Pennsylvania Commonwealth Court Upholds Fayette County Zoning Ordinance
Posted: August 15, 2010
by Michael A. Magee, Research Assistant
On July 22, the Commonwealth Court ruled that Fayette County’s (Fayette) zoning ordinance was not preempted by Pennsylvania’s Oil and Gas Act (OGA). Penneco Oil Co., Inc. v. County of Fayette, No. 18 C.D. 2010, 2010 WL 2853639. Fayette’s ordinance allows wells in residential, industrial, and airport zones, but only by special exception upon the satisfaction of specified conditions.
OGA expressly preempts local regulation of oil and gas operations except for ordinances passed under the Municipalities Planning Code (MPC) or the Flood Plain Management Act. Further, MPC-based enactments like Fayette’s ordinance are preempted if they share OGA’s purposes or if they regulate features of oil and gas operations addressed by OGA. 58 PA. STAT. § 601.602. In 2009, the Pennsylvania Supreme Court addressed OGA preemption of municipal ordinances in Huntley & Huntley v. Borough Council, 964 A.2d 855, and Range Res. v. Salem Twp., 964 A.2d 869. These cases established the framework under which all OGA preemption issues are analyzed. In Penneco, the Commonwealth Court found Fayette’s ordinance to be generally applicable, affecting oil and gas wells only with regard to their location. Furthermore, the court found that although Fayette’s zoning ordinance overlapped with OGA’s purposes to a certain degree, its primary effect on oil and gas operations was to ensure the continued vitality of neighborhoods and to encourage compatible land use. These traditional zoning purposes, the court determined, were distinct from OGA’s purposes. For more information on this case, please visit the Case Law section of the Natural Gas Resource Area on the Agricultural Law Center Web site.
From the August 2010 edition of the Penn State Dickinson School of Law, Agricultural Law Brief