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, 2014COURT OF APPEALS, STATE OF NEW YORK NORSE ENERGY CORP. USA, Docket No. 515227 Petitioner-Appellant, Tompkins County Sup. Ct. Index No. 2011-0902 -against- TOWN OF DRYDEN and TOWN OF DRYDEN TOWN BOARD, Respondents. BRIEF OF PROFESSORS VICKI BEEN, RICHARD BRIFFAULT, NESTOR DAVIDSON, CLAYTON GILLETTE, MICHAEL HELLER, RODERICK HILLS, ERIC LANE, JOHN NOLON, ASHIRA OSTROW, EDUARDO PENALVER, PATRICIA SALKIN, CHRISTOPHER SERKIN, AND STEWART STERK AS AMICI CURIAE May 7, 2014 Susan J. Kraham, Esq. Columbia Environmental Law Clinic Morningside Heights Legal Services, Inc. 435 West 116th Street New York, New York 10027 (212) 854-4291 skraha@law.columbia.edu Counsel for Amici Curiae TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................... .iii IDENTITY AND INIEREST OF AMICI C[!JtlA~ ...................................................................................... 1 ~OI>lJ<:TIOJ\f ......................................................................... 3 ~CJ~~---············································································6 I. ECL §23-0303(2) SHOULD BE CONSTRUED IN LIGHT OF A PRESUMPTION AGAINST PREEMPTION OF LOCAL LAW BY AMBIGUOUS STATE STATUTES .......................................................................... 6 A. Article IX §3(c) of the New York Constitution requires a presumption against state statutory preemption of local law ................................................................................. 8 B. The canon against implied repeal requires a presumption against state statutory preemption of local zoning authority ...................................................................................... 11 C. The preswnption against preemption of local law advances local democratic accmmtability without interfering with the state legislature's power over matters of statewide concern ............................................................................................. 16 D. The presurnption against preemption applies with special force when the state statute alleged to preempt local zoning provides no substitute protections for neighbors' quiet enjoyment of their property ............... 18 E. The presumption against preemption applies with special force when local laws do not affect any substantial state interest that local residents are likely to i~ore .................................................................... 23 1 ll. READ IN LIGIIT OF 1HE PRESUMPTION AGAINST PREE!'v1PTION, ECL §23-0303(2) DOES NOT PREEMPT 1HE ZONING PROHIBITIONS ON OIL AND GAS DRILLING ENACIED BY 11-IE TOWN OF DR~~ .......................................................................... 25) A. The Town of Dryden's zoning laws do not unambiguously "relat[e] to the regulation of the oil, gas, and solution mining . d . " 3 In ustr1es. ···················:···························· ............................ . 0 B. New York's Oil, Gas, and Solution Mining Law contains no standards or procedures for protecting neighbors' quiet enjoyment of their property from industrial uses ............................................................... 3 2 C. The Town of Dryden's zoning laws do not frustrate any state interest in the extraction of natural gas .......................................................... 34 CONCLUSION II TABLE OF AUTHORITIES Cases Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929) ................................................................ 16 Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d, 940 N.Y.S.2d .................................................................. 22, 31, 32 Bd. of County Comm'rs v. Bowen/Edwards Assoc., 830 P.2d 1045 (Colo. 1992) ............................................................................ 37 Berenson v. Town ofNew Castle, 38 N.Y.2d 102, 378 N.Y.S.2d 672, 341 N.E.2d 236 (1975) .............. 23, 24, 40 Blair v. 305-313 East 47th Street Associates, 123 Misc.2d 612,474 N.Y.S.2d 353 (N.Y.Sup.l983) ..................................... 19 Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998) .......................................................................... 20 California Div. of Labor Standards v. Dillingham, 519 u.s. 316 (1997) ........................................................................................ 31 Carnal Realty, Inc. v. Town of Islip. 34 A.D.2d 780,781,311 N.Y.S.2d 239,241 (2d Dep't 1970) ........................... 21 Continental Bldg. Co., Inc. v. Town ofNorth Salem, 211 A.D.2d 88, 625 N.Y.S.2d 700 (3rd Dep't 1995) .................................. 26, 29 Dugway, Ltd. v. Fizzinoglia, 166 A.D.2d 836,563 N.Y.S.2d 175 (3d Dept. 1990) ....................................... 18 Emerson College v. City of Boston, 393 Mass. 303, 471 N.E.2d 336 (1984) ............................................................ 12 Euclid v. Ambler Realty, 272 u.s. 365 (1926) ........................................................................................ 18 Fammler v. Board of Zoning Appeals of Town of Hempstead, 254 A.D. 777,4 N.Y.S.2d 760 (2d Dept. 1938) .............................................. 12 Freeman v. City of Yonkers, 205 Misc. 947, 129 N.Y.S.2d 703 (Westchester Cnty. Ct. 1954) ...................... 21 Frew Run Gravel Products v. Town of Carroll, 71 N.Y.2d 126,518 N.E.2d 920 (1987) ............................................... 14, 15,29 Hunter v. Warren County Bd. of Supervisors, lll 21 A.D.3d 622, 800 N.Y.S.2d 231 (3d Dept. 2005) ........................................ 14 Kamhi v. Town ofYorktown, 74 N.Y.2d 423, 547 N.E.2d 346, 548 N.Y.S.2d 144 (1989) ............................... 9 Matter of Gematt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 664 N.E.2d 1226,642 N.Y.S.2d 164 (1996) ............ 25, 26, 40 Morrison v. Matt-A-Mar, Inc., 36 A.D.2d 844,321 N.Y.S.2d 521 (2d Dep't 1971) ........................................ 20 NAACP v. Twp. of Mount Laurel, 67 N.J. 151,336 A.2d 713 (N.J. 1975) ............................................................. 24 Neri Bros. Const. v. Village of Evergreen Park, 363 Ill. App. 3d 113,841 N.E.2d 148 (Ill. App: 3d 2005) ...................... 9, 10, 11 New York State Public Employees Federation, AFL-CIO by Condell v. City of Albany, 72 N.Y.2d 96, 527 N.E.2d 253 (1988) ....................................................................... .38 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 u.s. 190 (1983) ....................................................................................... 35 People v. Cook, 34 N.Y.2d 100, 356 N.Y.S.2d 259, 312 N.E.2d 452 (1974) ........................... .17 Pete Drown Inc. v. Town Bd. ofTown of Ellenburg, 188 A.D.2d 850, 591 N.Y.S.2d 584 (3d Dept. 1992) ....................................... 9 Robert E. Kurzius, Inc. v. Incorporated Village of Upper Brookville, 51 N.Y.2d 338,414 N.E.2d 680 (1980) ........................................................... 25 Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cornrow. 2012) ..................................................................... 21 Robinson Twp. v. Commonwealth, 83 A. 3d 901 (Pa. 2013) ...............................................•.......... 21, 22 Rodgers v. Village ofTarrytown, 302 N.Y. 115, 96 N.E.2d 731 (1951) ............................................................... 20 Town of Brookhaven v. New York State Bd. of Equalization and Assessment, 88 N.Y.2d 354, 668 N.E.2d 407 (1996) ........................................................... 14 Town of Islip v. Cuomo, 64 N.Y.2d 50, 473 N.E.2d 756,484 N.Y.S.2d 528 (1984) ....................... 16, 17 Voss v. Lundvall Bros., lV 830 P.2d 1061 (Colo. 1992) ................................................................ .36, 37, 38 Wambat Realty Corp. v. State ofNew York, 41 N.Y.2d 490,393 N.Y.S.2d 949,362 N.E.2d 581 (1977) ........................... 16 New York State Constitutional Provisions Article IX, §2(b )(2) .............................................................................................. 16 Article IX, §3(c) ............................................................................................ passim Article IX, §3(e) ............................................................................................. 9, 17 Regulations 6 NYCRR § 553.1 ................................................................................................ 33 6 NYCRR § 553.2 ................................................................................................ 33 6 NYCRR § 560.4 ................................................................................................. 33 Other Authorities Been, Vicki, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. L. 1 (1995) .................................................................. 2 Been, Vicki, Exit as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Colum. L. Rev. 473 (1991) ................................................................. 2, 18, 28 Bettman, Alfred, Constitutionality of Zoning, 3 7 Harv. L. Rev. 834 (1924) ....... .19 Briffault, Richard, Our Localism: Part 1--The Structure ofLocal Government Law, 90 Colum. L. Rev. 1 (1990) ........................................................................ 2 Briffault, Richard, Smart Growth and American Land Use Law, 21 St. Louis U. Pub. L. Rev. 253 (2002) ............................................................ 13 Briffault, Richard, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 115, 1126 (1996) ..................... : .................................... 25 Davidson, Nestor M., Cooperative Localism: Federal-Local Cooperation in an Era of State Sovereignty, 93 Va. L. Rev. 959 (2007) ................................................ 2 Diller, Paul, Intrastate Preemption, 87 B.U. L. Rev. 1113 (2007) ....................... 24 Gillette, Clayton P., Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625 (1994) ....................................... 2, 24, 37 Laitos, Jan G. & Getches, Elizabeth H., Multi-Layered, and Sequential, State and Local Barriers to Extractive Resource Development, v 23 Va. Envtl. L.J. 1 (2004) .............................................................................. 15 Ostrow, Ashira P., Land Law Federalism, 61 Emory L.J. 1397 (2012) .......... 2, 25 Ostrow, Ashira P., Process Preemption in Federal Siting Regimes, 48 Harv. J. on Legis. 289 (2011) ............................................................ 2, 13, 23 Salkin, Patricia E., 1 Am. Law. Zoning§ 1:1 (5th ed. 2012) .............................. 16 Salkin, Patricia E., 1 Am. Law. Zoning§ 2:8 (5th ed. 2012) .............................. 11 Salkin, Patricia E., 1 N.Y. Zoning Law & Prac. §§2.08, 2:12 (2012) ................. 11 Salkin, Patricia E., 1 N.Y. Zoning Law & Prac. § 4:22 (2012) ............................. 7 Salkin, Patricia E., 3 Am. Law. Zoning§ 18:55 (2012) ....................................... 15 Salkin, Patricia E., 4 Am. Law. Zoning§ 41:13 (2012) ....................................... 12 Serkin, Christopher, Local Property Law: Adjusting the Scale of Property Protection, 107 Colum. L. Rev. 883 (2007) ...................................................... 2 Sterk, Stewart E., Municipal Competition as a Constraint on Land Use Exactions, 45 Vand. L. Rev. 831 (1992) ............................................................................. 2 Sterk, Stewart E., Neighbors in American Land Law, 87 Colurn. L. Rev. 55 (1987) ............................................................................ 2 Vl IDENTITY AND INTEREST OF AMICUS CURIAE The amici are professors of local government and land-use law at law schools in New York. Specifically, the amici are: • Vicki Been, New York University Law School • Richard Briffault, Columbia Law School • Nestor Davidson, Fordham Law School • Clayton Gillette, New York University Law School • Michael Heller, Columbia Law School • Roderick M. Hills, Jr., New York University Law School • Eric Lane, Hofstra Law School • John Nolon, Pace University Law School • Ashira Ostrow, Hofstra Law School • Eduardo Pefialver, University of Chicago Law School • Patricia Salkin, Touro Law School • Christopher Serkin, Brooklyn Law School • Stewart Sterk, Benjamin N. Cardozo Law School The amici have all devoted their scholarly careers to analyzing how authority over land use regulation ought to be divided between state and local governments. Their research interests are reflected by their scholarship analyzing (among other 1 topics) the effects of neighbors' abutting land uses on each other's neighbors' property values, 1 local governments' adjustment of their level of zoning regulation to take into account the benefits and burdens imposed by land uses, 2 effects of high-intensity, industrial uses on the character of a community/ and the extent to which local governments can be expected to take into account regional and state- wide interests in proposed land uses when deciding whether to permit or exclude such uses within their territory. 4 The amici do not have a direct personal stake in this litigation. They have instead a scholarly interest, based on decades of teaching and researching local government law and land- use regulation, in limiting the preemption of local government law to circumstances where local law interferes with some substantial state interest. Although each amicus has focused on different legal problems in their individual writing, all amici endorse the principle that, when an activity's 1 See, e.g., Stewart E. Sterk, Neighbors in American Land Law, 87 Colurn. L. Rev. 55 (1987). 2 See, e.g., Christopher Serkin, Local Property Law: Adjusting the Scale of Property Protection, 107 Colwn. L. Rev. 883 (2007); Stewart E. Sterk, Municipal Competition as a Constraint on Land Use Exactions, 45 Vand. L. Rev. 831 (1992); Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Colwn. L. Rev. 473 (1991). 3 See, e.g., Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. L. I (1995); John R. Nolon, Discovering Local Environmental Law, 25 Zon. & Plan. L. Rep. 73 (Nov. 2002). 4 See, e.g., Patricia E. Salkin, 2 Am. Law. Zoning§ 10 (5th ed. 2012) (on metropolitan and regional land use planning); Ashira Pelman Ostrow, Process Preemption in Federal Siting Regimes, 48 Harv. J. on Legis. 289, 319-21 (2011); Ashira Pelman Ostrow, Land Law Federalism, 61 Emory L.J. 1397, 1410-22 (2012); Nestor M. Davidson, Cooperative Localism: Federal-Local Cooperation in an Era of State Sovereignty, 93 Va. L. Rev. 959 (2007).; Clayton P. Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625 (1994); Richard Briffault, Our Localism: Part 1-The Structure of Local Government Law, 90 Colum. L. Rev. 1 (1990). 2 effects are confined within a local government's boundaries and when local officials have incentives to consider the extra-local benefits of the activity, then the officials presumptively best suited to regulate those effects are those who are elected by residents of the local jurisdiction most affected by that activity. Amici's brief advances this scholarly interest in insuring that state preemption of local zoning goes no further than necessary to protect state interests in controlling inter- local effects of zoning, while leaving intact local protections for residents' quiet enjoyment of their property. INTRODUCTION This case raises the issue of how courts should construe local governments' zoning power when the state legislature has expressed no unambiguous purpose to repeal such power and when local communities have taken different positions about whether to use that power to exclude an activity over which they are deeply divided. Amici respectfully urge a simple principle by which to resolve the impasse when state legislative purpose is unclear: Presume that state law does not preempt local zoning laws, unless those laws encroach on some substantial state interest that local residents are likely to ignore. This presumption allows each local government to make up its own mind about controversial development activities until the state legislature squarely addresses whether and how to protect 3 landowners' quiet enjoyment of their property from the collateral effects of a controversial industrial use. There can be no doubt that New Yorkers have strongly differing views about the extraction of natural gas through hydraulic fracturing. Some communities regard hydraulic fracturing as an economic boon and a source of clean, abundant energy. Based on these beliefs, over forty municipalities over the Marcellus Shale have passed resolutions in support of hydraulic fracturing. Brief Amici Curiae of Business Council eta/. in Norse Energy Corp. v. Town of Dryden, 108 A.D.3d 25, 964 N.Y.S.2d 714, at 25-26. By contrast, other communities believe that hydraulic fracturing poses unknown but potentially grave environmental risks as well as the certainty of noise, traffic, aesthetic blight, and loss of community character. One such community, the Town of Dryden, has enacted zoning amendments to exclude gas and oil drilling based on such · traditional zoning considerations. There can also be no serious pretense that the state legislature, through the Oil, Gas, and SolutionMining Law ("OGSML") has resolved this division of opinion among localities by expressing some unambiguous purpose to repeal local governments' power to exclude gas drilling through zoning law. When the OGSML was enacted in 1981, neither the widespread use of hydraulic fracturing 4 nor its exclusion through local zoning law existed: As a result, neither the text nor the legislative history of the OGSML specifically reference local zoning power's exclusion of such a use of land. In these circumstances of statutory ambiguity, both deeply rooted legal tradition and democratic accountability point in the same direction: Allow each local government to make a democratically accountable decision about whether to allow or forbid gas drilling. Such a presumption against preemption is required by Article IX, §3(c) of the New York Constitution, which provides that the "[r]ights, powers, privileges and immunities granted to local governments by this article shall be liberally construed." The presumption against preemption is also required by the longstanding canon against implied repeal, because preemption of zoning power by the OGSML would repeal pro tanto pre-existing state statutory delegations of zoning power contained in enabling laws like New York's Municipal Home Rule Law and Town Law. This presumption against preemption has special force when one local government's exclusion of an industrial activity does not prevent other communities from permitting the activity and when each local government has incentives to balance the activity's costs and benefits. Under such circumstances, each community can make up its own mind until the state legislature speaks 5 clearly about whether and how to address traditional zoning concerns at the state level. Any implied preemption of the zoning laws at issue here would destroy democratic accountability, by sweeping away zoning laws on which neighbors depend for the quiet enjoyment of their real property in the name of a judicially invented purpose of maximizing resource extraction over all else. That purpose appears nowhere in OGSML: Democratic accountability requires that the enforcement of such an unwritten purpose should not be imposed by judicial fiat but instead await the state legislature's clear endorsement. ARGUMENT I. ECL §23-0303(2) SHOULD BE CONSTRUED IN LIGHT OF A PRESUMPTION AGAINST PREEMPTION OF LOCAL LAW BY AMBIGUOUS STATE STATUTES. The lower court's holding regarding express preemption turns on the meaning of the supersedure clause ofNew York's Oil, Gas, and Solution Mining Law ("OGSML"), codified at ECL §23-0303(2), which provides that The provisions of this article shall supersede alllocallaws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law. Amici agree with the court below that the plain meaning of this text does not preempt the Town of Dryden's zoning prohibitions of gas and oil drilling. If, 6 however, this court finds that this text is ambiguous on the question of preemption, then amici respectfully urge this court to resolve the ambiguity by applying a presumption against state preemption of local law described below. There is a need in New York for such a judicial clarification of the basic framework within which disputes about preemption are analyzed. The problem of preemption frequently recurs before New York's courts. Patricia E. Salkin, 1 N.Y. Zoning Law & Prac. § 4:22 (describing conflicts between state law and local zoning laws). Although each such case turns on the details of the particular disputed state statute and local law, such decisions also implicate larger principles oflocal democracy immanent in the state constitution and the state's legal traditions. Those principles and traditions can easily be lost in the competing litigants' exhaustive, exhausting, and ultimately fruitless parsing of often ambiguous textual minutiae. Toward the end of bringing these principles and traditions to bear on the problem of preemption, amici respectfully urge a canon of construction, drawn from legal principles and traditions defining local democracy in New York, that disfavors state preemption of local zoning laws. Under this presumption, where state statutes are silent about the statute's effect on zoning laws and provide no substitute protection for property owners' quiet enjoyment of land, then such 7 statutes should be presumed not to preempt local zoning laws, unless local law encroaches on some substantial state interest that local residents are likely to ignore. Amici urge that such a presumption against preemption is required not only by Article IX, §3( c) of the New York Constitution and the canon against implied repeal but also implied by the likely intent of the state legislature as well as basic principles of democratic accountability. If the state legislature has expressed no clear view on some local law, then judicial preemption of such a law under the aegis of the ambiguous state statute deprives local voters of the benefits of local democracy without advancing any democratically ratified policy of state lawmakers. By staying the judicial veto of local law until state lawmakers have plainly spoken, the courts best assure that some democratically elected body, state or local, will speak directly to the interests in quiet enjoyment of land protected by zonmg. A. Article IX §3(c) of the New York Constitution requires a presumption against state statutory preemption of local law. Article IX, §3(c) of the New York Constitution provides that "[r]ights, powers, privileges and immunities granted to local governments by this article shall be liberally construed." This constitutional requirement has also been codified by section 51 of the Municipal Home Rule Law, which provides that home rule powers "shall be liberally construed." These requirements of liberal 8 construction apply to towns' powers to enact zoning laws, which are derived not only from specific delegations of power contained in the Town Law but also the Municipal Home Rule Law. See, e.g., Kamhi v. Town of Yorktown, 74 N.Y.2d 423,432-33 547 N.E.2d 346, 351, 548 N.Y.S.2d 144, 149 (1989) (recognizing towns' power to enact zoning rules pursuant to § 1 0 of the Municipal Home Rule Law); Pete Drown Inc. v. Town Bd. of Town of Ellenburg, 188 A.D.2d 850, 852, 591 N.Y.S.2d 584, 585-586 (3d Dept. 1992) (same). Article IX, §3( e) necessarily implies that the state statutes' preemption clauses, where ambiguous, be narrowly construed, because towns' "(r]ights, powers, privileges and immunities" are defined by those state laws that abrogate such powers just as much as by state laws delegating such powers. Put simply, local governments' powers cannot be "liberally construed" unless state statutes' preemption clauses are narrowly construed. The plain language of Article IX, §3(c), therefore, calls for a presumption against preemption when state statutory text is ambiguous. While there is little relevant New York precedent construing Article IX, §3(c), precedents from other states construing analogous "liberal construction" clauses follow the common- sensical reading of the clause as containing a presumption against preemption. In Neri Bros. Canst. v. Village of Evergreen Park, 363 Ill. App. 3d 113, 841 N.E.2d 9 148 (Ill. App. 3d 2005), for instance, the court held that a village's power to impose liability on persons who released hazardous natural gas as a result of damaging a utility line was not preempted by an Illinois statute making the prevention of damage to utility lines a matter of exclusive state-wide concern. The Illinois statute contained a lengthy preemption clause providing that "[t]he regulation of underground utility facilities ... damage prevention ... is an exclusive power and function of the State" and that "fa] home rule unit may not regulate under-ground utility facilities ... damage prevention .... " Despite this explicit language, the Neri Bros. court held that the village's ordinance imposing the cost of cleaning up discharge of natural gas on a subcontractor who broke a gas line was not preempted by state law, because the village's law was aimed at a goal different from the purpose of state law-recouping remediation expenses rather than preventing negligent damage to utility lines. In rejecting pr~emption of local law, Neri Bros. relied on Article VII, § 6(m) of the Illinois Constitution's clause, which provided that the "[p] owers and functions of home rule units shall be construed liberally," a provision that, according to Neri Bros., required that "any limitation on the power of home rule units by the General Assembly must be specific, clear, and unambiguous." Neri Bros. Canst., 363 Ill. App. 3d 113, 119, 841 N.E.2d 148, 152 (Ill. App. Ct. 2005). 10 Neri Bros.' approach to the state constitutional admonition that local powers be "liberally construed" is compelled by the plain terms of the constitutional phrase and should be adopted by this court. As a matter of plain logic, the court cannot "liberally construe[]" local power without narrowly construing limits on that power. It follows that this court should not find preemption of the Town's zoning laws unless ECL §23-0303(2)'s application to those laws is, in Neri Bros.' phrase, "specific, clear, and unambiguous." B. The canon against implied repeal requires a presumption against state statutory preemption of local zoning authority. The presumption against preemption of local zoning authority is not only a constitutional principle but also a specific application of the well-established canon of statutory construction that "[r]epeals of earlier statutes by implication are not favored and a statute is not deemed repealed by a later one unless the two are in such conflict that both cannot be given effect." N.Y. Stat. Law§ 391 (McKinney 2012); 97 N.Y. Jur. 2d Statutes§ 78 (2d ed. 2012). State statutes such as the Town Law or Home Rule Law must authorize every valid exercise of valid zoning authority in New York. Patricia E. Salkin, 1 Am. Law. Zoning§ 2:8 (5th ed. 20 12) (explaining that towns' zoning power in New York is derived from "zoning enabling statutes or from charters promulgated by special act of the state legislature, or adopted pursuant to the Municipal Home Rule Law, a state 11 legislative act"); Patricia E. Salkin, 1 N.Y. Zoning Law & Prac. §§2.08, 2:12 (2012) (describing zoning authority of towns under Town Law and Municipal Home Rule Law respectively). The judicial inference that a state statute preempts a local zoning law, therefore, also constitutes, by definition, an inference that the same state statute repeals an earlier state statutory delegation of zoning authority. Under the canon against implied repeal, such an implied repeal of a state statutory delegation of zoning power should be disfavored unless plainly required by the text or unwritten purpose of the allegedly preemptive state law. See Patricia E. Salkin, 4 Am. Law. Zoning at§ 41:13; Fammler v. Board ofZoning Appeals of Town of Hempstead, 254 A.D. 777,4 N.Y.S.2d 760 (2d Dept. 1938) (holding that four-month time limit for filing petition in Article 78 of Civil Procedure Law did not repeal 30-day time limit contained in §267 of Town Law for petitions to boards of zoning appeals and noting that " [ w ]here statutory construction in seeking the intent of the Legislature will have such far-reaching effect as would be the case here, the repeal of workable statutes by implication is not favored"); Emerson College v. City of Boston, 393 Mass. 303, 306, 471 N.E.2d 336, 338 (1984) (holding that Boston's zoning law was not preempted by state law on ground that "local regulations are presumed valid unless a sharp conflict exists between the local and the State regulation"). 12 The canon against implied repeal as applied to zoning authority reflects not only deeply rooted legal tradition but also the likely intent of the state legislature. Zoning authority is one of the most frequently exercised forms oflocal power, pervasively affecting virtually every resident of New York. Towns have exercised such zoning power for over eight decades, since the New York legislature delegated zoning authority to them in 1926. See Act of Apr. 30, 1926, ch. 714, 1926 N.Y. Laws 1280 (amending Town Law to authorize towns to create zoning districts). The tenacious character of towns' zoning authority is not an accident; it is the result of the popularity of local control with local voters who seek power over matters immediately affecting their vital interests-in particular, power over changes in the character of their neighborhood that could affect the value of owner-occupied homes. See William A. Fischel, The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School, Finance and Land Use Policies 80-82 (Harvard University Press 2001)(describing incentives of homeowners to be attentive to local land-use policies to protect value of owner-occupied housing); Richard Briffault, Smart Growth and American Land Use Law, 21 St. Louis U. Pub. L. Rev. 253,267-68 (2002); Ashira Pelman Ostrow, Process Preemption in Federal Siting Regimes, 48 Harv. J. on Legis. 289,295-98 (2011). It is not plausible that the state legislature would 13 casually and by mere implication cast aside the popular and deeply entrenched principle of local control over land use. Instead, courts should presume that, if the state legislature intended to uproot such a longstanding power of local governments, then the legislature would have said so explicitly. Town of Brookhaven v. New York State Bd. of Equalization and Assessment, 88 N.Y.2d 354,361, 668 N.E.2d 407,412 (1996) (holding that town's right to receive transition assessments under RPTL § 545 is not preempted by Long Island Power Authority Act and noting that "the Legislature is hardly reticent to repeal statutes when it means to ·do so"); Hunter v. Warren County Bd. of Supervisors, 21 A.D.3d 622, 624, 800 N.Y.S.2d 231, 234 (3d Dept. 2005) (holding that county's authority under state enabling act to impose tax is not repealed by implication by specific grants of power to other counties). That the zoning power over mineral extraction is, in particular, protected by the canon against implied repeal is implicitly recognized by Frew Run Gravel Products v. Town of Carroll, 71 N.Y.2d 126, 518 N.E.2d 920 (1987), the precedent most closely analogous to the dispute in this case. In Frew Run, the Court held that the supersedure clause of the New York Mined Land Reclamation Law, MLRL§23-2703(2), which provided that "this title shall supersede aH other state and local laws relating to the extractive mining industry," did not preempt the Town of Carroll's ban on sand and gravel mining in AR2 zoning districts. In 14 reasoning that the Town's zoning classification did not "relat[e] to the extractive mining industry," the Frew Run court noted that "read[ing] into ECL 23-2703(2) an intent to preempt a town zoning ordinance prohibiting a mining operation in a given zone ... would drastically curtail the town's power to adopt zoning regulations." To avoid such "drastic[] curtail[ment]" of towns' zoning powers, the Frew Run court adopted a presumption holding that any interpretation of the Mined Land Reclamation Law "should be avoided" if it would "preclude the town board from deciding whether a mining operation-like other uses covered by a zoning ordinance-should be permitted or prohibited in a particular zoning district." Frew Run, 71 N.Y.2d at 133-34. In adopting this presumption that state regulation of mining does not oust local governments from simultaneously regulating land use, Frew Run is consistent with similar presumptions against preemption of adopted by other states. See, e.g., Jan G. Laitos & Elizabeth H. Getches, Multi- Layered, and Sequential, State and Local Barriers to Extractive Resource Development, 23 Va. Envtl. L.J. 1, 15 (2004) ("Typically, local governments are not totally preempted by state oil and gas agencies, unless 'the effectuation of a local interest would materially impede or destroy the state interest."'); Patricia E. Salkin, 3 Am. Law. Zoning§ 18:55 (5th. ed. 2012) ("State mining laws generally do not preempt local governments from enacting more stringent requirements ... "). 15 C. The presumption against preemption of local law advances local democratic accountability without interfering with the state legislature's power over matters of statewide concern. It is a truism of local government law in New York and other states that local governments are creatures of state law the powers of which can be destroyed or altered by the state legislature. Patricia E. Salkin, 1 Am. Law. Zoning § 1:1 (5th ed. 2012) ("It is the prevailing view that such a corporation is a creature of the state, possessed of those powers granted to it by constitution or by statute."). Under the New York Court of Appeals' longstanding interpretation of Article IX, § 2(b)(2), the state legislature may, if it chooses, preempt a local law dealing with a local government's "property, affairs, and government" just so long as some substantial state interest justifies such preemption. Adler v. Deegan, 251 N.Y. 467,489-90, 167 N.E. 705,713 (1929) (Cardozo, C.J., concurring). There is, moreover, no doubt that state legislation dealing expressly with zoning of land can address a matter of statewide concern. Warn bat Realty Corp. v. State ojNew York, 41 N.Y.2d 490,492,393 N.Y.S.2d 949, 951, 362 N.E.2d 581, 583 (1977). The presumption against preemption, however, in no way constrains the state legislature's power to preempt local zoning measures, because the 16 presumption applies only where state statutes are ambiguous enough to require judicial construction. Where a state statute unambiguously preempts local law, then the latter must give way to the former. Town of Islip v. Cuomo, 64 N.Y.2d 50, 56,473 N.E.2d 756,759,484 N.Y.S.2d 528,731 (1984) (Article IX, §3(e)'s "liberal construction" provision has no application to state statute unambiguously barring landfill). Where state statutes are less clear about their preemptive purpose, however, Article IX, §3( c) instructs the court to presume that the state legislature intended not to preempt local governments' powers. Far from limiting the state legislature's supremacy over local government, such a rule of construction actually protects the state legislature's likely intent by insuring that the courts do not transform the state legislature's silence into a judicially crafted veto on local laws. If mere silence in a state statute constituted a veto over local ' laws, then "the power of local governments to regulate would be illusory," destroying "the essence of home rule." People v. Cook, 34 N.Y.2d 100, 109, 356 N.Y.S.2d 259, 266, 312 N.E.2d 452, 457 (1974). There is no reason to assume that the state legislature would desire such a result. Given that the state legislature enacts statutes against a backdrop of New York's traditions of strong local democracy, the safest assumption to make about vague statutory language is that the state legislature intended to leave local laws 17 in place. By requiring some plain statement of an intention to supersede a particular category of state law, the presumption against preemption safeguards the state legislature's likely unspoken intention that local officials shall continue controlling matters of local concern until the state legislature has had the opportunity to deliberate specifically about the costs and benefits of such local policy-making. D. The presumption against preemption applies with special force when the state statute alleged to preempt local zoning provides no substitute protections for neighbors' quiet enjoyment of their property. The presumption against preemption of local law is especially appropriate when a state statute alleged to preempt local zoning law contains no substitute protections for landowners' quiet enjoyment of their property. Preemption of zoning laws by such statutes so burdens local landowners' property rights that it is implausible to attribute to the legislature a preemptive purpose. By protecting landowners' rights of quiet enjoyment against nearby activities that would otherwise impose noise, traffic, and aesthetic harms, zoning laws serve the same purposes as the common law of nuisance. See, e.g., Euclid v. Ambler Realty, 272 U.S. 365,387-88 (1926) ("[T]he law of nuisances likewise may be consulted not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the [zoning] power."); see 18 Vicki Been, "Exit", supra note 2 ("When it seeks to regulate such harms [imposed by land users on their neighbors], land use regulation is analogous to nuisance law."). Zoning law, however, provides a more complete and administratively efficient remedy against disruptions of quiet enjoyment than private nuisance claims, because the latter traditionally does not protect landowners from aesthetic harms like loss of a neighborhood's character or loss of light and air. See, e.g., Blair v. 305-313 East 47th Street Associates, 123 Misc.2d 612, 613, 474 N.Y.S.2d 353,355 (N.Y.Sup.1983) (nuisance law provides no easements for light and air); Dugway, Ltd. v. Fizzinoglia, 166 A.D.2d 836, 836, 563 N.Y.S.2d 175, 176 (3d Dept. 1990) (allegation that "assorted debris and an uninhabitable trailer" constitutes "eyesore, insufficient basis for claim of private nuisance); 81 N.Y. Jur. 2d Nuisances§ 17 ("Things merely disagreeable, however, which simply displease the eye or offend the taste, or shock an oversensitive or fastidious nature, no matter how irritating or unpleasant, are not nuisances."). Indeed, supporters of zoning in the early twentieth century defended the constitutionality of zoning by emphasizing "the utter inadequacy of the law of nuisances to cope with the problems of municipal growth." See, e.g., Alfred Bettman, Constitutionality of Zoning, 37 Harv. L. Rev. 834, 836-38 841 (1924). Local zoning laws, therefore, have become a substitute for the common-law 19 of nuisance on which ·landowners rely to safeguard their interest in quiet enjoyment of their land. Courts universally recognize that, just as the arbitrary preemption of nuisance law deprives landowners of property without due process of law, see, e.g., Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998) (holding that "right-to-farm" law unconstitutionally deprived neighboring landowners of property by preempting nuisance law), so too, the arbitrary elimination of zoning's protections can deprive neighboring landowners of their property interest in quiet enjoyment. See, e.g., Rodgers v. Village of Tarrytown, 302 N.Y. 115, 123-24, 96 N.E.2d 731,734-735 (1951) (describing unconstitutional "spot zoning" as the "singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners"); Morrison v. Matt-A-Mar, Inc., 36 A.D.2d 844, 321 N.Y.S.2d 521 (2d Dep't 1971) (allegation that zoning authorizing marina to detriment of neighboring landowners raises triable issue of fact as to illegal spot zoning). Given the importance of zoning for the protection of landowners' property rights, courts should not lightly infer that a state statute has swept aside local zoning laws without providing any substitute protection for landowners. Such an inference is improbable for two reasons. First, such an interpretation of state law 20 arbitrarily burdens the property rights of neighboring property owners. Indeed, the states' arbitrarily favoring gas and oil developers' extraction of minerals over neighbors' rights of quiet enjoyment, without any regard for comprehensive planning or the weighing of relative burdens and benefits, could constitute a deprivation of the neighbors' property without due process oflaw. See, e.g., Carnal Realty, Inc. v. Town of Islip, 34 A.D.2d 780, 781, 311 N.Y.S.2d 239, 241 (2d Dep't 1970); Freeman v. City of Yonkers, 205 Misc. 947, 956, 129 N.Y.S.2d 703, 710 (Westchester Cnty. Ct. 1954) (illegal spot zoning to grant zoning map amendment for gas station to detriment of neighborhood). At least one judge has observed that even the selective elimination of zoning through a state-wide law benefiting mineral rights over all other forms of property, constitutes a deprivation of right to quiet enjoyment of property without due process oflaw. See, e.g., Robinson Twp. v. Commonwealth, 83 A.3d 901, 1000 (Pa. 2013) (3-judge plurality) (Baer, J., concurring) (affirming due process reasoning of Robinson Twp. v. Commonwealth, 52 A.3d 463, 480-86 (Pa. Commw. 2012) that a state statute eliminating local power to impose zoning restrictions on oil and gas drilling unconstitutionally deprived neighboring landowners of property, and not reaching plurality's alternative constitutional grounds). Second, quite apart from arbitrarily burdening one class of property rights, 21 such a construction of ambiguous state statutes attributes to the state legislature an improbable purpose of blindly ignoring sound land-use planning principles. Even land uses that the state legislature seeks to encourage can impose local costs on a neighborhood that exceed their value to the state when sited in a particularly sensitive area. William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls 63-65 (1985). It defies common sense to believe that the legislature would set aside all natural, scenic, historic, and esthetic values throughout the state for the sake of maximizing recovery of natural gas, regardle~s of whether the detrimental effect on land exceeded the value of the gas being extracted. Cf Robinson Twp., 83 A.3d 901 (3-judge plurality) (holding that constitutional provision requiring "preservation of the natural, scenic, historic and esthetic values of the environment" bars statute entitling owners of mineral rights to extract minerals irrespective of damage to environment). As the decision below indicated, the state legislature normally includes procedures for substantial local participation when state statutes expressly repeal zoning. Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d at 466-67,940 N.Y.S.2d at471-72 (2012) (describing procedures in Mental Hygiene Law for taking neighbors' views into consideration in siting of community residences). Likewise, federal laws that 22 preempt local zoning for uses like telecommunications towers in which there is a substantial national interest typically include elaborate provision for local participation in the siting decision. See generally Ashira Pelman Ostrow, Process Preemption in Federal Siting Regimes, 48 Harv. J. on Legis. 289 (2011). Absent strong evidence to the contrary, it is implausible believe that the state legislature would depart from the customary solicitude for neighbors' interests in siting of locally undesirable land uses. Therefore, courts ought not to construe a state statute to eliminate zoning restrictions for a particular type of land use unless the state statute provides some procedure whereby the decision to site that land use takes into account the costs that the use will impose on its neighbors. E. The presumption against preemption applies with special force when local laws do not affect any substantial state interest that local .residents are likely to ignore. Because "zoning often has a substantial impact beyond the boundaries of the municipality," the court in examining an ordinance, "should take into consideration not only the general welfare of the residents of the [zoning] township, but should also consider the effect of the ordinance on the neighboring communities." Berenson v. Town ofNew Castle, 38 N.Y.2d 102, 110-111, 378 N.Y.S. 2d 672, 681, 341 N.E.2d 236, 242-243 (1975) (defining locaJ governments' obligations to accommodate multi-family housing in their zoning laws). When 23 local governments enact "parochial or exclusionary ordinances" that "impose substantial and tangible social costs on other communities without any sacrifice by the city benefiting from the ordinance," then there is a stronger basis for inferring that the state legislature intended to displace local law with exclusive state-wide legislation. Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1160 (2007). By contrast, if local laws balance the costs and benefits of a proposed land use such that "regional needs are presently provided for in an adequate manner," Berenson, 38 N.Y.2d at 111, 341 N.E.2d at 242-43, 378 N.Y.S.2d at 681, then there is less reason to construe ambiguities in state law to preempt local laws. As Professor Diller notes, the strongest case for preemption is presented by local zoning that excludes land uses needed by the region while inflicting no sacrifice on the government enacting the zoning law. See Diller, Intrastate Preemption, 87 B.U.L. Rev. at 1160-64; see also Clayton P. Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625, 628 (1994) (describing local governments' imposing costs on neighboring communities as "expropriation"). Local governments' exclusion of low-income housing constitutes the paradigm of such parochial exclusion: Each local government has incentives to exclude low-income multi-family 24 structures to avoid the fiscal costs of hosting land uses that generate higher expenditures than revenues, but the net effect of such "NIMBYism" can be a regional shortfall in housing. NAACP v. Twp. of Mount Laurel, 67N.J. 151, 162-165, 336 A.2d 713, 719-20 (N.J. 1975) (describing fiscal incentives to exclude affordable housing through zoning); William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls 293-315 (1985) (summarizing literature on voters' incentives to exclude low- and moderate income housing because it generates low property ' tax revenue but high expenditures for schools); Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 115, 1126 ( 1996) (describing fiscal incentives to exclude affordable housing); Ashira Pelman Ostrow, Land Law Federalism, 61 Emory L.J. 1397, 1411-16 (2012). Recognizing the risk that each local governments' total exclusion of housing types could lead to a regional housing shortage, New York courts have held that" [a] community may not use its police power to maintain the status quo by preventing members of lower and middle socioeconomic groups from establishing residency in the municipality." Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 683, 664 N.E.2d 1226, 1235, 642 N.Y.S.2d 164, 173 (1996); Robert E. Kurzius, Inc. v. Incorporated Village of 25 Upper Brookville, 51 N.Y.2d 338, 343,414 N.E.2d 680,682 (1980) (zoning ordinance will be invalidated "if it was enacted with an exclusionary purpose, or it ignores regional needs and has an unjustifiably exclusionary effect"). The total exclusion of multi-family housing in the face of a proven regional need for such housing, therefore, is presumptively prohibited. See, e.g., Continental Bldg. Co., Inc. v. Town of North Salem, 211 A.D.2d 88, 92, 625 N.Y.S.2d 700, 703 (3rd Dep't 1995). New York courts, however, have never held that the total exclusion of a private industrial use such as a mine or drilling operation is presumptively forbidden. To the contrary, the Court of Appeals has expressly distinguished between the total exclusion of housing types and the total exclusion of industrial uses, permitting a small rural community to exclude mining operations from every zoning district. Matter of Gernatt Asphalt Prods., 87 N.Y.2d at 684, 642 N.Y.S.2d at 174, 664 N.E.2d at 1235 ("A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police· powers to prevent damage to the rights of others and to promote the interests of the community as a whole."). This distinction between residential and industrial uses, firmly rooted in legal doctrine, also makes sense as a matter of policy. It is a familiar principle of 26 political economy that local governments can be trusted to make efficient decisions to the extent that they internalize the costs of their decisions. William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls 125-49 (1985). Unlike low- and moderate-income housing, industrial uses generally generate economic benefits for the residents of I a local government, including fiscal benefits from increased property tax yields, royalties and lease payments for local landowners, indirect economic benefits for local retailers from sales to oil and gas workers, and jobs for local residents. 5 Moreover, the zoning process allows industrial enterprises to offer assurances and conditions safeguarding local property values from burdens on quiet enjoyment, thereby muting local opposition to the proposed industrial use. William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls 82-96 (1985) (describing bargaining between town and pulp mill over conditions necessary to mitigate nuisance costs of latter); Town Law, §267-b(4) (describing power of zoning board of appeals to impose "reasonable conditions and restrictions as are directly related to 5 Environmental Impact Statement, 6-211 (Sept. 2012). The new employees and contractors attracted by well construction would also produce indirect benefits for local merchants and retailers, "[a]s the new construction and operations workers spend a portion of their payroll in the local area." !d. at 6-214. Likewise, the industrial development required by hydraulic fracturing would increase the property tax receipts of the local governments in which such wells are sited, and such "increase in ad valorem property taxes would have a significant positive impact on the finance·s of local government entities." Id at 6-262. 27 and incidental to the proposed use of the property"); §274-b (describing special permit process by which towns can mitigate detrimental effect of land uses). As Professor Fischel observes, if the market value of a proposed industrial use equals or exceeds the burden that it imposes on the neighbors' quiet enjoyment of their land, then the industrial use will not be deterred by conditions that that mitigate the nuisance costs that the use imposes on neighboring lots. These economic incentives insure that local governments will not uniformly and single- mindedly exclude an industrial use for which there is a regional need, because that regional need will be reflected in the amount that the industrial user will bestow on local voters in the form of lease payments, royalties, wages, and property taxes in exchange for the right to drill. By excluding an industrial use, local officials and their constituents forego these considerable economic benefits, surrendering them to competing local governments that are less sensitive to the environmental impacts or more eager for local economic development. See Vicki Been, "Exit", supra note 2 (describing incentives oflocal governments to reduce burdens on land development in exchange for economic benefits conferred by such development). Indeed, as the Amicus Brief of the Business Council of New York State notes, over forty municipalities in the heart of the Marcellus Shale 28 have adopted resolutions favorable to the development of natural gas through hydraulic fracturing-a larger number of municipalities than the number that have enacted moratoria or prohibitions. Brief Amici Curiae of Business Council et al. at 25-26 (describing resolutions by "over forty municipalities" in support of hydraulic fracturing as opposed to 30 municipal bans on hydraulic fracturing). There is, in sum, no reason to infer that local governments will use their zoning authority uniformly to exclude industrial uses and thereby eliminate a use for which there is a regional need. Instead, it is at least as likely that each local government, reflecting the relative preferences of their voters for economic development or environmental quality, will insure that industrial development occurs in the area where it is most needed and least likely to inflict harms in excess of its benefits. Given these incentives to zone industrial uses through "a properly balanced and well-ordered plan for the community" that "adequately consider[s] regional needs and requirements," Continental Bldg. Co., Inc. v. Town of North Salem, 211 A.D.2d 88, 92, 625 N.Y.S.2d 700, 703 (3d Dept. 1995), there is no reason to abandon the usual presumption against preemption that protects local zoning laws. 29 II. READ IN LIGHT OF THE PRESUMPTION AGAINST PREEMPTION, ECL §23-0303(2) DOES NOT PREEMPT THE ZONING PROHIBITIONS ON OIL AND GAS DRILLING ENACTED BY THE TOWN OF DRYDEN. Amici agree with the decision below that, read in light of Frew Run Gravel Products v. Town ofCarroll, 71 N.Y.2d 126, 518 N.E.2d 920 (1987), the text of ECL §23-0303(2) does not preempt the zoning laws of the Town of Dryden. Assuming, however, that this court does not find the preemptive scope of §23- 0303(2) to be unambiguous, amici submit that the supersedure clause does not, at the very least, unambiguously bar local zorting directed towards traditional zoning purposes. Given the absence of any plainly preemptive text or purpose, this court can uphold the decision below finding no preemption of the Town of Dryden's zoning laws on the basis of the presumption against preemption, because, under the criteria urged above by amici, the OGSML presents an easy case for applying the presumption against preemption. A. The Town of Dryden's zoning laws do not unambiguously "relat[e] to the regulation of the oil, gas, and solution mining industries." ECL §23-0303(2) preempts the Town of Dryden's zoning laws only if an exclusion of oil and gas drilling and exploration from every zoning district within the Town "relat[es] to the regulation ofthe oil, gas, and solution mining industries." Amici agree with the reading of the plain text ofECL §23-0303(2) set 30 forth by the decision below and have little to add to that decision's interpretation of the supersedure clause. Amici add only that, even if one were to deem the meaning ofECL §23-0303(2) to be less plain, it is indisputable that the phrase "relating to the regulation of the oil, gas, and solution mining industries" is, at the very least, ambiguous as it applies to traditional zoning laws. In particular, it is at least unclear whether a local law "relate[s] to the regulation of the covered industries if the law merely affects those industries. As Justice Scalia has noted, trying to extract specific meaning from the bare text of a preemption clause containing the phrase "relates to" is "a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else." California Div. of Labor Standards v. Dillingham, 519 U.S. 316, 336 (1997) (Scalia, J., concurring). A broadly literalistic reading ofECL §23-0303(2) could lead to the absurdity of exempting gas and oil drilling operations from every local law-general parking regulations, anti-littering rules, bans on late-night noise-that affected those operations, even if the purpose of such laws had nothing whatsoever to do with the extraction of natural resources as such. By defining the supersedure clause to preempt only local laws directed at the operations and techniques for extracting minerals while excluding local laws having "traditional land use concerns" of controlling noise, traffic, or aesthetic 31 incompatibility, the decision below reasonably construed ECL §23-0303(2). Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450, 465, 940 N.Y.S. 2d 458, 470 (2012) ("None of the provisions of the OGSML address traditional land use concerns, such as traffic, noise or industry suitability for a particular community or neighborhood."). Amici urge that this court can uphold such a reasonable interpretation of the supersedure clause on the basis of the presumption against preemption. As explained below, ECL §23-0303(2) makes no provision whatsoever for weighing the burdens imposed by gas and oil drilling on surface owners' quiet enjoyment of land. By contrast, local governments have ample incentives to consider the fiscal and employment benefits of oil and gas drilling. Given these two considerations, the presumption against preemption of local law should apply, and the decision below, upheld. B. New York's Oil, Gas, and Solution Mining Law contains no standards or procedures for protecting neighbors' quiet enjoyment of their property from industrial uses. As the decision below noted, the OGSML contains no substitutes for the protections of quiet enjoyment of property provided by local zoning laws. Instead, as the lower courts have recognized, the OGSML addresses only "technical operational concerns," ignoring "traditional land use concerns, such as 32 traffic, noise or industry suitability for a particular community or neighborhood." Anschutz Exploration Corp. v. Town of Dryden, 35 Misc. 3d 450, 465, 940 N.Y.S.2d 458, 470 (2012). In place of the usual array of restrictions on the siting of industrial uses in residential or other areas sensitive to noise, traffic, high population densities, or aesthetic incompatibility, the OGSML merely has a spacing requirement barring wells from being drilled closer than 100 feet to any "inhabited structure" (i.e., a home) or 150 feet from a "public building."6 6 NYCRR § 553.2. These spacing requirements are patently insufficient for the protection of the character of the community from traffic, noise, glare, odor, or aesthetic incompatibility, or other threats to community character against which zoning law traditionally protects. Indeed, the OGSML on its face is not concerned with community character at all: The purpose of the spacing requirements is manifestly the personal safety, not the quiet enjoyment, of pre-existing structures' inhabitants. One hundred and fifty feet may protect inhabitants from cracked foundations and collapsing equipment, but such minimal distance will not create any meaningful buffer against noise, glare, blocked views, aesthetic incompatibility, and other losses to quiet enjoyment severely affecting property values. 6 New York's current proposed regulations for hydro:fracking provide for larger setbacks from the boundary lines of spacing units (Proposed 6 NYCRR § 553.1), dwellings, places of assembly, and certain water resources (Proposed 6 NYCRR § 560.4). 33 As explained above, the presumption against preemption of local zoning laws is especially strong where the allegedly preemptive state law makes no provision for protecting the quiet enjoyment of land. It is simply implausible to infer that the state legislature intentionally conferred on the gas and oil extraction industry a statutory right to site a towering drill and accompanying truck traffic, waste pits, compressor stations, and the like next door to a quaint bed-and- breakfast in a rural hamlet or single-family home in a quiet residential suburb. Given the implausibility of the state legislature's authorizing such a grotesque invasion of quiet enjo~ent, the court should presume that any ambiguities in the OGSML should be resolved to preserve towns' existing zoning authority when such authority is used to pursue traditional zoning purposes. C. The Town of Dryden's zoning laws do not frustrate any state interest in the extraction of natural gas. Citing the preamble of the OGSML, appellants urge that the state has an interest in "maximizing" the recovery of gas from natural gas fields and that any zoning law that diminishes such recovery thereby frustrates the OGS'ML's purpose. Brief of Appellant Cooperstown-Holstein Corporation at 15-16, 22-23 (citing ECL §23-301 and arguing for "maximizing" gas recovery). Any zoning law that prevents drilling for gas or oil in any community, according to appellants, 34 frustrates the purpose of the OGSML and is, therefore, implicitly preempted. Amici urge that such a sweeping argument for implied preemption merely for the purpose of "maximizing" extraction of a natural resource lacks any support from any authority in New York or elsewhere. Undoubtedly, the state legislature sought to promote the "greater ultimate recovery of oil and gas," §23- 0301(emphasis added), but "maximize" is a term of appellant's invention, nowhere occurring in the OGS"ML's text. It hardly follows from this general purpose of promoting natural gas production that the state legislature intended to do so at all costs and in all locations, regardless of any effect on neighbors' quiet enjoyment of their land. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Cornrn'n, 461 U.S. 190, 222 (1983) (holding that California's regulation of nuclear power plants did not frustrate the purpose of the Atomic Energy Act, because "the promotion of nuclear power is not to be accomplished 'at all costs"'). Appellants, therefore, do not show any substantial frustration of the OGSML's purpose merely by showing that local zoning will prevent some natural gas from being extracted that might otherwise be brought to market if the zoning were set aside. Courts that have found implied preemption of local law based on frustration of the state's purpose in regulating mining have not relied on general assertions 35 about an implausible state purpose to "maximize" energy production at all costs. Instead, such decisions have focused on some specific evidence, embodied in state officials' specific administrative findings, that local regulation of mining would have spillover effects on non-residents in neighboring jurisdictions requiring state regulation. Absent specific evidence of such concrete effects on non-residents, implied preemption based on abstract assertions of a state purpose to maximize extraction of mineral wealth have been uniformly rejected. In Voss v. Lundva/1 Bros., 830 P.2d 1061 (Colo. 1992), for instance, the Colorado Supreme Court held that Colorado's regulations of oil and gas drilling preempted the City of Greeley's total prohibition of oil and gas drilling within city limits based on the specific opinion of the Colorado Oil and Gas Conservation Commission, urged in an amicus brief, that, because "an irregular drilling pattern" could impede extraction of oil or gas from pools underlying Greeley but extending beyond city limits, the City of Greeley's prohibition would impose a burden on non-residents' capacity to extract gas and oil from land outside Greeley's jurisdiction. Given the municipal zoning law's specific extra-territorial effect on non-residents, the Court held the municipal law frustrated the state law's purpose. Voss, 830 P.2d at 1067-68 (noting that the Colorado Oil and Gas Commission's amicus brief identified how municipal law would have effects "extend[ing] 36 beyond the city to land where production is not prohibited by a total drilling ban" and finding preemption based on the "extraterritorial effect of the Greeley ordinances" and the state purpose of preserving "Oil and Gas Conservation Commission's express authority" to protect mineral rights "owners and producers in the common source or pool" extending beyond city limits). By contrast, the same court in Bd of County Comm'rs v. Bowen/Edwards Assoc., 830 P.2d 1045 (Colo. 1992), held that the identical state scheme for regulating oil and gas extraction did not preempt a county law barring oil and gas extraction in unincorporated portions of the county until the County's planning department had granted administrative approval. Bowen/Edwards specifically rejected the notion that some paramount interest in energy development automatically overrode the county's interest in land use planning, stating that "[t]he state's interest in oil and gas activities is not so patently dominant over a county's interest in land-use control, nor are the respective interests of both the state and the county so irreconcilably in conflict, as to eliminate by necessary implication any prospect for a harmonious application of both regulatory schemes." Bowen/Edwards, 830 P.2d at 1058. Voss's holding of preemption, in short, rested on specific findings that the municipality's zoning imposed an extra-territorial effect on non-residents. 37 Affording special protection to non-residents makes eminent sense as a matter of the structure of local government law, because there is no reason to believe that local officials. will give adequate weight to the interests of a constituency not authorized to vote in local elections. Clayton P. Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625 (1994). When local governments burden non-residents, therefore, there is greater likelihood that state and regional interests will be shortchanged and less reason for courts to construe state statutes to confer power on local officials. See, e.g., New York State Public Employees Federation, AFL-CJO by Conde// v. City of Albany, 72 N.Y.2d 96, 101-102, 527 N.E.2d 253, 255-256 (1988) (construing Vehicle & Traffic Law's delegation of power to cities to enact parking restrictions to exclude power to discriminate against non-residents). Appellants nowhere suggest that the zoning laws of the Town of Dryden somehow impose an extra-territorial burden on any person lacking representation in the local political process. Indeed, appellants' "hypothetical" of "a natural gas field that. .. underlies equally (50/50) two separate, but adjacent, towns" illustrates precisely why preemption is unnecessary to protect the interests of any non- resident lessee. Appellant Norse Energy Corp. Brief at 43-44. By contrast with the municipal law at issue in Voss, appellant's hypothetical ban in one town leaves the gas underlying the other town unaffected and available for extraction. Each town 38 can, therefore, make its own independent decision about whether the burden imposed by gas extraction on neighbors' quiet enjoyment of their land outweighs the benefits of additional tax revenue, retail sales, jobs, lease revenues, and royalties that extraction will yield for local residents. 7 If the market value of the gas extracted exceeds the costs of mitigating the damage to neighboring property values from the extraction process, then the oil and gas enterprises will presumably be able to pay for conditions mitigating such damage and thereby reducing neighbors' opposition-for instance, exclusion from districts containing sensitive land uses, larger setbacks, berms, noise limits, traffic limits, and other conditions on special permits or variances designed to advance traditional zoning concerns. If the gas drilling enterprise is unable to pay its way by offering such nuisance- mitigating conditions, then this inability is itself an indication that the value of the gas is exceeded by the real costs of extracting it. See William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls 125-49 ( 1985). Appellants offer no reason for why the local political process in each town will not rationally balance these costs and benefits, permitting gas extraction whenever the costs to the community are exceeded by the benefits. Instead, 7 For evidence that hydraulic fracturing creates jobs, business for local retail, .and fiscal benefits, see New York State Dep't EnvtL Conservation, Revised Draft Supplemental Generic Environmental Impact Statement, 6-211-6-662 (Sept. 2012), available at http://www.dec.ny.gov/data/dmn/rdsgeisfull0911.pdf(last viewed March 5, 2014). 39 appellants assume that the state has an interest in "maximizing" the extraction of natural gas even when the market value of the gas is exceeded by the loss in property values and tourism that the extraction process would impose. Such a characterization of the OGSML's purpose attributes an extraordinary degree of irrationality to the state legislature without any basis for the inference anywhere in the OGSML 's text. In sum, there is no ground for inferring that local prohibitions of an industrial use in a particular town frustrate the OGSML's stated purpose of promoting ''greater ultimate recovery of oil and gas" throughout the state. ECL §23-0301(emphasis added). This statutory purpose hardly implies that the state legislature sought the "greatest" possible recovery in every single hamlet and village, regardless of the local burden on quiet residential neighborhoods and touris~. Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 N.Y.2d 668, 684, 642 N.Y.S.2d 164, 174 (1996) ("A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its pol~ce powers to prevent damage to the rights of others and to promote the interests of the community as a whole."). Absent some specific evidence of extra-territorial effects from the Town of Dryden's zoning laws, this court has no basis for inferring that those laws will 40 prevent sufficient natural gas from being developed on land regulated by other local governments. Cf Berenson, 341 N.E.2d at 242-43 (refusing to preempt local zoning excluding multi-family housing if "regional needs are presently provided for in an adequate manner"). CONCLUSION New York has a strong tradition of local autonomy, legally embodied in enabling acts that confer broad zoning powers on local governments as well as Article IX, §3(c) ofthe New York Constitution, requiring that these laws be given a "liberal[] constru[ction]." Amici urge that this court recognize and preserve these legal traditions of local democracy by holding that ECL §23-0303(2) be construed according to a presumption against preemption and that, in light of this presumption, the Town of Dryden's local zoning laws at issue in this case is not preempted by the OGSML. 41 ubmitted, Columbia Environmental Law Clinic 435 West 116th Street New York, NY 10027 212 854-4291 Skraha@law.columbia.edu Counsel for Amici Curiae COURT OF APPEALS, STATE OF NEW YORK NORSE ENERGY CORP. USA, Petitioner-Appellant, -against- TOWN OF DRYDEN and TOWN OF DRYDEN TOWN BOARD, Respondents. CERTIFICATION OF SERVICE STATE OF NEW YORK ) ) COUNTY OF ALBANY ) ss.: Joshua Morris, being duly sworn, deposes and says: Docket No. 515227 Tompkins County Sup. Ct. Index No. 2011-0902 On the ih day of May, 2014, I served a true copy of the Brief of Professors Vicki Been, Richard Briffault, Nestor Davidson, Clayton Gillette, Michael Heller, Roderick Hills, Eric Lane, John Nolon, Ashira Ostrow, Eduardo Pefialver, Patricia Salkin, Christopher Serkin, and Stewart Sterk as Amici Curaie electronically to the following: The West Firm, PLLC 677 Broadway, 8th Floor Albany, NY 12207 Attorneys for Norse Energy Corp. USA twest@westfirmlaw.com Deborah Goldberg, Esq. EarthJ ustice 156 William Street, Ste. 800 New York, NY 10038 Attorneys for Town of Dryden and Town of Dryden Town Board dgoldberg@earthjustice.org Alan J. Knauf, Esq. Amy K. Kendall, Esq. Knauf Shaw, LLP 1125 Crossroads Building 2 State Street Rochester, New York 14614 Attorneys for Dryden Resources Awareness Coalition aknauf@nyenvlaw.com akendall@nyenvlaw.com ~~ Joshua Morns