The Oil and Gas Addendum

In Gorsline, et al. v. Board of Supervisors of Fairfield Township et al., No. 14-000130 (Lycoming Co. C.P., August 29, 2014), certain individuals appealed the decision of the Fairfield Township Board of Supervisors (“Fairfield”) to grant a conditional use application to Inflection Energy, LLC (“Inflection”) for the construction of an oil and gas well pad on private property located in a residential – agricultural zoned district.

In Gorsline, the Court held that Fairfield abused its discretion in approving the conditional use permit because the decision was not supported by substantial evidence. Pursuant to the local zoning ordinance, the construction and use of the well pad should only be permitted if the “the proposed use is similar to and compatible with other uses permitted in the zone where the subject property is located.” The Court concluded that the testimony and facts set forth by the Applicant were insufficient and conclusory. For example, Fairfield argued that the oil and gas facility would be similar to a power plant or wastewater treatment plant, but gave no supporting facts or testimony for that statement.

The Court also found that the Applicant failed to prove that the well pad would “in no way” conflict with the general purpose of the zoning ordinance. According to the ordinance, residential – agricultural zoning districts should encourage a quiet, medium density environment and should encourage farming. The Court found that the Applicant merely stated that the well pad would promote the general purposes of the ordinance, but failed to provide any substantial evidence for that conclusion. By contrast, the Appellants offered evidence of projected truck traffic during construction, construction and fracking noise, and potentially a very long construction and fracking time period.

Finally, the Court held that the Applicant did not satisfy its burden of persuasion and failed to show that the well pad “would not be detrimental to the health, safety, and welfare” at its proposed location. The Court pointed again to the Applicant’s evidence that discussed truck traffic, noise, lighting, and constant hours of operation. The Court also found that issues of water safety during the fracking process and radiation levels introduced by the residents were insufficiently rebutted by the Applicant.

Interestingly, the Court briefly discussed the recent Pennsylvania Supreme Court case, Robinson Township v. Commonwealth, to emphasize that the local zoning ordinance should not be ignored in favor of the Pennsylvania oil and Gas Act. He also stressed that, pursuant to the Robinson decision, “the citizens’ rights cannot be ignored and must be protected.” We will follow this case and post updates, as applicable.