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during the hydraulic racturing process, that their

community character could be altered detrimentally

as thousands o new gas wells are drilled each year

across the Southern Tier and other parts o the state,

or that local roads could be harmed rom millions o

new, heavy truck trips needed during the process.

The Towns o Dryden and Middleeld are two suchmunicipalities. In response to concerns about the

impacts o heavy industrial uses, including natural

gas drilling, the two towns enacted zoning laws

outlawing hydraulic racturing within their borders.

In order to protect their substantial investments,

the drilling industry and a landowner ought back,

challenging the zoning bans in two lawsuits led in

the State Supreme Courts in Tompkins and Otsego

Counties.

The courts in these cases were asked to determineor the rst time whether a municipality has the

legal authority to use its zoning laws to prohibit

natural gas drilling within its borders, or whether

its constitutionally guaranteed zoning authority is

preempted by the State Environmental Conservation

Law (ECL). Specically, the industry and

landowners argued that the ECL was intended to

In the latest skirmish in the legal battle over

whether municipalities in New York State can use

their zoning powers to control where natural gas

drilling occurs using hydraulic racturing methods,

the municipalities and their authority to use their

zoning powers to make the local decision whether

or where to permit heavy industrial uses, such asnatural gas drilling, within their borders came out

on top.

Although many municipalities are embracing

natural gas drilling and the promises o millions

o dollars in royalties, taxes, clean energy, energy

independence, and the other signicant economic

benets that it brings, other municipalities have

not been as welcoming. As o May 1 o this year, 55

municipalities across the state have adopted zoning

bans on natural gas drilling within their borders,

while another 105 have imposed zoning moratoria

in order to halt the practice or a short period o

time.

Many o these municipalities consider hydraulic

racturing or natural gas to be a heavy industrial

use that conficts with their comprehensive plans

or is not an appropriate land use or them. They

are also concerned that their water supplies

could be adversely aected by the chemicals used

By David Everett and Robert Rosborough

Home Rule Upheld in Hydrofracking Case

PLANNING NEWS | SPRING 2013

Continued on page 6

Members o the Dryden Town Board celebrate their victory. (Photo: Deborah Cipolla-Dennis)

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Hydroracking continued rom page 3

preempt all municipal laws related to natural gas

drilling, including zoning laws. In contrast, the

towns argued that the statute was not intended

to preempt generally applicable zoning laws that

merely regulate land uses, not the specic activity

o gas drilling. Clearly, the stakes were high.

Ater the lower courts rejected the industrys

and landowners challenge, the Appellate

Division, Third Department (one o New Yorks

intermediate appellate courts), aced the legal

issue or the rst time in Norse Energy Corp,

USA v. Town o Dryden, 2013 N.Y. Slip Op.

515227 (3d Dept May 2, 2013) and Cooperstown

Holstein Corp. v. Town o Middleeld, 2013

N.Y. Slip Op. 515498 (3d Dept May 2,2013). Beginning with the principle that local

municipalities are granted signicant rights under

the New York Constitution to determine what

is in the best interests o their residents health,

saety and welare, the Court emphasized that one

o the most undamental exercises o these rights

is to oster productive land use by enacting zoning

laws.

Although the Court recognized that amunicipalitys exercise o its rights cannot confict

with State law, it nonetheless soundly rejected

the industrys and landowners position that the

Environmental Conservation Law preempted

zoning laws which prohibit natural gas drilling

within a municipalitys borders. Addressing the

particular provision o the ECL on which the

industry and landowner relied ECL 23-0303(2)

the Court held that it ound nothing in the

language, statutory scheme or legislative history

o the statute indicating an intention to usurp the

authority traditionally delegated to municipalities

to establish permissible and prohibited uses

o land within their jurisdictions. Specically,

the Court concluded that the provision, which

expressly preempts only those local laws relating

to the regulation o the oil, gas and solution

mining industries, only precludes laws that

deal with the operations o the oil and natural

gas industries, not zoning laws that apply to all

properties in the municipality, regardless o the

type o business conducted.

Indeed, the Court stated:

Regulation is commonly defned as an authoritative

rule dealing with details or procedure. The zoning

ordinance at issue, however, does not seek to regulate

the details or procedure o the oil, gas and solution

mining industries. Rather, it simply establishes

permissible and prohibited uses o land within the

Town or the purpose o regulating land generally.

While the Towns exercise o its right to regulate land

use through zoning will inevitably have an incidentaleect upon the oil, gas and solution mining industries,

we conclude that zoning ordinances are not the type o

regulatory provision that the Legislature intended to

be preempted. (Citations omitted).

The Court also reused to accept the industrys

and landowners contention that local zoning bans

on hydraulic racturing confict with the policies

underlying the provision o the Environmental

Conservation Law stating that the State should

minimize waste o its natural resources. The Court

recognized that this statement o policy does

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

o the land uses existing in that locale. Instead,

as the Court acknowledged, the policies require

a balancing o the rights o all property owners,

including the general public, which is best

promoted by allowing municipalities to decide

what is in the best interests o their residents.

In sum, in a landmark decision or the rights

o municipalities to decide what type o land

uses should be permitted and/or prohibited

within their borders, the Court held that local

municipalities have the constitutional right to

protect their community character through the

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Welcome, New Memb ers

Towns

Town o Carroll

Town o EnfeldTown o Montezuma

Not-or-Profts

New York State AgriculturalMediation Program

The New York Planning Federation thanks

the ollowing members who recently joinedour ranks. I your municipality or rm

would like to know more about the benets

o NYPF membership, which includes

reduced conerence registration rates, we

invite you to visit our website, www.nyp.

org, or call the oce on our toll-ree number,

1-800-366-NYPF.

FirmsMorris Associates Engineering

IndividualsStephanie W. Ferradino, Esq.

CountiesCounty o Oswego

PLANNING NEWS | SPRING 2013

use o zoning powers. With the Third Departments

decision, municipalities were rightully provided

an additional measure o comort that no specic

business concern is entitled to a unique exemption

rom their generally applicable zoning laws merely

because it is part o the oil and gas industry.

Moreover, the Third Departments decision

provides municipalities with protection or the

countless hours they have spent studying and

dening their vision or their uture, regardless o

whether they decide to allow or orbid hydraulic

racturing within their borders. In essence, by

conrming that municipalities have the right

to make the local decision regarding what is in

the best interests o their residents, the ThirdDepartment properly let that decision in the

hands o the local ocials who know their

communities best.

Only one nal ght remains in this battle between

the right o municipal home rule powers to

dene community character through zoning and

the natural gas industrys contention that these

powers are usurped by State Law. This will be in

New Yorks highest appellate court the Court

o Appeals. We anticipate that the industry and

landowner in Norse Energy Corp. USA v. Town o

Dryden and Cooperstown Holstein Corp. v. Town

o Middleeld will seek a nal review o the third

Departments decision rom the Court o Appeals.

I the Court accepts the case, its decision will,

once and or all, nally determine the extent o

home rule authority with respect to oil and

gas drilling.

David Everett is a Partner in the Environmental Practice Group

o Whiteman Osterman & Hanna, LLP in Albany, NY. His

practice includes environmental, land use and energy related

matters. Robert Rosborough is an Associate Attorney with

Whiteman Osterman & Hanna. The Firm represented the Town

o Middlefeld in the recent appeal beore the Appellate Division,

Third Department in Cooperstown Holstein Corp. v. Town o

Middlefeld, as well as approximately 50 municipalities, the

Association o Towns o the State o New York, the New York

Conerence o Mayors and the New York Planning Federation

as amici curiae. The Firm also currently represents dozens o

municipalities across the southern tier in connection with local

road protection programs and a variety o local issues related to

natural gas drilling and hydraulic racturing.

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