Gas Wells Not Allowed On Land Zoned For Homes Or Farms, High Court Rules

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Above Photo: Associated Press

The Pennsylvania Supreme Court decided Friday that drilling and operating multiple Marcellus Shale gas wells in a section of Fairfield Township, Lycoming County, that is zoned for residential and agricultural would not be a compatible land use.

The case, Gorsline v. Board of Supervisors of Fairfield Township v. Inflection Energy, is important because of its potential application to, and influence on, shale gas development in non-industrially zoned areas throughout the state.

“The decision means that shale gas development has to be recognized as an industrial land use that has impacts and must be located with other uses with which it is compatible,” said George Jugovic Jr., chief counsel for PennFuture who represented the four Fairfield Township residents that brought the case.

He said the court rejected an argument by the township that it granted Inflection Energy a conditional use permit on the basis that shale gas development is a “public services” use that benefits residents and is allowed under the township’s zoning ordinance. The court ruled that the board failed to show that the proposed natural gas drilling “is in any respect for the benefit of the (local) residents. . .”

In issuing its long-awaited decision — the case was briefed in August 2016 and argued in March 2017 — the Supreme Court voted 4-3 to reverse a state Commonwealth Court decision that had upheld a decision by township supervisors allowing the shale gas drilling as a “conditional use” in the residential-agricultural zone.

The 24-page opinion, written by Justice Christine Donohue, states that Inflection Energy and the township’s supervisors failed to satisfy “its burden of proving that its proposed use was similar to a permitted use in an R-A (residential-agriculture) district. . .”

But the ruling also emphasized that it “should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential-agricultural uses.”

Chief Justice Thomas Saylor and Justices Debra Todd and David Wecht concurred. A dissenting opinion by Justice Kevin Dougherty was joined by justices Max Baer and Sallie Updyke Mundy.

The well pad was planned for a 60-acre parcel then used to grow corn that included a stream and wetlands. One home is within 1,000 feet of the proposed well pad, and a large residential development and more than 125 private drinking water wells are within 3,000 feet.

The case was brought by two families, Brian and Dawn Gorsline and Paul and Michelle Batkowski, residents of the housing development, who appealed the township supervisor’s decision to Lycoming County Common Pleas Court, which ruled in their favor.

Commonwealth Court reversed that decision, holding that the drilling would be similar to a public service facility and could be placed in any zoned district that allowed for public services such as a water treatment or sewerage facility.

The Supreme Court rejected that analysis, saying industrial shale gas development was not “in any material respect” similar to any of the uses allowed in the Fairfield Township residential or agricultural district.

Kevin Sunday, director of government affairs for the Pennsylvania Chamber of Business and Industry, issued a short release saying the organization was reviewing the decision.

“We are still going through it,’’ he wrote, “but the short of it is: Supreme Court has decided that local governments may allow oil and gas drilling in residential/agricultural districts but they need to amend their zoning to allow for it. An authorization based on conditional use is not enough.”

Fairfield Township, Cannonsburg-based Inflection Energy LLC, the Pennsylvania Independent Oil & Gas Association and the Pennsylvania State Association of Township Supervisors could not be reached for comment Friday.

Amie Downs, a spokeswoman for Allegheny County, which also filed a brief in support of the township, said the county solicitor had not had an opportunity to review the decision.

Mr. Jugovic, who has represented the Gorsline and Batkowski families since January 2014, when they appealed the township’s issuance of the conditional use permit, said the decision was a long-awaited victory for them.

“I’m really happy for my clients because they’re not going to wake up and have to look at shale gas wells outside their window,” he said.