Slottje “No Brainer” Moratorium Strategy Goes Brain Dead
Attorney David Slottje, from the Park Foundation funded Community Environmental Defense Council, can call it whatever he wants – a duck, a goose, a chicken or even a moratorium – but no matter how he spins it, and he’s doing plenty of that, the Broome County Supreme Court wasn’t buying what he sold Binghamton. The court threw out the foundation for every moratorium enacted in the last several months on Slottje’s advice and left the CEDC strategy in tatters.
We are writing this post jointly for a reason. Tom has written numerous land use laws for communities all over New York State over the years and has been our analyst in regard to several of the local and court decisions on bans and moratoriums throughout the state. You can read some of his takes on the matter and what he calls Potemkin laws here, here and here.
Rachael has been following David Slottje around New York like a hound on the scent of a treed raccoon that’s been raiding the poultry shed. She’s spent more hours than anyone listening to Slottje pontificate on land use law he wasn’t even qualified to practice in New York until 2010. She has covered numerous meetings, posted hours of video and recorded Slottje’s multiple promises to his municipal hosts.
Slottje assured those hosts he was the best around at crafting such laws. He told them enacting a moratorium before the state adopted natural gas regulations was the smart strategy – a “no brainer thing.” Judge Lebous appears to have thought it was brain dead. His decision effectively renders every moratorium Slottje recommended, and others like them, irrelevant while New York State is still developing its regulations.
A Tree Falls in Binghamton
Readers of this blog will readily recall one of our first experiences with David Slottje when we documented his attempt to dissuade a local businessman in the Town of Lumberland, Sullivan County, from challenging his imparted wisdom. He issued a “lawyer up, big guy” threat that evidenced the rather high opinion he had of himself and the low opinion he had of anyone who might suppose something different. We wrote about it in “A Tree Falls in Lumberland” and, for the most part, let the facts and Slottje’s vanity speak for themselves, reflecting on this truism.
The truest characters of ignorance are vanity and pride and arrogance.
So, here we are again. Another tree has fallen, this time in the City of Binghamton. The story starts outside the city walls, in the Town of Oxford, Chenango County, where, in August of this year, Slottje was speaking at a public meeting about his skills as a crafter of local laws. You can read about it here and see the full video here, but we have pulled out the Great Davidski’s self-description so you can focus on the import of his words (which we have repeated in the video so you don’t have to replay it to hear them again).
Should you have missed exactly what Slottje said in August, here it is in writing:
What I said to the board before is if you’d like us to represent you in litigation as opposed to the drafting, and nobody here has met anybody who can draft as well as we can, but, if it is litigation, we said we would do it.
He took things a bit further in the Town of North Norwich. Watch this video, which also includes replays of the critical words.
Once again, if you missed what he said, here it is:
It is a lot easier to win the lawsuit if you pass the law, it’s a no brainer I think, to win a lawsuit if you pass a protective law before hand [before the DEC issues permits].
He amplified this with his subsequent remarks at Oxford where he said (at 25:05 in this video) the following:
Waiting to pass a protective law until after the DEC begins issuing permits does two things. First of all it deprives a village of the only protection for local control… More importantly, this is my most important slide here in this presentation. Waiting is not the financially prudent thing to do. We believe that waiting to pass a protective law until after permits issue… actually exposes the villages taxpayers to hundreds of thousands or even millions of dollars in liability.
What Slottje was attempting to do in these two communities, and has been doing elsewhere, is to stampede them into enacting bans and/or moratoriums prior to New York State issuing permits so as to ensure against successful takings claims later should the state do so. It was a cynical strategy and Slottje told everyone it was a “no brainer” insofar as protecting the towns from liability for takings. What he didn’t tell them was this was a blatant misuse of moratorium authority and Judge Lebous just called him on it.
What Slottje achieved with this strategy, crafted by the best there is he tells us, was to expose the false idea that a moratorium can be enacted on political impulse. Judge Lebous laid that out in his decision and left no doubt as to what he thought of Slottje’s maneuvers, his crafting of law or the trouble he created for the City of Binghamton.
The judge noted the purpose of the law enacted was to ban natural gas development in the city for two years and effectively impose an moratorium without calling it one. What possible purpose would such a temporary law have if not to be replaced by other regulations later? The judge couldn’t find one, especially when the city took the position there were no regulations related to gas exploration and extraction that would be capable of protecting health and safety, which is what the city said it found. The temporary law was, in other words, a moratorium without a purpose.
Clearly, the city could have enacted an actual moratorium, but that would have meant it had to; (a) demonstrate dire necessity, (b) show an intention to alleviate or prevent a crisis, and (c) take steps to rectify the supposed problem. Here is how the judge laid it out:
For the enactment of the moratorium to be upheld, the municipality must show that it’s actions were:
1. in response to a dire necessity;
2. reasonably calculated to alleviate or prevent a crisis condition; and
3. that the municipality is presently taking steps to rectify the problem.
(See, Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512, (1974) “… a municipality may not invoke its police powers solely as a pretext to assuage strident community opposition [it must meet the three requirements set forth above] … When the general police power is invoked under such circumstances it must be considered an emergency measure and is circumscribed by the exigencies of that emergency,” see also, Charles v. Diamond, 41 N.Y.2d318 (1977); and Land Use Moratoria, pg. 3 ).
The city council had no evidence of necessity to offer because the state isn’t yet issuing permits for the activity. Judge Lebous stated:
There can be no showing of dire need since the New York State Department of Environmental Conservation has not yet published the new regulations that are required before any natural gas exploration or drilling can occur in this state. Since there are no regulations, no permits are being granted. Second, since the DEC is not yet issuing permits, there is also no crisis nor a crisis condition that could possibly be shown by the City at this time.
This completely undermines the theory, repeatedly advanced by Slottje and others at multiple town meetings to the effect municipalities need to get ahead of state regulations and enact moratoriums immediately or lose their leverage. Judge Lebous just threw that advice where it belonged – into the trash bin of local law history.
Slottje got it precisely backwards and communities who bought into that bad free advice had better revisit the issue and seriously consider whether they want to continue with a law based on a justification the court has just ruled to be unfounded.
Like any magician, Slottje had an explanation, offered in a laughable news release. He argues he somehow more or less won and, of course, some of his blind mice followers have accepted this theory, but it is said having to declare victory in a discussion means you probably lost. That disease appears to have severely affected the former dollar store attorney. His arrogant assertion at a town meeting just weeks ago that “nobody here has met anybody who can draft as well as we can” came back and hit him in the head like a skillfully thrown boomerang with the decision of Judge Ferris Lebous to throw out what he crafted and, specifically, because of the way he crafted it.
Notwithstanding the fact the judge all but accused him of subterfuge (more on that in a moment), Slottje now claims what was little more than a comment on other judges’ decisions somehow produced a victory. A reader of the decision will likely come away with a much different opinion. The Judge’s remarks are what is legally referred to as “dicta” and do not play into the way the decision was decided. The Judge’s decision can not and will not be legally cited by knowledgable lawyers as a legal precedence for the home rule proposition. Judge Lebous “followed” the Dryden and Middlefield decisions but the fact he did will have no effect whatsoever on an Appellate Division consideration of the Dryden/Middlefield appeal. Slottje knows this.
Duck, Duck. …GOOSE!
We all played that game as a child at least once where everyone sits in a circle as one person pats you on the head declaring you’re a duck, while you wait on pins and needles to find out who the goose will be. You could be a duck 15 times before becoming the goose and as fun as it can be to give chase, no one really wants to be the goose. At least not to win the game. Unfortunately for the City of Binghamton, they just got to be a goose in David Slottje’s tiring game of chance he’s been taking with New York municipalities.
We have followed the Slottjes and their cookie cutter moratorium presentations for months. It’s always the same thing with subtle changes as we and others have questioned their actions and held them accountable for what they’ve been selling across New York, predominantly in regions outside of the developable Marcellus Shale play. It was the same in Oxford, North Norwich, Newfield, Butternuts, Pittsfield, Milford, Sidney, Morris, Binghamton, Caroline, Bethel, Vestal, Bath, and Lumberland just to name a few.
Yes, it’s always the same – a promise the moratorium or ban will hold up in court, followed by an apology because they’re not litigation lawyers and can’t defend their work, and ending with a healthy dose of fear mongering. Well, it was like that everywhere but in the City of Binghamton where David Slottje decided he’d try his hand at defending what he and Mayor Matt Ryan felt was a sure fire win after attempting a backdoor approach to avoid Broome County’s scrutiny of his law, against the advice of the city’s attorney. Here’s Judge Lebous again:
On December 5, 20 II 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.
The Broome County Supreme Court tapped the City of Binghamton as the Slottjes’ proverbial goose when their police power law – ahem, moratorium – was challenged and overturned. The City of Binghamton illegally passed a moratorium (or not a moratorium according to Slottje) on natural gas development. Here is the bottom line from Judge Lebous:
“…Local Law 11-006, fails to meet the criteria for a properly enacted moratorium.”
How badly was Binghamton used? Well, at that recent meeting in North Norwich, Slottje was asked about the Binghamton lawsuit and told the audience he was proudly representing the City and was supported in full by Mayor Matt Ryan. Keep in mind this is the first, and only, time he has defended his own moratorium in court. Slottje always makes a point of stating he’s a transactional lawyer, not a litigating attorney.
“The mayor there [in Binghamton] is a lawyer, a very experienced lawyer, they have in house council who is extremely experienced and he has determined that we are good enough [to litigate].”
Well, David, maybe not so much…
Where Slottje ran into trouble, and demonstrated he wasn’t perhaps good enough, was when, speaking of his specially crafted moratoriums, he repeatedly told Binghamton and other municipal leaders, “If it quacks like a duck and walks like a duck, it’s a duck.” Slottje attempted, in Binghamton’s case, to pass the moratorium off as a police power right in order to avoid the necessary steps taken to enact an actual moratorium. He tried convincing the court a duck was a chicken but it was Binghamton that got goosed.
Slottje tries to pass that off as something unique to Binghamton as the only community where he used aquifer protective law as his moratorium (or not a moratorium, depending on whether you believe him or the judge). But, that is a red herring if there ever was one because, as the judge told, not just Binghamton, but every community with a moratorium of any sort, there are standards and those standards cannot be met when the state is not even in a position to offer permits.
Now, back to the ducks and geese. Slottje made his duck comment while telling the City of Binghamton Local Law 11-006 could be considered a moratorium, but wasn’t really one. The judge didn’t think it was funny when Slottje referred to the local law as an exercise of police power and not a moratorium in an attempt to circumvent the law. The court decided it was a moratorium, decided if it looks like a moratorium, smells, walks and talks like a moratorium, you can call it whatever you please, but it is still a moratorium. Read what the judge wrote for yourself (emphasis added):
(See, “Transcript of City Council Work Session November 21, 2011 Part 3” which is part of Exhibit “0” 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.” (Page 5)
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 .. .”
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. 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.
Sounds like a moratorium to us, but hey, we’re not lawyers (another thing we have heard Slottje say dozens of times to others). Judge Lebous obviously thought it sounded like one too. And, could he have made his displeasure with Slottje’s crafting ability any clearer? We don’t think so.
Who Will Get Goosed Next?
Okay, so now we have seen a judge figure out the real issue with the moratoriums we have been raising questions about from day one. These towns aren’t enacting them so they can study more. They are enacting them to ban something temporarily in hopes the world will change for them before they have to do anything meaningful. It’s a show and the curtain has now gone down.
Let’s consider what other towns may be in trouble with these moratoriums. Slottje himself has stated over 100 towns or villages have passed the moratorium his CEDC has sold. Are all these towns in the same sinking ship alongside their moratorium plastic ducky? Well, yes. According to this judge’s decision the three criteria for enacting a moratorium have not been met. They also haven’t been met in other moratoriums. Let’s look at some more closely.
- Butternuts: Here is the draft of Butternuts’ moratorium. The main argument against Binghamton was their moratorium was not sent to the county for review. In Butternuts, the moratorium was sent to the county. The county said they needed to make modifications. Some modifications were made but the revised document was not sent back to the county. This moratorium has the same flaws as Binghamton’s and all the others in that it precedes state permitting. There is no legal basis for it.
- Sidney: Sidney’s moratorium was changed virtually overnight to read however the county would approve it. Helen Holden (Slottje) showed up with a new draft in hand after she realized the county wasn’t going to accept their first version. The town never enacted it, fortunately, and can be very happy they didn’t.
- Others: Well, it’s just more of the same. Dozens upon dozens of moratoriums enacted with no foundation in the law as articulated by Judge Lebous.
The moral of this unfortunate episode in local law history is this: standards exist for a reason. The law is intended to protect the rights of both individuals and land owners from appropriation by those who happen to be in the majority in a given place at a given time. It is not there to be manipulated by those who would use it to impose the political will of the moment. Judge Lebous struck a blow for constitutional rights of due process when he shot down that flying duck (or was it a goose?) and turned Slottje’s words back on the great crafter himself. He also felled another tree in the forest of lies about what home rule is and isn’t.