Wednesday, July 10, 2013

David Slottje on the Sidney moratorium lawsuit

Original is here:
From:  -----
July 10, 2013, 11:50:15 AM EDTTo: otsego coalition
Subject: [otsego-coalition] sidney moratorium law suit - what are the arguments in defense of their moratorium
Does any one know what the arguments are in defense of the Sidney moratorium. I know a law suit was filed against them in June.

---------- David's reply ------------------

To: [Citizen Requesting Information Regarding Attempted Challenge to the Town of Sidney’s
From: David Slottje, Senior Attorney, Community Environmental Defense Council, Inc.

Re: Suit Attempting to Challenge Town of Sidney’s Gas Drilling-­‐Activities Moratorium
Date: July 10, 2013

On February 14, 2013, the Town of Sidney (pursuant to a Town Board vote of 3-­‐1 in favor) in Delaware County enacted a moratorium on natural gas exploration and extraction activities, and on specified related activities, such as underground injection wells, underground storage of natural gas, and facilities for the storage or disposal within the Town of certain (therein defined) natural gas extraction or production wastes. (The Sidney Town Board consists of five members. The vote was
3-­‐1 because one member of the Board did not vote.)

[[In the Town of Sidney, a super-­‐majority of residents and property owners favor a moratorium or other protective law regarding gas drilling-­‐related activities, and in fact over 1,000 of them have signed a petition requesting that their local elected officials enact such a protective law.]]

On June 13, 2013, two people filed a lawsuit, seeking to invalidate the Town’s moratorium. This writer’s firm, Community Environmental Defense Council, Inc. was special counsel to the Town with respect to enactment of the moratorium, and is special counsel to the Town with respect to defending the lawsuit seeking to invalidate the moratorium.

A great many citizens throughout the State are concerned that industry has not come even close to proving that fracking is safe over the long-­‐term, and one of those citizens has requested a brief explanation of what the lawsuit challenging the moratorium is about, and whether the challenge has any (legal) merit.

I am responding to this request at this time because I believe it is critically important for everyone to understand and appreciate the specious nature of the suit that was filed. (Please understand that the Town of Sidney has not yet filed its answer in the suit, and when that answer is filed it will go into greater detail, and address matters in addition to those that are being covered in this brief memorandum.)

When one brings a lawsuit, one articulates one’s claims in a document that is called a ‘complaint,’ or
in certain circumstances (such as exist in this particular situation) a ‘petition’. The claims the
person is bringing are called ‘causes of action.’

One of the causes of action alleged in the petition challenging the validity of the Town’s moratorium is that in enacting the law, the Town Board failed to comply with a state law known as General Municipal Law 239-­‐m., because the moratorium was enacted with (only) three votes. (Under most
circumstances, three votes in the context of a five-­‐person board – that is, a simple majority – is sufficient to enact a law, but in certain limited circumstances a simple majority is not sufficient.)
[Pursuant to the provisions of GML 239-­‐m, a county planning agency has the right to comment on certain types of laws prior to enactment, and if the comments are negative and involve a limited universe of concerns – specifically, matters with (i) county-­‐wide or (ii) intra-­‐municipal impacts – then although the county does not have the ability to veto what the town is attempting to accomplish, if the town wishes to proceed without accommodating the county’s objections, then in such event the town needs a majority plus one of the town board to enact the law. (So for example in a town with a five person town board, while three votes would normally carry the day, four votes would be required to ‘override’ a proper 239-­‐m objection.)]

In the instant situation, the draft moratorium was submitted to Delaware County Planning for review pursuant to GML 239-­‐m, and County – believing that four votes on the Town Board did not exist to pass the law – thereupon did its level best to ‘disapprove’ the draft, including (I have been told) bringing in a local lawyer to help them, who in turn brought in ‘expert counsel’ from Albany. Indeed, Delaware County Planning went so far as to deviate from its theretofore-­‐existing practice regarding such matters, and imposed a new requirement that citizens could not speak at County Planning’s ‘public’ hearing on this matter.

Fortunately for the over 1,000 Town of Sidney residents and property owners who had petitioned their elected officials to enact a protective law, Delaware County Planning's ‘level best’ was not good enough.

For reasons that will be articulated in greater detail when the Town files its answer, because of the specifics of the manner in which Delaware County Planning responded to the Town’s 239-­‐m referral, under the circumstances here present the Town was without question by the specific, explicit terms of the statute -­‐ legally entitled to enact the moratorium with three (rather than four) votes.

The second cause of action alleged in the petition is that in enacting the moratorium the Town failed to comply with NYS Town Law Sec. 265, again, because the law was enacted with (only) three votes.
Very briefly, NYS Town Law 265 makes provision for ‘protest petitions’ to be filed in the context of contemplated zoning code amendments, and where such petitions have been properly filed, enactment of the code change in question generally then requires that 3/4ths of the possible votes – rather than a simple majority – be cast in favor to pass the law.

In the case of Sidney’s moratorium, a putative 265 protest petition was presented to the Town Board just before the Board voted on February 14. (There were and are a number of problems with the petition that was presented, but separate and aside from those issues, in any event) Town Law
265 applies to zoning code amendments – the Town’s moratorium was and is not that, and so (once
again) by the specific, explicit terms of the statute in question, the Town Board was in fact legally entitled to enact its law with three (rather than four) votes.

The third cause of action in the petition takes a few more words to explain, but has no more merit
than the first two.

Very, very briefly, you may recall that in the legal challenge to the City of Binghamton’s police power-­‐based, aquifer protection law, Judge Lebous invalidated the City’s protective law on the grounds that: (i) according to the Judge Binghamton’s law was a ‘moratorium’; (ii) under New York law, according to the Judge, for any moratorium – not only those dealing with gas drilling-­‐related activities – to be validly enacted, there must exist ‘imminent crisis’ and ‘dire necessity; and (iii) according to the Judge no gas drilling-­related moratorium could possibly be validly enacted in NYS, since – according to the Judge – imminent crisis/dire necessity could not exist because (y) no gas drilling of any type was or is taking place in NYS (!), and (z) the DEC was not issuing any gas drilling permits (!). The third cause of action asserted in the Sidney case is that the Sidney moratorium is invalid because it does not comply with the imminent crisis/dire necessity standards articulated in the City of Binghamton decision.

[[Helen, Joe Heath, and I filed the City of Binghamton’s appellate brief in that matter this past Monday, and shortly I will be writing an explanation of the points made in that brief, and posting a copy of the brief on line.]]

For the reasons set forth in the City of Binghamton’s appellate brief and as will be set forth in detail when the Town of Sidney’s papers are filed, the Judge in the Binghamton case erred in applying the
‘imminent crisis/dire necessity’ standard to the City’s law, and likewise that standard does not apply to Sidney’s (similar but different type of) law.

[[In point of fact, and with the possible exception of the lawyers involved in the Binghamton case, I do not know of even one lawyer who specializes in municipal law who believes that the Court in the City of Binghamton decision was correct in applying the ‘imminent crisis/dire necessity’ standard to the particular type of law there involved.]]

The final ‘cause of action’ in the Sidney suit appears to have been so much an afterthought that the lawyers didn’t even bother to include it in their petition; instead, perhaps because they only thought it up in the shower on the morning they were filing papers, they buried it a separate affidavit. The gravamen of this fourth claim is that – somehow – Sidney’s moratorium, taken together with the almost 200 other protective laws regarding gas drilling-­‐related activities that have been enacted around the state in the last several years, constitutes a violation of the Commerce Clause of the United States Constitution.

As will be addressed in more detail when Sidney’s papers are filed, there (also) is no merit to this claim, and both applicable federal (United States) statutes and on-­‐point United States Supreme Court case law support our analysis in that regard.

I hope that this brief explanation of the allegations contained in the Sidney lawsuit has been helpful. DFS

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