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Town Zoning Law May Ban Hydrofracking in New York

A divided New York Court of Appeals validated local zoning laws of two towns that banned hydrofracking in that Town. In Matter of Wallach v. Town of Dryden, the Court held that state law did not preempt the right of local municipalities to ban certain mining activities.

The Court noted that as “… a fundamental precept, the Legislature has recognized that the local regulation of land use is ‘[a]mong the most significant powers and duties granted . . . to a town government’ (Town Law § 272-a [1] [b]).” Nonetheless, municipalities may not adopt laws that are inconsistent with State laws of general applicability. Therefore, the Court stated “… we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a ‘clear expression of legislative intent to preempt local control over land use’…”.

The parties challenging the local laws relied upon specific provisions in State law that provide “‘… provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law’ (ECL 23-0303 [2] [emphasis added]).”

The Court stated that the relevant inquiry is that the “… scope of section 23-0303 (2) must be construed in light of our decision in Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]), which articulated the analytical framework to determine whether a supersession clause expressly preempts a local zoning law. There, we held that this question may be answered by considering three factors: (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history. The goal of this three-part inquiry, as with any statutory interpretation analysis, is to discern the Legislature’s intent.”

While the Court went into a much more detailed analysis than can be repeated here, applying the tests established by the Court in the Frew Run case, the Court held:

“…the distinction we drew in Frew Run applies with equal force here, such that ECL 23-0303 (2) is most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries. Plainly, the zoning laws in these cases are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries….

it is readily apparent that the OGSML is concerned with the Department’s regulation and authority regarding the safety, technical and operational aspects of oil and gas activities across the State. The supersession clause in ECL 23-0303 (2) fits comfortably within this legislative framework since it invalidates local laws that would intrude on the Department’s regulatory oversight of the industry’s operations, thereby ensuring uniform exploratory and extraction processes related to oil and gas production. Similar to the scope of the MLRL in Frew Run, we perceive nothing in the various provisions of the OGSML indicating that the supersession clause was meant to be broader than required to preempt conflicting local laws directed at the technical operations of the industry….

In 1978, the State Legislature amended the OGSML to modify its policy by replacing the phrase ‘to foster, encourage and promote the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste” with “to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste’ (ECL 23-0301, as amended by L 1978, ch 396, § 1 [emphasis added]). The legislation also transferred the task of encouraging and promoting the prudent development of New York’s energy resources to the Energy Law (see Energy Law § 3-101, as amended by L 1978, ch 396, § 2) for the purpose of establishing ‘the Energy Office as the State agency primarily responsible for promoting the development of energy resources” and removing ‘such promotional responsibilities from the Department of Environmental Conservation which would, however, retain regulatory responsibilities over such resources” (Governor’s Program Bill Mem, Bill Jacket, L 1978, ch 396)….

In sum, application of the three Frew Run factors – the plain language, statutory scheme and legislative history – to these appeals leads us to conclude that the Towns appropriately acted within their home rule authority in adopting the challenged zoning laws. We can find no legislative intent, much less a requisite ‘clear expression,’ requiring the preemption of local land use regulations.”

The court noted that the policy determination of whether hydrofracking is beneficial or not was not before the Court and only the narrow issue of whether local zoning was preempted by the State Environmental Conservation Law.

-Steven M. Silverberg