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Why ‘wrongful taking’ does not apply

July 21, 2011

One of the biggest bugbears that has haunted the efforts of local towns to craft ordinances restricting high-impact industrial uses within their borders is the threat of lawsuits. Specifically, opponents of such ordinances maintain that if a town zones some property owners’ land so that industrial operations like hydro-fracking are not permitted, it amounts to a “wrongful taking:” that is, a government action has deprived property owners of the value of their land, and they must be compensated accordingly.

The idea is based on the Fifth Amendment, which concludes with the words, “nor shall private property be taken for public use, without just compensation.” The most obvious example is eminent domain, in which the government seizes private land outright but must pay the owner the market price for it.

Would zoning that prohibited activities like hydro-fracking fall into this category? A review of court rulings on this issue suggests that the answer is “no.”

Historically, the two chief criteria that establish a case as a wrongful taking have been whether the land in question will actually be occupied by a party other than the current owner; and whether the government action so reduces the value of the land as to leave at most “but a bare residue” of its value. Also material is whether the plaintiff has been singled out to bear disproportionately the costs of a government action deemed to be for the general good.

The occupation condition is obviously not applicable to the case of restrictions on high-impact industrial activities such as gas drilling. Zoning is not actual physical occupation.

That was a lot of deep thinking!

You are blame-storming for no good reason. It was a good try at credibility, but it just doesn't fly. Think about the following for a few minutes.

"The Constitution of New York State limits municipal authority to only those specific aspects of law that have been granted by the State — and municipalities cannot go beyond those limits. The State Legislature has vested the NYS DEC with the exclusive authority to regulate all facets of oil and natural gas exploration, drilling, completion and production. The Legislature codified the laws pertaining to natural gas drilling as part of the Oil, Gas and Solution Mining Law as set forth in Article 23 of the ECL.

Section 23-0303(2) of the ECL specifically 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.” (Emphasis Added).

Based on 23-0303(2), local municipalities cannot regulate, limit, or ban oil and natural gas production activities; to do so would be to violate the Constitutional authority granted to local municipalities and the pre-emption doctine that exists in New York law.The Legislature initially left 2 areas open to local regulation: road use and taxation. However, taxation was later delegated to the New York State Department of Taxation and Fianince through the Office of Real Property Tax Services. Section 594 of the New York State Real Property Tax Law specifically supersedes local laws relating to the taxation of oil and gas within the State.

Consequently, the only remaing aspect of local law relating to oil and natural gas activities that can be subject to local regulation is where it impacts roadways. There is case law specifically addressing the preemption doctrine and circumstances where a local municipality enacted a local law relating to the regulation of oil or natural gas development."

Read the entire blog with an open mind. This excerpt was taken from:


you think you're clever

but the fact is the state via NYSDEC just placed full freedom and responsibility for zoning with regard to drilling squarely and unequivocally on the towns.

Nice try, but you just fell flat on your face. You should read up on these things more before posting next time so you know what you're talking about.

The DEC makes and rescinds laws now?

Interesting concept. Who needs the state legislature anyway?


you said as much within the rubbish you quoted:

"The State Legislature has vested the NYS DEC with the exclusive authority to regulate all facets of oil and natural gas exploration, drilling, completion and production."

Obviously. You really thought up til now that DEC regulations are just idle powerless "suggestions"????

There is a difference between

being given power by the legislature and passing that responsibility to others.

now you sound

like you're against drilling, since any successful legal challenge of how the State handled this is would probably only result in ratcheting up regulation at the DEC or legislative level.

Apparently you guys are never happy.

Actually, things are going pretty well.

It could be even better, but "us guys" are feeling pretty good these days. Thanks, anyway.

"You guys" that use so much energy and yet rail against it's extraction seem hard to please.

there is

a difference between energy extraction at any cost, and responsible clean energy sources.

And I still have no idea what your point was in complaining above about how the state has allocated responsibility.

There was no complaint!

The state knows what it is doing.


Check and mate.

Hick seems awfully excited

for someone from another state who is not impacted one way or the other by any of this.

Awfully Excited

Justice and property rights know no boundaries and they excite me.