A summary describing the lawsuit filed on June 12, 2013 by Hinman, Howard & Kattell on behalf of landowners in the Town of Sidney, NY over a fracking/drilling moratorium enacted by the town board. HHK successfully sued the City of Binghamton, NY in 2012 over the same issue. The judge in that case tossed out the moratorium.

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Summary of Lawsuit Against Town of Sidney Gas-Drilling Moratorium
(June 12, 2013)
In legal papers filed today in Delaware County State Supreme Court, Town of Sidney landowners,
represented by lawyers from the Binghamton-based firm of Hinman, Howard & Kattell, challenged on
multiple grounds a 1-year gas drilling moratorium approved on February 14, 2013 by three members
of the five-member Town of Sidney Town Board.
According to legal papers, the landowners asked the Court to “vacate and annul Local Law No. 1” as:
 “jurisdictionally defective because the Sidney Town Board failed to perform non-discretionary
duties under… the General Municipal Law (§239-m), the Town Law (§265), and the Town of
Sidney Zoning Ordinance (§1600)”—in other words, it did not follow prescribed procedures for
legal adoption, including the legal requirement of passage by a “supermajority” vote (in this
case, by four of the five members of the town board), where, as here, the county planning
board recommended disapproval and a “protest petition” was signed by owners of more than
20 percent of town landowners;
 “substantively deficient and invalid for failing to satisfy necessary legal prerequisites for
adoption of both land use and general police power moratoria”—in other words, in passing the
moratorium law, the town failed to demonstrate the “dire necessity” and other justifications
needed (under a long line of New York court decisions, including the Oct. 2012 decision of
Judge Lebous in Jeffrey v. Ryan invalidating the City of Binghamton’s 2-year moratorium) to
limit the rights of property owners to use their own land; and

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 “unconstitutional under the Commerce Clause of the U.S. Constitution”—the Sidney
moratorium, considered as it must be in conjunction with the 111 other local moratoria and 60
local bans in New York, impedes interstate commerce in the byproducts of natural gas drilling,
while continuing to reap the energy benefits of natural gas.
This is the first time a local gas drilling moratorium or ban has been challenged under the Town Law
265 “protest petition” procedure or as being unconstitutional under the federal Commerce Clause.
The two landowners on whose behalf the Town of Sidney challenge was brought are Inge Grafe-
Kieklak, who owns more than 170 acres in Sidney, and Concetta (Connie) Martinucci, who owns
approximately 35 acres in Sidney and 17 acres in the adjoining Town of Franklin.
The lawsuit is supported by several sworn affidavits. In addition to an affidavit from petitioner /
complainant Grafe-Kieklak, there are affidavits from Everett J. Wood (a Sidney resident and
landowner, who initiated and submitted the Town Law 265 “protest petition”), and an affidavit by
Shelly Johnson-Bennett, chief planner of the Delaware County Planning Department in Delhi, NY.
There is also an affirmation of counsel by HH&K lawyer, Kenneth S. Kamlet.
The Wood affidavit summarizes and explains the “protest petition,” which bears the signatures of the
owners of 107 groups of parcels in the Town of Sidney with a collective land area of more than 8,000
acres, making up more than 26% of the land in the Town of Sidney (excluding the Village of Sidney,
which is not part of the Town moratorium).
Unlike the zoning bans in the towns of Dryden and Middlefield, recently upheld by a mid-level
appellate court on May 2, 2013, the Town of Sidney challenge does not involve a permanent gas

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drilling ban by means of a formal amendment to a town’s zoning ordinance. And the Sidney
challenge, unlike the Dryden and Middlefield cases, does not hinge on (or have anything to do with)
whether or not a local zoning ban is superseded or preempted by State law (the Oil, Gas and Solution
Mining law). The one thing the cases have in common is the county referral requirement of the
General Municipal Law (GML). However, while the Towns of Dryden and Middlefield fully complied
with GML referral requirements, the Town of Sidney, having (twice) referred proposed moratorium
laws to the Delaware County Planning Board, and having (twice) received disapproval
recommendations, proceeded to disregard the supermajority override provisions of the GML. None of
the other legal challenges in the Sidney case were before the courts in the Dryden or Middlefield
cases.
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Further details regarding the Sidney case may be obtained from the involved HH&K attorneys:
Kenneth S. Kamlet, Esq.
607-231-6914 (office)
607-343-2713 (cell)
kkamlet@hhk.com
Robert H. Wedlake, Esq.
607-723-5341 (office)
rwedlake@hhk.com