Court Weighs In on Natural Gas Operations in the Marcellus Shale

The Supreme Court of Pennsylvania issued two decisions on June 1 relating to the operation of natural gas wells in Pennsylvania. This article focuses on one of those decisions: Gorsline v. Board of Supervisors of Fairfield Township, No. 67 MAP 2016 (Pa. June 1). The court (4-3) determined a zoning board erred in granting a conditional use permit for drilling and operation of gas wells in a residential-agricultural district. Yet, the court acknowledged the ability of a local governing body to amend zoning ordinances to allow drilling in any or all districts. The court also made it clear that drilling may be allowed as a conditional use (without amendment to an ordinance) in residential or agricultural areas if the zoning board decision is supported by the evidentiary record. On the same day, the court (6-1) upheld, for the most part, a preliminary injunction preventing enforcement of new rules concerning the operation of unconventional gas wells in Pennsylvania while a petition challenging the validity of the regulations remains pending, see The Marcellus Shale Coalition v.  Department of Environmental Protection of the Commonwealth of Pennsylvania, No. 115 MAP 2016 (June 1) (affirming in part and reversing in part grant of preliminary injunctive relief).

In Gorsline, Inflection Energy, LLC (the applicant) submitted a permit application to the Board of Supervisors of Fairfield Township (the board) to obtain permission for “drilling, completion, production and operation of multiple gas wells” on approximately 60 acres that were zoned residential-agricultural (R-A). The zoning officer referred the application to the board for further consideration because the township zoning ordinance did not identify the requested use as a “permitted use” or a “conditional use” in the R-A district. The “savings clause” in the ordinance allows the board to permit a “conditional use” only if the use is “similar to and compatible with the other uses permitted in the zone,” is “not permitted in any other zone,” and “in no way is in conflict with the general purposes of the ordinance.” This appeal examined whether the board erred in finding, and the Commonwealth Court erred in affirming, that the applicant met its burden of demonstrating the proposed use was “similar to” other uses allowed in the R-A district.