Jeffrey v. Ryan

37 Misc.3d 1204

961 N.Y.S.2d 358

2012 N.Y. Slip Op. 51881

Elvin JEFFREY, Vestal Gas Coalition, Arena Hotel Corporation, Nelson Holdings Ltd., and Binghamton–Conklin Gas Coalition Steering Committee, Petitioners,

v.Matthew T. RYAN, in his official Capacity as Mayor, City of Binghamton, and The City Council, City of Binghamton, Respondents.

No. CA2012–001254.

Supreme Court, Broome County, New York.

Oct. 2, 2012.

Hinman, Howard & Kattell, LLP by Robert H. Wedlake, Esq. and Kenneth S. Kamlet, Esq., of Counsel Binghamton, for Petitioners.

Community Environmental Defense Council, Inc. by David F. Slottje, Esq. and Helen H. Slottje, Esq., of Counsel, Ithaca, Joseph J. Heath, Esq., Syracuse, for Respondents.

FERRIS D. LEBOUS, J.

Procedural Background

Petitioners filed this combined Article 78 and Declaratory Judgment (CPLR § 3001) action seeking to invalidate Chapter 250 of the City of Binghamton Code of Ordinances, entitled “Prohibition of Gas and Petroleum Exploration and Extraction Activities, Underground Storage of Natural Gas, and Disposal of Natural Gas or Petroleum Extraction, Exploration, and Production Wastes,” which was adopted as Local Law 11–006 on December 21, 2011 by the Binghamton City Council and signed by Mayor Ryan on December 22, 2011. On June 19, 2012, Petitioners moved for summary judgment. Petitioners argue that this local law is a zoning law that was required to be referred to the Broome County Planning Board prior to enactment, that it is superseded by Environmental Conservation Law § 23–0303, or alternatively, that it is a moratorium and that the requirements for a moratorium have not been met and thus the law is invalid.

Respondents have opposed Petitioners' motion for summary judgment, and have cross-moved to dismiss the petition. Respondents claim that the law was enacted pursuant to their police powers, and not as a zoning law. Respondents maintain that because it was enacted pursuant to the City's police powers, GML § 239–m is not applicable, and the City was not required to refer the local law to the Planning Board prior to enactment; that Local Law 11–006 is not a moratorium; and that it is not superseded by ECL § 23–0303. Respondents also make procedural arguments that the summary judgment motion was premature as they have not had an opportunity to file an answer to the petition. Respondents have also cross-moved to dismiss the petition on the grounds that the Petitioners do not have standing, and that the statute of limitations has expired.

Discussion

The basic facts of this case are not contested, rather it is the legal conclusions to be drawn from the facts that are contested.

According to the Petition, Petitioner Elvin Jeffrey, a property owner in the City of Binghamton, “wished to preserve the opportunity to lease some or all of his land for natural gas exploration and extraction” and opposed Local Law 11–006. (See, Petition, paragraph 1).

Petitioner Vestal Gas Coalition is an unincorporated group of landowners from Vestal, a town adjoining the City of Binghamton. Their goal is to foster natural gas exploration. They claim that Local Law 11–006 adversely affects their ability to obtain a natural gas lease for their members. (See, Petitioner, paragraph 2).

Petitioner Arena Hotel Corporation owns the Holiday Inn Binghamton. This Petitioner claims that the passage of Local Law 11–006 will have a detrimental effect on their business as they have had a significant amount of business as a result of the natural gas exploration and extraction activities that are occurring in neighboring Pennsylvania. (See, Petition, paragraph 3).

Petitioner Nelson Holdings Ltd. owns an 11 acre parcel in the City of Binghamton which is zoned I–3 Heavy Industrial pursuant to the City of Binghamton zoning regulations. (See, Petition, paragraph 4). The Nelson Petitioners have argued that due to this property being zoned heavy industrial, gas extraction, exploration, and storage would be a permitted use by special permit assuming DEC's issuance of regulations permitting gas exploration and extraction in New York State. While the zoning law provisions for “heavy industrial” do not by definition permit property owners to automatically engage in gas exploration, drilling or storage, Petitioner Nelson would be able to apply to the zoning board of appeals for a special permit authorizing such use on this property.

All of the Petitioners opposed this local law.

To determine the exact nature of this local law it is necessary to review its enactment by the City Council. At a Work Session of the Binghamton City Council held on November 21, 2011, David F. Slottje, Esq., counsel for Respondents, made a presentation to the City Council requesting that they pass a law, drafted by Attorney Slottje, banning activities associated with the drilling for natural gas, and gas exploration. (See, “Transcript of City Council Work Session November 21, 2011 Part 3” which is part of Exhibit “O” to the Memorandum of Law in Support of Petitioner's Verified Article 78 Petition, dated May 30, 2012). In this transcript Mr. Slottje explains to the City Council why he believes a law banning gas drilling and exploration would survive a legal challenge. On page 5 of that transcript Mr. Slottje stated,

It's [the local law being proposed] a moratorium in the sense of having a finite period. It's like a sunset clause. 24 months. It is not literally a moratorium because this is not literally a zoning ordinance. This is a police power ordinance. But it quacks like a duck and walks like a duck. So, you can absolutely think of it in terms of being a moratorium.

On December 5, 2011 the City Council held another work session where the proposed law banning gas drilling and exploration was discussed. Mr. Slottje addressed the council, as did Mr. Kenneth Frank, Esq., Corporation Counsel for the City of Binghamton. Mr. Frank stated his concerns with regard to the local law, and advised the City Council that the time limit in the proposed local law made it a moratorium. In Mr. Frank's opinion the Council was not seeking to stop gas drilling and exploration so that the Council could investigate the impacts of it on the community, or so that DEC could issue regulations and the City review them to determine the impact on the community, and therefore it would not be appropriate for the Council to enact a moratorium. Mr. Frank was adamant that the Council should pass a law not a moratorium.

Despite Respondents' protestations to this Court to the contrary, it is quite clear that even they thought this would be a moratorium. At the December 5, 2011 Working Session of the Binghamton City Council Mr. Slottje stated,

This is for a two-year period, if you decide to pass this, there will be a de facto moratorium within the City on essentially gas drilling, both extraction activities, disposal of waste activities, and so on ... It's a temporary two-year law ... (See, Memorandum of Law in Support of Petitioner's Verified Article 78 Petition, dated May 30, 2012, Exhibit “P,” “Transcript of December 5, 2011 City Council Worksession” page 1).

At this same meeting Helen H. Slottje, Esq. stated about the proposed law, “... the idea here is to give the City some time to figure out exactly what it wants to do about this industry. But in the meantime, put a halt on it ...” Id.

Mr. Slottje also stated that the two year limitation in the law was so it would be, politically, more acceptable and easier for the members of the Council to pass. Id. at page 6. In fact this transcript shows that there may not have been support on the Council for a ban on gas drilling and exploration without a time limit placed on the duration of the ban. Id.

The law passed with the provision that it expires within 24 months after enactment (on December 31, 2013) unless sooner repealed.

AnalysisProcedural Issue

Respondents argue that Petitioners' motion for summary judgment is premature, as they have not had an opportunity to file an answer to the petition, and that pursuant to CPLR § 3212(a) a motion for summary judgment can only be made after issue has been joined.

However, under certain circumstances it is appropriate for the court to grant a motion for summary judgment prior to Respondents formally answering the petition ( Matter of Thomas Giorgio v. Bucci, 246 A.D.2d 711, 713 (3rd Dept., 1998), lv to appeal denied91 N.Y.2d 814 (1998) held that in an Article 78 proceeding where the parties had apprised the court of all relevant arguments there was no requirement that the court grant leave to serve an answer). In Matter of Davila v. New York City Housing Authority, 190 A.D.2d 511, 512 (1st Dept.1993), lv. to appeal denied87 N.Y.2d 801 (1995) the court stated the following:

As for respondents' contention that the trial court improperly ruled on the merits of the petition without allowing respondents to serve an answer, respondents clearly informed the trial court of their relevant arguments to dismiss the petition. Thus, it was not necessary under CPLR 7804(f) to grant respondents leave to serve an answer to the petition following denial of the motion to dismiss. (citations and quotations omitted).

Here, Petitioners moved for summary judgment, and Respondents have moved to dismiss the petition. Both Petitioners and Respondents have fully briefed and argued their positions on the issues in this case. The facts of this case are straightforward, and not at issue. The questions presented are all legal in nature. Since the parties have had a full opportunity to present their arguments there is no need to delay this case to permit Respondents to file an answer.

Standing

To have standing to sue, a party must show that it will or has suffered actual harm as a result of the enactment of the law in question. The harm must be real, it cannot be remote or speculative, and in land use cases, the petitioner's harm must be different than the harm to the general public. (See, Matter of Brunswick Smart...