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The Borough exceeded its authority when it denied a conditional use application for the extraction of natural gas, since natural gas is a mineral under the MPC and the Oil and Gas Act preempts the Borough Ordinance with regard to the location of an oil or gas well.
Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont,
929 A.2d 1252 (Pa. Commw. Ct. 2007).
Huntley had an oil and gas lease with two property owners to conduct drilling and extraction of natural gas. Huntley applied for a conditional use permit to conduct the drilling under the Borough’s Zoning Code. In the alternative, he argued that the Oil and Gas Act preempted the Borough from regulating the proposed drilling.
On review of the application, Council concluded that the extraction of natural gas was not a mining process and that natural gas is not a mineral, both conditions precedent to a conditional use permit under the Borough’s Zoning Code. In addition, Council found that the Oil and Gas Act did not preempt the Borough’s Zoning Code. The trial court affirmed.
On appeal, the Commonwealth Court decided that the regulation of gas well location by municipalities was invalid under the Oil and Gas Act. Specifically, it said that gas wells may be located anywhere in a municipality so long as a 200 feet buffer from existing buildings is maintained (or landowner permission is granted); however, municipalities may regulate those aspects of the use not governed by the Oil and Gas Act.
Commonwealth Court also found that under the MPC, the definition of “mineral” expressly includes “natural gas” and that a municipality does not have the power to narrow the definitions given in the MPC. Since natural gas is a mineral, it would be included within the ordinance’s allowance of extraction of minerals as a conditional use. The court remanded the case for the issuance of the conditional use permit.
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