In working with municipalities and individuals across the State we have encountered a common concern. Many people believe that Article 10 of the New York State Public Service Law (available here) expressly preempts all local zoning and land-use laws. This concern can lead to a fatalistic attitude and stymie active participation by host municipalities and intervenor parties in Article 10 proceedings. In my personal opinion, that concern is overblown. The interplay between Article 10 and local law is much more nuanced than a case of express supersession.

As a threshold issue, Article 10 does not expressly preempt all local laws—it only expressly preempts local laws that are procedural in nature or that require local permits for the construction of a facility. Unlike procedural laws, Article 10 does not expressly preempt substantive local laws such as height limitations, setback buffers, and zoning district requirements. Instead, the rule is that the Siting Board must apply such substantive laws by default. This procedural/substantive distinction in the law and regulations signals a clear recognition by the State government that a local government’s constitutional power to plan and regulate land-use should not be so easily overridden.

But the story doesn’t end with an easy distinction between procedural and substantive laws. First, the line between what is procedural and what is substantive is often gray and wavering. Second, even if a law is substantive, the Siting Board still has the power “not to apply” the law. This places the burden of proof on an applicant to show why a local law should be overridden, and the burden is both heavy and highly technical.

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