LOCAL HYDROFRACKING BANS 665
III. IMPLIED PREEMPTION AND HYDROFRACKING
A. Zoning and Implied PreemptionA number of New York Court of Appeals cases have
addressed when zoning laws are implicitly preempted by state
laws.^277 The issue of preemption most commonly arises in regard
to exclusionary zoning^278 or prevention of specific uses of land.^279
Both are a form of “NIMBYism.” NIMBY, which stands for
“not in my backyard,” refers to objections by the community
about the placement of certain activities or structures in their
particular neighborhood.^280 Such NIMBY problems often arise
from projects that generate extensive benefits but impose a
facility or project that negatively affects the local residents.^281
Examples include when communities use their zoning power to
restrict housing for the low income or mentally disabled^282 and
the placement of waste disposal facilities.^283 Issues arise when
(^277) See, e.g., Inc. Vill. of Nyack v. Daytop Vill., Inc., 583 N.E.2d 928
(N.Y. 1991); Kamhi v. Town of Yorktown, 547 N.E.2d 346 (N.Y. 1989);
Consol. Edison Co. of N.Y. v. Town of Red Hook, 456 N.E.2d 487 (N.Y.
1983).
(^278) Exclusionary zoning is often employed to describe land use laws
which exclude certain people or projects from a certain community. The
focus is often on individuals rather then uses. For more information see
SALKIN, supra note 177, §§ 20:01–02.
(^279) Often the problem arises when the specific uses of land have a
relation to the public welfare. For more information see id. §§ 11:01–06.
(^280) Nimby Definition, OXFORD DICTIONARIES, http://oxforddictionaries.com/
definition/american_english/Nimby (last visited Dec. 15, 2012) (“[A] person
who objects to the siting of something perceived as unpleasant or potentially
dangerous in their own neighborhood, such as a landfill or hazardous waste
facility, especially while raising no such objections to similar developments
elsewhere.”).
(^281) See Barak D. Richman, Mandating Negotiations to Solve the NIMBY
Problem, 20 UCLA J. ENVTL. L. & POL’Y 223, 223 (2001–02) (“NIMBY
conflicts arise from projects that typically generate widespread dispersed
benefits while imposing concentrated costs, such as homeless shelters,
prisons, airports, sports stadiums, and waste disposal sites.”).
(^282) SALKIN, supra note 177, §§ 20:01–02.
(^283) Richman, supra note 281, at 223.