In Frederick v. Allegheny Township Zoning Hearing Board, et al, the Pennsylvania Commonwealth Court affirmed a local zoning ordinance allowing oil and gas operations in all zoning districts in the Township as long as they satisfied enumerated standards that were designed to protect the public health, safety and welfare of the citizenry.

Facts and Findings

CNX received a permit to drill a well. The ordinance imposes a 1,000 foot setback and prescribes notice requirements and operational limitations. Citizens owning neighboring tracts complained that the well was not compatible with agricultural and residential use, complaining about noise from pad site preparation and drilling activities.

The objectors did not challenge the Zoning Board’s fact findings. That was either a tactical mistake or a lost cause. One can’t tell from the opinion. The court noted these findings, among others:

• This is an area that has historically had gas production. There are 242 conventional gas wells in the Township, some of which employ hydraulic fracturing.
• One farm already has three gas wells plainly visible to persons driving by the property.
• Nothing will be visible to the neighbors after the well has been drilled and completed.
• The Zoning Board rejected as not credible the testimony of several experts sponsored by the objectors.

The questions on appeal

• Did the ordinance violate substantive due process by instituting illegal spot zoning? No
• Did the ordinance violate Pennsylvania’s Environmental Rights Amendment? No.
• Did permitting oil and gas development in every zoning district violate the Municipalities Planning Code? No

The objectors’ right to substantive due process was not denied by the ordinance. The ordinance was not spot zoning because it did not treat one spot of land in a different manner than similar surrounding land. The court balanced the public interest served by the ordinance against confiscatory or exclusionary impact of regulation on individual rights. The objectors could not prove that the ordinance was arbitrary or unreasonable and unrelated to the public health, safety, morals and general welfare. The objectors’ “concern” about the negative impact on their health and their land values was deemed to be speculation.

The ordinance did not violate Pennsylvania Constitution Article 1 §27, the Environmental Rights Amendment.

• The government’s duty to protect environmental resources does not require freezing of existing public natural resource stock.
• The amendment’s requirements are tempered by legitimate development tending to improve upon the lot of Pennsylvania’s citizens.
• Political branches are not required to enact specific affirmative measures to promote clean air, water, etc.
• Objectors could not prove that the zoning ordinance does not reasonably account for the natural, scenic, historic and aesthetic values of the Township’s environment.

The ordinance does not violate Sections 603, 604 and 605 of the MPC. This appeal point was a reiteration of the substantive due process arguments that were rejected.

The court noted the statewide setback requirements and other rules imposed by the Department of Environmental Protection, which has authority to regulate how drilling is conducted, not where it is conducted. Whether the zoning ordinance was wise or the best means to achieve the desired result about is left to the legislature and not the courts.

What is this not like?

Coincidentally (or not) one can compare this act of a legislative authority to New York, which, as you and the beleaguered mineral owners of that state know, determined that the mere possibility of injury was enough to ban fracking throughout the entire state.

Taj Mahal, as good now as he was before. Maybe better?

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