Pennsylvania court upholds oil and gas development near agricultural area

By Tomas Kassahun | Nov 16, 2018

HARRISBURG - In a decision made Oct. 26, the Commonwealth Court of Pennsylvania upheld the trial court’s ruling that affirmed the Allegheny Township Zoning Hearing Board’s decision to allow oil and gas development near an agricultural area. 

The case was brought to the Commonwealth Cout after residents Dolores Frederick, Patricia Hagaman and Beverly Taylor appealed an order of the Court of Common Pleas of Westmoreland County.

The residents raised concerns about Zoning Ordinance 01-2010, which supplemented the Township’s Zoning Ordinance to allow oil and gas well operations in all zoning districts as long as they satisfy standards designed to protect the public health, safety and welfare. 

“Pursuant to Zoning Ordinance 01-2010, the township issued a permit to CNX Gas Co. to develop an unconventional gas well on property located in the Township’s R-2 Agricultural/Residential Zoning District,” the opinion stated. 

According to the court, the residents argue that Zoning Ordinance 01-2010 improperly instituted illegal spot zoning in violation of substantive due process; does not comport with the Environmental Rights Amendment in Article I, Section 27 of the Pennsylvania Constitution; and contravenes several provisions of the Pennsylvania Municipalities Planning Code.

The Commonwealth Court said the Zoning Board’s rejection of the residents’ evidence as lacking probative value is “consistent with this court’s precedent. Testimony that merely speculates on possible harm lacks probative value.”

“The Zoning Board held that Objectors failed to prove that Zoning Ordinance 01-2010 violated substantive due process,” the opinion stated. “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.” 

Residents also argued that Zoning Ordinance 01-2010 violates the Environmental Rights Amendment, which states, “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. ... Objectors contend that placing a so-called ‘industrial’ use, such as an unconventional gas well, in agricultural areas ‘degrades the local environment in which people live, work, and recreate, including the public natural resources on which people rely.'"

In any case, the Zoning Board found that oil and gas development and agricultural uses have safely coexisted within rural communities.

“The only feature of the Porter Pad that will be visible from any of objectors’ homes is the portion of the drilling rig that rises over the treetops,” the opinion stated. “Once drilling operations cease, the rig will be removed during the pumping phase. When pumping ends, the land can be returned to its original state.” 

According to the court, oil and gas drilling will support the agricultural use of land in the R-2 Zoning District. 

The court said the residents didn’t prove that Zoning Ordinance 01-2010 is a law that “unreasonably impairs” their rights under the Environmental Rights Amendment.39.

“Objectors did not prove that Zoning Ordinance 01-2010 does not reasonably account for the natural, scenic, historic and esthetic values of the Township’s environment,” the opinion stated. 

According to the opinion, the Zoning Board credited the testimony of an expert, who stated that there is a long history of oil and gas development safely coexisting with agricultural uses in the rural areas of the Township and that unconventional gas development will actually help preserve farming in the R-2 District. 

“We hold that Zoning Ordinance 01-2010 does not violate the Environmental Rights Amendment,” the opinion stated. 

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