In New York, Local Municipalities Can Zone-Out Oil and Gas Development

In this case, two ordinances of towns in New York that banned oil and gas production activities within each of the towns were challenged.  The issue before the court was whether state law eliminated the home rule authority of localities to bar such activities via the Oil, Gas and Solution Mining Law (OGSML).  The OGSML specifies that it supersedes all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries, but that it doesn't impact the ability of local governments to maintain jurisdiction over local roads or the rights local governments had under real property tax law.  Despite that language, the court determined that the OGSML did not apply because the towns had completely banned oil and gas activity rather than attempt to regulate operational aspects of oil and gas development.  The court did note, however, that the NY legislature could eliminate the ability of local governments to ban oil and gas development.  The court did not address whether its opinion would result in disaffected owners of mineral estates suing the towns for a regulatory taking of their property right associated with oil and gas development.  In re Wallach, Nos. 130-131, 2014 N.Y. LEXIS 1766 (N.Y. Ct. App. Jun. 30, 2014).   

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