THE INTEGRATION OF BANKING AND TELECOMMUNICATIONS: THE NEED FOR REGULATORY REFORM

666 JOURNAL OF LAW AND POLICY

the placement of the project, while perhaps undesirable for the
neighborhood, is essential for the community as a whole.^284
One means to address NIMBYism is through legislation
controlling placement. Since local municipalities derive their
authority from the state legislature,^285 municipalities cannot pass
zoning plans that are preempted by state law.^286 The local law is
expressly preempted if the state law reserves control over the
zoning procedure for a specific industry for itself.^287 However,
even if the state law does not specifically reserve control over
zoning, the local law could still be impliedly preempted.^288 In
both forms of implied preemption (conflict and field), the key is
to analyze the intent of the legislature.^289 The language in some
Court of Appeals decisions seems to indicate a broad reading for
what constitutes implied preemption with regard to zoning but
actual decisions have created an almost impossibly narrow
application.

B. (Trying) To Find Implied Preemption

The Court of Appeals has found that the intent to preempt
does not have to be expressly stated and it is “enough that the
Legislature has impliedly evinced its desire to do so.”^290 It is
also not enough “that the state and local laws touch upon the
same area.”^291 Instead, the court can look to declared state policy
to infer whether the legislature intended to preempt local laws.^292

(^284) Id. at 223–24.
(^285) E.g., N.Y. CONST. art. IX, § 2.
(^286) See SALKIN, supra note 177, § 4:22.
(^287) See Weiland, supra note 16, at 472; Goho, supra note 14, at 5.
(^288) N.Y. COMM’N ON LOCAL GOV’T EFFICIENCY & COMPETITIVENESS,
supra note 15.
(^289) See id.
(^290) Consol. Edison Co. of N.Y. v. Town of Red Hook, 456 N.E.2d 487,
487 (N.Y. 1983) (citations omitted).
(^291) Inc. Vill. of Nyack v. Daytop Vill., Inc., 583 N.E.2d 928, 930 (N.Y.
1991) (quoting Jancyn Mfg. Corp. v. Cnty. of Suffolk, 518 N.E.2d 903, 907
(N.Y. 1987)).
(^292) Consol. Edison Co., 456 N.E.2d at 490 (citing Robin v. Inc. Vill. of
Hempstead, 285 N.E.2d 285 (N.Y. 1972)).