The Pennsylvania Supreme Court has overturned a ruling allowing the construction of “unconventional” natural gas wells in an area zoned for residential and agricultural use in Lycoming County.
In the court’s majority opinion, Justice Christine Donohue wrote that the record did not reflect sufficient evidence to allow for conditional use of the wells in the zone. Justice Kevin Dougherty dissented, arguing that the opposite was true.
Inflection Energy petitioned the Fairfield Township Board of Supervisors to drill on the property in question, which the township allowed. The case was appealed by the landowners and a Lycoming County judge ruled in their favor. However, the Commonwealth Court later reviewed the case and held the township’s zoning ordinance permits drilling in R-A zones.
The dispute centered on whether Inflection satisfied a section of the ordinance that stated conditional use may be granted if it could show the requested purpose is “similar to and compatible with the other uses permitted in the zone where the subject property is located.”
“In its application, Inflection did not identify any use allowed in the R-A district that it considered to be ‘similar to’ the drilling and operation of industrial shale gas wells,” Donohue said.
Deeper into the opinion, she added, “In reversing the trial court’s decision, the Commonwealth Court, without explanation or citation, insisted that the record contained ‘detailed findings of fact.’ As noted, however, the board’s decision contained no findings of fact whatsoever with respect to similarity of use. The Commonwealth Court further maintained that the trial court … improperly acted as the fact-finder and substituted its credibility determinations for those of the board. We must again respectfully disagree.”
Donohue reasoned, “Inflection’s proposed gas wells use provides no public or essential services to the residents of the R-A district, and provides no infrastructure that supports and promotes residential and agricultural development in Fairfield Township. Inflection’s proposed use is intended solely for Inflection’s own commercial benefit, and not in any respect for the benefit of furthering the expressed goals of Fairfield Township’s R-A district.”
“In concluding the proposed development, as modified by the board’s conditions, was generally similar to and compatible with other uses permitted in the R-A district, the board recognized the district does not only authorize strictly residential and agricultural uses but also a wide variety of other uses such as forestry activities, recreational facilities, including theatres and go-cart tracks, office buildings, hospitals, and public service facilities that furnish electric, gas and sewage services,” Dougherty said. “The Commonwealth Court acknowledged the proposed gas well was not the ‘same as’ a public service facility, but was similar because it was of the same general character as a public service facility.”
James J. Kutz of Post & Schell represents Inflection and did not respond to a request for comment.
The property owners are represented by attorneys from the environmental group Citizens for Pennsylvania’s Future.
“The court’s decision makes clear that shale gas development is an industrial land use, and that local government must rigorously consider what other land uses it is compatible with before allowing it to occur in districts designed for incompatible uses, such as a district designed to foster a quiet residential environment,” said the organization’s vice president of legal affairs, George Jugovic Jr., in a statement.