Jun 9, 2018 4 min read

A recent ruling from Pennsylvania’s high court reinforces local elected officials’ authority – and responsibility – to consider what zoning rules they apply to oil and gas development.

The state Supreme Court ruled Friday in favor of two families in Fairfield Township, Lycoming County, who each live a few thousand feet from the site where supervisors gave Denver-based Inflection Energy approval to put a well pad.

In its 4-3 decision, the court said local governments can amend their zoning ordinances to allow oil and gas development in “any or all” of their zoning districts, with appropriate limitations and conditions.

“What a governing body may not do, however, and what the Fairfield Township Board of Supervisors did in this case, is to permit oil and gas development in residential/agricultural districts without first enacting the necessary amendments, based upon a clearly inadequate evidentiary record and no meaningful interpretative analysis of the language of its existing zoning laws,” Justice Christine Donohue wrote in the majority opinion.

The ruling, which described gas wells as an industrial use, reversed a 2015 decision by the Commonwealth Court. The lower court had held the gas well – which isn’t specifically allowed under the township’s ordinance – is similar to a “public service facility,” which is permitted in the “residential-agricultural” area where the property is located.

Donohue wrote the gas well is not, “in any material respect, of the ‘same general character’ as any allowed use in the R-A zoning district.”

“The Court’s decision makes clear that shale gas development is an industrial land use, and that local government must rigorously consider what other land uses it is compatible with before allowing it to occur in districts designed for incompatible uses, such as a district designed to foster a quiet residential environment,” said George Jugovic Jr., vice president of legal affairs for environmental group PennFuture.

PennFuture represented Fairfield residents Dawn and Brian Gorsline and Michele and Paul Batkowski in their legal challenge of Fairfield supervisors’ decision giving conditional-use approval for the well pad.

The Pennsylvania State Association of Township Supervisors encouraged municipal governments to review language in their zoning ordinances and processes for handling development applications.

“Importantly, the court expressly stated that its decision should not be read to mean that oil and gas development could never be permitted in R/A districts nor did it require municipalities to allow it in such districts,” said David Sanko, the group’s executive director, in a statement on the ruling. “The language of ordinances matters, as does the quality of the evidence that applicants must present and that boards must rely upon when rendering decisions.”

The Washington County townships of Robinson and Mt. Pleasant – which were involved in the case that resulted in the state Supreme Court scrapping portions of the state natural gas law in 2013 – were among the parties that filed amicus curiae briefs. The townships asked the court to protect local autonomy.

During a Cecil Township supervisors’ meeting Monday, Kara Shirdon – one of the residents who filed a land-use appeal in Washington County Court to challenge plans by Range Resources to build a well pad on North DePaoli Road near their properties – asked supervisors to wait another month before voting on a one-year extension of the conditional-use approval of Range’s plans, which was approved in July. Shirdon made the request for township officials to table the proposal because “we haven’t had adequate time to review the information contained” in the Gorsline decision.

A majority of supervisors voted later in the meeting to grant the extension to Range.

Following the meeting, township solicitor Gretchen Moore – who co-authored Robinson’s and Mt. Pleasant’s brief – drew a distinction between Fairfield and municipalities like Cecil, which have already amended zoning rules to provide for oil and gas development.

“I think it’s a different analysis,” she said.