Agenda - Planning Commission - 09/04/2014

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Zoning Bulletin August 10, 2014 I Volume 8 I Issue 15 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 bound- aries" Here, the court found that the Town's zoning laws were directed at regulating land use generally and only incidentally impacted oil and gas enterprises; they did not attempt to govern the details, procedures or operations of the oil and gas industries and thus were not preempted, said the court. Norse and CHC had argued that the preemptive span of the suppression clause's text was broader than the court was interpreting. They contended that if the suppression clause was limited to local laws aimed at oil and gas opera- tions, the secondary clause in the OGSML's supersession provision —preserv- ing "local government jurisdiction over local roads or the rights of local govern- ments under the real property tax law" (ECL 23-0303[2])—would have been superfluous. The court disagreed, finding that secondary clause preserved local regulation of roads and taxes, which could fairly be characterized as touching on the operations of the oil and gas industries and would have been preempted absent that secondary savings clause. The court also found that its interpretation of the OGSML's suppression clause was consistent with the overarching statutory structure. The court found that OGSML was aimed at ensuring (1) the authority of the state's Department of Environmental Conservation regarding safety, technical, and operational aspects of oil and gas activities across the State and (2) a "greater ultimate recovery" of oil and gas through well -spacing provisions. The court found no inconsistency with those OGSML policies and the preservation of local zoning authority. Local zoning laws would not direct technical operations of the industry. Also, local zoning laws dictating in which, if any, districts drilling may occur, could harmoniously exists with the OGSML instructing as to proper • well spacing. Finally, the court found nothing in the legislative history that "undennine[d]" the court's view that the supersession clause does not interfere with local zon- ing laws regulating the permissible and prohibited uses of municipal land. Rather, the court found that the history of the OGSML made clear that the State Legislature's primary concern was with preventing wasteful oil and gas practices and ensuring that the Department had the means to regulate the techni- cal operations of the industry. In sum, application of the three factors —the plain language, statutory scheme, and legislative history —to these appeals lead the court to conclude that the Towns appropriately acted within their home rule authority in adopting the challenged zoning laws. 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). Case Note: Norse and CHC had also taken the position that the town -wide nature of the hydrofrack- ing bans rendered them unlawful. The court found this argument was without merit. The court said: "A municipality is not obliged to permit the exploitation of any and all natu- ral resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote ©2014 Thomson Reuters 5