Agenda - Planning Commission - 09/04/2014

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August 10, 2014 I Volume 8 I Issue 15 Zoning Bulletin The Towns argued that they acted within their home rule authority in adopt- ing the challenged local laws, and that the OGSML's supersession clause did not extinguish their zoning powers. DECISION: Judgments of Appellate Division affirmed. The Court of Appeals of New York agreed with the Towns. It held that towns in New York may ban oil and gas production activities, including hydrofracking, within municipal boundaries through adoption of local zoning laws. The court concluded that the supersession clause in OGSML does not preempt home rule authority vested in municipalities to regulate land use. In so holding, the court first pointed to the "home rule" authority of municipalities. Article IX, the "home rule" provision of the New York Consti- tution, states that "every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any gen- eral law . . . except to the extent that the legislature shall restrict the adoption of such a local law" (N.Y. Const., art IX, § 2[c][ii] ). The State Legislature implemented that constitutional mandate when it enacted the Municipal Home Rule Law. That law empowers local governments to pass laws both for the "protection and enhancement of [their] physical and visual environment" (Mu- nicipal Home Rule Law § 10[1][ii][a][11] ) and for the "government, protec- tion, order, conduct, safety, health and well-being of persons or property therein" (Municipal Home Rule Law § 10[1][ii][a][12] ). The Legislature also authorized towns to enact zoning laws for the purpose of fostering "the health, safety, morals, or the general welfare of the community" (Town Law § 261; see also Statute of Local Governments § 10[6] [granting towns "the power to adopt, amend and repeal zoning regulations"]). The court explained that "[w]ithout question, municipalities may `enact land -use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of [the community].' " However, the court further explained that as a political subdivision of the State, a town may not enact ordinances that conflict with the State Constitution or any general law (see Municipal Home Rule Law § 10[1][i], [ii]). Under the preemption doc- trine, a local law promulgated under a municipality's home rule authority must yield to an inconsistent state law, said the court. Still, the court explained it would only invalidate a zoning law where there is a "clear expression of legisla- tive intent to preempt local control over land use." Norse and CHC did not dispute that municipalities would ordinarily possess the home rule authority to restrict the use of land for oil and gas activities in furtherance of local interests. They claimed, however, that the State Legislature had clearly expressed its intent to preempt zoning laws of local governments through the OGSML's "supersession clause." The court applied a three-part inquiry to determine whether the state Legislature intended for the supersession clause to expressly preempt local zoning laws. It considered three factors: (1) the plain language of the superses- sion clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history. Looking at the plain language of OGSML's suppression clause, preempting local laws "relating to the regulation of the oil, gas and solution mining industries," the court found it "most naturally read as preempting only local 4 © 2014 Thomson Reuters