In the Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant,v.Town of Dryden et al., Respondents.BriefN.Y.June 3, 2014 STATE OF NEW YORK Court of Appeals In the Matter of MARK S. WALLACH, as Chapter 7 Trustee for NORSE ENERGY CORP. USA, Petitioner-Plaintiff-Appellant, – against – TOWN OF DRYDEN, et al., Respondents-Defendants-Respondents. Appeal No. 2013-245 Tompkins County Index No. 2011-0902 BRIEF OF AMICUS CURIAE DRYDEN RESOURCE AWARENESS COALITION KNAUF SHAW LLP Alan J. Knauf, Esq., Amy K. Kendall, Esq. and Arthur L. James, III, Esq. Attorneys for Amicus Curiae Dryden Resource Awareness Coalition 1400 Crossroads Bldg. 2 State Street Rochester, NY 14614 Tel.: (585) 546-8430 Fax: (585) 546-4324 Dated: May 12, 2014 CORPORATE DISCLOSURE PURSUANT TO RULE 500.1(f) Amicus curiae Dryden Resource Awareness Coalition is a New York domestic not-for-profit corporation having no parents, subsidiaries or affiliates. ii TABLE OF CONTENTS Page TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES .................................................................................... iv STATEMENT OF INTEREST .................................................................................. 1 STATEMENT OF THE CASE .................................................................................. 3 STATEMENT OF FACTS ........................................................................................ 5 LEGAL ARGUMENT THE OGSML DOES NOT PREEMPT MUNICIPAL ZONING LAWS .................................................................... 11 A. Municipalities Have the Authority to Enact Zoning Ordinances Banning Hydrofracking. ........................................................................... 11 B. The OGSML Does Not Preempt Local Zoning. ...................................... 14 1. A Town-Wide Ban Does Not Relate to the Details and Procedures of the Oil, Gas and Solution Mining Industry ........... 16 2. ECL §23-0303(2) Does Not Expressly Preempt Local Control Over Land Use.............................................................................. 20 3. The Statutory Scheme Does Not Evidence an Intent to Preempt Local Control Over Land Use ........................................ 25 4. The Legislative History Does Not Express an Intent to Preempt Local Zoning Authority ................................................. 28 5. Envirogas Did Not Involve Local Control of Land Use .............. 31 iii C. The OGSML Supersession Provision is Nearly Identical to That in Frew Run .............................................................................................. 33 CONCLUSION ........................................................................................................ 37 TABLE OF AUTHORITIES CASES Pages Anschutz v. Town of Dryden, 35 Misc.3d 450, 940 N.Y.S.2d 458 (Sup. Ct. Tompkins Co. 2012) .......................... 4 Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 41 N.Y.2d 84, 390 N.Y.S.2d 884 (1976) ................................................................. 28 Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 967 N.Y.S.2d 876 (2013) ..................................................... 15, 21, 25 Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170, 964 N.Y.S.2d 431 (3d Dep’t 2013) ............................................ 31 DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 725 N.Y.S.2d 622 (2001) ................................................................. 37 Envirogas v. Kiantone, 112 Misc. 2d 432, 447 N.Y.S.2d 221 (Sup. Ct. Erie Co. 1982), aff’d 89 A.D.2d 1056, 454 N.Y.S.2d 694 (4th Dep’t 1982) ................................. 18, 31, 32 Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126, 524 N.Y.S.2d 25 (1987) ........................ 3, 15, 28, 33, 34, 35, 36, 37 Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164 (1996) .......................... 15, 18, 19, 20, 28, 32, 35 Group House of Port Washington, Inc. v. Bd. of Zoning and Appeals of the Town of North Hempstead, 45 N.Y.2d 266, 408 N.Y.S.2d 377 (1978) ............................................................... 22 Incorporated Village of Nyack v. Daytop Village, 78 N.Y.2d 500, 577 N.Y.S.2d 215 (1991) ............................................................... 37 iv CASES Pages Jewish Home and Infirmary of Rochester, N.Y., Inc. v. Comm’r of N.Y. State Dept. of Health, 84 N.Y.2d 252, 616 N.Y.S.2d 458 (1994) .................................... 19 Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 548 N.Y.S.2d 144 (1989) ............................................................... 13 Kramer v. Phoenix Life Ins. Co., 15 N.Y.3d 539, 914 N.Y.S.2d 709 (2010) ............................................................... 15 Lighthouse Pointe Property Associates, LLC v. NYSDEC, 14 N.Y.3d 161, 897 N.Y.S.2d 693 (2010) ............................................................... 17 National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012) .............................................................................................. 30 Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d 25, 964 N.Y.S.2d 714 (3d Dep’t 2013), lv. granted 21 N.Y.3d 863, 972 N.Y.S.2d 535 (2013). ...................................................... 4, 5, 17 Palmer v. Spaulding, 299 N.Y. 368 (1949) ............................................................. 21 People v. Finnegan, 85 N.Y.2d 53, 623 N.Y.S.2d 546 (1995) ................................................................. 21 Roberts v. Tishman Speyer Properties, L.P., 13 N.Y.3d 270, 890 N.Y.S.2d 388 (2009) ............................................................... 28 St. Onge v. Donovan, 71 N.Y.2d 507, 527 N.Y.S.2d 721 (1988). .............................................................. 17 Sunrise Check Cashing and Payroll Services, Inc. v. Town of Hempstead, 91 A.D.3d 126, 933 N.Y.S.2d 388 (2d Dep’t 2011), aff’d on other grounds 20 N.Y.3d 481, 964 N.Y.S.2d 64 (2013) ............................................... 18, 25, 26, 27 Weingarten v. Board of Trustees of N.Y. City Teachers' Retirement System, 98 N.Y.2d 575, 750 N.Y.S.2d 573 (2002) ............................................................... 20 v STATUTES AND REGULATIONS Pages State Administrative Procedure Act §202 ................................................................. 6 Banking Law §367 ................................................................................................... 25 Banking Law §369 ............................................................................................. 25, 26 ECL Article 8 ............................................................................................................. 5 ECL §23-0303 ............................................................... 3, 4, 13-17, 20, 24, 25, 28-32 ECL §23-0501 ...................................................................................................... 8, 27 ECL §23-0503 .......................................................................................................... 27 ECL §23-0701 ............................................................................................................ 8 ECL §23-0901 ............................................................................................................ 9 ECL §23-2703 .................................................................................... 9, 33, 34, 35, 36 ECL §24-0903 .......................................................................................................... 24 ECL §25-0302 .......................................................................................................... 24 ECL §27-1102 .......................................................................................................... 22 ECL §27-1103 .................................................................................................... 22, 23 ECL §27-1105 .......................................................................................................... 23 ECL §27-1107 .......................................................................................................... 21 ECL §36-0101 .......................................................................................................... 24 vi STATUTES AND REGULATIONS Pages ECL §55-0119 .......................................................................................................... 24 General Associations Law §12 .................................................................................. 1 General Associations Law §13 .................................................................................. 1 General City Law §20 .............................................................................................. 13 General Municipal Law §119-u ............................................................................... 24 Mental Hygiene Law §41.34 .................................................................. 21, 22, 23, 24 Municipal Home Rule Law §10 ............................................................................... 13 New York Constitution Article IX ............................................................... 11, 12, 13 3 N.Y.C.R.R. §400.1 ................................................................................................ 26 6 N.Y.C.R.R. Part 552 ............................................................................................. 27 6 N.Y.C.R.R. Part 553 ............................................................................................. 18 Statute of Local Governments §10 .......................................................................... 12 State Finance Law §83-a .......................................................................................... 29 Town of Dryden Zoning Law §2104 ................................................................... 9, 10 Town Law §261 ....................................................................................................... 13 Town Law §272-a .................................................................................................... 24 Village Law §7-700 ................................................................................................. 13 Village Law §7-722 ................................................................................................. 24 vii OTHER AUTHORITIES Pages Merriam-Webster On-line Dictionary ..................................................................... 17 Laws of 1981, c. 846 .......................................................................................... 28, 29 N.Y. Assemb. B. 779, 236th Leg. Sess. (N.Y. 2013) .............................................. 31 N.Y. Assemb. B. 845, 236th Leg. Sess. (N.Y. 2013) .............................................. 31 N.Y. Assemb. B. 1363, 236th Leg. Sess. (N.Y. 2013) ............................................ 31 N.Y. Assemb. B. 3806, 236th Leg. Sess. (N.Y. 2013) ............................................ 31 N.Y. Assemb. B. 8512, 237th Leg. Sess. (N.Y. 2014) ............................................ 31 N.Y. S. B. 734, 236th Leg. Sess. (N.Y. 2013) ......................................................... 31 N.Y. S. B. 2284, 236th Leg. Sess. (N.Y. 2013) ....................................................... 31 viii 1 STATEMENT OF INTEREST Dryden Resources Awareness Coalition (“DRAC”) is an unincorporated association of about seventy-one (71) residents and landowners of the Town of Dryden (“Town”) opposed to high-volume hydraulic fracturing and horizontal drilling (collectively “hydrofracking”), and as such has the capacity to participate in this case through its President, Marie McRae. R. 680-81, 689. General Associations Law §§12, 13. DRAC was the prime driver of the amendments (“Zoning Amendments”) to the Town of Dryden Zoning Ordinance (“Zoning Ordinance”) at issue in this proceeding. R. 680. The group includes both owners of land that has not been leased for natural gas extraction (but may be subjected to compulsory integration since their neighbors have signed leases), and land that has been leased for natural gas extraction. The association’s purpose is to educate and protect the community from the impacts and hazards associated with hydrofracking as a means of natural gas extraction. R. 680, 689. DRAC dedicated a considerable amount of time and resources in a successful campaign culminating in the enactment of the Zoning Amendments, in order to clarify the previously existing Town Zoning Ordinance forbidding heavy industry so that it specifically bans hydrofracking. R. 680, 689. 2 DRAC’s membership has a real and substantial interest in the outcome of the proceedings. For example, much of the property around the home of DRAC member Joseph Wilson is leased for the purpose of drilling for natural gas, and he is therefore concerned, among other things, about his property being compulsorily integrated into a well spacing unit. R. 705. DRAC member Judith Pierpont is concerned about the environmental impacts associated with hydrofracking and that her property will lose value if a well is established nearby. R. 710. President Marie McRae signed a lease with Anschutz Exploration Corporation (“Anschutz”), the predecessor in interest to Appellant Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA Norse Energy Corp. USA (“Appellant”), and now is concerned that the establishment of a well pad down the road from her property will damage her horse boarding business and her quality of life. R. 691. DRAC members will be significantly and adversely affected if the Zoning Amendments are voided, and Appellant is permitted to drill in the Town of Dryden. DRAC has participated in this case since its inception. It moved to intervene in order to protect its members’ rights as impacted landowners. Supreme Court denied the motion, which the Appellate Division affirmed, but both courts gave DRAC amicus status. 3 STATEMENT OF THE CASE Anschutz commenced this hybrid Article 78 proceeding/declaratory judgment action by Petition and Verified Complaint dated September 16, 2011. R. 66. It sought to void Resolution No. 126 of 2011, entitled “Resolution in Support of Adopting Amendments to the Town of Dryden Zoning Ordinance Clarifying the Town's Prohibition of Natural Gas Exploration and Extraction, a Resolution of the Town of Dryden,” and the Zoning Amendments that Resolution enacted. R. 66. Anschutz, and now Appellant, has argued that the New York State Oil Gas and Solution Mining Law (“OGSML”), codified at Environmental Conservation Law (“ECL”) §23-0303, preempts local zoning regulation despite no clear preemption language in the statute. They have taken this position in spite of the fact that in Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126, 131, 524 N.Y.S.2d 25, 27 (1987), this Court reviewed a nearly identical supersession provision related to the mining industry, and held that an appropriately drafted zoning law was not superseded. Furthermore, the Legislature has not amended the OGSML in the 27 years since that case was decided. 4 Respondents Town of Dryden and its Town Board (“Respondents”) served their Answer on October 21, 2011, R. 89, and moved to Dismiss and for Summary Judgment. R. 451. DRAC filed a Motion to Intervene on October 26, 2011. R. 658. Oral arguments were heard on November 4, 2011. Supreme Court (Hon. Phillip R. Rumsey, J.S.C.), rendered a Decision, Order and Judgment on February 21, 2012. R. 14-41; Anschutz v. Town of Dryden, 35 Misc.3d 450, 940 N.Y.S.2d 458 (Sup. Ct. Tompkins Co. 2012). Judge Rumsey granted Respondents’ Motion, and determined that the Zoning Amendments were not preempted by ECL §23-0303(2). While he also denied DRAC’s Motion to Intervene, he granted it amicus status. R. 19. Appellant appealed to the Appellate Division, Third Department, and DRAC cross-appealed. The Third Department unanimously upheld the decision of the lower court, holding that: OGSML does not preempt, either expressly or impliedly, a municipality's power to enact a local zoning ordinance banning all activities related to the exploration for, and the production or storage of, natural gas and petroleum within its borders. R. 20; Norse Energy Corp. USA v. Town of Dryden, 108 A.D.3d 25, 38, 964 N.Y.S.2d 714, 724 (3d Dep’t 2013), lv. granted 21 N.Y.3d 863, 972 5 N.Y.S.2d 535 (2013). It also affirmed denial of intervention to DRAC as not an abuse of discretion, but granted it amicus status, holding that DRAC failed to demonstrate a substantial interest in the outcome of the action different from other residents of the Town. Further, as noted by Supreme Court, the Town is the preeminent party in defending the validity of the zoning ordinance amendment which it enacted. R. 11; Norse Energy Corp. USA, 108 A.D.3d 25, 30, 964 N.Y.S.2d 714, 718. At this juncture, DRAC has chosen not to further pursue its Motion to Intervene by seeking leave to appeal on that point, so that the legal arguments are focused on the substantive issues. Rather, it submits this Brief as an amicus curiae. STATEMENT OF FACTS To address the unique issues posed by hydrofracking, the New York State Department of Environmental Conservation (“NYSDEC”) began the process of preparing a Draft Supplement to its Generic Environmental Impact Statement (“DSGEIS”) for the Oil, Gas and Solution Mining Regulatory Program, pursuant to the State Environmental Quality Review Act (“SEQRA”) (ECL Article 8). The initial DSGEIS was released in 2009, and received thousands of comments. Governor Patterson issued Executive Order No. 41, which banned hydrofracking until July 2011, stating that this would “guarantee that before 6 any high-volume horizontal hydraulic fracturing is permitted, [NYSDEC] will complete its studies and certify that such operations are safe.” By Executive Order 2, Governor Cuomo extended that Executive Order. http://governor.ny.gov/executiveorder/2. In response to Executive Order 41, NYSDEC was required to conduct additional review of the environmental impacts of hydrofracking. A revised DSGEIS, available at http://www.dec.ny.gov/energy/75370.html, was issued on September 7, 2011. The revised DSGEIS has not been finalized, and therefore the SEQRA environmental process has not been completed. While NYSDEC did file a notice of proposed rulemaking in the New York State Register on September 28, 2011, which proposed “administrative” changes to existing regulations on oil and gas drilling, as well as new regulations on hydrofracking, available at http://docs.dos.ny.gov/info/register/2011/sep28/pdfs/rules.pdf, p. 11, and a subsequent Revised Rulemaking pursuant to the State Administrative Procedure Act §202(3) on December 12, 2012, that Notice expired on March 20, 2013 and was withdrawn. This extended process, including thousands of public comments, demonstrates that there is widespread concern over the potential environmental, health, safety and community impacts of high-volume 7 hydrofracking, some of which are being assessed by the SDGEIS and an ongoing study by the U.S. Environmental Protection Agency. These potential impacts, many of which have already been observed in Pennsylvania and other areas where hydrofracking has been allowed, include: Noise from trucks, drilling and processing operations. Air pollution from diesel engines and other operations. Contamination of groundwater (which many Town residents use as drinking water) with natural gas, chemicals contained in the proppant, or radioactive materials from the subsurface, as well as surface water pollution. Increased truck traffic, making travel slow and dangerous. Wear and tear on local roads. Lights from the 24/7 operations. Influx of transient workers, and construction of housing for them. Greater need for community services due to the increased activity, including social services, schools, police and jails. Change in community character from quiet rural or residential areas to busy industrial hubs. 8 Banks may not give mortgages for residential property, and values of these properties may decrease. R. 692-723. Natural gas exploration companies like Anschutz leased subsurface rights all over southern and central New York with the hope that one day they will be able to obtain permits for hydrofracking. Given the widespread prevalence of these leases in Dryden and elsewhere, the impacts of any hydrofracking that may eventually be allowed will be realized by landowners who do not even sign a lease, since many of their nearby neighbors have done so already. Under a process known as “compulsory integration,” landowners who do not sign leases may be forced into the mix. Among other requirements, to obtain a drilling permit operators must control at least sixty percent of the oil or gas rights to the acreage associated with the proposed well, within what is known as the well “spacing unit.” ECL §§23-0501(2) and 23- 0701(1). Well spacing units for high-volume hydraulic fracturing are expected to typically be up to 640 acres (one square mile). DSGEIS at 5-22 to 5-24; ECL §23-0501(b)(1)(vi). When an operator, or cooperating operators, control at least 60% of the acreage of a proposed well spacing unit, but not the full 100%, they are 9 required to “integrate” the remaining acreage through the compulsory integration process in order to obtain their permit. ECL §23-0901(3). The process is “compulsory” because a landowner currently not controlled by the gas developer (an “uncontrolled owner”) is required to integrate into the proposed spacing unit in return for certain royalty rights. ECL §23-0901(3). Therefore, local zoning may the only way for a landowner to keep hydrofracking off their property. Realizing this, DRAC urged the Dryden Town Board to take action. As a result, on August 2, 2011, the Town Board passed Resolution 126, which, among other things, amended the Zoning Ordinance as follows: Section 2104. Prohibited Uses 1) Prohibition against the Exploration for Extraction on Natural Gas and/or Petroleum. No land in the Town shall be used: to conduct any exploration for natural gas and/or petroleum; to drill any well for natural gas and/or petroleum; to transfer, store, process treat natural gas and/or petroleum; or to dispose of natural gas and/or petroleum exploration or production wastes; or to erect any derrick, building, or other structure; or to place any machinery or equipment for any such purposes. 2) Prohibition against the Storage, Treatment and Disposal of Natural Gas and/or Petroleum Exploration and Production Materials. 10 No land in the Town shall be used for: the storage, transfer, treatment and/or disposal of natural gas and/or petroleum exploration and production materials. 3) Prohibition against the Storage, Treatment and Disposal of Natural Gas and/or Petroleum Exploration and Production Waste. No land in the Town shall be used for: the storage, transfer, treatment and/or disposal of natural gas and/or petroleum exploration and production wastes. 4) Prohibition against Natural Gas and/or Petroleum Support Activities. No land in the Town shall be used for natural gas and/or petroleum support activities. 5) Invalidity of Permits. No permit issued by any local, state or federal agency, commission or board for a use which would violate the prohibitions of this section or of this Ordinance shall be deemed valid within the Town. R. 44-45. 11 LEGAL ARGUMENT THE OGSML DOES NOT PREEMPT MUNICIPAL ZONING LAWS Appellant suggests that New York’s time-honored, constitutional and statutory principles allowing municipalities and their residents the power to make their own land use decisions should be swept aside in favor of the oil and gas industry with no connection to the local community other than a desire to poke holes in the ground, hoping to strike liquid gold. Appellant’s argument is not based on any clear expression of intent to preempt municipalities’ authority to zone on the part of the Legislature. Rather, it is based on hyperbole and conjecture. A. Municipalities Have the Authority to Enact Zoning Ordinances Banning Hydrofracking. Article IX of the New York State Constitution grants municipalities’ broad authority to enact laws to protect the health and safety of its residents and the property within its borders. Section 2 of Article IX requires that the Legislature enact a statute of local governments to provide for the rights and privileges authorized by the Constitution: §2. (a) The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, 12 powers, privileges and immunities granted to them by this constitution. (b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature: (1) Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re- enactment and approval of such statute in the following calendar year…. In compliance with the New York Constitution, the Legislature enacted the Statute of Local Governments, which states, at Article 2 §10: Except as otherwise specifically provided in this section, each of the following powers, which shall include but not be limited to those of local legislation and administration, is hereby granted to each local government which shall at all times be subject to such purposes, standards and procedures as the legislature may have heretofore prescribed or may hereafter prescribe: * * * * 6. In the case of a city, village, or town with respect to the area thereof outside the village or villages therein, the power to adopt, amend and repeal zoning regulations. 13 As part of the same legislative package that adopted amendments to Article IX of the New York State Constitution, the Legislature enacted the Municipal Home Rule Law. Municipal Home Rule Law §10(1)(ii)(a)(12) authorizes towns, villages and cities to adopt local zoning laws to regulate “government, protection, order, conduct, safety, health and well-being of persons or property therein.” Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 433, 548 N.Y.S.2d 144, 149 (1989). Similarly, Town Law §261 authorizes towns to enact zoning ordinances, providing: For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by local law or ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city.... Similar authority is granted to villages under Village Law §7-700, and to cities under General City Law §20. This statute has not been amended or abridged, nor is any mention of ECL §23-0303(2) made in this law. The statute does not say that towns have 14 the authority to zone except when the oil and gas industry is involved. No statute says that. While Appellant claims that local zoning would be the death knell for hydrofracking in this state, they are quite wrong. It is true that Dryden and many other towns have, and if Respondents prevail, will likely in the future pass zoning laws to ban hydrofracking. For example, many towns around the Finger Lakes would rather protect their clean waters and wineries than invite heavy industry like hydrofracking into their borders. However, many other towns, particularly in rural areas of the Southern Tier, do not have the same concerns, and will welcome hydrofracking. Even if drillers cannot enter Dryden, there will no lack of opportunities for the gas companies to exploit the shale deposits if NYSDEC permits hydrofracking. B. The OGSML Does Not Preempt Local Zoning. Appellant argues that the OGSML preempts the Dryden Zoning Amendments, urging the Court to selectively read ECL §23-0303(2) so that it “states without qualification that the statute supersedes ‘all local laws or ordinances.’” Reply Brief at 14. This interpretation ignores the actual language of the statute, which states that ECL §23-0303(2) preempts “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government 15 jurisdiction over local roads or the rights of local governments under the real property tax law.” [Emphasis added]. In fact, it is the very existence of this additional language (“relating to the regulation…”) that forms the fundamental issue before this Court. The Legislature has simplified [the Court’s] determination of whether the [OGSML] preempts the provisions of the town zoning ordinance in question. Unlike preemption cases which require the [C]ourt to search for indications of an implied legislative intent to preempt in the Legislature's declaration of a State policy or in the comprehensive and detailed nature of the regulatory scheme established by the statute we deal here with an express supersession clause [ECL §23–0303(2)]. The appeal turns on the proper construction of this statutory provision. Frew Run Gravel Products, Inc. , 71 N.Y.2d 126, 131, 524 N.Y.S.2d 25, 27. Thus, the “question [here is] one of statutory construction, not a search for implied preemption, because the Legislature included… an express supersession clause.” Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 681, 642 N.Y.S.2d 164, 172 (1996). “The ‘starting point’ for discerning statutory meaning is, of course, the language of the statute itself.” Kramer v. Phoenix Life Ins. Co., 15 N.Y.3d 539, 540, 914 N.Y.S.2d 709, 714 (2010). “[W]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning.” Commonwealth of Northern Mariana Islands v. Canadian 16 Imperial Bank of Commerce, 21 N.Y.3d 55, 60, 967 N.Y.S.2d 876, 879 (2013). The OGSML is clear; it preempts local laws and ordinances regulating the details and procedures of the oil, gas and solution mining industries, not local control of land use. As this Court has found time and again, a zoning law or ordinance controlling land use does not relate to the regulation of a particular industrial activity. Municipal regulation of land use is wholly distinct from regulation of industry. A search beyond the plain language of the statute solidifies this interpretation. Where other statutes have been found to preempt local control of land use, the statutory scheme provided for an in-depth analysis of the impacts and benefits of the activity on the local community. The present statute and accompanying regulations are devoid of any local analysis. 1. A Town-Wide Ban Does Not Relate to the Details and Procedures of the Oil, Gas and Solution Mining Industry. Appellant argues that “[a] plain language analysis” proves that ECL §23-0303(2) supersedes all local zoning ordinances because “the supersedure language applies unqualifiedly not only to ‘all local laws, but also to ‘all . . . local [] ordinances.’” Appellant’s Brief at 32. Appellant’s reliance on only part of ECL §23-0303(2) is ironic and enlightening, since this appeal hinges on the interpretation of words it chooses to ignore. More 17 accurately, ECL §23-0303(2) provides that it preempts “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.” [Emphasis added]. Thus, the issue is whether a zoning ordinance completely banning a particular use of its land constitutes a local law or ordinance relating to the regulation of the oil, gas and solution mining industries. Courts typically look to the dictionary to determine the plain meaning of undefined terms. See, e.g., Lighthouse Pointe Property Associates, LLC v. NYSDEC, 14 N.Y.3d 161, 176, 897 N.Y.S.2d 693, 703 (2010). This is precisely what the Third Department did below, referring to the Dictionary to define the term “regulating” as: as "an authoritative rule dealing with details or procedure," citing Merriam-Webster On-line Dictionary, http://www.merriam-webster.com/dictionary/regulation. R. 12-13; Norse Energy Corp. USA, 108 A.D.3d 25, 32, 964 N.Y.S.2d 714, 719. In other words, the ECL §23-0303(2) preempts local laws and ordinances relating to the details and procedure of the oil, gas and solution mining industries. It is well-established that municipalities cannot use their zoning power to “regulate the details of the operation of an enterprise, rather than the use of the land on which the enterprise is located.” St. Onge v. Donovan, 71 N.Y.2d 507, 516, 527 N.Y.S.2d 721, 725 (1988). “[T]he 18 distinction is between ordinances that regulate property uses and ordinances that regulate mining activities,” Gernatt Asphalt Products, Inc., 87 N.Y.2d 668, 682, 642 N.Y.S.2d 164, 172 (1996) [emphasis added], or in this case “drilling activities.” In Sunrise Check Cashing and Payroll Services, Inc. v. Town of Hempstead, 20 N.Y.3d 481, 485, 964 N.Y.S.2d 64, 66 (2013), this Court rejected an effort to zone out check-cashing services because zoning laws are “concerned not with the use of the land but with the business done by those who occupy it,” and the law was not based upon secondary impacts like laws addressing adult entertainment. In contrast, in the case at bar the Town clearly was concerned with the actual use of the land and the resulting secondary impacts on the community. The Dryden Zoning Ordinance does not require the oil and gas industry to pay a special fee, cf. Envirogas v. Kiantone, 112 Misc.2d 432, 447 N.Y.S.2d 221 (Sup. Ct. Erie Co. 1982), aff’d 89 A.D.2d 1056, 454 N.Y.S.2d 694 (4th Dep’t 1982), require set-backs and spacing between wells, see 6 N.Y.C.R.R. Part 553, or even prescribe safety or environmental measures. Rather, the Dryden Zoning Ordinance only controls land use, akin to the Town of Sardinia’s town-wide ban of extractive mining in Gernatt Asphalt Products, Inc., 87 N.Y.2d 668, 681, 642 N.Y.S.2d 164, 172. 19 In Gernatt, this Court found that the Town of Sardinia’s town-wide ban of extractive mining was not preempted by ECL §23-2703(2)(b), which contained a specific exception for “local zoning ordinances or laws which determine permissible uses in zoning districts.” Gernatt Asphalt Products, Inc., 87 N.Y.2d 668, 682, 642 N.Y.S.2d 164, 172. This Court reasoned that “[n]otwithstanding the incidental effect of local land use laws upon the extractive mining industry, zoning ordinances are not the type of regulatory provision the Legislature foresaw as preempted by Mined Land Reclamation Law; the distinction is between ordinances that regulate property uses and ordinances that regulate mining activities.” 87 N.Y.2d at 682, 642 N.Y.S.2d at 172. Moreover, the Legislature’s failure to include zoning ordinance as an exception to the preemption language of the OGSML only supports the fact that zoning ordinances are not related to the regulation of the oil, gas and solution mining industries. Appellant argues that the Legislature intended to preempt local zoning because it was not included with the exceptions covering local jurisdiction of roads and real property taxes, Appellant’s Brief at 33-35, relying on the maxim that “where the Legislature has addressed a subject and has, in fact, created a list of exceptions to a general rule, but has chosen to omit mention of one exception in particular,” Jewish Home and 20 Infirmary of Rochester, New York, Inc. v. Commissioner of New York State Dept. of Health, 84 N.Y.2d 252, 262, 616 N.Y.S.2d 458, 462 (1994) [emphasis added], the exception not included is “deemed to have been intentionally excluded.” Weingarten v. Board of Trustees of New York City Teachers' Retirement System, 98 N.Y.2d 575, 578, 750 N.Y.S.2d 573, 583 (2002). However, this maxim is inapplicable here. Appellant’s argument fails because local zoning ordinances do not fall within the subject matter of ECL §23-0303(2) because they do not relate to the details and procedures of the oil, gas and solution mining. Thus, because local zoning ordinances do not relate to the subject matter addressed by the Legislature, its absence from the exceptions that do relate to the details and procedures of oil, gas and solution mining is of no consequence. Therefore, this Court should find here, as it did in Gernatt, that the Town’s complete ban of hydrofracking is an exercise in local land use control, and not related to the regulation of the oil, gas and solution mining industry. 2. ECL §23-0303(2) Does Not Expressly Preempt Local Control Over Land Use. Environmental Conservation Law §23-0303(2) preempts “local laws and ordinances relating to the regulation of the oil, gas and solution mining industries,” excluding any reference to preemption of local laws and 21 ordinances relating to local regulation of land use. [Emphasis added]. “The absence of th[ese] word[s] [are] meaningful and intentional as [this Court has] previously observed that the failure of the legislature to include a term in a statute is a significant indication that its exclusion was intended.” Commonwealth of Northern Mariana Islands, 21 N.Y.3d 55, 60, 967 N.Y.S.2d 876, 879 (quoting People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 549 (1995). “It is a strong thing so to read into a statute words which are not there and, in the absence of a clear necessity, it is a wrong thing to do.” Palmer v. Spaulding, 299 N.Y. 368, 372 (1949). Clearly, the Legislature understands how to preempt municipal regulation of land use as it has done so in another section of the ECL concerning the siting of industrial hazardous waste facilities: ECL §27-1107. Powers of municipalities. Notwithstanding any other provision of law, no 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, regarding the operation of a facility with respect to which a certificate hereunder has been granted; provided, however, that such municipality has received notice of the filing of the application therefor. [Emphasis added]. Similarly, Mental Hygiene Law §41.34(f) states: 22 (f) A community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances. [Emphasis added]. This law abrogates the definition of “family” typically found in local zoning laws, in order to prevent municipalities from excluding community residences from areas designated for single-family homes. See, e.g., Group House of Port Washington, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead, 45 N.Y.2d 266, 408 N.Y.S.2d 377 (1978). When laws preempting local zoning are enacted, the Legislature normally puts in place safeguards for municipalities and adjacent property owners. As the lower court pointed out, “these other statutes contain provisions by which the traditional concerns of zoning are required to be considered by the agency charged with deciding whether to issue a permit under state law.” R 54, citing ECL §§27-1103(b), (c), (g), (h); Mental Hygiene Law §41.34[c][5)). These statutes provide for multiple opportunities for notice and comment by affected municipalities, and specifically require the permitting board or agency to consider local land use concerns. For industrial hazardous waste facilities, a statewide siting plan was developed by NYSDEC, which assesses need and determines appropriate locations. ECL §27-1102. Following receipt of an application for siting an 23 industrial hazardous waste facility, a separate board is constituted by the Governor to decide on the application. ECL §27-1105. In addition, NYSDEC is required to develop criteria for siting industrial hazardous waste facilities. The criteria must take into account health, safety and environmental issues, as well as “[t]he impact on the municipality where the facility is to be sited in terms of health, safety, cost and consistency with local planning, zoning or land use laws and ordinances.” ECL §27- 1103(2)(g). Notices of the application must be sent to the chief executive officer of the municipality, and to property owners within 300 feet of the proposed site. ECL §27-1105(3)(c). An adjudicatory hearing is convened, and notice of the hearing must be sent to the municipality and property owners within 300 feet of the proposed facility. ECL §27-1105(3)(e). Similarly, the Mental Hygiene Law states that if an agency intends to establish a residential facility and has not made a determination regarding a specific site, it may contact the municipality for suggestions. MHL §41.34(b). If a site has been selected, the sponsoring agency must notify the chief executive of the municipality in writing, describing the number of residents and the community support requirements for the program. MHL §41.34(c)(1). The municipality then has 40 days to approve the site, suggest alternative sites, or object to the establishment of a site because the 24 concentration of similar facilities would substantially alter the nature and character of the areas within the municipality. Id. If the Legislature meant for the OGSML provision regarding “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries” to include zoning laws and ordinances, it could have articulated that. On many occasions, the Legislature has used the term “land use regulation” to describe “an ordinance or local law enacted by the [municipality] for the regulation of any aspect of land use and community resource protection and includes any zoning, subdivision, special use permit or site plan regulation or any other regulation which prescribes the appropriate use of property or the scale, location and intensity of development.” Town Law §272-a(2)(b); see also Village Law §7-722(b); General Municipal Law §119-u(3)(b); ECL §55-0119. In some instances, NYSDEC has been given the authority to prepare and/or adopt minimum “land use regulations,” but not in the OGSML. See ECL §§24-0903, 25- 0302. In fact, in another environmental context, the Legislature has stated that “[l]and use regulation is principally a matter of local concern.” ECL §36-0101. Therefore, the absence of language preempting local land use control requires the Court to find that ECL §23-2303(2) does not preempt the Town 25 Ordinance. “Any other construction of the statute would amount to judicial legislation.” Commonwealth of Northern Mariana Islands, 21 N.Y.3d 55, 61, 967 N.Y.S.2d 876, 879. 3. The Statutory Scheme Does Not Evidence an Intent to Preempt Local Control Over Land Use. Contrary to Appellant’s suggestion, Sunrise Check Cashing and Payroll Services, Inc., v. Town of Hempstead, 91 A.D.3d 126, 133, 933 N.Y.S.2d 388, 394 (2d Dep’t 2011), aff’d on other grounds 20 N.Y.3d 481, 964 N.Y.S.2d 64 (2013), supports a finding that the statutory scheme here does not evidence that ECL §23-0303(2) preempts local zoning authority. Namely, the statutory scheme of the Banking Law in Sunrise Check Cashing anticipates and requires in the permitting process a local, as opposed to statewide, analysis of where a particular commercial operation should be undertaken. Banking Law §367(1) provides “No person, partnership, association or corporation shall engage in the business of cashing checks, drafts or money orders for a consideration without first obtaining a license from the superintendent.” The Superintendent, in deciding to grant an application must “find that the granting of such application will promote the convenience and advantage of the area in which such business is to be conducted.” Banking Law §369. “In finding whether the application will 26 promote the convenience and advantage to the public, the superintendent shall determine whether there is a community need for a new licensee in the proposed area to be served.” Banking Law §369. In addition, the Superintendent promulgated regulations requiring the submittal of a business plan requiring in depth analysis of impact of a check casher in a particular location. 3 N.Y.C.R.R. §400.1(c)(7) required the business plan to include: “(i) description of primary market area,” “(ii) description of projected customer base,” “(iii) proposed days and hours of operations,” “(iv) types of services proposed to be offered including special services such as fluency in languages which are predominant in the area of licensed location(s),” “(v) detailed description of demographics of the area including population density which information should be derived from official government records and other published sources,” “(vi) description of any proposed economic development of area,” and “(vii) specific marketing targets, if any.” As a result, in Sunrise Check Cashing, the Second Department found the Banking Law preempted the Town of Hempstead’s zoning ordinance prohibiting check-cashing establishments in certain districts, since: the Legislature [] vested the Superintendent with the duty to determine whether each applicant for a check-cashing license proposes to perform that function in an appropriate location, whether there 27 is a community need for a new licensee in that location, and whether the granting of such an application will be advantageous to the public. Furthermore, in amending Banking Law §369(1) in 1994, the Legislature specified its intention that ‘the licensing of check cashers shall be determined in accordance with the needs of the communities they are to serve’” Sunrise Check Cashing, 91 A.D.3d 126, 138-39, 933 N.Y.S.2d 388, 398 [internal citation omitted]. As already discussed, when this Court affirmed, it did not reach the preemption question. Sunrise Check Cashing and Payroll Services, Inc., 20 N.Y.3d 481, 964 N.Y.S.2d 64. In the case at bar, the statutory scheme and related regulations lack any inquiry into whether drilling in a particular location within a municipality would be beneficial to the public. Instead, the permitting process hinges on a statewide spacing scheme. See ECL §23-0503(2) (“The department shall issue a permit to drill, deepen, plug back or convert a well, if the proposed spacing unit submitted to the department pursuant to paragraph a of subdivision 2 of section 23-0501 of this title conforms to statewide spacing...”). The corresponding regulations, 6 N.Y.C.R.R. Part 552, similarly provide for no inquiry of the local municipality in which the operations are to be performed. 28 Therefore, the statutory scheme here, unlike the Banking Law, does not support a finding that ECL §23-0303(2) preempts the Dryden Zoning Ordinance. 4. The Legislative History Does Not Express an Intent to Preempt Local Zoning Authority. “[I]n the absence of a clear expression of legislative intent to preempt local control over land use, the statute c[an] not be read as preempting local zoning authority.” Gernatt Asphalt Products, Inc., 87 N.Y.2d 668, 682, 642 N.Y.S.2d 164, 172 (citing Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126, 133, 524 N.Y.S.2d 25, 29 (1987). “[W]here the practical construction of a statute is well known, the Legislature may be charged with knowledge of that construction and its failure to act may be deemed an acceptance.” Roberts v. Tishman Speyer Properties, L.P., 13 N.Y.3d 270, 287, 890 N.Y.S.2d 388, 395 (2009) (citing Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 41 N.Y.2d 84, 90, 390 N.Y.S.2d 884 (1976)). Section 4 of Laws of 1981, c. 846, added the supersession provision contained in ECL §23-0303(2). The Bill Jacket on Chapter 846 provides no elaboration or “clear expression” on the supersession provision. R. 488-521. However, the Ten Day Budget Report stated that the law “would supercede all local laws or ordinance regulating the oil, gas and solution mining 29 industries.” R. 499. This statement omits the words “related to” that are contained in the statute prior to “regulation,” and supports the view that the preemption was merely directed at regulation of this particular industry. The Bill Jacket indicates that at the time, the focus was on creating specific regulations necessitated by advancements in drilling technologies and procedures. Other concerns were taxation, and damages to local roads and other property. The discussion in the Bill Jacket does shed light on why specific exemptions were inserted into ECL §23-0303(2) to allow local regulation of roads and real property taxation. Concerns about damage to local roads were addressed both by the creation of a fund to compensate municipalities, State Finance Law §83- a(4)(d), added by Laws of 1981, c. 846 §2, and the insertion of the exemption from preemption for “local government jurisdiction over local roads.” ECL §23-0303(2). Likewise, the 1981 amendments added Article 5, Title 5, to the Real Property Tax Law to authorize local governments to separately assess oil and gas rights in production, Laws of 1981, c. 846 §18; see also R. 505-507, and included an exemption from preemption for “the rights of local governments under the real property tax law.” ECL §23-0303(2). This made it clear that municipalities could exercise their new rights to tax oil and 30 gas separately. It also addressed any concern that “taxation” was equivalent to “regulation” that would otherwise be preempted. R. 500; see also National Federation of Independent Business v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 2577 (2012). Thus, inclusion of the two specific exceptions to ECL §23-0303(2) thus made it clear that the supersession provision did not negate the provisions of the new law addressing concerns about roads and local taxation. However, the Bill Jacket does not evidence any concern that the new law would impact the longstanding tradition of local zoning, so there was no need to address the issue. In the over two years since the Supreme Court issued its decision in this case, the Legislature still has not acted to amend the OGSML. If the Legislature intended the OGSML to preempt local control of land use, it could have acted to affirm such intention following both the Supreme Court and Appellate Division holding that it does not. It certainly cannot be claimed that the Legislature is not aware of the Supreme Court and Appellate Division decisions below. The present case has been highly publicized and involves an issue upon which constituents are outspoken and in fact protest on the Capitol lawn. Indeed, since the Third Department decision, R. 3, no fewer than seven bills have been 31 proposed by both the New York State Senate and the New York State Assembly seeking to clarify ECL §23-0303(2), just like the Legislature did after Frew Run. Telling, however, is that not one proposed bill seeks to clarify that ECL §23-0303(2) preempts local control of land use. See N.Y. S. B. 734, 236th Leg. Sess. (N.Y. 2013); N.Y. Assemb. B. 779, 236th Leg. Sess. (N.Y. 2013); N.Y. Assemb. B. 845, 236th Leg. Sess. (N.Y. 2013); N.Y. Assemb. B. 1363, 236th Leg. Sess. (N.Y. 2013); N.Y. S. B. 2284, 236th Leg. Sess. (N.Y. 2013); N.Y. Assemb. B. 3806, 236th Leg. Sess. (N.Y. 2013); N.Y. Assemb. B. 8512, 237th Leg. Sess. (N.Y. 2014). Therefore, the legislative history does not reveal an express intent to preempt local control over land use and the Legislature’s knowledge of the Supreme Court and Appellate Division’s decision that ECL §23-0303(2) does not preempt local zoning, coupled with the failure to act in opposite to that construction, requires this Court to find that the Legislature accepts the lower courts’ well-reasoned construction of the OGSML. 5. Envirogas Did Not Involve Local Control of Land Use. Other than the present case and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170, 964 N.Y.S.2d 431 (3d Dep’t 2013), lv granted, 21 N.Y.3d 863, 972 N.Y.S.2d 535 (2013), the only other reported case that interprets the preemption provision of the OGSML, Envirogas v. 32 Kiantone, 112 Misc.2d 432, 447 N.Y.S.2d 221 (Sup. Ct. Erie Co. 1982), aff’d 89 A.D.2d 1056, 454 N.Y.S.2d 694 (4th Dep’t 1982), is materially distinguishable because it does not involve the primary issue in this case, local land use control. In Envirogas, the town enacted a law applying only to oil and gas well drilling operations providing that no well can be constructed in the Town without prior payment of a $2,500 compliance bond and a $25 permit fee. Unlike the present case, the compliance bond and permit fee in Envirogas do not regulate land use within the town. Rather, it goes to the details and procedures of oil and gas well drilling operations. As a result, the local law was preempted by ECL §23-0303(2). Envirogas, 112 Misc.2d 432, 435, 447 N.Y.S.2d 221, 223. Even if, arguendo, Envirogas could be read more broadly, it preceded Frew Run and Gernatt Asphalt, and to the extent it could be read as Appellant urges, it must yield to the later Court of Appeals decisions. Therefore, because the Dryden Zoning Ordinance is directed toward the use of land within the Town, as opposed to the details and procedure of a particular industry, Envirogas is not precedent in this case, and cannot support a finding of preemption. 33 C. The OGSML Supersession Provision is Nearly Identical to That in Frew Run. As the Supreme Court and Third Department discussed, this Court reviewed a substantially identical supersession provision in the ECL relating to mining. R. 11-12. In Matter of Frew Run Gravel Products, Inc., 71 N.Y.2d 126, 129, 524 N.Y.S.2d 2526 (1987), this Court held that the supersession language of the former ECL §23-2703, the Mined Land Reclamation Law (“MLRL”), did not preempt an appropriately drafted zoning law. In Frew Run, a mining operation received a permit to operate a sand and gravel operations in a zoning district dedicated to agricultural and large lot residential development. The town’s zoning officer advised Frew Run that its operation was prohibited, and it then commenced an Article 78/declaratory judgment action claiming that the town’s zoning law was preempted by the supersession provision contained in ECL §23-2703(2) (“...this title shall supersede all other state and local laws relating to the extractive mining industry....”). In holding for the town, this Court stated that the “incidental control” of industry resulting from a “municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment relating to the ‘extractive mining industry’ which the 34 Legislature could have envisioned as being within the prohibition of the statute.” Matter of Frew Run Gravel Products, Inc., 71 N.Y.2d 126, 131, 524 N.Y.S.2d 25, 28 [citations omitted]. Rather, the Court held: [W]e cannot interpret the phrase "local laws relating to the extractive mining industry" as including the Town of Carroll Zoning Ordinance. The zoning ordinance relates not to the extractive mining industry but to an entirely different subject matter and purpose: i.e., "regulating the location, construction and use of buildings, structures, and the use of land in the Town of Carroll, County of Chautauqua, State of New York and for said purposes dividing the Town into districts." 71 N.Y.2d at 131, 524 N.Y.S.2d at 27-8. The Frew Run court also avoided any reading of the mining supersession language that might conflict with a municipality’s constitutionally granted powers to zone: By simply reading ECL 23-2703(2) in accordance with what appears to be its plain meaning -- i.e., superseding any local legislation which purports to control or regulate extractive mining operations excepting local legislation prescribing stricter standards for land reclamation -- the statutes may be harmonized, thus avoiding any abridgement of the town's powers to regulate land use through zoning powers expressly delegated in the Statute of Local Governments § 10 (6) and Town Law § 261 (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 370, 391, 398). This is the construction we adopt. 71 N.Y.2d at 134, 524 N.Y.S.2d at 29. 35 In 1991, the Legislature amended the MLRL to explicitly codify Frew Run, and “to withdraw from municipalities the authority to enact local laws imposing land reclamation standards that were stricter than the State-wide standards under the MLRL.” Matter of Gernatt Asphalt Products, 87 N.Y.2d 668, 682, 642 N.Y.S.2d 164, 173 (1996). ECL §23-2703 now reads as follows: 2. For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from: a. enacting or enforcing local laws or ordinances of general applicability, except that such local laws or ordinances shall not regulate mining and/or reclamation activities regulated by state statute, regulation, or permit; or b. enacting or enforcing local zoning ordinances or laws which determine permissible uses in zoning districts. Where mining is designated a permissible use in a zoning district and allowed by special use permit, conditions placed on such special use permits shall be limited to the following: (i) ingress and egress to public thoroughfares controlled by the local government; (ii) routing of mineral transport vehicles on roads controlled by the local government; (iii) requirements and conditions as specified in the permit issued by the department under this title concerning setback from property boundaries and 36 public thoroughfare rights-of-way natural or man- made barriers to restrict access, if required, dust control and hours of operation, when such requirements and conditions are established pursuant to subdivision three of section 23-2711 of this title; (iv) enforcement of reclamation requirements contained in mined land reclamation permits issued by the state; or c. enacting or enforcing local laws or ordinances regulating mining or the reclamation of mines not required to be permitted by the state. The pre-1991 MLRL language is arguably more encompassing than the language of the OGSML at issue in the case at bar, which is limited to “regulation of the oil, gas and solution mining industries” and does not mention state laws. In all respects, other than the obvious fact that the provisions relate to different invasive procedures (mining vs. drilling), the two laws are virtually identical. While MLRL contained a limited exception related to reclamation, but not actual mining activities (allowing “local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements”), OGSML also contains a limited exception for local regulation of local roads and taxation. Appellant argues that the reasoning in Frew Run should not be extended to the present case because the laws involved are not the same. This argument misses two salient facts. First, as discussed above, the 37 relevant language in the former MLRL is substantially identical to the language in the OGSML. Second, the preemption analysis in Frew Run has been applied in several other contexts. See DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 94, 725 N.Y.S.2d 622, 624 (2001) (application to Alcoholic Beverage Control Law); Incorporated Village of Nyack v. Daytop Village, 78 N.Y.2d 500, 505, 577 N.Y.S.2d 215, 217 (1991) (the existence of detailed regulations regarding substance control facilities does not “lead[] inexorably to the conclusion that ‘the State’s commitment to fighting substance abuse preempts all local laws that may have an impact, however tangential, upon the siting of substance abuse facilities’”). In the 27 years since this Court decided Frew Run, finding that the MLRL preemption of local laws relating to mining did not preempt local zoning, and the 23 years since the Legislature amended the MLRL to reflect the Frew Run decision, the Legislature has not amended the OGSML to clarify that zoning is or is not preempted. Rather, this Court’s determination in Frew Run regarding the ECL’s supersession language related to the mining industry applies equally to the similar ECL provision regarding the oil and gas industry. CONCLUSION For the above-stated reasons, DRAC respectfully requests that this Court affirm the courts below, determine that the OGSML does not preempt local land use laws, and uphold the validity of the Zoning Amendments. Dated: Rochester, New York May 12,2014 Attorneys for Amicus Curiae Dryden Resource Awareness Coalition Alan J. Knauf, Esq., Amy K. Kendall, Esq., and Arthur L. James, III, Esq., of Counsel 1400 Crossroads Building 2 State Street Rochester, New York 14614 Tel.: (585) 546-8430 38