State appeals court upholds Allegheny Township’s approval of fracking wells

November 23, 2018

The Commonwealth Court ruled 5-2 to deny an appeal by Allegheny Township property owners who tried to overturn multiple rulings that allow unconventional gas drilling in all of the township’s zoning districts.

It’s a David and Goliath story that might not yet be over, according to the plaintiffs’ attorney, Christopher Papa, as he and his clients consider an appeal to the state Supreme Court.

The Commonwealth Court ruling on Friday stemmed from a lawsuit brought by several residents against Allegheny Township, its zoning hearing board, CNX Gas Co. and some other township residents.

They have argued that the intensive hydraulic fracturing -- fracking -- process and horizontal drilling used to tap deep gas reserves constitute an industrial use that’s incompatible with other permitted uses in Allegheny Township’s residential-agricultural zone -- namely houses, farms, schools and churches.

They take issue with Allegheny Township’s enactment in 2010 of a zoning ordinance amendment providing for oil and gas drilling operations in all of the township’s zoning districts.

The plaintiffs, Willowbrook Road residents Dolores Frederick, Patricia Hagaman and Beverly Taylor, challenged a township ordinance after CNX Gas Co. in October 2014 won approval to put an unconventional gas well pad, which is used in fracking, within 1,200 feet of their homes.

The gas well pad site is on the property of a neighboring farm owned by John and Anne Slike and their Northmoreland Farms LP, who are among the defendants in the case.

In 2015, a Westmoreland County judge upheld a decision from the township’s zoning hearing board that granted CNX Gas Co. permission to put in the unconventional gas well pad.

The plaintiffs have been waiting for a ruling from the Commonwealth Court on their appeal in 2016.

Generally, the Commonwealth Court ruling concluded that the plaintiffs failed to demonstrate that the trial court erred in affirming the zoning board’s decision.

The court noted that more than 60 percent of the township’s land mass is under lease to oil and gas operations, and that oil and gas development and agricultural uses have long safely coexisted in rural communities.

The court noted that although oil and gas drilling is authorized in every zoning district in the township, that “does not mean it will take place anywhere or everywhere.” The court cited setbacks in effect for drilling.

The court reaffirmed the zoning board’s assignment of environmental duties: ”... it’s the Commonwealth’s duty to regulate ‘how’ gas drilling is conducted to protect Pennsylvania’s water and air from degradation. By contrast, local governments regulate ‘where’ oil and gas operations will take place with zoning ordinances.”

“We’re disappointed and, obviously, the underdog,” Papa said.

However, he is encouraged by two of the dissenting opinions that focus on the application of the state’s Environmental Rights Amendment as it relates to local zoning.

The Environmental Rights Amendment of the state constitution guarantees the public a right to clean air, pure water and to the preservation of the natural, scenic, historic and aesthetic values of the environment.

A recent ruling by the state’s Supreme Court strengthened interpretation of the amendment.

One of the dissenting judges, Patricia McCullough, wrote, “The majority glosses over the landowners’ ERA claim and dismisses it in short shrift. I cannot.”

Judge Ellen Ceisler also took issue with the ERA application to the case. The court’s decision “narrows the scope of the township’s environmental trustee duties,” she wrote.

Papa said, “This is first time in the state that I am aware where a judge has articulated these constitutional principles applied to local zoning ordinances.”

Papa’s argument is that when someone buys property in a local community that the local government can’t put “a zoning map and upturn it to suit one influential and powerful industry.”

Papa added, “My clients would never have bought their property if they would have known a use like this was next door to them.”

Bernie Matthews, solicitor for Allegheny Township, said, “We thought the zoning ordinance was valid when we originally drafted it.”

As the mostly rural township has large tracts of property, the owners will be able to better preserve those tracts under oil and gas leases as opposed to selling off the land for development, Matthews said.

The supervisors exercised judgment that would be best for the whole community, he said.

“For those owners with an acre-and-a-half lots, they can’t drill there, obviously,” he said, adding that “the state has regulations to protect the environment.”

Blaine A. Lucas, an attorney with Babst Calland representing CNX Gas Co., said the energy company does not comment on litigation.

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