Beaver County Blue

Progressive Democrats of America – PA 12th CD Chapter

PA Commonwealth Court Upholds Authority of Municipal Zoning Boards to Hear Challenges to Municipal Ordinances by Gas Drillers

Posted by randyshannon on February 28, 2010

The Explosive Fracking Can Break Through to Water Table or to Reservoirs Such as the Ambridge Reservoir

by Randy Shannon

The Pennyslvania Commonwealth Court has ruled that gas drillers must present their appeals of Municipal regulations to the local zoning board first and not to the Court of Common Pleas.

The Commonwealth Court also specifically upheld six regulations affecting the use of land by shale gas drillers. These six regulations are:

1. identifying a zoning district in which gas production activities can be conducted;

2. establishing setback requirements in relation to public buildings, public or private streets, property lines, and properties designated as landfills or properties that contain hazardous substances;

3. provisions of the ordinances regarding lot size and proximity to threatened or endangered species or crucial habitats such that there may be no habitat disturbance;

4. limiting the number of well pad sites permitted on oneproperty;

5. requiring that all oil and natural gas activities meet floodplain provisions and operators submit a wetland report approved by the U.S. Corps of Engineers; and

6. requiring plans for public safety and financial security and requiring operators to file performance bonds.

This decision is discussed fully in the article below. More information can be found the legal firm’s website.

http://marcellusshale.saulnews.com/archives/category/municipalandzoning

Tension persists between municipal and state regulation of gas production in Pennsylvania

 

By George Asimos

In the third case in a series of zoning matters examining the respective regulatory roles of the Commonwealth (through the Department of Environmental Protection) and local government, the Commonwealth Court has decided to preserve the scope of municipal jurisdiction over the validity of its own zoning ordinances.

In Arbor Resources v. Nockamixon Township, decided May 12, 2009, the Court addressed an area of law that has been visited before by other owners who seek to bypass municipal boards to get a court hearing on the validity of a zoning ordinance. While Arbor may well have had good reason to believe its case would be viewed with favor, it was not to be.

A more interesting question is whether this case is merely “procedural,” or does it provide more insight into what regulations of oil and gas drilling the Commonwealth Court is willing to allow local governments to adopt. The issue before the Court was whether a challenge to the validity of certain municipal ordinances regulating the exploration of natural gas in Nockamixon Township would be decided first by the Bucks County Court of Common Pleas in a declaratory judgment action or by the Nockamixon Township Zoning Hearing Board.

Under the Pennsylvania Municipalities Planning Code, exclusive jurisdiction to decide upon the validity of zoning ordinances is vested in the municipality’s Zoning Hearing Board (in the case of a substantive validity challenge) or the municipality’s elected governing body (in the case of a curative amendment).

Bypassing the Zoning Hearing Board or the governing body is not allowed under theMPC — until appeal. Exceptions to this clear statutory statement have occasionally been allowed. For instance, some challengeable ordinances might not really be “zoning” ordinances even if they are contained in a zoning ordinance and these would not be subject to the Zoning Hearing Board’s jurisdiction.

In Plymouth Township v. Montgomery County, for example, the Commonwealth Court decided in 1987 that certain regulations of “trash to steam” plants were more “operational” regulations than zoning regulations, even though they were contained in the township’s zoning ordinance. So, the Court ruled that the Montgomery County Court of Common Pleas had jurisdiction to address the validity of those ordinances in a declaratory judgment proceeding.

Among the non-zoning “operational” regulations in the Plymouth ordinance were those regulating “the processing and disposal of waste by requiring permits and user fees per ton for waste processed, regulated the disposal of waste at the facility and detailed how the waste was transported, including, route, vector control, vehicle size and emergency contingency plans.”

Other Plymouth regulations “subjected the proposed facility to air pollution control regulation and another section that required a permit for connection of the refuse disposal facility to the sewer authority’s line.” These were determined by the Court to be too far removed from the content of zoning ordinances allowed by the Municipalities Planning Code. Therefore, the Court held, the Township Zoning Hearing Board or Board of Commissioners did not have exclusive jurisdiction to hold hearings on the validity of its ordinances.

In a case somewhat closer to the gas industry’s interests, the Commonwealth Court ruled in 1992 in Pennsylvania Coal Company, Inc. v. Township of Conemaugh that, again, the courts had jurisdiction to review the validity of certain amendments to a Township zoning ordinance. The argument that prevailed was that the amendments were pre-empted by the Surface Mining Conservation and Reclamation Act, which gave regulatory jurisdiction over mine operations to the PaDEP. Under the Conemaugh amendments, “mining applicants were required to submit to Conemaugh Township information already required to be submitted to the Department of Environmental Resources in order to obtain a permit.

The challenged provisions also regulated ‘the operation of other activities which are appropriate aspects of surface mining’ that included, construction of structures within specified distances of streams or wetlands; timber harvesting; extraction of coal; excavations and fills; storm water management; and blasting.”

The Commonwealth Court ruled that “the challenged provisions seeking to regulate surface mining operations were ‘more extensive than the traditional land use controls accomplished by zoning’ such that the common pleas court erred in holding that the ZHB had exclusive jurisdiction overall challenges to the ordinance.”

In a contrasting case, Klein v. Shadyside Health, Education and Research Corporation, the Commonwealth Court found that certain regulations of helicopter use in the City of Pittsburgh were more locational than operational, hence the City retained exclusive jurisdiction to hear any challenges to the Zoning Hearing Board. Note, this did not prevent appeal to the court system after conclusion of the municipal hearings and decision. The regulations at issue pertained to the location of heliports and landing areas in relation to other land uses, separation between helicopter landing areas, setbacks from property lines, and hours of operation limitations.

Turning to Nockamixon, these are the regulations that Arbor Resources challenged:

1. identifying a zoning district in which gas production activities can be conducted;

2. establishing setback requirements in relation to public buildings, public or private streets, property lines, and properties designated as landfills or properties that contain hazardous substances;

3. provisions of the ordinances regarding lot size and proximity to threatened or endangered species or crucial habitats such that there may be no habitat disturbance;

4. limiting the number of well pad sites permitted on oneproperty;

5. requiring that all oil and natural gas activities meet floodplain provisions and operators submit a wetland report approved by the U.S. Corps of Engineers; and

6. requiring plans for public safety and financial security and requiring operators to file performance bonds.

Citing Klein and Plymouth, the Court found that none of these ordinances were operational in nature and specifically found that the first four were consistent with traditional land use regulation. Accordingly, the gas producer was directed to undertake any challenge to these cases by means of appeal to the Zoning Hearing Board or Board of Supervisors under the Municipalities Planning Code.

Is this case purely a procedural case? One that, like others in the past, has upheld the exclusive statutory procedure of appeal in the MPC rather than allowing a “side door” to a direct action in Common Pleas? Perhaps not. Recall Range Resources –Appalachia, LLC v. Salem Township, a case decided by the Supreme Court earlier this year, which struck down a package of ordinances on the basis that they were pre-empted by the Oil & Gas Act and by related PaDEP regulation. The ordinances were, as a whole, found to be more focused on regulating drilling(which would be preempted) rather than traditional land use (not preempted). The determination whether an ordinance is “operational” (the standard applied to the jurisdiction issue in Klein, Plymouth¸ and Arbor) is strikingly similar to the standards to determine if an ordinance is pre-empted by the Oil & Gas Act as being focused on the “technical, operational aspects of oil and gas drilling” as applied in Salem Township. While it is risky to apply standards of law to different questions, as distinctions may exist, the parallel cannot be entirely ignored.

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5 Responses to “PA Commonwealth Court Upholds Authority of Municipal Zoning Boards to Hear Challenges to Municipal Ordinances by Gas Drillers”

  1. Peter Deutsch said

    Thanks for again showing an image depicting break out from a fracking zone. It signals to me that large unbalanced forces and torques can be produced deep beneath the surface by hydrofracking. It warns me that these can have important unintended consequences.

  2. […] in their differences,   the language of the Ordinance is instructive;  as is a reading of this article and its links which help explain  the legal reasoning that New York  and Pennsylvania  State […]

  3. […] in their differences,   the language of the Ordinance is instructive;  as is a reading of this article and its links which help explain  the legal reasoning that New York  and Pennsylvania  State […]

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