Reed Smith Client Alerts

Authors: Lucas Liben

In Delaware Riverkeeper Network, et al. v. Middlesex Township Zoning Hearing Board, A.D. No. 15-10429 (Nov. 19, 2015), Butler County Judge S. Michael Yeager upheld a gas drilling ordinance that was challenged by residents and environmental activists. Ordinance 127, which was enacted by the Middlesex Township Board of Supervisors in August 2014, allows for oil and gas well sites to be developed as a permitted use in various districts, and a conditional use in other districts. The ordinance also permits natural gas compressor stations as either a permitted or conditional use in certain zoning districts, and it further allows natural gas processing plants as a conditional use in some districts. Prior to the enactment of this ordinance, there were no zoning ordinances regulating natural gas drilling in Middlesex Township. In reaching his decision, the Butler County judge applied the law articulated in the Pennsylvania Supreme Court’s Robinson Township v. Commonwealth decision, which struck down portions of Act 13.

After Ordinance 127 was passed, Middlesex Township issued a permit to Rex Energy to drill six unconventional natural gas wells (the “Permit”). Delaware Riverkeeper Network, Clean Air Council, David Denk, and Jennifer Chomicki (collectively, the “Appellants”) appealed the issuance of the Permit to the Middlesex Township Zoning Hearing Board, and challenged the validity of Ordinance 127. The Zoning Hearing Board denied the appeal on May 27, 2015.

The Appellants initiated an action in the Court of Common Pleas of Butler County, Pennsylvania, on June 5, 2015. Among other issues, the Appellants challenged the constitutionality of Ordinance 127. The Appellants argued that Ordinance 127 is unconstitutional because it: (1) conflicts with the Pennsylvania Constitution in that it does not promote the health, safety, morals, and welfare of the public; (2) inserts an industrial use into a non-industrial zoning district; and (3) violates Article 1, Section 27 of the Pennsylvania Constitution, which is known as the Environmental Rights Amendment.

Judge Yeager ruled in favor of the Zoning Hearing Board. First, in analyzing whether the ordinance violated the Pennsylvania Constitution, the court noted that a zoning ordinance must withstand a substantive due process inquiry to be deemed constitutional. The inquiry is directed towards the community as a whole, and aims to balance community costs and benefits. The court stated that there is a legitimate state interest in promoting and protecting economic growth and development, so long as it does not result in the degradation of natural resources. “Pennsylvania law does not bestow landowners with the right to oblige local government authorities to enact more restrictive zoning provisions in an effort to insulate [them] from their neighbors.” The court concluded that the Board of Supervisors had balanced the considerations of the variously zoned districts and allowed natural gas drilling in seven districts, while also concluding that natural gas drilling was improper in a number of other districts. Importantly, the court also found that the Appellants failed to demonstrate any evidence of harm as a result of natural gas drilling.

The court next rejected the Appellant’s argument that the ordinance violated Article 1, Section 1 of the Pennsylvania Constitution. The Appellants relied heavily on discussion in the Pennsylvania Supreme Court plurality opinion in Robinson Township. Judge Yeager held that Robinson Township was distinguishable, however, because there the challenge to Act 13 was based on the argument that the state could not take all power away from local governments to regulate zoning, not that Act 13 injected certain kinds of uses into certain kinds of zoning districts. The court noted that Robinson Township reaffirmed the principle that for zoning to be constitutional it “must be directed toward the community as a whole, concerns with the public interest generally, and justified by a balancing of community costs and benefits…” Oil and gas drilling was not addressed in previous zoning schemes by Middlesex Township, held the court, and Ordinance 127 is a direct constraint to natural gas drilling, limiting where and how such drilling can be conducted. The court thus concluded that it had no basis to upset the Zoning Hearing Board’s findings with respect to the compatibility of natural gas drilling in certain districts of Middlesex Township, because, as was stated in Robinson Township, matters of compatible zoning are best left to the balancing and determination of the municipalities.

The Appellants also argued that Ordinance 127 violates Article 1, Section 27 of the Pennsylvania Constitution, which imposes an obligation on the Commonwealth to act in conformance with the conservation and maintenance of “clean air, pure water, and to the preservation of natural, scenic, historic, and esthetic values of the environment.” The Pennsylvania Commonwealth Court in Pennsylvania Environmental Defense Foundation v. Commonwealth analyzed the Robinson Township decision and concluded that the government agency acting as trustee for the people must act on its duty to conserve and maintain, but also allow for legitimate development that will improve the lives of its citizenry. Judge Yeager relied on this decision in rejecting the Appellants’ argument that the zoning ordinance violated Article 1, Section 27, finding instead that the Middlesex Township Board of Supervisors properly balanced the environmental and developmental interests of the landowners and residents of Middlesex Township.


Client Alert 2015-333