The Supreme Court’s long awaited decision in Gorsline v. Bd. of Supervisors of Fairfield Twp. regarding unconventional oil and gas development in residential and agricultural zones issued on June 1, 2018. The opinion, as I personally have long anticipated, was a narrow decision that turned on the unique and strange details of the local ordinance.
This ordinance has a “savings clause” which states generally that if a use is not specifically permitted in the Residential-Agricultural zone, it can still be permitted as a conditional use if it’s similar and compatible with other permitted uses in the R-A zone and would not be detrimental to public health safety and welfare. The ordinance also clearly states that the burden of proof lies with the applicant to prove the above. The Supreme Court found that the zoning board below failed to provide findings of fact regarding the similarity of use and thus disallowed this development in the R-A zone under the terms of the ordinance.
In overturning the Commonwealth Court’s approval of unconventional drilling in the R-A Zone, the Supreme Court stated:
Because we may decide this case on nonconstitutional grounds, we decline to decide Objectors’ first issue, relating to this Court‘s decision in Robinson I based on a claimed violation of substantive due process rights and the Environmental Rights Amendment of the Pennsylvania Constitution (Article I, Section 27). See Blake v. State Civil Serv. Comm’n, 166 A.3d 292, 297 (Pa. 2017) (recognizing that constitutional questions should not be decided if the case can be resolved on alternative, non-constitutional grounds).
Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *14-15, 48 ELR 20089. The court has thus understandably and in accordance with sound principals of judicial review left many in the dark a bit and explicitly reserved the constitutional issues for future pending cases where the need to rule on these questions is essential to resolve the case.
Did the Supreme Court, however, make any statement that could bolster such pending constitutional challenges? I believe they did. First, the heated battle regarding whether unconventional oil and gas development is an industrial use or merely construction activities related to a non-industrial use (like building a house) appears to be finally and clearly decided and settled in favor of unconventional drilling being itself an industrial use. The Supreme Court, favorably quoting the Robinson Case in footnote one states that:
The natural gas wells in this case were being constructed to extract natural gas from Marcellus Shale. This is done by hydraulic fracturing, more commonly known as “fracking.” As we previously explained in Robinson Twp. v. Commonwealth, 637 Pa. 239, 147 A.3d 536 (Pa.2016) (“Robinson II“), fracking involves “pumping at high pressure into the rock formation a mixture of sand and freshwater treated with a gel friction reducer, until the rock cracks, resulting in greater gas mobility.” Id. at 543 n.4 (quoting Robinson Twp. v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 914-15 (Pa. 2013) (plurality) (“Robinson I“)). In Robinson [*2] I, a plurality of this Court described fracking operations as an industrial use involving “air, water, and soil pollution; persistent noise, lighting, and heavy vehicle traffic; and the building of facilities incongruous with the surrounding landscape.” Robinson I, 83 A.3d at 979. In a concurring opinion, Justice Baer was even more descriptive, explaining that “these industrial-like operations include blasting of rock and other material, noise from the running of diesel engines, sometimes nonstop for days, traffic from construction vehicles, tankers, and other heavy-duty machinery, the storage of hazardous materials, constant bright lighting at night, and the potential for life-and property-threatening explosions and gas well blowouts.” Id. at 1005 (Baer, J., concurring).
Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *1-2. The Court in the final page of its opinion quotes the Municipalities Planning Code and states on the bigger constitutional issues that, “this decision should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses”. I think we need to go into the weeds and “count the angels on the head of the pin” on this statement. In making this statement, notice that the court states, “oil and gas development” not industrial unconventional oil and gas development. This is a big factual distinction given that shallow well, traditional oil and gas development is a much less intensive and historic Pennsylvania use as many including our office have successfully shown in other cases. Further, the court is clearly not stating the inverse of this statement that unconventional oil and gas development is compatible in Residential and Agricultural Zones. The court in this factual setting is simply taking a pass on this issue. I would still contend that looking to the 2012 Commonwealth Court opinion in Robinson is the soundest logic for always incompatible in residential zones.
The Court then appears to impose a requirement that, “the governing body must, however, actually amend its zoning ordinances to permit drilling in designated areas, setting forth whatever limitations and conditions it decides are appropriate for the protection of its citizenry”. Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *28, 48. These proposed amendments, however, obviously must also pass constitutional muster, specifically regarding substantive due process rights and the Environmental Rights Amendment, thus bringing us full circle back to the big unanswered questions. I think, though, that the law is narrowing in favor traditional zoning advocates in segregating unlike industrial uses from compatible residential and agricultural uses. To be continued…
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