Posted by: Patricia Salkin | October 29, 2018

PA Appeals Court Upholds Zoning Compliance Permit to Unconventional Gas Well Dismissing Spot Zoning and Due Process Claims

This post was authored by Matthew Loeser, Esq.

On December 13, 2010, the Township enacted Zoning Ordinance 01-2010, entitled “Providing for the Zoning of Oil and Gas Drilling Operations,” which made oil and gas development “a permitted use by right in all Zoning Districts” subject to numerous standards, or conditions. On October 6, 2014, the Township issued a “zoning compliance permit” to CNX Gas Company to develop an unconventional gas well (“Porter Pad”) on property located in the R-2 Zoning District, owned by Northmoreland Farms, LP. Objectors, who lived near the subject property, filed a substantive validity challenge to Zoning Ordinance 01-2010, contending that an unconventional gas well was not a use compatible with an agricultural-residential use. Objectors also appealed the permit issued to CNX. In this case, Objectors appealed an order of the Court of Common Pleas of Westmoreland County that affirmed the decision of the Allegheny Township Zoning Hearing Board to deny Objectors’ land use appeal.

 

On appeal, Objectors argued that Zoning Ordinance 01-2010 contravened substantive due process by engaging in impermissible “spot zoning.” Here, however, the record reflected that no land in the Township was being treated differently because oil and gas development was permitted by right in every zoning district. Furthermore, the Zoning Board found that oil and gas operations long existed in the R-2 Zoning District and provided needed income to Township residents, particularly farmers, so that they could maintain their livelihood and way of life. Accordingly, the court held that Zoning Ordinance 01-2010 did not violate substantive due process. Similarly, the court found that Objectors’ alleged violations of the MPC reiterated the same arguments they made in their substantive due process claim; thus, their arguments failed for these same reasons.

 

Objectors next contended that Zoning Ordinance 01-2010 violated the Environmental Rights Amendment by placing an “industrial” use, such as an unconventional gas well, in an agricultural area, which degraded “the local environment in which people live, work, and recreate, including the public natural resources on which people rely.” Here, the record reflected that the Zoning Board found that oil and gas development and agricultural uses had safely coexisted within rural communities for a long time. Furthermore, the only feature of the Porter Pad that would be visible from any of Objectors’ homes was the portion of the drilling rig that rose over the treetops. As Objectors did not challenge any of these factual findings, the court found they did not prove that Zoning Ordinance 01-2010 was a law that unreasonably impaired their rights under the Environmental Rights Amendment. Accordingly, the order of the Court of Common Pleas of Westmoreland County was affirmed.

 

Township Zoning Hearing Board, 2018 WL 5303462 (PA. Commwlth 10/26/2018)

 


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