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by the Appellate Division.^252 However, the issue is far from
settled, as hydrofracking ban opponents are currently seeking
leave to appeal to the Court of Appeals.^253 These cases concern
the extent of a town’s zoning power and whether hydrofracking
bans are a proper use of that power.
In Anschutz Exploration, the trial court found that the New
York legislature did not intend to preempt local control over
land use and zoning when it passed the OGSML.^254 Due to the
similar language between the OGSML and the MLRL, the trial
court based its decision largely on the precedent set by the Court
of Appeals in Frew Run.^255 The court found that the OGSML’s
language, superseding those laws regulating oil and gas drilling,
indicated only laws that dealt with the actual operation of
drilling. The OGSML did not prevent local governments from
determining where within their borders the drilling should take
place.^256 It was within the town’s land use power to ban the
location of hydrofracking drilling sites if the town thought that it
would negatively affect the community.^257 Such a ban did not
rise to the level of regulation.^258 In effect, only the state can
regulate the “how” of mining but local municipalities can
regulate the “where.”^259
Additionally, the court in Anschutz found that there was no
“clear expression of legislative intent” in the OGSML to
preempt zoning laws, language that had been included in other
state statutes.^260 While another trial court had interpreted the
(^252) Campbell, supra note 133.
(^253) Id.
(^254) Anschutz Exploration, 940 N.Y.S.2d at 471.
(^255) Id. at 471–73.
(^256) Id.
(^257) Id.
(^258) See id. at 470–73.
(^259) SALKIN, supra note 177, § 11:23.50.
(^260) Anschutz Exploration, 940 N.Y.S.2d at 470. New York has clearly
expressed its intent to preempt local zoning ordinances in other state statutes.
See, e.g., N.Y. ENVTL. CONSERV. LAW § 27-1107 (McKinney 2007) (“[N]o
municipality may, except as expressly authorized by this article or the board,
require any approval, consent, permit, certificate or other condition including
conformity with local zoning or land use laws and ordinances” (emphasis