As New York State appears to be moving toward allowing oil and gas companies to extract natural gas through high-volume hydraulic fracturing, known colloquially as “fracking,”1 local governments throughout the state continue to consider how, if at all, they may regulate the process in their own communities. Whether municipalities may regulate drilling through zoning—and if so, to what extent—is something that courts likely will have to decide.2 The recent decision by the Supreme Court, Sullivan County, in Weiden Lake Property Owners Ass’n v. Klansky3 suggests, however, that there may be another alternative: restrictive covenants.
State law authorizes local authorities to impose conditions as an incident of a site plan approval, variance, special permit, or other land use approval.4 Moreover, town and village governments can require that applicants for variances, permits, or other relief actually record land-use conditions in the form of private covenants and easements—including conservation easements5 and open space easements6—to ensure that the conditions are complied with. The Weiden Lake decision upheld the applicability of restrictive covenants to bar a property owner’s lease of drilling rights to an oil company.
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