Court of Appeals Upholds Local Municipalities’ Ability to Ban Hydrofracking under their Zoning Powers

Land Use

In a 5-2 Decision, the New York State Court of Appeals in the matters of Wallach v. Town of Dryden and Cooperstown Holstein Corporation v. Town of Middlefield, upheld two upstate municipalities’ bans of hydrofracking under their respective zoning regulations. Hydrofracking is the process of extracting natural gas from shale deposits through the use drilling and high pressurized fluids.

Specifically, the Towns of Dryden and Middlefield (the “Towns”) enacted zoning regulations banning the practice of hydrofracking. Certain energy companies brought suit asserting that the Towns did not have the authority to prohibit “natural gas exploration and extraction activities” under their zoning laws, because such powers had been preempted by New York State laws governing mineral resource extraction.

The Court of Appeals undertook a thorough analysis of the rights of local municipalities to adopt and enforce zoning regulations under the New York Constitution and Statutes, and the State’s concomitant power to preempt local land use controls. In upholding the Towns’ bans on hydrofracking, the Court found that the State, through the implementation of its mineral resource laws, did not intend to preempt municipalities’ rights to ban hydrofracking through local zoning regulations, since the State legislation makes “no mention of zoning at all, much less evince an intent to take away local land use powers.” In concluding, the Court stated:

“At the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York. These are major policy questions for the coordinate branches of government to resolve.”

It will be interesting to follow how fracking cases progress throughout the State. The Court narrowed its opinion only to the question “whether the State Legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and hydrofracking activities in order to preserve the existing character of their communities.” In the wake of this decision, will other municipalities follow suit in banning the practice? Can individual property owners bring constitutional “regulatory taking” claims based upon the banning of hydrofracking by local municipalities under their zoning regulations, especially if all or substantially all of the value of their real property is from the existence of natural gas? Follow us as we continue to monitor this ongoing controversy.

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