Agenda - Planning Commission - 07/18/2013 - Special

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Zoning Bulletin June 10, 2013 I Volume 7 I Issue 11 NEW YORK (05/02/13)—This case addresses the issue of whether New York's Oil, Gas and Solution Mining Law ("OGSML") preempts munici- pal zoning ordinances banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum. The Background/Facts: In August 2011, the Town of Dryden (the "Town") amended its zoning ordinance to "ban all activities related to the exploration for, and the production or storage of, natural gas and petro- leum" (the "Zoning Amendment"). The Zoning Amendment occurred in the midst of growing local concern over the proposed use of high volume hydraulic fracturing, commonly known as "hydrofracking," to recover natural gas from underground shale deposits. Anschutz Exploration Corporation ("AEC") was a driller and developer of oil and natural gas wells. AEC owned leases covering approximately 22,200 acres of land in the Town. Following the adoption of the Town's Zoning Amendment, AEC brought a legal action for declaratory judgment. AEC asked the court to declare that the Town's Zoning Amendment was invalid on the ground that it was preempted by the OGSML (New York Environmental Conservation Law 23-0301 to 23-2723). AEC pointed to the supersession clause in the OGSML. That clause provides: "[t]he provi- sions of [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].) The supreme court issued summary judgment in favor of the Town. It declared that that the Zoning Amendment was not preempted by the OGSML. AEC appealed. DECISION: Affirmed. The Supreme Court, Appellate Division, Third Depai lucent, New York, held that the OGSML does not preempt, either expressly or impliedly, a municipality's power to enact a local zoning ordinance banning all activi- ties related to the exploration for, and the production or storage of, natural gas and petroleum within its borders. In so holding, the court explained that local government power to enact zoning laws may be limited by the Legislature's express or implied intent to preempt such laws. Here, the court found that the OGSML neither expressly nor impliedly preempted the Town's Zoning Amendment. Addressing express preemption, the court analyzed the OGSML's supersession clause. The court found that the supersession clause prohibits municipalities from enacting laws or ordinances "relating to the regulation of the oil, gas and solution mining industries" (ECL 23-0303[2]) (emphasis added). The court said that while the Town's Zoning Amendment would have an incidental effect upon the oil, gas, and solution mining industries, it did not regulate the details or procedure of the oil, gas, and solution min- ing industries. The court found the Zoning Amendment did not conflict ©2013 Thomson Reuters 3