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Zoning ordinances regulating oil and gas operations, including restrictions on lot size, setback requirements and environmental protections, constitute traditional zoning which may be challenged only through the statutory zoning appeal procedure in the MPC. The Common Pleas Court could not exercise equitable jurisdiction to review the same unless the challenger first exhausted the appeal procedure in the MPC.
Arbor Resources Limited Liability Co. v. Nockamixon Township, 973 A.2d 1076 (Pa. Commw. 2009).
Prior to submitting any documents such as a land development plan, request for variance or conditional use approval to the Township, several entities that own 240 oil and natural gas leases within the Township filed a complaint with the Bucks County Court of Common Pleas seeking a declaration that the Township’s zoning ordinances, as they relate to the regulation of oil and gas drilling, are invalid. Specifically, the plaintiffs maintained that because the regulation of oil and natural gas development is exclusively within the control of the Commonwealth of Pennsylvania, Department of Environmental Protection (“DEP”) through the Pennsylvania Oil and Gas Act, 58 P.S. §§601.101 et seq., the Township is preempted from placing additional restrictions through zoning ordinance. The ordinances in question prohibited oil and natural gas activities except in industrial and quarry zoned areas and imposed additional requirements such as set-backs, minimum lot sizes, and wetland reports. The Township filed preliminary objections arguing that the Court lacked subject matter jurisdiction over the complaint – the MPC vests the Zoning Hearing Board with exclusive jurisdiction over challenges to zoning ordinances. The Common Pleas Court agreed, finding that it lacked jurisdiction, the plaintiffs were required to exhaust statutory remedies including proceedings before the Board of Supervisors and Zoning Hearing Board. Plaintiffs appealed.
On appeal, plaintiffs argued that the Court erred because it had equity jurisdiction over the complaint because the ordinances they are challenging regulate oil and gas, activities beyond the scope of traditional land use controls and, therefore, not properly reviewed by the Board of Supervisors or Zoning Hearing Board. The Commonwealth Court acknowledged that equitable jurisdiction is proper to prevent actions which are contrary to law and prejudicial to the public. Under the Municipalities Planning Code, however, challenges to the substantive validity of land use ordinances must be presented to the Zoning Hearing Board. 53 P.S. §10909.1. If the ordinances at issue are operational, not substantive zoning ordinances, the Court may exercise equity jurisdiction. An ordinance is operational if it concerns how a facility may be designed and operated, not just where a facility may be located. After reviewing other decisions noting the distinction between operational and substantive zoning, the Court determined that the ordinances in question did not contain operational provisions. Instead, the ordinances were substantive zoning ordinances and, as a result, any challenge had to be made to the Zoning Hearing Board pursuant to the MPC. The Court expressly found that zoning provisions setting forth setback requirements, specifying minimum lot size, restrictions on the number of well pad sites and environmental protections are traditional land use controls accomplished through zoning. As a result, the zoning may be challenged only through the statutory zoning appeal procedures set forth in the MPC.
Opinion Date: May 11, 2009
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