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Allentown City Council asked to challenge election board on clean air ordinance

By Randy Kraft, WFMZ.com Reporter, RKraft@wfmz.com
Published On: Sep 05 2013 05:25:56 AM CDT
Updated On: Sep 05 2013 11:11:26 AM CDT
Allentown City Council

Allentown City Council

ALLENTOWN, Pa. -

Allentown City Council was called upon to stand up and challenge Lehigh County’s election board Wednesday night.

On Aug. 27, the three-member election board unanimously rejected putting a proposed clean air ordinance on the November ballot so Allentown voters could determine its fate.

If passed by voters in November, that ordinance would have imposed tough regulations on the Delta Thermo waste-to-energy plant planned next to the city’s wastewater treatment plant along the Lehigh River.

The county election board has usurped the city’s authority, maintained Al Wurth of Bethlehem, a political science professor at Lehigh University.

Wurth advised council: “You need to push back here, to represent the integrity of the city, certainly to represent the rights of your citizens and especially to represent the poor and working class folks in Allentown who are going to breathe what comes out of this incinerator.”

Wurth said the three election board members were not elected and do not live, vote or pay taxes in Allentown. Yet they decided “the autonomy of the City of Allentown is something they can throw out the window. Who are these people and how do they get to decide what you can and cannot do in your own city? This is really an issue about democracy.”

Twice this year the county election board has rejected ballot initiatives by Allentown residents to have the city’s voters decide the fate of proposed new laws.

If City Council does nothing, said Wurth, the city is accepting a bad precedent.
“If you go away with your tails between your legs, you are not representing the citizens,” he charged.

“I’m here to ask for council’s help,” said city resident Rich Fegley, representing Allentown Residents for Clean Air, which led the clean air ordinance petition drive.

“Twenty-one-hundred-plus citizens wanted to see this on the ballot and the Lehigh County Board of Elections stopped it from being on the ballot.”

Fegley also maintained the election board exceeded its authority and had no right to stop the ordinance from going on the ballot.

He said Allentown Residents for Clean Air intends to hire a lawyer to legally appeal the election board’s decision. He asked if City Council can make any recommendation “on how we can proceed.” He also asked council to go to the election board to find out why the initiative was stopped.

“I don’t necessarily have an answer for you tonight, but it’s something that we could and should look into,” said council vice president Ray O’Connell.

Despite O’Connell’s pledge, Fegley interpreted the silence from the other four council members at the meeting as “City Council is not willing to help its citizens get this ordinance on the ballot.” He acknowledged that he was putting words in council member’s mouths.

When Fegley suggested council president Julio Guridy admit council would not help, Guridy said he had no comment.

Election board vs. city charter

Fegley said the petitioners followed the city’s home rule charter to get the proposed ordinance on the November ballot.

On June 19, City Council voted 5-1 to table taking action on the clean air ordinance, which was brought before it via petitions signed by 2,175 city voters.

That vote automatically sent the 15-page proposed ordinance to the election board to go on the November ballot in Allentown.

Fegley read to council section 1002 of Allentown’s home rule charter, which states: “The qualified voters of the city shall have the power to propose ordinances to Council. If Council fails to adopt a proposed ordinance, the initiative process gives the qualified voters of the City the opportunity to adopt or reject the proposed ordinance at a primary, municipal or general election.”

“Nowhere in here does it state that the election board has any authority to stop it from going on the ballot,” said Fegley. “The political process starts with
the citizens, moves to the City Council and finally to the ballot to be voted upon.”

Resident Paulette Hunter said the city charter is not effective and needs to be reviewed so there are no obstacles when a proposed city bill reaches the county election board.

“When we follow it, we’re finding obstacles along the way,” said Hunter. “There’s something wrong with the charter when you cannot use it to do what you need to do, based on what is says you can do.”

Guridy said such a charter review can be done, but not until next year. “It may be time for us to start refining it.”

Second ballot failure for residents

Both Hunter and Wurth noted this is the second time Allentown residents unsuccessfully have followed the city charter to get a controversial new law passed.

In February, the county election board ruled that an initiative aimed at stopping the lease of the city’s water and sewer operations would not appear on the May ballot because the more than 4,000 petition signatures had been collected late in 2012.

State law required that they had to be collected early this year, according to the election board.

If passed, that initiative would have allowed city residents to vote on selling or leasing any city asset worth more than $10 million.

DEP’s role in decision

Fegley said this time the election board has left itself “very vulnerable to challenge, since they only justify their decision by saying that our Allentown clean air ordinance ‘does not properly recognize and account for the Department of Environmental Protection’s mandated approval role’.”

Fegley argued: “There is no such mandated approval role since the ordinance does not purport to create nor constitute a program that would replace DEP’s air regulatory role. The county {board}didn’t really understand what they were doing.”

Wurth said if voters think the proposed law would override DEP’s authority and they don’t want that to happen, they won’t vote for it. He said if voters would vote for it, Delta Thermo or DEP could challenge it in court.

Wurth told council he was speaking on behalf of the Sierra Club, which supports both the proposed clean air ordinance “because it would improve the quality of air in Allentown” and for the rights of Allentown residents to have that ordinance placed on the ballot.

In late May, the city solicitor’s office issued a legal opinion to City Council that the proposed clean air ordinance was fatally flawed.

Guridy reminded Fegley that council tabled any action on the proposed ordinance in June because it had just received a letter from a DEP attorney that indicated state law would supersede the proposed city law.

“That was only opinion, it was not fact,” maintained Fegley. “The opinion left council unable to decide. So council basically said ‘we’ll let the citizens decide’. Therefore it goes immediately on the ballot. The board of elections is there to make sure it goes on the ballot properly.”

O’Connell cast the only vote against tabling on June 19 because he wanted council to vote on the proposed ordinance. On Wednesday, O’Connell reminded Fegley that he supported the ordinance.

In the spring of 2012, City Council approved a 35-year-contract with Delta Thermo to build the plant, after packed public meetings and many hours of debate.

“I voted against the Delta Thermo project because it was totally unproven technology and environmentally unsound,” said O’Connell in June. City Council member Jeanette Eichenwald, who joined O’Connell in voting against the Delta Thermo plant last year, was not at that June meeting.

Eichenwald also was not at Wednesday’s meeting. She and council member Jeff Glazier were observing the Jewish holiday Rosh Hashanah.

Also during the meeting, city council hired a new police officer, Robert T. Busch of Annandale, N.J., at an annual salary of $46,856.