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The Pennsylvania Supreme Court concluded that a local zoning ordinance requiring a conditional use permit for extraction of minerals that was applied to a application for the drilling of gas wells, was not preempted by the State Oil and Gas Act (58 P.S. §601.602). The company entered into agreements with the owners of two lots, each about 10 acres, in a single-family residential district, and obtained a permit from the state Department of Environmental Protection to drill natural gas wells. The zoning ordinance required a conditional use permit (CUP) for extraction of “minerals,” but did not define the term. At the direction of the borough solicitor, the company applied for a CUP. The application was denied, based on determination that gas was not a “mineral” and that its extraction for commercial purposes was, therefore, not permitted in the district. The trial court affirmed. The appeals court reversed, holding that the ordinance was preempted by the Oil and Gas Act, 58 P.S. § 601.602.

The Supreme Court reversed and remanded, holding that the ordinance was not preempted and did apply to gas wells. The express preemption language of the Act includes an exception for ordinances exacted pursuant to the Municipalities Planning Code (MPC) except to the extent that they “contain provisions which impose conditions, requirements or limitations on the same features of oil and gas well operations regulated by” or “accomplish the same purposes set forth in” the Act. Holding that the first part of the limitation did not apply, the court reasoned that the location of a well is not a feature of its operation.

The limitation of preemption reflects recognition of the unique expertise of local governing bodies with respect to land use. While there is some overlap between the purposes of the Act and the ordinance with respect to protection of public health and safety, the court concluded that the salient objectives are distinct. The ordinance does not define “mineral,” but the MPC does define the term as including natural gas. The court characterized the borough’s “after-the-fact” interpretation of its ordinance as the “equivalent of a litigation position.”

Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 2009 WL 413723 (PA. 2/19/2009).

The opinion can be accessed at: http://downloads.cas.psu.edu/naturalgas/pdf/Salem%20Township%20case.pdf  

Read the Saul Ewing Summary of the opinion here: http://www.saul.com/common/publications/pdf_1879.pdf  

Read a summary from the PA Chapter of the American Planning Association here: http://www.planningpa.org/phpBB2/viewtopic.php?p=9&sid=fc0cd2cc5cf7cade1da6bc33d67cc645  

The PA Oil & Gas Association offers a summary here:
http://www.pogam.org/news/view.asp?pID=1084  

This abstract is appeared in the April 2009 issue of Planning and Environmental Law.