Wallach v. Town of Dryden

16 N.E.3d 1188, 23 N.Y.3d 728
New York Court of Appeals·Decided June 30, 2014·Published·Cited by 33 cases

Opinions

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.

L

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 US [740]*740Dept of Energy, Natural Gas from Shale: Questions and Answers [Apr. 2013], available at http://www.energy.gov/sites/prod/files/2013/04/f0/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.

[741]*741Supreme 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 [Sup Ct, Tompkins County 2012]). The Appellate Division affirmed, rejecting Norse’s claim that the OGSML preempted Dryden’s zoning amendment (108 AD3d 25 [3d Dept 2013]). We granted Norse leave to appeal (21 NY3d 863 [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 granted Middlefield’s cross motion to dismiss the complaint, upholding the legality of the zoning law (35 Misc 3d 767 [Sup Ct, Otsego County 2012]). The Appellate Division affirmed (106 AD3d 1170 [3d Dept 2013]), and we granted CHC leave to appeal (21 NY3d 863 [2013]).

[742]*742II

On appeal, Norse and CHC, supported by several amici curiae, press their contention that Dryden and Middlefield (collectively, the Towns) lacked the authority to proscribe hydrofracking and associated natural gas activities within their town boundaries. They assert that the energy policy of New York, as exemplified by the statewide OGSML, requires a uniform approach and cannot be subject to regulation by a melange of the state’s 932 towns. They maintain that the OGSML contains a supersession clause that expressly preempts all local zoning laws, like those enacted by the Towns, which restrict or forbid oil and gas operations on real property within a municipality. The Towns, joined by other amici curiae, respond that the courts below correctly concluded that they acted within their home rule authority in adopting the challenged local laws.

Free access — add to your briefcase to read the full text and ask questions with AI

Wallach v. Town of Dryden, 16 N.E.3d 1188, 23 N.Y.3d 728 (N.Y. 2014).

16 N.E.3d 1188 (Wallach v. Town of Dryden) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Matter of Stewart Hill, LLC v. Windsor
2026 NY Slip Op 01367 (Appellate Division of the Supreme Court of New York, 2026)
Matter of Honovich v. County of Putnam
2025 NY Slip Op 25093 (New York Supreme Court, Putnam County, 2025)
Matter of Town of Copake v. New York State Off. of Renewable Energy Siting
191 N.Y.S.3d 181 (Appellate Division of the Supreme Court of New York, 2023)
Pusatere v. City of Albany
185 N.Y.S.3d 350 (Appellate Division of the Supreme Court of New York, 2023)
Matter of 1160 Mamaroneck Ave. Corp. v. City of White Plains
211 A.D.3d 723 (Appellate Division of the Supreme Court of New York, 2022)
Matter of Town of Southampton v. New York State Dept. of Envtl. Conservation
2021 NY Slip Op 03351 (Appellate Division of the Supreme Court of New York, 2021)
Matter of Ball v. Town of Ballston
2019 NY Slip Op 4519 (Appellate Division of the Supreme Court of New York, 2019)
Matter of Calverton Manor, LLC v. Town of Riverhead
2018 NY Slip Op 2609 (Appellate Division of the Supreme Court of New York, 2018)
Matter of Bovee v. Town of Hadley Planning Bd.
2018 NY Slip Op 2387 (Appellate Division of the Supreme Court of New York, 2018)
People v. Livant (Dyck)
Appellate Terms of the Supreme Court of New York, 2017
Matter of Hudson River Sloop Clearwater, Inc. v. Town Board of the Town of Coeymans
144 A.D.3d 1274 (Appellate Division of the Supreme Court of New York, 2016)
SMOKE, JOHN T. v. PLANNING BOARD OF TOWN OF GREIG
Appellate Division of the Supreme Court of New York, 2016
Smoke v. Planning Board
138 A.D.3d 1437 (Appellate Division of the Supreme Court of New York, 2016)
The People v. Freddie Thompson
47 N.E.3d 704 (New York Court of Appeals, 2016)
Matter of Town of Verona v. Cuomo
136 A.D.3d 36 (Appellate Division of the Supreme Court of New York, 2015)
The People v. Jennifer Jorgensen
41 N.E.3d 778 (New York Court of Appeals, 2015)
Walter R. Beardslee v. Inflection Energy, LLC
31 N.E.3d 80 (New York Court of Appeals, 2015)