Last December, at the eleventh hour shortly before Binghamton Mayor Matt Ryan knew he would lose his all-Democrat city council and hence an opportunity to stick it to the drilling industry, Ryan forced through a vote on a measure to ban fracking within the city limits for a period of two years (see this MDN story). There’s just one problem with the ban as enacted—it isn’t legal, at least according to attorneys Robert Wedlake and Kenneth Kamlet, who have sent a letter to the city demanding they either follow the law or they’re going to court.
In the four-page letter, attorneys Robert Wedlake and Kenneth Kamlet say the law is "jurisdictionally defective" because it was enacted without a legally required referral to the Broome County Department of Planning.
State law requires that municipalities must send a referral to the county for any action affecting local zoning or land use that may have an impact within 500 feet of the municipal boundary, the letter states.
"It is indisputable that Binghamton’s gas drilling ban will adversely impact businesses both inside and outside the city that have sales that result from gas exploration throughout the region, including Broome County," the letter adds.
Kamlet said in an interview that the challenge to the city’s moratorium will serve as a test case, and could be applied elsewhere in the state.
"There has to be a first, and we decided to pursue it in Broome County," he said. "I’m not aware that anyone has taken a similar initiate in any other location."
If the city’s law is referred to the county, the county can approve it, disapprove it or take no action, Kamlet said.
If the county disapproves of the law, the city must rescind the law or override the county’s decision with a supermajority of five of Binghamton City Council’s seven votes.
"All we’re saying at this point is they have a mandate to adhere to general municipal law under this requirement of referring actions of this kind … to county planning for review, so that broader implications can be assessed," Kamlet said.*
Here was Mayor Ryan’s rather lame reply:
Binghamton Mayor Matthew T. Ryan said on Friday he disagrees.
The city didn’t have to refer the law to the county, he said, because the legal requirements cited by Wedlake and Kamlet only apply to zoning and land-use laws.
The city’s moratorium is written as an aquifer protection action, not a local land-use law.
"Because we didn’t feel we had the time, we developed a strategy we feel did not have to be referred to the county," Ryan said. "That’s what our answer will be about, and we’ll see what they think."*
Translation: We didn’t have time to do it the right way, so we fudged and we’re hoping we can slide it past a judge somewhere. And now the taxpayers of Binghamton will pay for Ryan and his fellow Democrats’ folly and legal sloppiness.
*Ithaca Journal (Apr 21, 2012) – Binghamton’s ban on drilling faces legal challenge