United States v. Town of Dryden (In re Wallach)

Decision Date30 June 2014
Citation992 N.Y.S.2d 710,23 N.Y.3d 728,2014 N.Y. Slip Op. 04875,16 N.E.3d 1188
PartiesIn the Matter of Mark S. WALLACH, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant, v. TOWN OF DRYDEN et al., Respondents. Cooperstown Holstein Corporation, Appellant, v. Town of Middlefield, Respondent.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

The West Firm, PLLC, Albany (Thomas S. West and Cindy Monaco of counsel), for appellant in the first above-entitled action.

EARTHJUSTICE, New York City (Deborah Goldberg and Bridget Lee of counsel), for respondents in the first above-entitled action.

Levene Gouldin & Thompson, LLP, Binghamton (Scott R. Kurkoski of counsel), and The West Firm, PLLC, Albany (Thomas S. West and Cindy Monaco of counsel), for appellant in the second above-entitled action.

Whiteman Osterman & Hanna LLP, Albany (John J. Henry, David R. Everett

and Robert S. Rosborough IV of counsel), for respondent in the second above-entitled action.

Scott M. Stringer, Office of the Manhattan Borough President, New York City (Andrew L. Kalloch of counsel), for Manhattan Borough President Scott M. Stringer and others, amici curiae in the first above-entitled action.

Washington Legal Foundation, Washington, D.C. (Cory L. Andrews and Richard A. Samp of counsel), and Lally & Misir, LLP, Mineola (Deborah N. Misir of counsel), for Washington Legal Foundation, amicus curiae in the first above-entitled action.

Columbia Environmental Law Clinic, Morningside Heights Legal Services, New York City (Susan J. Kraham of counsel), for Vicki Been and others, amici curiae in the first above-entitled action.

Knauf Shaw LLP, Rochester (Alan J. Knauf, Amy K. Kendall and Arthur L. James, III, of counsel), for Dryden Resource Awareness Coalition, amicus curiae in the first above-entitled action.

Community Environmental Defense Council, Inc., Ithaca (David Slottje and Helen Slottje of counsel), for Community Environmental Defense Council, Inc., amicus curiae in the first above-entitled action.

Jordan A. Lesser, Albany, for Assemblywoman Barbara Lifton, amicus curiae in the first above-entitled action.

Whiteman Osterman & Hanna LLP, Albany (John J. Henry, David R. Everett and Robert S. Rosborough IV of counsel), for Town of Ulysses and others, amici curiae in the first and second above-entitled actions.

Cynthia Feathers, Glens Falls, and Elizabeth Dribusch, General Counsel, Albany, for New York Farm Bureau, amicus curiae in the first and second above-entitled actions.

Hodgson Russ LLP, Buffalo (Daniel A. Spitzer, Alan J. Laurita and Charles W. Malcomb of counsel), for Independent Oil and Gas Association of New York, Inc., amicus curiae in the first and second above-entitled actions.

Sidley Austin LLP, Washington, D.C. (Roger R. Martella, Jr., Samuel B. Boxerman, Quin M. Sorenson and Joshua J. Fougere of counsel), Sidley Austin LLP, New York City, American Petroleum Institute, Washington, D.C. (Harry M. Ng and Benjamin Norris of counsel), and National Chamber Litigation Center, Inc. (Sheldon Gilbert and Rachel L. Brand of counsel), for American Petroleum Institute and another, amici curiae in the first and second above-entitled actions.

Levene Gouldin & Thompson, LLP, Binghamton (Scott R. Kurkoski of counsel), for Joint Landowners Coalition of New York, Inc. and others, amici curiae in the first and second above-entitled actions.

Tooher & Barone, LLP, Albany (John L. Barone and Meave M. Tooher of counsel), for Brewery Ommegang, Ltd. and others, amici curiae in the first and second above-entitled actions.

Katherine Sinding, New York City, and Daniel Raichel for American Planning Association and others, amici curiae in the first and second above-entitled actions.

OPINION OF THE COURT

GRAFFEO, J.

We are asked in these two appeals whether towns may ban oil and gas production activities, including hydrofracking, within municipal boundaries through the adoption of local zoning laws. We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use. The orders of the Appellate Division should therefore be affirmed.

I.Matter of Wallach v. Town of Dryden

Respondent Town of Dryden is a rural community located in Tompkins County, New York. Land use in Dryden is governed by a comprehensive plan and zoning ordinance. The underlying goal of the comprehensive plan is to [p]reserve the rural and small town character of the Town of Dryden, and the quality of life its residents enjoy, as the town continues to grow in the coming decades.” Despite the fact that oil and gas drilling has not historically been associated with Dryden, its location within the Marcellus Shale region has piqued the interest of the natural gas industry.

The Marcellus Shale formation covers a vast area across sections of a number of states, including New York, Pennsylvania, Ohio and West Virginia. Natural gas—primarily methane—is found in shale deposits buried thousands of feet below the surface and can be extracted through the combined use of horizontal drilling and hydrofracking. To access the natural gas, a well is drilled vertically to a location just above the target depth, at which point the well becomes a horizontal tunnel in order to maximize the number of pathways through which the gas may be removed. The process of hydraulic fracturing—commonly referred to as hydrofracking—can then commence. Hydrofracking involves the injection of large amounts of pressurized fluids (water and chemicals) to stimulate or fracture the shale formations, causing the release of the natural gas ( see generally U.S. Dept. of Energy, Natural Gas from Shale: Questions and Answers [Apr. 2013], available at http:// www. energy. gov/ sites/ prod/ files/ 2013/ 04/ f 0/ complete_ brochure. pdf [accessed June 18, 2014] ).1

In 2006, petitioner Norse Energy Corp. USA (Norse), through its predecessors, began acquiring oil and gas leases from landowners in Dryden for the purpose of exploring and developing natural gas resources.2 The Town Board took the position that gas extraction activities were prohibited in Dryden because such operations fell within the catch-all provision of its zoning ordinance that precluded any uses not specifically allowed. Nevertheless, the Town Board decided to engage in a “clarification” of the issue. After holding a public hearing and reviewing a number of relevant scientific studies, the Town Board unanimously voted to amend the zoning ordinance in August 2011 to specify that all oil and gas exploration, extraction and storage activities were not permitted in Dryden. The amendment also purported to invalidate any oil and gas permit issued by a state or federal agency. In adopting the amendment, the Town Board declared that the industrial use of land in the “rural environment of Dryden” for natural gas purposes “would endanger the health, safety and general welfare of the community through the deposit of toxins into the air, soil, water, environment, and in the bodies of residents.”

A month later, Norse commenced this hybrid CPLR article 78 proceeding and declaratory judgment action to challenge the validity of the zoning amendment. Norse asserted that Dryden lacked the authority to prohibit natural gas exploration and extraction activities because section 23–0303(2) of the Environmental Conservation Law (ECL)—the supersession clause in the Oil, Gas and Solution Mining Law—demonstrated that the state legislature intended to preempt local zoning laws that curtailed energy production. In response, Dryden moved for summary judgment, seeking a declaration that the zoning amendment was a valid exercise of its home rule powers.

Supreme Court granted Dryden's motion and declared the amendment valid with one exception—it struck down the provision invalidating state and federal permits (35 Misc.3d 450, 940 N.Y.S.2d 458 [Sup.Ct., Tompkins County 2012] ). The Appellate Division affirmed, rejecting Norse's claim that the OGSML preempted Dryden's zoning amendment (108 A.D.3d 25, 964 N.Y.S.2d 714 [3d Dept.2013] ). We granted Norse leave to appeal (21 N.Y.3d 863, 2013 WL 4562930 [2013] ).

Cooperstown Holstein Corporation v. Town of Middlefield

Defendant Town of Middlefield, which includes a portion of the Village of Cooperstown, is located in Otsego County, New York, and its principal industries are agriculture and tourism. Its land use is regulated by a master plan and zoning ordinance. Similar to Dryden, there has been no oil or gas presence in Middlefield until 2007, when plaintiff Cooperstown Holstein Corporation (CHC) executed two leases with a landowner to explore the possibility of developing natural gas resources through hydrofracking.

Although the Town claimed that its zoning ordinance already prohibited natural gas exploration on the basis that it was not listed as a permissible land use, it undertook a lengthy and detailed review of the issue in 2011. After commissioning a study to weigh the impacts that hydrofracking would have on Middlefield and conducting public meetings, the Town Board, by a unanimous vote, amended its master plan to adopt a zoning provision classifying a range of heavy industrial uses, including oil, gas and solution mining and drilling, as prohibited uses. The Town Board reasoned that the “Cooperstown area is known worldwide for its clean air, clean water, farms, forests, hills, trout streams, scenic viewsheds, historic sites, quaint village and hamlets, rural lifestyle, recreational activities, sense of history, and history of landscape conservation,” and concluded that industrialization, such as hydrofracking, would “eliminate many of these features” and “irreversibly overwhelm the rural character of the Town.”

CHC promptly brought this action to set aside the zoning law, contending that it was preempted by the supersession provision in the OGSML. CHC and Middlefield each moved for summary judgment. Supreme Court denied CHC's motion and...

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  • Table of Cases
    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Volume 3: Real Property Interests & Duties of Third Parties (WSBA) Table of Cases
    • Invalid date
    ...v. Site 16/17 Development LLC, No. 105958/10 (N.Y. Cnty. Sup. Ct. May 5, 2010): 16.6(4)(c) Mark S. Wallach v. Town of Dryden, In re, 23 N.Y.3d 728, 792 N.Y.S.2d 710, 16 N.E.3d 1188 (2014): 7.8(5) Schwartz v. State, 95 Misc. 2d 525, aff'd, 426 N.Y.S.2d 100, 72 A.D.2d 490 (1980): 14.8(2) PENN......

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