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

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June 10, 2013 I Volume 7 ( Issue 11 Zoning Bulletin with the state's interest in establishing uniform procedures of the operational activities of those industries, but simply established permis- sible and prohibited uses of land within the Town for the purpose of regula- tion land generally. Thus, the court held that the OGSML supersession clause did not expressly preempt the Town's Zoning Amendment. More generally, the court concluded that the OGSML supersession clause: "does not serve to preempt a municipality's authority to enact a local zoning ordinance prohibiting oil, gas and solution mining or drilling within its borders." The court also concluded that the Town's Zoning Amendment was not impliedly preempted by the OGSML. The court found that the Zoning Amendment "neither conflict[ed] with the language nor the policy of the OGSML." The court found that the Zoning Amendment dictated in which, if any, districts, drilling could occur, while the OGSML instructed opera- tors as to the proper spacing of well units within those districts in order to prevent waste. The court also found that while the OGSML sought to avoid waste (i.e., inefficient and ineffective drilling operations), that did not equate to an intention to require oil and gas drilling operations to occur in each and every location where such resource is present, regardless of the land uses existing in that locale. "Indeed," noted the court, "the policy of the OGSML explicitly seeks to protect the rights of 'all persons including. landowners and the general public' —not just the owners of oil and gas properties, such as petitioner (former Conservation Law § 70; L 1963, ch. 959), a goal which is realized when individual municipalities can determine whether drilling activities are appropriate for their respective communities." Accordingly, the court concluded that the Town's Zoning Amendment, prohibiting the activity of hydrofracking, did not conflict with the state Legislature's intent via the OGSML to ensure that, where oil or gas drill- ing occurs, the operations are as efficient and effective as possible. See also: Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N. Y.2d 126, 524 N.Y.S.2d 25, 518 N.E.2d 920 (1987) (similarly holding that New York's Mined Land Reclamation Law did not preempt a town's zoning law which established a zoning district where sand and gravel operations were not a permitted use). Case Note: During the pendency of the appeal, AEC assigned its interest in certain oil and gas leases in the Town to Norse Energy Corporation USA ("Norse'). Norse was thereafter substituted in the proceeding. Case Note: The Supreme Court did hold as invalid a provision of the Town's Zoning Amend- ment that invalidated perrnits issued by other local or state agencies. 4 © 2013 Thomson Reuters