the Town within thirty (30) days after the effective date of this Resolution. Each officer and employee elected or appointed thereafter shall be furnished a copy before entering upon the duties of his/her office or employment.

Section 6. Penalties. In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate any of the provisions of this code may be fined, suspended or removed from office or employment, as the case may be, in the manner provided by law.

(The Franklin County District Attorney has said about an ethics investigation in his  countyOur investigation has revealed several contracts, easements, lease option agreements, cooperation memoranda and other types of documents which disclose relationships existing between elected officials and certain third parties in Franklin County (as well as other elected officials in other Counties) which, when allegedly coupled with certain decision making and board action, may be in violation of General Municipal Law (GML) 805-a(1)(c) and (1)(d). If such violations have occurred, these public officials may also be in violation of Penal Law Section 195.00, Official Misconduct and/or Penal Law Section 200….”)In  response to Mr. Tedoff’s  request that the Town Board  adopt a resolution in support of  The Home Rule Bill ( NYS Assembly Bill  A10633),  Mr. Roeder said,  “Why would we support legislation that’s  a plan to burden the towns to do things they shouldn’t be involved with?”

As a matter of clarification,  Breathing offered,     “A10633 is  the so-called, ‘Home Rule”  bill.’   It’s an effort by our  Assemblymember, Aileen Gunther — and other co-sponsors —  to clarify what the Town’s zoning jurisdiction is and  to restore local control over  zoning districts to local governments.  You have the right to zone heavy industry out of  a ‘rural residential district.’  I’d think you’d want local control back.”

Mr. Scheutzow said,  “That’s your opinion.”

Breathing Is Political:  “Perhaps  you could ask your Town Attorney to  contact Assemblymember Gunther  who’s a co-sponsor of the Bill.  Perhaps she or a legal person in her office could  clarify the purpose of the Bill.”

Mr. Scheutzow:   “No matter how many times this Board tries to explain that we only have control over the roads,  some people just don’t get it.”

Breathing Is Political:   “Then perhaps you could ask the Town Attorney to reach out to the State Assembly because obviously,  members of the Assembly disagree with you about the Town’s zoning prerogatives.”

There was no response from the Town Board to the suggestion.  Nor did any members of the Board respond to Mr. Tedoff’s request that they disclose any interests in drilling.**


In a discussion outside the Town Hall after the meeting had ended,  Craig and Julie Sautner (Dimock residents and plaintiffs in a Federal lawsuit against Cabot Oil) spoke with  Mr. Noel Van Swol (Sullivan-Delaware Property Owners Association).  In response to  the Sautners’ continued assertions that  the hydraulic fracturing process  left their water  undrinkable and contaminated with methane, Mr. Van Swol stated,  “I’ve been told that methane occurs naturally in the water in Dimock and that’s why your water’s contaminated.”

Mr. Craig Sautner replied,  “That’s not true and we can prove it.  The chemical composition of naturally-occurring methane is very different than what’s released into the water by hydraulic fracturing.  And what we’ve got in our wells is not natural. We’ve got the lab tests to prove it.”

When Mr. Van Swol was asked,  “If  700 gas wells are drilled,  would it be acceptable to you if  five families’ water wells were contaminated,”  Mr. Van Swol replied, “Yes.  That would be acceptable.”

“And if your well was contaminated?”  he was asked in a follow-up,  “what would you do?”

“I’d take the company to court,”  he answered.

The Sautners explained to Breathing that at the time of   Robert Kennedy, Jr.’s visit to Dimock,  Cabot Oil was supplying the family with water in “buffalo tanks.”    After his visit and because it appeared to him that the “buffalo” water was contaminated,  the Sautners asked Cabot to provide them with clean well water.  For a while,  the company complied but has subsequently refused to continue the practice.  According to Mr. Sautner, if his family wants  Cabot to  replace the water  the company allegedly destroyed,  they’ll have to settle for the questionable  “buffalo”  brew.


*DISCLOSURE:  Liz Bucar was a member of   Citizens for a Clean Callicoon Creek which lobbied for closure of  Mr. Hughson’s  Landfill in 1988  because, in part,  the landfill was located in close proximity to the East Branch of the  Creek and  over an aquifer.

**Breathing was  informed recently by a confidential source that  Councilmember,  Harold Roeder — who is also Chair of the Upper Delaware Council — had admitted privately to having signed a gas lease.  In a follow-up phone call from Breathing, Mr. Roeder adamantly denied the allegation,  “That’s an absolute lie!” he said.  “I’ve never spoken with a gas person in my whole life.”

16 thoughts on “Town of Delaware Board; Home Rule; Conflict of Interests; Public’s Right to Know”

  1. If Mr. Harold Roeder has signed a gas lease in Sullivan County, at some point, it will be in the public record in the Sullivan County Division of Planning Environmental Management Natural Gas Leases Recorded with County Clerk.

    Public officials who do sign gas leases have a conflict of interest and should recuse themselves from taking part in public policy-making as it relates to gas-drilling. I would even go as far as saying that public officials with family members who have signed gas leases should recuse themselves as well.

  2. Dear Readers, The following comment arrived a few minutes ago in response to Breathing’s Cochecton article. Its import is such that I believe it bears posting it on this current Town of Delaware article:

    I am a realtor and can tell you with absolute certainty that if there are any “ongoing environmental conditions” on your property – even ones that simply require monitoring to be sure no change has occurred – the lender will reject your applications. These loans cannot comply with Fannie Mae or Freddie Mac guidelines and therefore cannot be sold in the secondary market. In simple English, if they are drilling anywhere near your property you are never going to be able to sell your house to anyone other than an all cash buyer. How is that going to affect you? In your wallet!

    Comment by Guest — June 24, 2010 @ 8:51 pm

  3. Dear Brenda, You’re absolutely correct and if readers are interested in finding out whether or not a public official has signed a lease, feel free to contact the County Planning Department at 845-794-3000. Unfortunately, I’m told there is often a 6-18 month delay between the signing of the lease and its filing with the County. It’s also important to note that property ownership can be checked at the Wayne County, PA website.

    Another issue of conflict arises if a public official is a member of a hunting club that’s signed a lease.

    Also, there are lobby laws which require corporations to file documents when they lobby or do business with public officials.

  4. And so the insanity continues….I visited the test well in Equinunk Pa. what a sight, and with all the mess in the Gulf and it continuously being shown how these companies put profits before people, it seems that some of our neighbors have caught the same disease as those that own these gas companies, it’s called GREED

  5. Pingback: Your Garden
  6. Quotations
    “The love of money is the root of all evil” Bible: I Timothy
    “avarice, the spur of industry” [David Hume Essays: Moral and Political]
    Collins Thesaurus of the English Language – Complete and Unabridged 2nd Edition. 2002

  7. A couple of points:

    1) The well/water pollution at Dimock was caused by Cabot, but not by fracking. It was an improperly installed well casing in the initial drilling. Cabot could probably solve their problem by drilling a new (deeper?) well.

    2) If someone owning land with a lease should recuse themselves, shouldn’t someone who opposed drilling also recuse themselves?

    3)Does a person go to work because of greed? Does one cut logs or stone because of greed? Greed comes in many forms. To preserve their view or because of an unfounded fear, some people would deny their neighbors a chance to use their land in a way that the neighbor sees as being morally correct and which also makes money. Isn’t that a form of greed? Some would use gas from the Gulf but not from a neighbor’s land in the community, isn’t that a form of greed?

  8. A couple responses:
    1)it wasn’t fracking it was Cabot…What an utterly ridiculous argument.
    It wasn’t the activity, it was the company doing the activity. Let the same company try it again and it will be alright.

    2)People that making money (or try to) off a situation over which they wield influence need to recuse themselves. People that are trying to protect the environment from people that just want to make money are public servants.

    3)Unfounded fear? Poisoned water, industrial waste in the ground, long term loss of home values. What would you consider founded fear? In order to be considered greedy you would have to show some sort of financial advantage. Protecting EVERYONE’s water and a COMMUNITY’S value does not qualify as greed. Taking money regardless of the risk to others for your own benefit is greed. Denying the fact that something that is obviously a risk just because you will make money is not only greedy it’s willful ignorance and greed. It’s a bad combination.

  9. Let’s talk taxes – and also the generous NYS forestry and ag exemptions in Sullivan County.

    It’s all part of the public record.

    Go to:

    If one does a bit of research, the reader will see that Cecily and Arnold pay more than their share for their acre and small house in the Beechwoods near Callicoon, New York.

    In fact they pay more than either the 120 acre lot OR the 167 farm which adjoins them.

    The Henke’s two larger parcels (there are other smaller ones nearby too) one of which is vacant land of 120 acres and the other – a working dairy farm – of 167 acres pays $1428 and $3178 respectively.

    That’s Town of Delaware plus Sullivan West School taxes combined annually.

    Annual taxes of $1428 for 120 acres – not too shabby. Is it?

    So, when some large landholder in Western Sullivan County (or in Wayne County, Pennsylvania) cries the blues and tells you they’re being bled dry by taxes – don’t take out the violins quite yet and do some research for the facts.

    It’s all online.


    “Plus, Fortescue and Friedman say they understand the dilemma of farmers like their neighbors – many of whom say they will lose their land if they can’t lease it for the tens of thousands of dollars gas drilling may bring. After all, Mike senior had to drive a school bus in the morning before he worked his land.
    “They’re under enormous pressure,” Fortescue says, sitting on a deck overlooking a mountainous vista of green fields and forests.”

  10. Been reading your blog now for quite some time and really like it. I don’t know if it’s your style or not , but do you think you could do a post on the oil spill in the gulf?

    I love your thoughts and opinions, and would love to see your comments on this sad tragedy.

  11. Couple of counter responses to Mr. Grady.

    1) I see that reading comprehension is not big on some people’s agendas. My comment on Cabot stated that they caused the problem in Dimock but not by fracking. I then went on to describe what they had done to cause the problem. I think that is pretty clear — and correct.

    2)You assume that one side of a debate makes all decisons based purely on money and the other side makes all decisions based purely on altruism. Both assumptions are incorrect.

    3)You state problems but do not say where; you assume that perceived problems elsewhere in the country will be repeated here; and you assume that you can predict the future of the area based upon a lack of good information. You simply gave evidence of the unfounded fear and made my point. Thank you.

  12. Dear Readers, The following comment from “Cobbler” arrived today but was posted at an earlier column. I’m re-posting it here in hopes it receives some timely and thoughtful responses. If the unemployment rate in Sullivan County continues to rise in the face of approaching winter (or stays the same for much longer), increasing numbers of families will face the loss of their homes. I talk with people every day who say they’re anxious (or even, frightened) about their financial situations. Every single day. At least one person wonders where they’ll be a year from now. For some, their worries are exacerbated by the downsides they see in drilling. For some, drilling is an opportunity — a rope tossed toward the future.

    “WEll, for my part, it has become crazy living in Liberty NY. The building inspector has shown a ruthlessness that is unmatched with poor, poor knowledge of the state building codes. I therefore wish to regain any investment that we’ve made there by , YES!, offering up our land for drilling. It’s better than abandoning our property. Let the industrialists go forward with their torches held high! And let the USA become independent finally from all those who proclaim to own this world because they carry the keys to the oil! Yup!”

  13. Wayne Independent

    Fuming Over Gas

    Honesdale, Pa.

    Northern Wayne Property Owners Alliance members might not see the lucrative checks they were expecting after two gas companies suspended contracts because of recent changes in DRBC jurisdiction… {article continues}

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