Monday, October 29, 2018

Commonwealth Court Upholds Local Zoning Ordinance Allowing Drilling In All Districts As Long As They Meet Standards

Commonwealth Court Friday issued a decision upholding the zoning ordinance of Allegheny Township in Westmoreland County allowing oil and gas well drilling in all zoning districts as long as they satisfy standards to protect public health, safety and welfare.
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 issue of spot zoning, the Court noted the Township residents challenging the ordinance live within 900 to 1,875 feet from the drilling site and complained of land clearing, truck noise, potential loss of property value, however, they provided limited information on other potential impacts from the drilling activities
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.
CNX provided testimony that there are already 242 conventional oil and gas wells in Allegheny Township and 261 unconventional gas wells in Westmoreland that have had limited impact on farming and the community.
The Court concluded, as it referenced in decisions in previous similar legal challenges, “...the objectors’ ‘expressed concerns’ consisted of no more than ‘speculation of possible harms[,] which was ‘insufficient to show that the proposed natural gas well will be detrimental to the health, safety and welfare of the neighborhood.”
The Court dismissed the objectors’ argument the industrial nature of a natural gas well is incompatible with and must be segregated from other uses in a agricultural-residential zone in violation of the state’s Environmental Rights Amendment and the PA Supreme Court’s Robinson Township decision.
The Court’s decision said, in contrast to the overturning of the provisions in Act 13 related to local zoning in the Robinson case, “, the municipality has evaluated its landscape and has chosen to allow oil and gas operations to take place in every zoning district, so long as certain exacting standards are satisfied.
“The Zoning Board held that Objectors failed to prove that Zoning Ordinance 01-2010 violated substantive due process.  It held, to the contrary, that Zoning Ordinance 01-2010 preserves the protected ‘rights of property owners’ to realize the value of their mineral deposits but without causing cognizable injury to their neighbors.”
The objectors’ also argued a 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.
The Court also ruled against the objector’s argument involving violations of the state’s Municipalities Planning code.
Click Here for a copy of the Commonwealth Court decision.  
Click Here to read the 19-page dissenting opinion by Judge McCullough. She said she would have invalidated the local permit approval and remanded the issue back to the local Zoning Hearing Board to take additional evidence that the actions it has taken are compatible with the Environmental Rights Amendment.
Click Here to read the 8-page dissenting opinion by Judge Ceisler who also takes issue with the majority’s reasoning on whether the local zoning ordinance violates the Environmental Rights Amendment.
More Background
In August, the PA Supreme Court overturned a Commonwealth Court decision that upheld a local zoning ordinance allowing shale gas drilling in Middlesex Township, Butler County based in part on a challenge brought under the Environmental Rights Amendment.
The PA Supreme Court ordered Commonwealth Court to rehear the case specifically on the issue of the Environmental Rights Amendment challenge.
On the issue of local zoning ordinance regulating oil and gas drilling generally, the PA Supreme Court ruled in June that to be effective in regulating drilling, local zoning ordinances must expressly allow for natural gas drilling and cannot enjoy an presumption of being similar to uses in zoning districts.
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