Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 929 A.2d 1252 (Pa. Commw. Ct. 2007).
Huntley & Huntley, Inc. v. Borough Council, 964 A.2d 855 (Pa 2008); Range Resources – Appalachia, LLC v. Salem Twp., 964 A.2d 869 (Pa. 2009).
Municipalities not preempted by Oil and Gas Act from regulating traditional zoning concepts such as where a natural gas activity may occur, but will be preempted where local ordinance regulates operational aspects of the industry.
In Oakmont, 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.
The Borough advised Applicant that a conditional use permit was required prior to extracting natural gas within the Borough. Borough Council denied Applicant’s conditional use application and Applicant appealed. Applicant argued that the Borough’s zoning ordinance was preempted by the Oil and Gas Act.
In Huntley, the Pennsylvania Supreme Court determined that the Oil and Gas Act does not preempt local regulation of oil and gas wells under the Municipality Planning Code ordinances insofar as the zoning ordinance is regulating only traditional zoning concepts such as location (e.g. what zoning district(s) the use is permitted within). In this instance, the zoning ordinance regulated well location while the Oil and Gas Act regulates operational aspects. Despite upholding the applicability of the ordinance, the Court further determined that mining for natural gas was permissible by conditional use under the zoning ordinance, and that the Applicant’s application should not have been denied.
In contrast, in Range Resources, the Township’s ordinance was amended to establish a comprehensive regulatory scheme that covered numerous operational aspects of natural gas operations. Here the Court concluded that the Oil and Gas Act preempted the ordinance.
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