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intent.^219 Courts judge legislative intent by investigating the
state’s public policy, the language of the statute, and whether
state law has created a “comprehensive and detailed regulatory
scheme.”^220 Issues commonly arise as to what type of statement
by the legislature or what level of detail in a regulatory scheme
is needed to show intent.^221 Resolving those issues often requires
a fact intensive search into the statute itself or the legislative
purpose and history.^222
C. Mining in New York—The Precursor to the Hydrofracking
DebateThe Court of Appeals has never addressed the issue of
whether a town can use its zoning power to ban hydrofracking.
However, the Court of Appeals has addressed the extent to
which towns can use their zoning power to control and ban
mining.^223 The issue in mining, similar to that of hydrofracking,
is whether local zoning power is preempted by a state statute
regulating that industry. In mining, the focus was on the Mined
Land Reclamation Act (“MLRA”),^224 which bears many
similarities to the OGSML.^225 The Court of Appeals addressed
this issue in Frew Run Gravel Products, Inc. v. Town of
Carroll^226 and Gernatt Asphalt Products, Inc. v. Town of
evidence of the legislature’s intent to preempt. Id.
(^219) See, e.g., id.
(^220) See id.; see also Jancyn Mfg. Corp. v. Cnty. of Suffolk, 518 N.E.2d
903, 904–05 (N.Y. 1987) (upholding local law because there was no
indication that state law preempted the local regulatory scheme).
(^221) See Jancyn Mfg. Corp., 518 N.E.2d at 907; see also N.Y. State Club
Ass’n, 505 N.E.2d at 917.
(^222) See Consol. Edison Co., 456 N.E.2d at 490 (looking at the statute to
discern intent); see also Jancyn, 518 N.E.2d at 906 (looking at the purpose
of the statute, here to protect the environment).
(^223) See, e.g., Frew Run Gravel Prods., Inc. v. Town of Carroll, 518
N.E.2d 920 (N.Y. 1987); see also Gernatt Asphalt Prods., Inc. v. Town of
Sardinia, 664 N.E.2d 1226 (N.Y. 1996).
(^224) Mined Land Reclamation Act, N.Y. ENVTL. CONSERV. § 27-0030
(McKinney 2007).
(^225) See SALKIN, supra note 177, § 11:23.50.
(^226) Frew Run, 518 N.E.2d at 921.