An

Explanation of the Status of the City of Binghamtons Appeal in the Jeffrey Case, Including How and Why the Lower Court Erred in its Interpretation of What the Belle Harbor Case (imminent crisis/dire necessity) Stands For, and in its Decision to apply Belle Harbor to the Protective Law Being Challenged in Jeffrey. By David F. Slottje, Senior Attorney, Community Environmental Defense Council, Inc. July 16, 2013 _____________________________________________________________ Last week, Helen, Joe Heath, and I filed in Albany the City of Binghamtons appellate brief in the matter of Jeffrey, et al. v City of Binghamton. The Jeffrey case involved a challenge by certain pro-fracking parties (collectively, the Petitioners) against a 2011 aquifer protection law enacted by Binghamton City Council (the Citys 2011 Law) that prohibited (within the City) Natural Gas Exploration and Extraction Activities, and certain related activities such as fracking waste pits and dumps, the spreading of drill cores and similar solid wastes from the fracking process, underground injection of liquid fracking wastes, and underground storage of natural gas. The Citys 2011 Law contained a sunset clause, and by its terms expired after two years. [[When one brings a lawsuit, one articulates ones 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.]] The Petitioners in Jeffrey brought three (and only three) causes of action: (1.) that the Citys 2011 Law should have been referred prior to enactment to Broome County Planning pursuant to (state) General Municipal Law 239-m, was not, and therefore should be invalidated; (2.) that the Citys 2011 Law should have been referred prior to enactment to the City of Binghamton Planning Board for review, was not, and therefore should be invalidated; and (3.) that any (otherwise existing) legal authority of the City to pass a protective law such as the Citys 2011 Law was preempted or taken away by a state law (ECL 23-0303(2)) which reserves to the State the authority to regulate the operations of the gas industry, and therefore the Citys 2011 Law should be invalidated. [[As a general matter, causes of action in a complaint or petition are evaluated by a court within one of two frameworks: (a) technical or procedural matters, or (b) upon the merits. Technical or procedural matters have nothing to do with the substance of the particular dispute(s) between the parties, and (by way of illustration) involve questions such as whether the court properly has jurisdiction over the people or the subject matter involved in the dispute, whether the claim being made was brought within the applicable statute of limitations, whether an attorney for a party filed an answer or some other court papers correctly or on time, and so on.

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 In contrast, consideration by the court of the merits of a matter does deal with the substance of the dispute(s) between the parties, and a decision upon the merits reflects the particular courts substantive view as to what law properly applies to the dispute(s) involved in the lawsuit, and which party wins or loses once that law has been applied by the court to the particulars of the dispute.]] The court in Jeffrey held against the Petitioners and in favor of the City as to all three causes of action contained in the Petitioners petition. The court found against the Petitioners as to their first two causes of action alleged failure to have referred the Citys 2011 Law to Broome County Planning and to the City of Binghamton Planning Board prior to enactment on technical or procedural grounds, specifically, that the Petitioners had failed to bring such claims within the applicable (four month) statute of limitations. The court also held against the Petitioners as to their third and final cause of action that local government authority to pass protective laws such as the Citys was preempted on the merits, specifically holding that the Citys legal authority to enact a protective law regarding gas drilling and specified drilling-related activities was not preempted by (state law) ECL 23-0303(2). But remarkably the court in Jeffrey nonetheless then proceeded to invalidate the Citys 2011 Law on a ground that the Petitioners had not even included as a cause of action in their Petition. Even more remarkably, the Court refused to allow the Citys lawyers even to brief (argue/explain) to the Court why the case law the court used to invalidate the Citys 2011 Law in fact did not apply. And even more remarkably still, the Court did this by (a) granting a summary judgment motion (more on what that is, below), on the grounds that there were no material factual matters in dispute, and (b) then (in order to invalidate the Citys Law) resolving in favor of the Petitioners again refusing to allow the Citys lawyers to brief the Citys position several material factual matters that were very much in dispute between the parties. [[In very brief summary, the Court invalidated the Citys police power-based, aquifer protection law on the grounds that: (i) according to the Court Binghamtons law was a moratorium; (ii) according to the Court 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 Court no gas drilling-related moratorium could possibly be validly enacted in NYS, because imminent crisis/dire necessity could and did not exist since, according to the Court (y) no gas drilling of any type was or is taking place in NYS (!), and (z) the DEC was not and is not issuing any permits for any type of gas drilling (!). ]] Notwithstanding the Courts ruling in Jeffrey, the Citys 2011 Law nevertheless remains in full force and effect, because the City has appealed the Jeffrey decision. The remainder of this Memorandum includes: (A) a brief explanation of certain legal concepts or terms that some readers may find helpful; Page 2 of 11

 (B) a brief description of certain facts regarding enactment by the City of its 2011 Law; (C) a brief description of some of what occurred procedurally during the course of the judicial proceeding where the Court held that the Citys 2011 Law was invalid; and (D) a brief discussion of some of the multiple reasons (more fully set forth in the Citys appellate brief) why we believe that the Court in Jeffrey committed error. [For those interested, our discussion of why the Court was wrong in applying Belle Harbor (and its imminent crisis/dire necessity language) to the Citys Law is set forth at item D.7. of this Memorandum.] (I am writing this Memorandum now for two reasons. First, a number of people have expressed confusion about just exactly what the Court said in Jeffrey I believe that this confusion stems at least in part from the fact that the articulated logic behind the Jeffrey decision is internally inconsistent in a number of respects and have asked for clarification. Second, a number of people have asked about the status of the Citys appeal of Jeffrey, because certain (non-lawyer) pro-fracking elements continue to proffer the imminent crisis/dire necessity analysis in a specious attempt to dissuade local municipal boards from enacting protective laws regarding gas drilling and gas drilling-related activities such as fracking waste pits and dumps, the spreading of drill cores and similar solid wastes from the fracking process, underground injection of liquid fracking wastes, and underground storage of natural gas. I characterize such attempts as specious because, with the possible exception of the lawyers representing the Petitioners in the Jeffrey case, I do not know of even one lawyer who specializes in municipal law who believes that the Court in Jeffrey was correct in applying the imminent crisis/dire necessity standard to the particular type of law there involved.) A. A Brief Explanation of Certain Legal Concepts or Terms. Some readers may find the following explanation of certain legal concepts and terms helpful as they read other sections of this Memorandum. Statute of Limitations A statute of limitations is a law that restricts the period of time within which particular types of legal claims may be brought. As a general matter, statutes of limitation exist for one of two reasons. First and foremost, statutes of limitations reflect recognition by the legislative branch that as the length of time increases between (i) when an alleged injury or wrong occurred and (ii) when suit is commenced alleging such injury or wrong, there is increased potential for evidence to become lost and facts to become obscure (through the passage of time, defective memory, death of or inability to locate witnesses, etc.), which in turn and as a matter of logic lessens the confidence that society can have that a particular judicial determination (relying in whole or in part on such evidence and facts) is more likely than not to be correct. The second reason that a legislature enacts a statute of limitations is to implement its judgment that, as a matter of policy, society is best served if there is an element of finality to certain matters (such as certain actions taken by local governments). Page 3 of 11

 Standing For policy (and in some cases for constitutional) reasons, persons wishing to bring suit to challenge certain governmental actions in court must have standing in order to do so. When the question of standing is raised, the person desiring to bring the suit must demonstrate that there exists a sufficient connection to and harm from the action being challenged to permit that partys participation in the case. The rules applicable to determining the existence (or not) of standing vary, and depend upon matters such as the nature of the governmental action being challenged, whether the complained-of action has in fact actually harmed the petitioner, the nature of the complained-of harm in relation to the specific governmental action sought to be challenged, and even (in the case of petitioners which are not natural persons) the type of legal entity involved and sometimes the provisions of that legal entitys internal, constituent documents. But in general, in order to demonstrate standing, a person wishing to bring suit to challenge a particular action must show that she has suffered some actual injury or injury-in-fact - as a result of the action being challenged. Summary Judgment (Most lawsuits involve resolution of a mix of factual and legal questions. An example of a factual question would be Whether the traffic signal was yellow (rather than red) when the vehicle entered the intersection where the accident occurred? An example of a legal question would be Whether otherwise existing local municipal authority to enact protective local laws of general applicability is, in the context of protective laws regarding gas drilling-related activities, preempted by the state-level Oil, Gas, and Solution Mining Law? ) A motion for summary judgment is a procedural device typically invoked only after each party has presented to the court (usually by filing legal briefs) the partys view of what facts are involved in the case and are important, and what law that party believes the court should apply to the facts involved in order to resolve the lawsuit. When a party makes a motion for summary judgment, that party (the moving party) is saying to the court, essentially, that (A) the case at bar presents no factual questions for the court to resolve, either (i) because there are no material facts in dispute, or (ii) because for purposes of the motion, the moving party is deemed to have conceded whatever version of the facts is or would be most advantageous to the non-moving partys case, and (B) the court should accept the moving partys position (typically set forth in its brief) as to what law should be applied to those facts by the court, in order to resolve the lawsuit, and (C) if the court does apply that law to those facts, the moving party is entitled to be and therefor should be declared to be the winning party in the lawsuit. Burden of Proof The concept of burden of proof refers to the duty placed upon a particular party to a lawsuit or proceeding to prove or disprove a matter related to the proceeding. By way of example, in a criminal proceeding in America, the burden of proving a defendants guilt always lies with the Page 4 of 11

prosecution (that is, the prosecution has the burden of proof), and must be established beyond reasonable doubt. In civil (that is, non-criminal) cases, most of the time the plaintiff or petitioner (that is, the person bringing the suit) has the burden of proof, and must prove his case sometimes beyond a reasonable doubt, and sometimes by a preponderance of the evidence. (A preponderance of the evidence is a much easier standard to satisfy than the beyond a reasonable doubt standard.) Separation of Powers The doctrine of separation of powers refers to the fact that under the United States Constitution and under the constitution of New York and most other states, government responsibilities are divided among three distinct branches (legislative, executive, and judicial), and that each branch is limited in function to exercising only its own responsibilities, and each branch is prohibited from exercising the core functions assigned to a different branch. (It is in reliance upon the separation of powers doctrine that we have consistently stated that What the DEC believes or for that matter, what any present or former Commissioner of the DEC happens to believe - as to Whether local municipality authority to enact protective laws regarding gas drilling activities is preempted by ECL 23-0303(2)? is a legally irrelevant question. The DEC is part of the executive branch of government, and only the judicial branch has the authority to interpret what any particular statute means.) B. A Brief Description of Certain Facts Regarding the Citys Enactment of its 2011 Law. Portions of the City of Binghamton overlay the Clinton Street Ballpark Aquifer System, which has been designated by the United States Environmental Protection Agency (EPA) as a Sole Source Aquifer. In late 2011, the Binghamton City Council (the City Council) made legislative findings that the EPA had determined that this aquifer is/was the sole or principal drinking water source for the area and that if the aquifer were contaminated then a significant hazard to public health would be created. In making its determination, the EPA had specifically concluded: contamination of the ground water resources by industrial chemicals is a problem in [. . .] Broome County. Highly permeable soils extend over the aquifer and this permits any accidental or intentional chemical discharges to percolate down, thus impacting the ground water. The geologic properties of the aquifer facilitate rapid and direct infiltration [of pollutants] into the ground water zone. [and] Heavy pumping by numerous water wells in the aquifer has created a reverse hydraulic gradient which allows river water to flow directly into the [aquifer.] The EPA also found that contamination of this precious resource would create a significant hazard to the public health and that the removal of chemicals on a large scale, [even] if possible, would be very expensive and the water quality would still be questionable. The EPA further found that there are no economically feasible alternative drinking water sources that could replace the aquifer in the event of contamination. The City Council also made legislative findings that even though natural gas exploration, extraction and support activities are subject to environmental regulation, that state of affairs did not alter the fact that such activities and the wastes they generate nonetheless present Page 5 of 11

some hazard to the City. The City Council made findings that such environmental regulations seek to limit, but cannot eliminate, pollution. The City Council further found and determined that [as a matter of law] the City is not required to defer action to protect its residents, its property, and the water resources located within the City until it is faced with a serious nuisance or health problem. Furthermore, the City Council also specifically found that [e]nvironmental regulations cannot prevent intentional illegal dumping of [gas drilling wastes], that petroleum sludge had in fact recently (in 2011) been dumped by an oil and gas worker in Pennsylvania on state-owned land, and that the EPA Report specifically noted that illegal dumping is also a possible source of further contamination to the aquifer. Finally, the City Council made a specific finding that environmental regulations could not control the spate of historic crests of (then) recent flood events, and that future flood events could release gas drilling wastes onto the land or into waters. On the basis of these and voluminous other legislative findings and determinations made by the City Council, on December 21, 2011 the City Council adopted the local law that became the subject of the Jeffrey suit. So that there could be absolutely no question as to the basis of the City Councils action in enacting the 2011 Law, the voluminous findings and determinations made by the City Council were attached as a four-page, single spaced exhibit to, and were specifically incorporated in and made a part of, the Citys 2011 Law. C. A Brief Description of Some of What Actually Occurred Procedurally During the Jeffrey Proceeding. On May 30, 2012 - more than five months after the City had enacted the Citys 2011 Law - the Petitioners commenced their lawsuit challenging the Law. As previously noted above, the Petitioners brought three (and only three) causes of action: (1.) that the City was required but failed to refer the 2011 Law to Broome County Planning pursuant to (state) General Municipal Law 239-m prior to enactment; (2.) that the City was required but failed to refer the 2011 Law to the City of Binghamton Planning Board for review prior to enactment; and (3.) that the Citys (otherwise existing) legal authority to pass a protective law such as the Citys 2011 Law was preempted or taken away by a state law (ECL 23-0303(2)) which reserves to the State the authority to regulate the operations of the gas industry. (In the view of counsel for the City, the Petition contained mere conclusory and speculative allegations of harm to the Petitioners caused by the Citys 2011 Law, as (for example) the Petition specifically spoke in terms such as seeking to preserve the option to enter into gas drilling leases should an opportunity to do so arise in the future, and expressing concerns that unless the Citys Law was invalidated the economy of the Town of Vestal and the economy in the Town of Conklin might, could or may possibly be negatively affected.) On June 15, 2012, prior to any responsive papers having been filed by the City, the Petitioners filed a notice of motion for summary judgment. On July 20, 2102, the City filed a motion to dismiss the claims of the Petitioners. The Citys motion to dismiss was on the threshold and limited grounds that the Petitioners lacked standing as to all three of their causes of action, and that the Page 6 of 11

Petitioners first two causes of action (failure to refer to Broome County Planning, and to the City of Binghamton Planning Board) were time-barred because they were not brought within the time required by the applicable statute of limitations. As it was legally entitled to do, the City in its motion to dismiss did not join issue or otherwise respond on the merits to any of the Petitioners claims; instead, the City specifically reserved its right to file a responsive pleading (that is, to join issue or brief the merits of Petitioners causes of action) should that be necessary following the Courts disposition of the Citys motion to dismiss based on threshold matters. Moreover, the City explicitly objected to the Petitioners motion for summary judgment on the specific ground that a summary judgment motion properly may be made only after issue has been joined, and that issue had not been joined in this case. The Court held a hearing on this matter on July 27, 2012. At the July 27 hearing the City argued: (i) (again) that the Petitioners motion for summary judgment was premature since the City (for the reasons described in the preceding paragraphs and as it was legally entitled to do) had not joined issue or briefed its position on the merits of the three causes of action alleged in the Petition, (ii) that (as to all three causes of action) the Petition should be dismissed because each of the Petitioners lacked of standing, and (iii) that the first two causes of action should be dismissed as time-barred, because they were brought outside of the applicable (four month) statute of limitations. At the July 27 hearing the Petitioners made arguments on the merits of their claims, as well as on a fourth assertion that had not been presented as a cause of action in the Petition, namely that the Citys 2011 Law was invalid because it was a moratorium and failed to comply with the requirements of imminent crisis/dire necessity that (according to counsel for the Petitioners) applied to moratoria. The case that (according to counsel for the Petitioners) supposedly supported application of the imminent crisis/dire necessity standard to the Citys Law is a decision called Belle Harbor v Kerr (Belle Harbor); the Court denied the City an opportunity to brief or explain to the Court why counsel for the Petitioners was incorrect in the assertion that Belle Harbor applied, or for that matter, why Belle Harbor in fact did not even stand for what counsel for the Petitioners told the Court that it stood for. In a decision dated October 2, 2012, the Court granted the Citys motion to dismiss as to Petitioners first two causes of action, finding that a four month statute of limitations applied, and that the Petitioners had filed their petition more than five months after the Citys 2011 Law had been enacted. The Court also rejected the Petitioners third cause of action even though (for the reasons described in the preceding paragraphs) the City had not even briefed or addressed the matter on the merits specifically holding that the Citys Law was not preempted by ECL 23-0303(2). Nonetheless, as noted above, the Court then proceeded to grant Petitioners motion for summary judgment and held that the Citys Law was invalid, on the basis of an assertion that had not even been presented as a cause of action in the Petition (that is, failure to satisfy the supposedly applicable Belle Harbor imminent crisis/dire necessity standard). Page 7 of 11

 To reach such a decision, the Court: (x) ignored black letter law that it is and was the Petitioners who properly had the burden of proof to prove that the Citys Law was invalid, (y) instead assigned to the City the burden of proof to prove that the Law was not invalid, and (z) then made a finding that the City had failed to carry (the improperly shifted) burden. Also to reach such a decision, the Court apparently concluded that the City somehow was not entitled in the circumstances to have an opportunity to brief why counsel for the Petitioners was incorrect in the assertion that Belle Harbor applied, or for that matter, why Belle Harbor in fact did not even stand for what counsel for the Petitioners told the Court that Belle Harbor stood for. (In holding as described above that the City had failed to carry the burden of proof (improperly) shifted to the City, the Court apparently saw no irony in the fact that this failure was a direct result of the fact that the Court had denied the City an opportunity to brief the merits of this dispute.) (In deciding that it was appropriate to grant Petitioners motion for summary judgment, as a matter of law the Court was required to have found that no issues of material fact were in dispute or, if any material facts were in dispute, then the Court was required to construe the disputed facts in whatever light was most favorable to the City. Instead, the Court inappropriately resolved disputed facts against the Citys position, and then incorrectly applied Belle Harbor to those disputed facts.) Also as previously noted, notwithstanding the Courts ruling in Jeffrey, the Citys 2011 Law nonetheless remains in full force and effect, because the City has appealed the Jeffrey decision. D. A Brief Discussion of Some of the Multiple Reasons Why the City Believes that the Court in Jeffrey Committed Error. In the matter before this Court, Respondents [the City] have failed to provide any evidentiary proof that would provide a justification, based upon the health and safety of the community, for the banning of gas exploration, storage, and extraction. (the Court in Jeffrey.) As more fully set forth in the appellate brief filed on behalf of the City, it is the Citys contention and belief that the Court in Jeffrey committed multiple errors of law in the course of arriving at its decision. A summary of (only) some of the ways the Court committed error follows. 1. Because of the separation of powers doctrine and for other reasons, the Court in Jeffrey was required to start from a presumption that the Citys 2011 Law was valid and to narrowly limit the scope of the Courts review; the Court did not, and accordingly the Court committed error. 2. It is black letter law that in the context of challenges such as made by the Petitioners in Page 8 of 11

Jeffrey, the burden of proof properly is on the party(ies) attacking the legislative act in question to overcome the presumption of validity beyond a reasonable doubt. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function. The Court in Jeffrey impermissibly shifted the burden of proof to the City, and accordingly the Court committed error. 3. The Court in Jeffrey was required to start from a presumption that the legislative body (here, the City Council) had investigated and found the existence of a situation showing or indicating the need for or desirability of the ordinance in question, and, if any state of facts known or to be assumed justifies the disputed measure, th[e] courts power of inquiry ends. The Court in Jeffrey did not accord the requisite presumption of validity to the Citys 2011 Law, and accordingly the Court committed error. 4. It is black letter law that in the context of challenges such as made by the Petitioners in Jeffrey, the scope of the courts review does not properly include or extend to questions of the necessity, wisdom, reasons, motives, or expediency of the legislative act. It is not within the power of the judiciary to say . . . that there was no necessity for the legislation. That would be direct attack by one department of the government on the powers and functions of another, and a usurpation of authority subversive of the principles of the constitution. It is not the proper role of courts to sit as a super-legislature to weigh the wisdom of legislation. It would not matter whether the courts thought the legislation was unwise, or that its purpose could better be achieved in another way, or that the method chosen was ineffective. So long as it has a rational basis, the choice of the particular course to be taken was for the Legislature. The Court in Jeffrey improperly second-guessed the legislature (the City Council); it had no lawful authority to do so, and accordingly the Court committed error. 5. The separation of powers-based barrier to a court engaging in second-guessing of the legislature extends to legislative determinations of when to act, as well. The law is clear that municipalities do not need to wait until a disaster occurs before curing a dangerous condition. The fact that no injury has occurred in the particular case is not determinative as to the validity of the law. A municipality is not required to defer enactment until it is faced with a serious nuisance or health problem. It is not a limitation on the right to adopt police power measures that the danger is vigorously denied by some, and Speculation on the political motivation of the Legislature as a judicial construct . . . would be a slippery and dangerous slope. . . a court cannot [properly] inquire into the motives by which [the] law was produced. Courts are limited to finding the legislations purpose in its language rather than in the ideas expressed in debate by the introducer of the bill. The Court in Jeffrey improperly second-guessed the legislature (the City Council); it had no lawful authority to do so, and accordingly the Court committed error. 6. As is the case with respect to almost any situation where judicial relief is sought, the threshold question in the context of a request for substantive judicial review of a legislative enactment is a determination as to whether and a finding that the plaintiff/petitioner has alleged an actual, justiciable controversy in which he or it has a demonstrated direct and personal stake. Only then is it appropriate for the reviewing court to move on to a review of the Page 9 of 11

substance of a legislative enactment. The courts do not make mere hypothetical adjudications, [] where the existence of a controversy is dependent upon the happening of future events. (The Petitioners in Jeffrey expressly stated in their papers that no gas drilling permits currently exist in the City and no gas drilling permits can be issued in the City for high-volume horizontal hydrofracturing until the State has: issued a final Supplemental Generic Environmental Impact Statement (SGEIS); issued final drilling regulations; and terminated the drilling moratorium that has been in effect statewide for the past four years.) Plaintiffs speculation about the future course the [SGEIS and related regulations] might take cannot, under [NYS Court of Appeals] precedents, supply the missing ingredient of in-fact injury. Where the harm sought to be enjoined is contingent upon events which may not come to pass, the claim to enjoin the purported hazard is nonjusticiable as wholly speculative and abstract. Mere perfunctory allegations of harm are insufficient to support a finding of standing, and each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof. Nothing in any of the Petitioners papers properly supports a finding that any of the Petitioners carried his or its burden of proving that he or it suffered an injury-in-fact or otherwise possessed the requisite standing to maintain this action; accordingly, in finding that at least one of the Petitioners did have standing, the Court committed error. 7. A petitioner who challenges land regulations [as a regulatory taking] must sustain a heavy burden of proof, demonstrating that under no permissible use would the parcel as a whole be capable of producing a reasonable return or be adaptable to other suitable private use. Only where the evidence shows that the [entire] economic value, or all but a bare residue of the value, of the parcel has been destroyed has a [regulatory] taking been established. Accordingly, it is true that when a legislative enactment permanently prevents all beneficial use of a property, the enactment in question properly can be said to be a regulatory taking. But a different rule exists where an enactment only temporarily (rather than permanently) restricts all beneficial use of the property. Despite counsel to the Petitioners assurances to the Court as to what the Belle Harbor case stands for and where it applies, Belle Harbor in fact does not mean what counsel to the Petitioners said it means, and in any event properly has no application to the Citys 2011 Law. Belle Harbor, correctly read, provides an exception to the general rule that a deprivation of all beneficial use of the property in question is a regulatory taking. The correct reading of Belle Harbor is that a legislative enactment that results in a deprivation of all beneficial use of a property is not a regulatory taking, so long as the deprivation is only temporary (such as would be the case with a moratorium or other type of time-limited law) rather than permanent, and so long as Belle Harbors imminent crisis/dire necessity standard is met. Thus not only does Belle Harbor not stand for what the Court in Jeffrey said it stands for, Belle Harbor in any event does not properly apply to the Citys 2011 Law at all, because the Citys Law restricts the use of only a very narrow universe of activities (most and perhaps all of which were not allowed by the Citys zoning even separate and aside from enactment of the City 2011 Law) and so in any event does not constitute a deprivation of all beneficial use of the property in question. Page 10 of 11

 The Court in Jeffrey erred in its interpretation of what Belle Harbor stands for, and erred in applying Belle Harbor to invalidate the Citys 2011 Law. 8. The Court in Jeffrey granted summary judgment against the City prior to joinder of issue. The Record here conclusively demonstrates that the City did not brief any arguments on the merits of the Petitioners causes of action, and intentionally and purposely (in the interests of judicial economy) limited the arguments in its motion to dismiss to the threshold matters of whether the Petitioners had standing and whether the Petitioners first two causes of action were barred by the statute of limitations No exception applied to the general rule that summary judgment lies only after joinder of issue. The Court should not have granted summary judgment to the Petitioners prior to joinder of issue, and to make matters worse the Court granted summary judgment on the basis of a claim that was not even articulated as a cause of action in the Petition. The requirement [] that issue be joined before a motion for summary judgment is made is intended to show the court precisely what the parties' positions are. To that end, it is a general rule that summary judgment will not be granted based on a cause of action or defense that has not been pleaded. The Court committed error by granting summary judgment in the case at hand. ___________________________________________ The next step in resolution of this case will be for the Petitioners to file papers (mostly likely a brief) in response to the appellate brief filed last week on behalf of the City. After Petitioners responsive papers are filed, the City will then have an opportunity to respond to the Petitioners responsive papers. After those papers are filed on behalf of the City, the appellate court will be in a position to schedule oral argument on this matter. dfs

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