On May 2, 2013, a New York
state appeals court issued an order upholding a local ordinance banning all
activities related to the exploration for, and production or storage of,
natural gas and petroleum in the Town of Dryden, New York. The court affirmed
the judgment of the lower court, entered on February 22, 2012, which held that
certain amendments to the Town of Dryden zoning ordinance are not preempted by
New York State’s Oil, Gas and Solution Mining Law (“OGSML”). New York
State’s highest court (Case No. APL-2013-00245, New York State Court of
Appeals) agreed to hear an appeal of this
decision. See prior blogs, New York appeals court upholds local bans on hydraulic fracturing and NewYork Court of Appeals to consider local bans on hydraulic fracturing.
The movant filed its brief (see attached)
on October 28, 2013, asserting that “the Appellate Decision allows every
municipality in the State of New York to ban any and all oil and gas
development. The inevitable result is zero resource recovery, the
ultimate in waste, and the obliteration of mineral owners’ correlative
rights. This result starkly conflicts with the language and policies of
the OGSML and the Energy Law and, therefore, cannot stand.”
The Town of Dryden responded
in a brief dated December 13, 2013, arguing that the “OGSML does not expressly
preempt a locality’s right to enact a zoning ordinance that regulates land use
generally and designates oil and gas mining as a prohibited use within
municipal borders.” The Town urges that the two separate, distinct
regulatory schemes (the Town’s zoning ordinances and the policies of the OGSML)
can “harmoniously coexist.”
On December 13, 2013, the court received an amici curiae
brief (see attached) that was filed on behalf of 52 towns and villages
in New York, the Association of Towns of the State of New York, the New York
Conference of Mayors, and the New York Planning Federation. These
interested parties asserted that a local municipality has “the constitutionally
guaranteed right…to create and preserve its own community character through
generally applicable land use planning and zoning laws.” New York’s
energy law “preempts only local regulation of the operations of the oil and gas
industry, not local land use laws that govern whether and where such operations
may take place within a municipality’s borders.”
