Cooperstown Holstein Corporation, Appellant,v.Town of Middlefield, Respondent.BriefN.Y.June 3, 2014Appeal No. 2013-242 Otsego County Index No. 2013-0930 COU St T OF APPEALS to of New York COOPERSTOWN HOLSTEIN CORPORATION, Plaintiff-Appellant, -against- TOWN OF MIDDLEFIELD, Defendant-Respondent. BRIEF OF AMICI CURIAE TOWN OF ULYSSES, et al. WHITEMAN OSTERMAN & HANNA LLP John J. Henry, Esq. David R. Everett, Esq. Robert S. Rosborough IV, Esq. Attorneys for Arnici Curiae Town of Ulysses, et al. One Commerce Plaza Albany, New York 12260 (518) 487-7600 TABLE OF CONTENTS TABLE OF AUTHORITIES iii PRELIMINARY STATEMENT 1 STATEMENT OF INTEREST 2 ARGUMENT 4 POINT I - GENERALLY APPLICABLE MUNICIPAL ZONING ORDINANCES ARE NOT EXPRESSLY PREEMPTED UNDER ECL 23-0303(2) 4 A. Constitutional and Statutory Authority of Municipalities to Enact Zoning Laws 5 B. ECL 23-0303(2) Does Not Expressly Preempt Generally Applicable Zoning Ordinances 11 1. The Plain Language of ECL 23-0303(2) Establishes that the Legislature Did Not Intend to Preempt Generally Applicable Zoning Ordinances 13 2. New York Courts' Interpretation of the Analogous Supersession Clause of the Mined Land Reclamation Law Establishes that the Legislature Did Not Intend to Preempt Generally Applicable Zoning Ordinances 21 3. The Supersession Clause Contained in Pennsylvania's Oil and Gas Act Has Been Similarly Construed Not to Preempt Generally Applicable Zoning Ordinances 29 POINT II - THE LEGISLATURE HAS NOT IMPLICITLY PREEMPTED GENERALLY APPLICABLE ZONING ORDINANCES 35 CONCLUSION 40 ii TABLE OF AUTHORITIES State Cases Adler v Deegan, 251 NY 467 (1929) 8 Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372 (1989) 12 Balbuena v IDR Realty LLC, 6 NY3d 338 (2006) 13 Board of County Commrs. of La Plata County v Bowen/Edwards Assoc., 32 830 P2d 1045 (Colo 1992) Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99 (1983) 36 Dexter v Town Bd. of Town of Gates, 36 NY2d 102 (1975) 4 DiMichel v South Buffalo Ry. Co., 80 NY2d 184 (1992) 24 DJL Rest. Corp. v City of New York, 96 NY2d 91 (2001) 7, 27 Easley v New York State Thruway Auth., 1 NY2d 374 (1956) 10 Falk v inzinna, 299 AD2d 120 (2d Dept 2002) 24 Huntley & Huntley, Inc. v Borough Council of Borough of Oakmont, 30 600 Pa 207, 964 A2d 855 (2009) Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500 (1991) 11, 28, 36 Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91 (1987) 11, 12, 38 Jones v Bill, 10 NY3d 550 (2008) 13 Kamhi v Town of Yorktown, 74 NY2d 423 (1989) 8 Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451 (1980) 19 iii LaValle v Hayden, 98 NY2d 155 (2002) 35 Louhal Props. v Strada, 191 Misc 2d 746 (Sup Ct, Nassau County 2002), affd 307 AD2d 1029 (2d Dept 2003) 14 Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 (1998) 13 Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395 (1989) 36 Matter of Envirogas, Inc. v Town of Kiantone, (112 Misc 2d 432 (Sup Ct, Erie County 1982), affd 89 AD2d 1056 (4th Dept 1982), lv denied 58 NY2d 602 (1982) 17 Matter of Estate of Terjesen v Kiewit & Sons Co., 197 AD2d 163 (3d Dept 1994) 20 Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126 (1987) passim Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668 (1996) 5, 9, 24, 27, 29 Matter of Iza Land Mgt. v Town of Clifton Park Zoning Bd. of Appeals, 262 AD2d 760 (3d Dept 1999) 9 Matter of JIJ Realty Corp. v Costello, 239 AD2d 580 (2d Dept 1997), lv denied 90 NY2d 811 (1997) 38 Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51 (2004) 20 Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238 (1972) 9 Matter of People v Applied Card Sys., Inc., 11 NY3d 105 (2008), cert denied 129 S Ct 999 (2009) 35 Matter of St. Onge v Donovan, 71 NY2d 507 (1988) 4, 14 iv Matter of Theroux v Reilly, 1 NY3d 232 (2003) 13 Matter of Western Land Servs., Inc. v Department of Envtl. Conservation of State of N.Y., 26 AD3d 15 (3d Dept 2005), lv denied 6 NY3d 713 (2006) 39 O'Brien v Town of Fenton, 236 AD2d 693 (3d Dept 1997), lv denied 90 NY2d 807 (1997) 27 Patterson Materials Corp. v Town of Pawling, 264 AD2d 510 (2d Dept 1999) 26 People v De Jesus, 54 NY2d 465 (1981) 36 Preble Aggregate v Town of Preble, 263 AD2d 849 (3d Dept 1999), lv denied 94 NY2d 760 (2000) 26, 27 Range Resources-Appalachia, LLC v Salem Township, 600 Pa 231, 964 A2d 869 (2009) 32 Rhodes v Herz, 84 AD3d 1 (1st Dept 2011) 10, 20 Riley v County of Broome, 95 NY2d 455 (2000) 13 Robin v Incorporated Vil. of Hempstead, 30 NY2d 347 (1972) 37 Robinson Twp. v Commonwealth of Pennsylvania, 52 A3d 463 (Pa Commw Ct 2012), appeal quashed 73 A3d 520 (Pa 2013) 34 Thomson Indus. v Incorporated Vil. of Port Wash. N., 55 Misc 2d 625 (Sup Ct, Nassau County 1967), mod on other grounds 32 AD2d 1072 (2d Dept 1969), affd 27 NY2d 537 (1970) 9 Udell v Haas, 21 NY2d 463 (1968) 7 Village of Savona v Knight Settlement Sand & Gravel, 88 NY2d 897 (1996) 26 Village of Valatie v Smith, 190 AD2d 17 (3d Dept 1993), affd 83 NY2d 396 (1994) 4 Wambat Realty Corp. v State of New York, 41 NY2d 490 (1977) 6 Federal Cases Village of Euclid v Ambler Realty Co., 272 US 365 (1926) 9 Zahara v Town of Southold, 48 F3d 674 (2d Cir 1995) 8 Statutes, Constitutional Provisions & Regulations Environmental Conservation Law § 23-0301 37 Environmental Conservation Law § 23-0303(2) passim Environmental Conservation Law § 23-0501 39 Environmental Conservation Law § 23-2703(2) 5, 21, 22, 23 Environmental Conservation Law § 27-1107 20 General City Law § 20(24), (25) 6 L 1974, ch 1043, § 1 22 L 1991, ch 166, § 228 23 Municipal Home Rule Law § 10(1)(ii)(a)(11), (12) 5 NY Const, art IX, § 2(b)(1) 6 NY Const, art IX, § 2(c) 11 NY Const, art IX, § 2(c)(ii) 5 PA Stat Ann, tit 58, § 3302 29, 30 PA Stat Arm, tit 58, § 3304 34 vi Public Service Law § 172(1) Real Propety Tax Law § 594(2) Statute of Local Governments § 2 Statute of Local Governments § 10(6), (7) 20 16 6 6 Town Law § 261 6, 23 Town Law § 272-a(1)(b) 7 Village Law § 7-700 6 Village Law § 7-722(1)(b) 8 Other Authorities Bill Jacket, L 1981, ch 846 19 Governor's Mem approving L 1964, ch 205, 1964 McKinney's Session Laws of NY at 1953 6, 7 Mem of Off for Local Govt, 1964 McKinney's Session Laws of NY at 1850 7 Merriam-Webster's Collegiate Dictionary, at 1049 (11th ed 2004) 14 Michelle L. Kennedy, The Exercise of Local Control Over Gas Extraction, 22 Fordham Envtl L Rev 375 (2011) 10 Oil and Gas—Marcellus Shale, 2012 Pa. Legis. Serv. Act 2012-13, H.B. 1950, § 4 (Purdon's) 30 vii PRELIMINARY STATEMENT Amici Curiae Town of Ulysses et al. (collectively, the "Amici")' respectfully submit this brief with respect to the above-referenced appeal. In this declaratory judgment action, Plaintiff Cooperstown Holstein Corporation ("Plaintiff') sought below to void a local law of Defendant Town of Middlefield ("Middlefield"), adopted pursuant to its constitutionally guaranteed and legislatively delegated zoning powers, determining that the exploration for, extraction, storage, treatment, and disposal of natural gas and/or petroleum is not a permitted use of land in Middlefield. Plaintiff argues that all of Middlefield's land use powers are superseded by Environmental Conservation Law ("ECL") § 23- 0303(2), which preempts a municipality's regulation of the operations of oil and gas extraction. Both the Supreme Court and the Appellate Division, Third Department correctly rejected Plaintiffs claims and reaffirmed the constitutionally guaranteed 1 The Amici on this brief include the Town of Ulysses, City of Ithaca, Town of Alfred, Town of Ancram, Town of Augusta, Town of Camillus, Town of Carlisle, Town of Caroline, Town of Chatham, Town of Claverack, Town of Copake, Town of Danby, Town of Dewitt, Town of Elbridge, Town of Enfield, Town of Geneva, Town of Gorham, Town of Guilderland, Town of Highland, Town of Ithaca, Town of Jerusalem, Town of Kirkland, Town of Lansing, Town of Lumberland, Town of Marcellus, Town of Mendon, Town of Meredith, Town of Middlesex, Town of Middletown, Town of Milford, Town of Milo, Town of Otisco, Town of Otsego, Town of Owasco, Town of Pompey, Town of Potsdam, Town of Red Hook, Town of Rush, Town of Skaneateles, Town of Springfield, Town of Summit, Town of Tusten, Town of Wales, Town of Wawarsing, Town of Woodstock, Village of Cayuga Heights, Village of Dundee, Village of Freeville, Village of Prospect, Village of Saugerties, Village of Sharon Springs, Village of Trumansburg, the Association of Towns of the State of New York, the New York Conference of Mayors, and the New York Planning Federation. right of a local municipality to create and preserve its own community character through generally applicable land use planning and zoning laws. Indeed, the Amici respectfully submit that there is no basis in ECL 23-0303(2) to find preemption of a municipality's land use powers. Under Plaintiff's view, the oil and gas industry can dictate the location of any drilling and other related heavy industrial uses within a municipality without regard to local zoning laws or ordinances. Such a result disregards the State's longstanding municipal land use home rule principles and is unsupported by the language of ECL 23-0303(2), which preempts only local regulation of the operations of the oil and gas industry, not local land use laws that govern whether and where such operations may take place within a municipality's borders. Since the statute does not supersede a municipality's power to control local land use matters, the courts below properly upheld a municipality's right to make its own zoning decisions and the Appellate Division order should be affirmed. STATEMENT OF INTEREST The Amici are cities, towns, and villages located throughout upstate New York and associations of towns, mayors, and expert planners that are particularly concerned with the impacts of this Court's decision on local land use powers throughout the State. Municipalities spend significant amounts of time, effort, and resources on developing a comprehensive plan, pursuant to the General City, 2 Town, or Village Law, outlining the zoning and planning goals for the future of their communities. These plans generally are crafted with the help and input of expert planners and the resources provided by the Association of Towns of the State of New York or New York Conference of Mayors, which have significant expertise in formulating these foundational planning documents. As New York courts have repeatedly recognized, the use of these powers is paramount to promoting principles of smart growth and creating sustainable communities. The State's zoning powers have been delegated to local municipalities because they are in the best position to determine what land uses should be permissible or prohibited. If this Court were to reverse the Appellate Division order and accept Plaintiffs contention in this action that generally applicable municipal zoning ordinances are superseded by the ECL solely for property within the municipality owned or leased by a corporation in the oil and gas industry—municipalities throughout the State would be deprived of the express authority that was delegated to them by the Legislature and derived from the New York State Constitution to determine what types of land uses best serve the needs and interests of their residents. This would be a significant abrogation of local governments' home rule authority, and is not supported under any reasonable interpretation of ECL 23-0303(2). 3 ARGUMENT POINT I GENERALLY APPLICABLE MUNICIPAL ZONING ORDINANCES ARE NOT EXPRESSLY PREEMPTED UNDER ECL 23-0303(2) Plaintiff seeks to upset the longstanding constitutional and statutory authority of municipalities to determine which types of land uses shall be permissible within their borders. Simply put, by arguing that a municipality's local zoning authority is preempted by section 23-0303(2) of the Environmental Conservation Law, Plaintiff essentially seeks a total and unique exemption from Middlefield's generally applicable zoning ordinance based solely on its status as a lessor of property to a corporation in the oil, gas, and solution mining industry. Plainly, such an exemption is not permissible under New York law. See Matter of St. Onge v Donovan, 71 NY2d 507, 515 (1988) (noting "the fundamental rule that zoning deals basically with land use and not with the person who owns or occupies [the property"); Dexter v Town Bd. of Town of Gates, 36 NY2d 102, 105 (1975) ("it is a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies it"); Village of Valatie v Smith, 190 AD2d 17, 19 (3d Dept 1993), affd 83 NY2d 396 (1994). Indeed, the Legislature has set forth a comprehensive statutory scheme under which local governments are vested with the authority to regulate land use matters, which cannot be preempted absent a clear expression of an intention to do so. See 4 e.g. Matter of Gematt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 682 (1996) (emphasizing that "in the absence of a clear expression of legislative intent to preempt local control over land use, [ECL 23-2703(2)1 could not be read as preempting local zoning authority" [emphasis added]). A. Constitutional and Statutory Authority of Municipalities to Enact Zoning Laws. The New York State Constitution provides that "every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law . . . except to the extent that the legislature shall restrict the adoption of such a local law." NY Const, art IX, § 2(c)(ii). Implementing this express grant of authority to local governments, the Legislature enacted the Municipal Home Rule Law, which provides that a municipality may enact local laws for the "protection and enhancement of its physical and visual environment" and for the "government, protection, order, conduct, safety, health and well-being of persons or property therein." Municipal Home Rule Law § 10(1)(ii)(a)(11), (12). Most importantly, the Legislature delegated to every local government the authority to adopt, amend, and repeal generally applicable zoning ordinances and to "perform comprehensive or other planning work relating to its jurisdiction." See 5 Statute of Local Governments § 10(6), (7).2 Moreover, the General City, Town, and Village Law grant municipalities the express authority to regulate land use within their jurisdiction by defining zoning districts and determining what uses will be permitted therein. See e.g. Town Law § 261 ("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." [emphasis added]); see also General City Law § 20(24), (25); Village Law § 7-700. As the Legislature emphasized when enacting the Statute of Local Governments, these "are basic powers which should be possessed by local governments . . . [and] which the Legislature would want 2 Because the authority to enact zoning regulations was expressly delegated to local governments under the Constitution and Statute of Local Governments, any law that would diminish or impair that authority, including ECL 23-0303(2), may be subject to the re-enactment requirement of Article IX, § 2(b)(1) of the Constitution. See Statute of Local Governments § 2. Notably, although ECL 23-0303(2) was added in 1981, it was not subsequently re-enacted. Because the Legislature is presumed to have known of these procedural requirements at the time it enacted ECL 23-0303(2) in 1981, it cannot have intended that section supersede a local government's constitutionally and statutorily guaranteed authority to enact generally applicable zoning regulations. See Governor's Mem approving L 1964, ch 205, 1964 McKinney's Session Laws of NY at 1953 ("the Statute provides a unique mechanism whereby the Legislature may give more permanency to important home rule powers without the necessity of amending the Constitution"); cf. Wambat Realty Corp. v State of New York, 41 NY2d 490, 496-498 (1977) (holding that the power of the Legislature to act in its usual manner with respect to matters of State concern — i.e., matters other than the property, affairs, or government of a local government — is not impaired by the re-enactment language of Article IX, § 2[b][11). 6 local governments to have and exercise in order . . . to perform their functions responsibly and consistently with the principles of home rule." Mem of Off for Local Govt, 1964 McKinney's Session Laws of NY at 1850; see also Governor's Mem approving L 1964, ch 205, 1964 McKinney's Session Laws of NY at 1953. As this Court has repeatedly emphasized, "{o]ne of the most significant functions of a local government is to foster productive land use within its borders by enacting zoning ordinances." DJL Rest. Corp. v City of New York, 96 NY2d 91, 96 (2001); see also Udell v Haas, 21 NY2d 463, 469 (1968) ("Underlying the entire concept of zoning is the assumption that zoning can be a vital tool for maintaining a civilized form of existence only if we employ the insights and the learning of the philosopher, the city planner, the economist, the sociologist, the public health expert and all the other professions concerned with urban problems."). Local governments spend significant amounts of time, effort, and resources on developing comprehensive plans, outlining the zoning and planning goals for the future of their communities according to the identifiable features of the lands and natural resources specific thereto in accordance with their statutory and constitutional powers. See e.g. Town Law § 272-a(l)(b) ("Among the most important powers and duties granted by the legislature to a town government is the authority and responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety and general 7 welfare of its citizens."); Village Law § 7-722(1)(b); Udell, 21 NY2d at 469 ("[T]he comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use. It is the insurance that the public welfare is being served and that zoning does not become nothing more than just a Gallup poll."). Taken together, these powers rightfully leave local land use matters in the hands of local governments—those individuals who know their communities best and can best determine what uses will serve the public health, safety, and general welfare of their citizens. See Kamhi v Town of Yorktown, 74 NY2d 423, 431 (1989) ("a town's planning needs with respect to its neighborhood parks and playgrounds are `distinctively' matters of local concern"); Adler v Deegan, 251 NY 467, 485 (1929) (Cardozo, J., concurring) ("A zoning resolution in many of its features is distinctively a city affair, a concern of the locality, affecting, as it does, the density of population, the growth of city life, and the course of city values."); see also Zahara v Town of Southold, 48 F3d 674, 680 (2d Cir 1995) ("decisions on matters of local concern should ordinarily be made by those whom local residents select to represent them in municipal government"). Because the "inclusion of [a] permitted use in [a zoning] ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 8 238, 243 [19720, New York courts have consistently held that a municipality's home rule authority includes the power to zone out certain uses of land in order to serve the public health, safety, or general welfare of the community. See e.g. Gernatt Asphalt Prods., 87 NY2d at 683-684 (upholding the Town's determination that mining was not a permitted use of land within its borders); Matter of Iza Land Mgt. v Town of Clifton Park Zoning Bd. of Appeals, 262 AD2d 760, 761-762 (3d Dept 1999) (upholding the exclusion of heavy industrial uses from the Town because of "the potential adverse and/or harmful impact" of such uses to the Town's residents); Thomson Indus. v Incorporated Vil. of Port Wash. N., 55 Misc 2d 625, 632 (Sup Ct, Nassau County 1967) ("The defendant village may certainly exclude from its industrial district any uses which constitute a danger or nuisance to other properties within the district or within the village."), mod on other grounds 32 AD2d 1072 (2d Dept 1969), affd 27 NY2d 537 (1970); see also e.g. Village of Euclid v Ambler Realty Co., 272 US 365, 388-389 (1926) (upholding an exercise of local zoning authority to preclude all industrial uses). Although municipalities need not exercise that authority, and may indeed choose to welcome oil and gas extraction within their borders, as some municipalities in New York have, the fact remains that constitutional home rule authority is sufficiently broad to permit each municipality in New York to make that decision upon its own unique comprehensive plan. 9 Here, Middlefield, based on its unique circumstances, determined that heavy industrial uses, as proposed by Plaintiff, pose a significant threat to its residents' health, safety, and welfare and, thus, should not be a permitted use within the Town. This conclusion is well within Middlefield's municipal home rule authority. See generally Michelle L. Kennedy, The Exercise of Local Control Over Gas Extraction, 22 Fordham Envtl L Rev 375 (2011). Given this well-established and longstanding policy in favor of municipal home rule over land use decisions, any legislative attempt at preemption must explicitly usurp local land use powers since the Legislature is presumed to know New York law. See e.g. Easley v New York State Thruway Auth., 1 NY2d 374, 379 (1956) ("Legislatures are presumed to know what statutes are on the books and what is intended by constitutional amendments approved by the Legislature itself"); Rhodes v Herz, 84 AD3d 1, 14 (1st Dept 2011) (holding that, insofar as the Legislature is presumed to know the status of the law at the time it acts, its failure to include a private right of action in an amendment to article 11 of the General Business Law was purposeful). As shown below, ECL 23-0303(2) contains no explicit general preemption of local land use authority. As such, this Court should reject Plaintiff's attempt to upset the longstanding constitutional and statutory authority of municipalities to determine which types of land uses shall be permissible within their borders. 10 B. ECL 23-0303(2) Does Not Expressly Preempt Generally Applicable Zoning Ordinances. Although a local government's municipal home rule powers are construed very broadly, any local law adopted pursuant thereto must be consistent with the Constitution and the general laws of this State. See NY Const, art IX, § 2(c); see also Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96 (1987) ("although the constitutional home rule provision confers broad police powers upon local governments relating to the welfare of its citizens, local governments may not exercise their police power by adopting a law inconsistent with the Constitution or any general law of the State"). Where the Legislature has expressly preempted an area of regulation, a local law governing the same subject matter must yield "because it either (1) prohibits conduct which the State law, although perhaps not expressly speaking to, considers acceptable or at least does not proscribe or (2) imposes additional restrictions on rights granted by State law." Jancyn Mfg. Corp., 71 NY2d at 97 (citations omitted); see also Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500, 505 (1991). Indeed, as this Court has held, The preemption doctrine represents a fundamental limitation on home rule powers. While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern. Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field. 11 Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 (1989) (internal quotation marks and citations omitted). Notably, however, the fact that State and local laws touch on the same subject matter does not automatically lead to the conclusion that that the State intended to preempt the entire field of regulation. See Jancyn Mfg. Corp., 71 NY2d at 99 ("that the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in a given area"). Plaintiff asserted below that the Legislature has expressly stated its intent to preempt local governments' zoning authority with respect to property owned or leased by oil, gas, and solution mining entities in ECL 23-0303(2). Section 23- 0303(2) provides that "[t]he provisions of this article shall supersede all local laws 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." ECL 23-0303(2) (emphasis added). Contrary to Plaintiff's argument, however, the enactment of a generally applicable zoning ordinance, pursuant to a municipality's home rule authority, does not constitute "regulation" of the oil, gas, and solution mining industries and, thus, is not preempted under ECL 23-0303(2). 12 I. The Plain Language of ECL 23-0303(2) Establishes that the Legislature Did Not Intend to Preempt Generally Applicable Zoning Ordinances. When determining the scope of preemption intended under ECL 23-0303(2), the Court must first start with the plain language employed by the Legislature. See Balbuena v IDR Realty LLC, 6 NY3d 338, 356 (2006); Matter of Theroux v Reilly, 1 NY3d 232, 239 (2003) ("When interpreting a statute, we turn first to the text as the best evidence of the Legislature's intent."); Riley v County of Broome, 95 NY2d 455, 463 (2000) ("Of course, the words of the statute are the best evidence of the Legislature's intent."); see also e.g. Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126, 131 (1987) (noting that where the Court faced an express supersession clause, the matter turned on the proper statutory construction of the provision). Where, as here, the language chosen is unambiguous, the plain meaning of the words used must control. See Jones v Bill, 10 NY3d 550, 554 (2008) ("As a general proposition, we need not look further than the unambiguous language of the statute to discern its meaning."); Riley, 95 NY2d at 463 ("As a general rule, unambiguous language of a statute is alone determinative."); Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 (1998) ("As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof."). Thus, the determination of this 13 appeal will turn on this Court's interpretation of the phrase "relating to the regulation of the oil, gas and solution mining industries." ECL 23-0303(2). As Supreme Court and the Appellate Division both noted, the term "regulation" is defined as "an authoritative rule dealing with details or procedure." Merriam-Webster's Collegiate Dictionary, at 1049 (11th ed 2004); see also R., Vol 1, at 12; R., Vol. 2, at 1038-1039. Thus, under the plain language of section 23- 0303(2), a local law is not expressly preempted unless it relates to the details or procedure of the oil, gas, and solution mining industries. This is consistent with New York law generally, which draws a distinction between local laws that regulate the operation of a business or enterprise and those that govern land use. See Matter of St. Onge v Donovan, 71 NY2d 507, 516 (1988) ("Nor may a zoning board impose a condition that seeks to regulate the details of the operation of an enterprise, rather than the use of the land on which the enterprise is located."); Louhal Props. v Strada, 191 Misc 2d 746, 751 (Sup Ct, Nassau County 2002) ("Applicable case law draws a dichotomy between those regulations that directly relate to the physical use of land and those that regulate the manner of operation of a business or other enterprise."), affd 307 AD2d 1029 (2d Dept 2003). A generally applicable local zoning ordinance, such as that challenged in this action, does not relate to the details or procedure of the oil, gas, and solution mining industries in 14 any way. Instead, such an ordinance solely defines and governs the land uses that are permissible within the municipality. Nonetheless, Plaintiff attempts to avoid this clear reading of ECL 23- 0303(2)'s plain language by arguing that the provision's two exceptions to preemption confine local legislative authority with respect to oil and gas concerns solely to jurisdiction over local roads and taxation. As this Court held with respect to the Mined Land Reclamation Law, however, the listing of exceptions to preemption does not preclude a finding that a generally applicable zoning law does not fall within the preemption provision in the first instance. See e.g. Frew Run Gravel Prods., 71 NY2d at 132-133 (noting that ECL 23-2703[2]'s exception for local ordinances imposing stricter reclamation standards than state law did not evidence an intent to preempt local municipalities from enacting generally applicable local zoning controls). Similarly here, in ECL 23-0303(2), the Legislature exempted from preemption: (1) "local government jurisdiction over local roads" and (2) "the rights of local governments under the real property tax law." ECL 23-0303(2). These exemptions are only relevant, however, if the challenged local law constitutes "regulation of the oil, gas and solution mining industries" in the first instance and, thus, would otherwise be preempted. Because Middlefield's Zoning Law does not regulate the details and procedure of oil and gas operations, the stated exemptions 15 from preemption cannot limit Middlefield's constitutionally guaranteed zoning authority, as Plaintiff contends. In contrast, given the frequent heavy truck traffic associated with oil and gas production, including for water and wastewater hauling (R., Vol. 1, at 244), local laws limiting truck trips and the weight and length of vehicles, among other things, traveling over local roads directly impact the details and procedure of oil and gas operations, and thus would otherwise be preempted had the Legislature declined to exempt them expressly. Plaintiff's attempt to construe regulation of the oil, gas, and solution mining industries as limited solely to the operation of the drilling site and well pad is vastly underinclusive, and ignores the significant impacts that oil and gas operations have on the host communities and local roads in particular. Similarly, because the RPTL permits taxation of an oil and gas concern based upon the amount of production in a given year, which is a local fee based solely upon operations like a local permit fee (R., Vol. 2, at 840), the Legislature recognized that local government rights under the RPTL also constituted regulation of the oil, gas, and solution mining industries requiring an exemption from the supersession provision. See RPTL 594(2) (authorizing imposition of an ad valorem tax upon an oil and gas producer based upon the "amount of production from that [oil and gas] economic unit in the production year"). Unlike regulation of local roads and taxation, however, the courts of this State has consistently held that generally 16 applicable zoning laws regulating only permissible uses of land without regard to the land owner or lessee do not relate to the regulation of industry, and thus are not preempted. Prior to the decisions at Supreme Court and the Appellate Division below, only one court throughout the State had interpreted the supersession clause contained in ECL 23-0303(2). In Matter of Envirogas, Inc. v Town of Kiantone (112 Misc 2d 432 [Sup Ct, Erie County 1982], affd 89 AD2d 1056 [4th Dept 1982], lv denied 58 NY2d 602 [1982]), the petitioner, a corporation in the oil and gas industry, challenged a zoning ordinance of the Town of Kiantone, which imposed a $25 permit fee and a requirement to post a $2,500 compliance bond prior to construction of any oil or gas well within the Town. See id. at 432. Supreme Court struck down the law, specifically noting that the 1981 amendment to ECL Article 23 made it clear that the supersession provision "pre-empts not only inconsistent local legislation, but also any municipal law which purports to regulate gas and oil well drilling operations, unless the law relates to local roads or real property taxes which are specifically excluded by the amendment." Id. at 434 (emphasis added). Clearly, the Court recognized that the Town's zoning ordinance was not a generally applicable land use restriction, but instead impermissibly interfered with the operations the details and procedure of the oil and gas industry and, thus, contravened the intent of ECL 23-0303(2). See id. 17 ("The Town of Kiantone, however, singled out oil and gas drillers for special treatment. The $2,500 compliance bond and $25 permit fee are requirements unique to oil and gas well drilling operations and do not apply to any other business or land use. This is precisely what the State amendment to ECL article 23 was designed to prevent."). Unlike Kiantone's zoning ordinance in Envirogas, Middlefield's zoning ordinance does not regulate the operations of the oil, gas, and solution mining industries. It does not impose duplicative fees, area and bulk restrictions, or other conditions applicable only to Plaintiff or members of the oil, gas, and solution mining industry. Instead, the challenged ordinance, adopted under Middlefield's municipal home rule authority, is a generally applicable zoning regulation merely defining the land uses that are permissible and prohibited in the Town. As such, the Court's reasoning in Envirogas supports the conclusion of the courts below that Middlefield's generally applicable zoning ordinance does not affect the operations of the oil, gas, and solution mining industries and, thus, is not preempted under ECL 23-0303(2). The legislative history underlying ECL 23-0303(2), which need not be consulted since the statute is clear, also does not alter this analysis. Indeed, other than a passing reference to the supersession language in a memorandum from the Division of Budget, the bill jacket to the 1981 amendments that added that 18 language is silent on the preemption issue. See Bill Jacket, L 1981, ch 846 ("The existing and amended oil and gas law would supersede all local laws or ordinances regulating the oil, gas, and solution mining industries. Local property tax laws, however, would remain unaffected."). Nor does the general legislative history underlying the Oil, Gas, and Solution Mining Law ("OGSML") support Plaintiff's interpretation of the supersession provision. Instead, the 1963 and 1978 amendments to the OGSML simply indicate the Legislature's intent to reserve to the Department of Environmental Conservation ("DEC") the authority to regulate the technical aspects of oil, gas, and solution mining and drilling, while centralizing promotion of the oil and gas industry in the Energy Department, all without any mention of an intent to preempt local zoning authority. (R., Vol. 1, at 8-10). Additionally, DEC's purported past interpretation of ECL 23-0303(2) has no relevance to this matter whatsoever. (R., Vol. 1, at 51). Because the interpretation of the supersession provision does not require reliance upon DEC's "knowledge and understanding of underlying operational practices or . . . an evaluation of factual data and inferences to be drawn therefrom," but instead is a question of "pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent," DEC's interpretation of section 23-0303(2) is not entitled to deference. Kuresics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 (1980); see 19 also Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51, 59 (2004) ("this Court is faced with the interpretation of statutes and pure questions of law and no deference is accorded the agency's determination"). Most importantly, when the Legislature has intended to supersede the local zoning authority, it has done so expressly. For example, in ECL 27-1107, the Legislature expressly declared that local municipalities were prohibited from requiring "any approval, consent, permit, certificate or other condition including conformity with local zoning or land use laws and ordinances, regarding the operation of a [hazardous waste treatment, storage, and disposal] facility." Id. (emphasis added). The Legislature has also expressly preempted local zoning regulation in the context of the siting of major electric generating facilities. See Public Service Law § 172(1) ("no state agency, municipality or any agency thereof may . . . require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility"). Clearly, had the Legislature intended to wholly preempt local regulation of permissible land uses under ECL 23-0303(2), it could have easily done so. See e.g. Rhodes, 84 AD3d at 14; Matter of Estate of Terjesen v Kiewit & Sons Co., 197 AD2d 163, 165 (3d Dept 1994) ("It has long been held that the Legislature is presumed to know what statutes are in effect when it enacts new laws. Had the Legislature intended to add conservators to Workers' Compensation Law § 115 at the time it enacted Mental 20 Hygiene Law article 77, it could have done so."). Its failure to expressly preempt local zoning regulation here mandates the conclusion that the Legislature did not intend ECL 23-0303(2) to preempt generally applicable zoning ordinances determining which types of land uses are permitted and prohibited within a municipality. 2. New York Courts' Interpretation of the Analogous Supersession Clause of the Mined Land Reclamation Law Establishes that the Legislature Did Not Intend to Preempt Generally Applicable Zoning Ordinances. Although the interpretation of ECL 23-0303(2) appears to be a matter of first impression, the phrase "relating to the regulation" has been repeatedly construed by New York courts in the context of the supersession provision in the Mined Land Reclamation Law ("MLRL"). See ECL 23-2703(2). In this Court's landmark decision in Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]), the Court was asked to consider whether the MLRL supersession provision—ECL 23-2703(2)—was "intended to preempt the provisions of a town zoning law establishing a zoning district where a sand and gravel operation is not a permitted use." Id. at 129. At that time, the MLRL supersession provision provided: 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 enacting local zoning ordinances or other local 21 laws which impose stricter mined land reclamation standards or requirements than those found herein. ECL 23-2703(2) (as added by L 1974, ch 1043, § 1) (emphasis added). Notably, this language is nearly identical to that contained in ECL 23-0303(2). Construing this express supersession clause according to the plain meaning of the phrase "relating to the extractive mining industry," this Court concluded that the Town of Carroll Zoning Ordinance—a law of general applicability—was not expressly preempted because the "zoning ordinance relate[d] 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." Frew Run Gravel Prods., 71 NY2d at 131 (internal quotation marks omitted). The Court held: The purpose of a municipal zoning ordinance in dividing a governmental area into districts and establishing uses to be permitted within the districts is to regulate land use generally. In this general regulation of land use, the zoning ordinance inevitably exerts an incidental control over any of the particular uses or businesses which, like sand and gravel operations, may be allowed in some districts but not in others. But, this incidental control resulting from the 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 Legislature could have envisioned as being within the prohibition of the statute ECL 23-2703(2). Id. at 131-132. Thus, the Court concluded that, in limiting the MLRL supersession to those local laws "relating to the extractive mining industry," the Legislature 22 intended to preempt only "[1]ocal regulations dealing with the actual operation and process of mining." Id. at 133 (emphasis added). By interpreting the scope of ECL 23-2703(2) preemption to include only local laws that regulate the actual operation and process of mining, the Court avoided the concomitant impairment of local authority over land use matters that would have inevitably resulted had it accepted the petitioner's argument that section 23-2703(2) was intended to "preempt a town zoning ordinance prohibiting a mining operation in a given zone." Id. Indeed, the Court noted, to read into ECL 23-2703(2) an intent to preempt a town zoning ordinance prohibiting a mining operation in a given zone, as petitioner would have us, would drastically curtail the town's power to adopt zoning regulations granted in subdivision (6) of section 10 of the Statute of Local Governments and in Town Law § 261. Such an interpretation 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. In the absence of any indication that the statute had such purpose, a construction of ECL 23-2703(2) which would give it that effect should be avoided. Id. at 133-134. Following this Court's decision in Frew Run Gravel Prods., the Legislature amended ECL 23-2703(2) to expressly codify the Court's holding. See L 1991, ch 166, § 228. As amended, the MLRL supersession provision now reads, in pertinent part: For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided, 23 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. ECL 23-2703(2). Had the Legislature disagreed with the Court's interpretation of the phrase "relating to the extractive mining industry" in Frew Run Gravel Prods., this amendment gave it ample opportunity to so state and add a provision expressly preempting all generally applicable local zoning ordinances. That the Legislature declined to do so is significant. See e.g. Falk v Inzinna, 299 AD2d 120, 122-125 (2d Dept 2002) (noting that "if the Legislature intended to limit or qualify disclosure under CPLR 3101[i], as did the Court of Appeals in DiMichel [v South Buffalo Ry. Co. (80 NY2d 184 [1992])1, it would have added language to that effect"). In light of the amendment to section 23-2703(2), the Town of Sardinia, a rural community located in western New York, amended its zoning ordinance to eliminate mining as a permitted use within all zoning districts in the Town. See Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 674-676 (1996). Petitioner, the owner and operator of three mines within the Town, challenged the amendments on various grounds, including that the Town's 24 authority to eliminate mining as a permitted use in all zoning districts was superseded by ECL 23-2703(2). Specifically, the petitioner argued that this Court's holding in Frew Run Gravel Prods. only left "municipalities with the limited authority to determine in which zoning districts mining may be conducted but not the authority to prohibit mining in all zoning districts." Id. at 681. This Court, however, rejected the petitioner's attempt to so limit the municipality's home rule authority. See id. Instead, the Court reaffirmed its holding in Frew Run Gravel Prods. that the MLRL supersession clause was intended to preempt only those local laws that regulated the operations of mining. See id. at 682. Indeed, the Court noted, In Frew Run, we distinguished between zoning ordinances and local ordinances that directly regulate mining activities. Zoning ordinances, we noted, have the purpose of regulating land use generally. Notwithstanding 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. Id. at 681-682. Recognizing the primacy of local control over local land use matters, the Court further noted that "[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." Id. at 684. Thus, the Court concluded, because the amendment to the MLRL 25 supersession clause only "withdr[ew] from municipalities the authority to enact local laws imposing land reclamation standards that were stricter than the State- wide standards," and went no further, it could not be inferred that "the Legislature intended the MLRL to . . . limit municipalities' broad authority to govern land use." Id. at 682; see also Preble Aggregate v Town of Preble, 263 AD2d 849, 850 (3d Dept 1999) ("A municipality retains general authority to regulate land use and to regulate or prohibit the use of land within its boundaries for mining operations, although it may not directly regulate the specifics of the mining activities or reclamation process. Control over permissible uses in a particular zoning area is merely incidental to a municipality's right to regulate land use within its boundaries."), lv denied 94 NY2d 760 (2000). Relying on these holdings, New York courts have repeatedly upheld municipalities' authority to enact generally applicable zoning ordinances that affect the extractive mining industry or ban mining, but do not regulate the operations thereof. See e.g. Village of Savona v Knight Settlement Sand & Gravel, 88 NY2d 897, 899 (1996) ("the Mined Land Reclamation Law does not preempt a municipality's authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations"); Patterson Materials Corp. v Town of Pawling, 264 AD2d 510, 512 (2d Dept 1999) (holding that "local laws of general applicability that, at best, would have an incidental 26 burden upon mining" were not preempted); Preble Aggregate, 263 AD2d at 850 (upholding a local law that "prohibited mining below the watertable but otherwise permitted it upon issuance of a special use permit" against a preemption challenge); O'Brien v Town of Fenton, 236 AD2d 693, 695 (3d Dept 1997) (holding that a local law that prohibited mining outside of a designated mining district and revoked the mining classification for abandoned mines was not preempted under ECL 23-2703[2]), lv denied 90 NY2d 807 (1997). This Court's reasoning in Frew Run Gravel Prods. and Gematt Asphalt Prods. has also been applied in the context of preemption under the Alcoholic Beverage Control ("ABC") Law, leading to the same result. For example, in DJL Rest. Corp. v City of New York (96 NY2d 91 [2001]), New York City amended its zoning resolution to regulate the location of "adult establishments," which included many establishments that were licensed to dispense alcoholic beverages. See id. at 93. Although noting that "the State's ABC Law impliedly preempts its field . . . by comprehensively regulating virtually all aspects of the sale and distribution of liquor" (id. at 95-96), the Court nonetheless concluded that the City's amendment was not preempted because it "applie[d] not to the regulation of alcohol, but to the locales of adult establishments irrespective of whether they dispense alcoholic beverages." Id. at 97. This type of incidental effect on the preempted field, the Court noted, was not the kind of regulation prohibited by the ABC Law. See id. 27 The preemption principles articulated in Frew Run Gravel Prods. were similarly extended to article 19 of the Mental Hygiene Law in Incorporated Vil. of Nyack v Daytop Vil. (78 NY2d 500 [1991]). Specifically, in article 19 of the Mental Hygiene Law, the Legislature adopted sweeping regulations designed to "address the myriad problems that have flowed from the scourge of substance abuse in this State." Id. at 506. Although acknowledging that the Legislature adopted a comprehensive regulation scheme addressing substance abuse issues, this Court, in Daytop Vil., was unconvinced 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." Id. Instead, the Court concluded, in light of the Village's "legitimate, legally grounded interest in regulating development within its borders," the generally applicable zoning ordinance requiring the owner of a substance abuse facility to apply for a variance and certificate of occupancy was "not preempted by State regulation of the licensing of substance abuse facilities." Id. at 508. Under the analysis set forth in Frew Run Gravel Prods. and Gematt Asphalt Prods., it is clear that there is no preemption here. As this Court expressly held, the phrase "relating to" as used in the MLRL supersession clause, and the nearly identical language employed in ECL 23-0303(2), means only that local governments are preempted from regulating the actual operations, processes, and 28 details of the mineral mining and oil, gas, and solution mining industries, not from adopting generally applicable zoning ordinances that determine what land uses shall be permissible within the municipality. This is precisely what the courts below held and this Court should construe the phrase "relating to regulation" in ECL 23-0303(2) in the same manner as it previously interpreted the Mined Land Reclamation Law supersession clause in Frew Run Gravel Prods. and Gernatt Asphalt Prods. 3. The Supersession Clause Contained in Pennsylvania's Oil and Gas Act Has Been Similarly Construed Not to Preempt Generally Applicable Zoning Ordinances. In construing ECL 23-0303(2), this Court should also consider the interpretation of Pennsylvania's statute regulating oil and gas development (PA Stat Ann, tit 58, § 3302), which contains a very similar supersession clause as exists in ECL 23-0303(2). As in ECL 23-0303(2), section 3302 of the Pennsylvania statute expressly supersedes "all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development)," with the exception of ordinances adopted pursuant to two Pennsylvania state statutes, neither of which concerns a local municipality's zoning authority. PA Stat Ann, fit 58, § 3302. Pennsylvania's interpretation of section 3302 and its 29 predecessor (section 602 of the Pennsylvania Oil and Gas Act), also dealing with the oil and gas industry, is particularly instructive here.3 As this Court did with respect to the issue of preemption under the MLRL supersession clause, the Pennsylvania Supreme Court has, in two decisions issued in conjunction, addressed the scope of preemption under section 602 the predecessor to section 3302. First, in Huntley & Huntley, Inc. v Borough Council of Borough of Oakmont (600 Pa 207, 964 A2d 855 [2009]), the plaintiff challenged the denial of a conditional use permit to drill and operate a natural gas well within the Borough on the grounds, among others, that the Borough's zoning ordinance restricting the location of natural gas wells was preempted by section 602. See id. at 212, 964 A2d at 858. Although noting that Isiection 602 of the Oil and Gas Act contained] express preemption language . . . [t]hat . . . totally preempts local regulation of oil and gas development," with certain non-relevant exceptions, the Supreme Court concluded that "the express preemption command [was] not absolute." Id. at 221, 964 A2d at 863. Instead, the Court held, the scope of section 602's preemption extended only to regulation of the "technical aspects of well functioning and matters ancillary thereto (such as registration, bonding, and 3 Importantly, the Pennsylvania Legislature, in adopting the new preemption provision, expressly provided that "[a]ny difference in language between 58 Pa.C.S. § 3302 and section 602 of the Oil and Gas Act is intended only to conform to the style of the Pennsylvania Consolidated Statutes and is not intended to change or affect the legislative intent, judicial construction or administration and implementation of section 602 of the Oil and Gas Act." Oil and Gas— Marcellus Shale, 2012 Pa. Legis. Serv. Act 2012-13, H.B. 1950, § 4 (Purdon's) (emphasis added). 30 well site restoration), [but not] the well's location." Id. at 223, 964 A2d at 864. Indeed, the Court noted, "[a]lthough one could reasonably argue that a well's placement at a certain location is one of its features in a general sense, it is not a feature of the well's operation because it is not a characteristic of the manner or process by which the well is created, functions, is maintained, ceases to function, or is ultimately destroyed or capped." Id. at 222-223, 964 A2d at 864. The Court further drew a salient distinction between the purposes served by the Oil and Gas Act and those served by local zoning ordinances: By way of comparison, the purposes of zoning controls are both broader and narrower in scope. They are narrower because they ordinarily do not relate to matters of statewide concern, but pertain only to the specific attributes and developmental objectives of the locality in question. However, they are broader in terms of subject matter, as they deal with all potential land uses and generally incorporate an overall statement of community development objectives that is not limited solely to energy development. Id. at 224, 964 A2d at 865. Emphasizing these disparate purposes, the Court ultimately concluded that the Borough's generally applicable zoning ordinance determining the permissible location of natural gas wells within the municipality was not preempted by section 602. See id. at 225-226, 964 A2d at 866 ("[A]bsent further legislative guidance, we conclude that the Ordinance serves different purposes from those enumerated in the Oil and Gas Act, and hence, that its overall restriction on oil and gas wells in R—1 districts is not preempted by that enactment."); see also Board of County Commrs of La Plata County v 31 Bowen/Edwards Assoc., 830 P2d 1045, 1057-1059 (Colo 1992) (holding that a county's zoning authority was not expressly or impliedly preempted by Colorado's Oil and Gas Conservation Act). In contrast, in Range Resources-Appalachia, LLC v Salem Township (600 Pa 231, 964 A2d 869 [20091), the Court was asked to determine whether a Salem Township zoning ordinance "directed at regulating surface and land development associated with oil and gas drilling operations" was preempted under section 602. Id. at 232, 964 A2d at 870. Specifically, the challenged ordinance required oil and gas drillers to obtain a municipal permit for all drilling-related activities; regulated the location, design, and construction of access roads, gas transmission lines, water treatment facilities, and well head; established a procedure for residents to file complaints regarding surface and ground water contamination; allowed the Township to declare drilling a public nuisance and to revoke or suspend a permit; and established requirements for site access and restoration. See id. at 234, 964 A2d at 871. Noting its holding in Huntley that section 602's preemptive scope did not "prohibit municipalities from enacting traditional zoning regulations that identify which uses are permitted in different areas of the locality, even if such regulations preclude oil and gas drilling in certain zones" (id. at 236, 964 A2d at 872), the Court concluded that the Township's zoning ordinance far exceeded the permissible bounds of zoning regulation by adopting "regulations pertaining to 32 features of well operations that substantively overlap with similar regulations set forth in the Act" and, thus, was preempted under section 602. Id. at 240-244, 964 A2d at 875-877. Clearly, the Salem Township ordinance, by regulating the technical aspects of oil and gas drilling and imposing additional restrictions above and beyond those contained in the Pennsylvania Oil and Gas Act, went too far. Both the Pennsylvania and New York courts, when construing nearly identical preemption language, have concluded that the scope of preemption of local laws plainly does not encompass a municipality's authority to adopt generally applicable zoning ordinances that govern the permissible and prohibited uses of land within its borders. Thus, as the Pennsylvania Supreme Court held in Huntley, the nearly identical preemption language contained in both section 3302 of the Pennsylvania oil and gas statute and ECL 23-0303(2) do not prohibit municipalities from enacting generally applicable zoning ordinances that identify which uses are permitted and prohibited in different areas of the locality, even if such regulations preclude oil and gas drilling. Furthermore, the Pennsylvania Legislature's recent attempt to implement a uniform statewide zoning scheme for oil and gas development that applies to all municipalities in Pennsylvania, as Plaintiff appears to seek in this action, has been invalidated as inconsistent with the municipalities' home rule authority and a violation of substantive due process. See Robinson Twp. v Commonwealth of 33 Pennsylvania, 52 A3d 463, 471 (Pa Commw Ct 2012) (striking down PA Stat Ann, tit 58, § 3304), appeal quashed 73 A3d 520 (Pa 2013). As the Court aptly held, 58 Pa. C.S. § 3304 requires that local zoning ordinance be amended which, as Huntley & Huntley, Inc. states, involves a different exercise of police power. The public interest in zoning is in the development and use of land in a manner consistent with local demographic and environmental concerns. 58 Pa. C.S. § 3304 requires zoning amendments that must be normally justified on the basis that they are in accord with the comprehensive plan, not to promote oil and gas operations that are incompatible with the uses by people who have made investment decisions regarding businesses and homes on the assurance that the zoning district would be developed in accordance with comprehensive plan and would only allow compatible uses. If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones for a variety of police power reasons advancing those interests in their development. It would allow the proverbial 'pig in the parlor instead of the barnyard.' In this case, by requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa. C.S § 3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise. Succinctly, 58 Pa. C.S. § 3304 is a requirement that zoning ordinances be amended in violation of the basic precept that [l]and- use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded. If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done. 34 Id. at 484-485 (footnotes, internal quotation marks, and citations omitted). In light of this well-reasoned analysis, this Court should not interpret ECL 23-0303(2) as Plaintiff suggests, which would give DEC authority to make all local zoning and land use decisions with respect to the oil and gas industry, because doing so could render it unconstitutional. See LaValle v Hayden, 98 NY2d 155, 161 (2002) ("courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional"). POINT II TILE LEGISLATURE HAS NOT IMPLICITLY PREEMPTED GENERALLY APPLICABLE ZONING ORDINANCES Alternatively, Plaintiff argues that, even if this Court concludes that the Legislature has not expressly preempted a municipality's home rule authority to adopt generally applicable zoning regulations, the Legislature has impliedly evidenced its intent to preempt local regulation of the oil and gas industry, including local zoning, in favor of promoting the development of the resource to maximize recovery and protect the correlative rights of the mineral owners across the State. However, because the Legislature expressly stated its intent to preempt only "regulation of the oil, gas and solution mining industries," the doctrine of implied preemption cannot be considered. See Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 113 (2008), cert denied 129 S Ct 999 (2009). In any event, even considering the doctrine of implied preemption, this Court should 35 affirm the explicit holding of the Appellate Division below that the Legislature did not intend to preempt local zoning authority in favor of land use regulation permitting oil and gas wells to be sited at any location within a municipality without any local input. Where the Legislature has not expressly stated its intent to preempt local regulation, "that intent may be implied from the nature of the subject matter being regulated as well as the scope and purpose of the state legislative scheme, including the need for statewide uniformity in a particular area. A comprehensive and detailed statutory scheme may be evidence of the Legislature's intent to preempt." Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 400 (1989). In examining whether the Legislature has impliedly preempted local regulation, the courts must examine whether "the State has acted upon a subject and whether, in taking action, it has demonstrated a desire that its regulations should preempt the possibility of discordant local regulations." Id.; see also Daytop Vil., 78 NY2d at 508. "A desire to pre-empt may be implied from a declaration of State policy by the Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area." Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99, 105 (1983) (citation omitted); see also People v De Jesus, 54 NY2d 465, 469 (1981) (comprehensive and detailed regulatory scheme imposed under Alcohol Beverage 36 Control Law impliedly evidenced the Legislature's intent to preempt the entire field); Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350 (1972) (declaration of State policy to preempt "the subject of abortion legislation and occupy the entire field so as to prohibit additional regulation by local authorities in the same area"). Here, ECL 23-0301 provides the Legislature's statement of policy underlying the statewide regulation of the oil, gas, and solution mining industries. Specifically, section 23-0301 declares that it is in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected, and to provide in similar fashion for the underground storage of gas, the solution mining of salt and geothermal, stratigraphic and brine disposal wells. (Emphasis added). Contrary to Plaintiff's suggestion, however, this policy does not in any way indicate that the Legislature intended solely to promote the viability of oil and gas drilling in New York. To the contrary, the Legislature's declaration of policy specifically recognizes the interplay that must occur between the rights of owners of oil and gas properties, such as Plaintiff, and the rights of all landowners and the general public. In order to fully protect the rights of both, as ECL 23-0301 states, the Legislature cannot have intended to wholly supersede the municipal 37 home rule authority of local governments to determine whether and in which districts oil and gas drilling operations will be permitted. To hold otherwise would obviate the clear balancing of rights sought to be protected by the Legislature, and would grant Plaintiff, and potentially DEC, total control over uniquely local land use matters. In fact, the statutory scheme governing mining is not markedly different, yet this Court in Frew Run and Gernatt Asphalt Prods. did not find implied preemption. Although the Legislature has indeed enacted detailed statutory provisions governing the operations of the oil and gas industries, generally applicable zoning ordinances, such as Middlefield's zoning law challenged herein, are not inconsistent with the statutory scheme since they do not impact the day-to-day operations of the industry. See e.g. Jancyn Mfg. Corp., 71 NY2d at 97 (state law regulating use of sewage system additives did not preempt local legislation prohibiting use of any sewage system additives without county health department approval); Matter of JIJ Realty Corp. v Costello, 239 AD2d 580, 582 (2d Dept 1997) (holding that a zoning provision prohibiting the use of a warehouse for storage of lubricating oil and grease was not inconsistent with the purpose underlying the Petroleum Bulk Storage Code and, thus was not impliedly preempted by state law), lv denied 90 NY2d 811 (1997). 38 Plaintiff extensively relies on the ECL provisions regulating delineation of pools and well spacing units, among other things, as evidence that the actual location of oil and natural gas wells is a matter within the exclusive province of the State. Contrary to Plaintiff's argument, however, these regulations merely establish a limit on the number of wells that may be constructed statewide and provide minimum area and setback requirements to ensure adequate protection of the State's natural resources. See ECL 23-0501, 23-0503. Notably, the State- imposed limitations on well siting expressly govern the operations of the oil, gas, and solution mining industries, as contemplated by the Legislature in enacting ECL 23-0303(2), but do not contain any provisions that can be read to indicate that the Legislature intended to wholly preempt a municipality's exercise of its constitutionally guaranteed zoning authority. Indeed, "[a] necessary consequence of limiting the number of wells is that some people will be prevented from drilling to recover the oil or gas beneath their property." Matter of Western Land Servs., Inc. v Department of Envtl. Conservation of State of N.Y., 26 AD3d 15, 17 (3d Dept 2005), lv denied 6 NY3d 713 (2006). Nor would a local government determination that oil and gas extraction and development is not a permissible use of land within the municipality prevent landowners from realizing the financial gains that may potentially result from recovery of their subsurface minerals, as Plaintiff asserts. In order to address the 39 perceived inequity of some landowners being prohibited from drilling on their properties, New York has "adopted the doctrine of 'correlative rights,' whereby each landowner is entitled to be compensated for the production of the oil or gas located in the pool beneath his or her property regardless of the location of the well that effects its removal." Id. As such, regardless of whether a landowner is prohibited from conducting oil and gas drilling within a specific municipality, the landowner will still be entitled to compensation for his or her fair share of the oil or gas produced from beneath his property, whether by voluntary agreement, an order of DEC, or otherwise. CONCLUSION For the foregoing reasons, the Amici respectfully request that this Court affirm the Appellate Division order in its entirety. Dated: November 19, 2013 WHITEMAN OSTERMAN & HANNA LLP Albany, New York John J em- q6 David . Ever , Esq. Robert S. Rosborough IV, Esq. Attorneys for Amici Curiae Town of Ulysses et al. One Commerce Plaza Albany, New York 12260 (518) 487-7600 40 By: