Agenda - Planning Commission - 09/04/2014

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Zoning Bulletin August 10, 2014 I Volume 8 I Issue 15 clause in the statewide Oil, Gas and Solution Mining Law ("OGSML") preempts home rule authority vested in municipalities to regulate land use. The Background/Facts: In 2006, Norse Energy Corp. USA ("Norse"), through its predecessors, began acquiring oil and gas leases from landowners in the Town of Dryden ("Dryden") for the purpose of exploring and develop- ing natural gas resources. It was the Town Board's position that gas extraction activities were prohibited in Dryden because such operations fell within the catch-all provision of its zoning ordinance that precluded any uses not specifi- cally allowed. Nevertheless, Dryden's Town Board studied the issue and eventually voted to amend its zoning ordinance in August 2011 to specify that all oil and gas exploration, extraction, and storage activities were not permitted in Dryden. The zoning amendment was adopted so as to preserve the "rural environment of Dryden" and protect the "health, safety and general welfare of the community . . . . " Similarly, in 2007, Cooperstown Holstein Corporation ("CHC") executed leases with a landowner in the Town of Middlefield ("Middlefield") to explore the possibility of developing natural gas resources through hydrofracking. Middlefield claimed that its zoning ordinance already prohibited natural gas exploration on the basis that it was not listed as a permissible land use. Never- theless, Middlefield studied the issue and Middlefield's Town Board ultimately amended its master plan to adopt a zoning provision classifying a range of heavy industrial uses, including oil, gas, and solution mining and drilling, as prohibited uses. The purpose of the zoning amendment was to preserve Middlefield's environmental resources, scenic environment, and recreational activities. Norse and CHC each challenged the relevant zoning amendments, arguing the supersession clause in the statewide Oil, Gas and Solution Mining Law ("OGSML") preempted home rule authority vested in municipalities to regulate land use. That clause provides: "The 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]). Norse and CHC argued that the supersession clause preempted the local zoning laws in Dryden and Middletown that prohibited natural gas exploration and extraction activities. The New York Supreme Court rejected the arguments of Norse and CHC, and upheld the legality of the zoning laws in Dryden and Middlefield. The Ap- pellate Division affirmed. Norse and CHC appealed. They contended that Dryden and Middlefield (collectively, the "Towns") lacked the authority to proscribe hydrofracking and associated natural gas activities within their town boundaries. They asserted that "the energy policy of New York, as exemplified by the statewide OGSML, requires a uniform approach and cannot be subject to regulation by a melange of the State's 932 towns." They maintained that the OGSML's supersession clause expressly preempts all local zoning laws, like those enacted by the Towns, which restrict or forbid oil and gas operations on real property within a municipality. ©2014 Thomson Reuters