United States v. Town of Dryden (In re Norse Energy Corp.)

Decision Date02 May 2013
Citation2013 N.Y. Slip Op. 03145,108 A.D.3d 25,964 N.Y.S.2d 714
PartiesIn the Matter of NORSE ENERGY CORP. USA, Appellant–Respondent, v. TOWN OF DRYDEN et al., Respondents. Dryden Resources Awareness Coalition, Proposed Intervenor–Respondent–Appellant.
CourtNew York Supreme Court — Appellate Division


The West Firm, PLLC, Albany (Thomas S. West of counsel), for appellant-respondent.

Knauf Shaw, LLP, Rochester (Alan J. Knauf of counsel), for proposed intervenor-respondent-appellant.

Deborah Goldberg, Earthjustice, New York City, for Town of Dryden and another, respondents.

Cynthia Feathers, Glens Falls, for New York Farm Bureau, amicus curiae.

Sidley Austin, LLP, Washington, D.C. (Joseph R. Guerra of counsel), for American Petroleum Institute and others, amici curiae.

Levene, Gouldin & Thompson, LLP, Binghamton (Scott R. Kurkoski of counsel) for Business Council of New York State, Inc. and others, amici curiae.

Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry of counsel), for Town of Ulysses and others, amici curiae.

Jordan A. Lesser, New York State Assembly, Albany, for Member of the Assembly Barbara Lifton, amicus curiae.

Susan J. Kraham, Morningside Heights Legal Services, Inc., New York City, for Vicki Been and others, amici curiae.

Nancy S. Marks, Natural Resources Defense Council, New York City (Katherine Sinding of counsel), for Catskill Mountainkeeper and others, amici curiae.

Tooher & Barone LLP, Albany (John L. Barone of counsel), for A & E Management & Contracting, Inc., and others, amici curiae.



Cross appeals from a judgment of the Supreme Court (Rumsey, J.), entered February 22, 2012 in Tompkins County, which, in a proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, partially granted respondents' motion for summary judgment declaring that certain amendments to the Town of Dryden zoning ordinance are not preempted by the Oil, Gas and Solution Mining Law.

In August 2011, the zoning ordinance of respondent Town of Dryden (hereinafter the Town) was amended to ban all activitiesrelated to the exploration for, and the production or storage of, natural gas and petroleum. The amendment occurred in the midst of growing local concern over the proposed use of high volume hydraulic fracturing, commonly known as “hydrofracking,” to recover natural gas from underground shale deposits.1 Petitioner's predecessor in interest, Anschutz Exploration Corporation, a driller and developer of oil and natural gas wells that owned leases covering approximately 22,200 acres of land in the Town of Dryden, Tompkins County, thereafter commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking invalidation of the zoning amendment on the ground that it was preempted by the Oil, Gas and Solution Mining Law ( see generallyECL 23–0301 et seq. [hereinafter OGSML] ).2 Following joinder of issue, respondents moved for summary judgment declaring that the OGSML does not preempt the zoning ordinance amendment. Anschutz opposed the motion and urged Supreme Court to grant summary judgment in its favor.

Subsequently, Dryden Resources Awareness Coalition (hereinafter DRAC), an association of approximately 71 residents and landowners in the Town formed “to educate and protect the Dryden community from the impacts and hazards associated with hydraulic fracturing,” moved to intervene and defend the zoning ordinance. Both respondents and petitioner opposed DRAC's motion. Supreme Court denied DRAC's motion and granted summary judgment to respondents, concluding that, with the exception of a provision invalidating permits issued by other local or state agencies, the amendment to the zoning ordinance was not preempted by the OGSML.3 Petitioner and DRAC now appeal. 4


As a preliminary matter, we address Supreme Court's denial of DRAC's motion to intervene. As the court dismissed, as improper, that part of the petition/complaint seeking relief under CPLR article 78, DRAC was required to establish entitlementto intervention pursuant to CPLR article 10. “While the only requirement for obtaining an order permitting intervention via [CPLR 1013] is the existence of a common question of law or fact, the resolution of such a motion is nevertheless a matter of discretion” (Matter of Pier v. Board of Assessment Review of Town of Niskayuna, 209 A.D.2d 788, 789, 617 N.Y.S.2d 1004 [1994] [citation omitted]; see Kripke v. Benedictine Hosp., 255 A.D.2d 725, 728, 680 N.Y.S.2d 687 [1998] ).

Here, although members of DRAC submitted affidavits identifying effects that hydrofracking may have on their daily lives, these claimed impacts were largely speculative and failed to demonstrate a substantial interest in the outcome of the action different from other residents of the Town. Further, as noted by Supreme Court, the Town is the preeminent party in defending the validity of the zoning ordinance amendment which it enacted ( cf. Matter of Rent Stabilization Assn. of N.Y. City v. New York State Div. of Hous. & Community Renewal, 252 A.D.2d 111, 115, 681 N.Y.S.2d 679 [1998] ). Under the circumstances, we find no abuse of discretion and, like Supreme Court, grant DRAC amicus curie status and consider its arguments in that context ( see Matter of Pace–O–Matic, Inc. v. New York State Liq. Auth., 72 A.D.3d 1144, 1145, 898 N.Y.S.2d 295 [2010];Quality Aggregates v. Century Concrete Corp., 213 A.D.2d 919, 920–921, 623 N.Y.S.2d 957 [1995] ).


We now turn to the question of whether OGSML preempts the amendment to the Town's zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum. The N.Y. 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” (N.Y. Const., art. IX, § 2[c]; see Anonymous v. City of Rochester, 13 N.Y.3d 35, 51, 886 N.Y.S.2d 648, 915 N.E.2d 593 [2009] [Graffeo, J., concurring]; People v. De Jesus, 54 N.Y.2d 465, 468, 446 N.Y.S.2d 207, 430 N.E.2d 1260 [1981] ). To implement this express grant of authority to local governments, the Legislature enacted a series of statutes establishing a wide range of local powers ( see generally Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 428–429, 548 N.Y.S.2d 144, 547 N.E.2d 346 [1989] ). Among the powers delegated to local governments is the authority to regulate the use of land through the enactment of zoning laws ( seeMunicipal Home Rule Law § 10[1][ii][a][11]; Statute of Local Government § 10[6], [7]; Town Law § 261; Matter of Kamhi v. Planning Bd. of Town of Yorktown, 59 N.Y.2d 385, 389, 465 N.Y.S.2d 865, 452 N.E.2d 1193 [1983];Riegert Apts. Corp. v. Planning Bd. of Town of Clarkstown, 57 N.Y.2d 206, 209, 455 N.Y.S.2d 558, 441 N.E.2d 1076 [1982] ). As the Court of Appeals has emphasized, [o]ne of the most significant functions of a local government is to foster productive land use within its borders by enacting zoning ordinances” ( DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 96, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001];see Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 745, 395 N.Y.S.2d 428, 363 N.E.2d 1163 [1977];Udell v. Haas, 21 N.Y.2d 463, 469, 288 N.Y.S.2d 888, 235 N.E.2d 897 [1968];see also Trustees of Union Coll. in Town of Schenectady in State of N.Y. v. Members of Schenectady City Council, 91 N.Y.2d 161, 165, 667 N.Y.S.2d 978, 690 N.E.2d 862 [1997] ).

The doctrine of preemption, however, “represents a fundamental limitation on home rule powers” (Albany Area Bldrs. Assn. v. Town of Guilderland, 74 N.Y.2d 372, 377, 547 N.Y.S.2d 627, 546 N.E.2d 920 [1989];accord Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 400, 764 N.Y.S.2d 64, 795 N.E.2d 619 [2003] ). The Legislature may expressly state its intent to preempt, or it may do so by implication ( see Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d at 400, 764 N.Y.S.2d 64, 795 N.E.2d 619;DJL Rest. Corp. v. City of New York, 96 N.Y.2d at 95, 725 N.Y.S.2d 622, 749 N.E.2d 186). Where, as here, a statute contains an express preemption clause, its effect “turns on the proper construction of [the] statutory provision” (Matter of Frew Run Gravel Prods. v. Town of Carroll, 71 N.Y.2d 126, 131, 524 N.Y.S.2d 25, 518 N.E.2d 920 [1987] ). The primary consideration in matters of statutory interpretation “is to ‘ascertain and give effect to the intention of the Legislature ( Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000], quoting McKinney's Cons. Laws of N.Y., Book 1, Statutes § 92[a]; see Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270, 286, 890 N.Y.S.2d 388, 918 N.E.2d 900 [2009] ). Such efforts begin with an examination of the statutory text itself ( see Yatauro v. Mangano, 17 N.Y.3d 420, 426, 931 N.Y.S.2d 36, 955 N.E.2d 343 [2011];Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ).


The supersession clause in the OGSML provides that [t]he provisions of [ECL article 23] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the [RPTL] (ECL 23–0303[2] ). Thus, the plain language of this provision prohibits municipalities from enacting laws or ordinances relating to the regulation of the oil, gas and solution mining industries” (ECL 23–0303[2] [emphasis added] ). As the OGSML does not define the word “regulation,” we must give this word its ordinary and natural meaning ( see People v. Quinto, 18 N.Y.3d 409, 417, 941 N.Y.S.2d 8, 964 N.E.2d 379 [2012];Matter of Manhattan Pizza Hut v. New...

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