Posts Tagged ‘Commonwealth Court’

By Elizabeth Skrapits (Staff Writer)
Published: August 23, 2010

DALLAS TWP. – Would local officials be powerless to stop a natural gas company from drilling a natural gas well in the middle of a housing development?

Not according to a new state court ruling, which affirms the right of municipal and county officials to limit natural gas drilling to certain districts, such as agricultural, mining or manufacturing, and out of residential neighborhoods.

“Gas drilling is here to stay, and it affects the Back Mountain region very extensively.” Attorney Jeffrey Malak told members of the Back Mountain Community Partnership as he outlined the new court decision.

Thousands of acres in the Back Mountain have been leased by natural gas companies, and Encana Oil & Gas USA Inc. is drilling the second of two exploratory natural gas wells in Lake Township.

Traditionally, local officials have limited say when it comes to natural gas drilling. Technical aspects, such as what kind of materials to use and how the well is drilled, are governed by the state Oil and Gas Act. But local officials are gaining more and more say in where wells can be drilled.

Two previous cases, Huntley & Huntley v. Oakmont Borough and Range Resources v. Salem Township (Westmoreland County) set precedents allowing local officials some leeway in regulating where natural gas companies can drill.

A third, Penneco Oil Co. Inc. v. the County of Fayette, decided in Commonwealth Court on July 22, determined the state Oil & Gas Act does not trump local zoning ordinances, and that local officials can take steps to protect the residential character of neighborhoods.

In the case, Penneco, Range Resources Appalachia LLC and the Independent Oil and Gas Association of Pennsylvania took Fayette County Office of Planning, Zoning and Community Development to court, saying they did not have to follow the county’s zoning ordinance because the state Oil and Gas Act made it invalid. The court ruled in favor of the county.

“This opens up the floodgates and says municipal zoning is not pre-empted,” Malak said.

The Penneco case allows that gas wells cannot be located within the flight path of an airport runway; that they must be at least 200 feet from a residential dwelling; and that officials can require fencing and shrubs around the well site. It also allows zoning hearing boards to impose any other provisions to protect the health, safety and welfare of residents.

Whether the Penneco case will be appealed is anybody’s guess, but it’s the law unless the state Supreme Court changes it, Malak said.

Dallas Borough already has some of the provisions in its zoning ordinance, Malak said. In Jackson Township, where he also serves as solicitor, the supervisors will put similar provisions in the zoning ordinance when it is drafted over the next couple of months, Malak said.

Dallas Township Supervisor Chairman Phil Walter asked Malak if there was a way to protect a municipality against fly-by-night operators who will leave when something goes wrong.

The case does allow for bonds, even large ones, to be put in place to protect the health, safety and welfare of residents, Malak said.

Kingston Township Supervisor Jeffrey Box asked if local officials can require a land development plan from natural gas companies. Malak said they could, and they can require special exceptions, meaning there has to be a hearing in front of the zoning hearing board to grant permission and to impose any standard planning and zoning fees.

But, he said, there are still aspects of natural gas drilling that will have to be decided in court, such as whether there can be restrictions on hours drillers can operate and whether they can be barred from using roads at certain times.

eskrapits@citizensvoice.com , 570-821-2072

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