• Overview

N.Y. Appellate Court: Municipalities Can Ban O&G Activity
May 30, 2013
An intermediate appellate court in New York recently affirmed that a local government has the authority to enact zoning ordinances banning all oil and natural gas activities within municipal limits. In 2011, the Town of Dryden amended its zoning ordinance to ban “all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders.” An operator with oil and natural gas well leases covering approximately 22,200 acres of land in Dryden filed suit seeking to invalidate the zoning ordinance amendment.

The lower court granted Dryden’s motion for summary judgment, holding that the zoning ordinance was not preempted by the New York Oil, Gas and Solution Mining Law (OGSML). On appeal, the appellate court focused primarily on the question of whether the OGSML preempted Dryden’s zoning amendment. In focusing on the “Home Rule” concept, the court noted that the New York Constitution grants “every local government [the] power to adopt and amend local laws not inconsistent with the provisions of  [the] constitution or any general law relating to its property, affairs or government.”

The court ultimately concluded that the OGSML was aimed at “insur[ing] uniform statewide standards and procedures with respect to the technical operational activities of the oil, gas and mining industries” and not to regulate where those activities could take place. Hence the OGSML would preempt a local law that attempted to regulate the actual operation of a natural gas well, but, the court held, it did not “usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”

Meanwhile, New York continues to maintain a moratorium on hydraulic fracturing while the State Department of Environmental Conservation develops proposed rules. Spilman attorneys will promptly advise of any new developments.