Wednesday, May 15, 2019

PA Supreme Court Upholds Decision Allowing Drilling In All Districts Under A Local Zoning Ordinance As Long As They Meet Standards

On May 14, the PA Supreme Court denied an appeal of an October 2018 Commonwealth Court decision allowing oil and gas well drilling in all zoning districts in Allegheny Township, Westmoreland County as long as they satisfy standards to protect public health, safety and welfare.
The standards referred to in the local ordinance related to road safety, clearing of brush and trees, emergency planning, dust, noise and lighting controls and security measures.  The ordinance also requires compliance with all federal and state permitting requirements.
This case is one of several recent decisions in Commonwealth Court and the PA Supreme Court involving challenges to local zoning ordinances regulating drilling based at least in part on the state’s Environmental Rights Amendment.
The zoning ordinance challenged in this case was adopted in 2010 and involved Allegheny Township issuing a zoning permit for a CNX unconventional gas well permit in 2014 for a site in an agricultural-residential use zoning area.
The appeal to Commonwealth Court involved 3 issues: the Township zoning ordinance represents spot zoning; the ordinance violates the state’s Environmental Rights Amendment; and allowing oil and gas development in every zoning district violates the state Municipalities Planning Code.
On the objectors’ issue that the 2017 PA Supreme Court decision defining the public trust responsibility for natural resources by state and local governments under the Environmental Rights Amendment also applies in this case, Commonwealth Court acknowledged “When a municipality enacts a zoning ordinance, it is bound by the Environmental Rights Amend and by all the rights protected in Article I of the Pennsylvania Constitution.”
The Court, however, said the 2017 PA Supreme Court decision did not give municipalities the power to replicate the environmental oversight that the General Assembly conferred on DEP and other state agencies, not did it give municipalities the power to act beyond the bounds of their enabling legislation.
In fact, the Court said, the state Oil and Gas Act specifically says a municipality lacks the power to regulate how gas wells operate.  A municipality can only use its zoning powers to regulate where mineral extraction takes place, not how drilling will be done.
The Court said the objectors did not prove the local zoning ordinance does not reasonably account for the natural, scenic, historic and esthetic values of the Township’s environment.
Click Here for a copy of the PA Supreme Court order denying the appeal.
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