LOCAL HYDROFRACKING BANS 667
However, in actuality, the Court of Appeals has applied a very
narrow test and has been loath to find implied preemption by the
state with regard to zoning without an express statement of
intent.^293 The apparent necessity of such a clear and unequivocal
statement of intent by the state raises the question of whether in
the absence of such a statement any zoning act could be
considered impliedly preempted.
For example, in Incorporated Village of Nyack v. Daytop
Village Inc,^294 the Court of Appeals held that “separate levels of
regulatory oversight can coexist”^295 without preemption and that
the detailed regulatory structure alone did not “evidence[] a
desire” to preempt local zoning power.^296 The court held that the
Mental Hygiene Law,^297 a very detailed regulatory scheme, did
not preempt local zoning law since there was no clear indication
of legislative intent to preempt.^298 Although not specifically
stated, the court’s failure to find implied preemption in this case
establishes an incredibly high burden for what constitutes
implied preemption. DJL Restaurant Corp. v. City of New York
(^293) See Daytop Vill., 583 N.E.2d at 928–32; see also Jancyn, 518 N.E.2d
at 906; Frew Run Gravel Prods., Inc. v. Town of Carroll, 518 N.E.2d 920
(N.Y. 1987).
(^294) Daytop Vill., Inc., 583 N.E.2d at 929 (holding that local zoning
regulations for substance abuse treatments were not preempted by state law,
even though article 19 of the Mental Hygiene Law created a detailed
regulatory structure because there is no evidence of legislative intent to
preempt local zoning laws).
(^295) Id. at 931.
(^296) Id. (quoting People v. Cook, 312 N.E.2d 452, 457 (N.Y. 1974)).
(^297) “DSAS [Division of Substance Abuse Services] is charged with the
responsibility for establishing procedures and setting standards for the
approval of substance abuse programs.” Daytop Vill., 583 N.E.2d at 930
(citing N.Y. MENTAL HYG. LAW § 23.01 (McKinney 1991) (repealed 1999)).
DSAS also is to “cooperate with and assist local agencies and community
service boards in the development and periodic review of local
comprehensive plans and programs for substance abuse services and approve
such plans and programs... .” Id. (citing MENTAL HYG. § 19.07(b)(4)
(McKinney 2011)). DSAS also must “inspect and approve or disapprove the
facilities of and the services provided by substance abuse programs... .”
Id. (citing MENTAL HYG. § 19.07(b)(5)).
(^298) Id. at 931.