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the zoning power that the Court of Appeals approved in Frew
Run, where the mines were allowed but only in certain areas.^238
In Gernatt, the court held that the town’s use of its zoning
power to ban all mining within the town did not violate the
MLRL.^239 The court noted that without a “clear expression of
legislative intent to preempt local control over land use” the
local zoning laws were not preempted.^240 The court also found
that towns are not “obligated to permit the exploitation of any
and all natural resources within th[at] town.”^241
These two cases established an important baseline for how
towns may use their zoning power. However, both cases dealt
only with mining and the zoning power of towns in relation to
the MLRL.^242 Therefore, a number of oil and gas companies
claim the decisions in Frew Run and Gernatt are not applicable
to hydrofracking.^243
D. The Legal Journey of Hydrofracking in New YorkSupporters and opponents of hydrofracking hold divergent
opinions as to whether zoning bans on hydrofracking are
preempted by state law. Gas companies argue that
hydrofracking, as a type of gas drilling, can only be controlled
by state law, specifically the OGSML.^244 They further argue that
(^238) See Frew Run, 518 N.E.2d at 923–24.
(^239) See Gernatt, 664 N.E.2d at 1235–37.
(^240) Id. at 1234.
(^241) Id. at 1235 (“A municipality is not obligated to permit the exploitation
of any and all natural resources within the town as a permitted use if limiting
that use is a reasonable exercise of its police powers to prevent damage to the
rights of others and to promote the interest of the community as a whole.”).
(^242) See Frew Run, 518 N.E.2d at 921; see also Gernatt, 664 N.E.2d at
1230.
(^243) See Charles Gottleib, Regulating Natural Gas Development Through
Local Planning and Land Use Controls, N.Y. ZONING L. & PRAC. REP.,
May/June 2012, at 1, 3; Campbell, supra note 132 (“West, the Norse
attorney, warned the appellate justices against falling into the ‘trap’ of
judging based on past decisions on sand and gravel, which are regulated
under a separate portion of state law.”) 244
Oil, Gas and Solution Mining Law, N.Y. ENVTL. CONSERV. § 23-
0303(2) (McKinney 2007) (“The provisions of this article shall supersede all