(dissenting). Environmental Conservation Law § 23-0303 (2) states 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 supplied). Municipalities may without a doubt regulate land use through enactment of zoning laws, but, in my view, the particular zoning ordinances in these cases relate to the regulation of the oil, gas and solution mining industries and therefore encroach upon the Department of Environmental Conservation’s regulatory authority. For this reason, I respectfully dissent.
The zoning ordinances of Dryden and Middlefield do more than just regulate land use, they regulate oil, gas and solution mining industries under the pretext of zoning (see Zoning Ordinance of Town of Dryden § 2104 [1] [“Prohibited Uses (1) Prohibition against the Exploration for or Extraction (of) Natural Gas and/or Petroleum”]; Zoning Ordinance of Town of Middlefield art II [B] [7]; art V [A] [“Prohibited Uses: Heavy industry and all oil, gas or solution mining and drilling are prohibited uses”]).
In Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]) — a case involving a supersession clause contained in the Mined Land Reclamation Law (MLRL) (see former ECL 23-2703 [2])* — we made clear that there is a distinction between zoning ordinances that regulate land use and local *756ordinances that regulate the mining industry. The former, which involve the division of the municipality into zones and the establishment of permitted uses within those zones, relate not to the extractive mining industry, but rather, to the regulation of land use generally (see Frew Run, 71 NY2d at 131).
The ordinances here, however, do more than just “regulate land use generally” (id.), they purport to regulate the oil, gas and solution mining activities within the respective towns, creating a blanket ban on an entire industry without specifying the zones where such uses are prohibited. In light of the language of the zoning ordinances at issue — which go into great detail concerning the prohibitions against the storage of gas, petroleum exploration and production materials and equipment in the respective towns — it is evident that they go above and beyond zoning and, instead, regulate those industries, which is exclusively within the purview of the Department of Environmental Conservation. In this fashion, prohibition of certain activities is, in effect, regulation.
Unlike the situation in Matter of Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996]) — which involved a zoning ordinance that eliminated mining as a permitted use in all districts — the ordinances in these appeals do more than just delineate prohibited uses. Where zoning ordinances encroach upon the DEC’s regulatory authority and extend beyond the municipality’s power to regulate land use generally, the ordinances have run afoul of ECL 23-0303 (2).
Chief Judge Lippman and Judges Read, Rivera and AbdusSalaam concur with Judge Graffeo; Judge Pigott dissents in an opinion in which Judge Smith concurs.In each case: Order affirmed, with costs.
This statute provided that the MLRL “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 ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein.”