American Oil and Gas Reporter - December 2015 - 47

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SpecialReport: Natural Gas White Papers
An Allowed Activity
In its well-publicized December 2013
decision in Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court invalidated portions of Act 13, the general assembly's
comprehensive update of the commonwealth's Oil and Gas Act. Act 13 placed
limits on local governments' authority to
regulate oil and gas activities.
Since Robinson, objectors in several
municipalities have challenged zoning
ordinances that authorize oil and gas development, essentially arguing that those
ordinances are invalid because they are not
strict enough. In most of these cases, the
objectors have asserted that the zoning ordinance violates the Pennsylvania Environmental Rights Amendment (as interpreted by Robinson's three-justice plurality) because it permits oil and gas development-a use the objectors characterize
as "industrial"-in agricultural, residential
and other nonindustrial districts.
To date, all those challenges have
been rejected by local Pennsylvania zoning hearing boards, although several of
those decisions have been appealed to
county common pleas courts in the state.
On Oct. 21, in the first judicial decision
addressing a Robinson-based ordinance
challenge, the Westmoreland County
Common Pleas Court issued a decision and
order in Frederick v. Allegheny Township
Zoning Hearing Board that upheld the validity of the township's zoning ordinance,
which permits oil and gas well development in all zoning districts, including the
R2 agricultural/residential district.
In Frederick, CNX Gas Company
LLC received a zoning compliance permit
to develop an unconventional gas well pad
in the R2 district. Neighboring property
owners appealed to the zoning hearing
board, challenging both the permit and the
validity of the township's zoning ordinance. The zoning hearing board ruled that
the zoning ordinance was valid and upheld
CNX's zoning compliance permit.

In affirming the zoning hearing board,
the Frederick court first observed that
Robinson was not binding precedent because it was only a plurality decision. The
court also pointed out that Robinson did
not address the constitutionality of a local
ordinance, but instead involved a statute
of statewide application (Act 13) that had
been invalidated because it interfered
with the right of municipalities to make local zoning determinations.
In any event, the court went on to conclude that the Allegheny Township zoning ordinance was consistent with the
Robinson plurality. Significantly, citing the
extensive record developed before the zoning hearing board, the common pleas
court expressly rejected the objectors' contention that the zoning ordinance's authorization of oil and gas uses "is inconsistent
with the agricultural and residential character of the township."
That record established that:
* There was a long history of oil and
gas development in the township, including a number of wells and a pipeline in close
proximity of the objectors' properties.
* In the R2 district, 75 percent of the
land mass is leased to oil and gas operators.
* Having the well pad on his property enabled the surface owner to continue
farming his property instead of developing it for a residential subdivision.
* Permitting oil and gas operations in
the R2 district enhances the township's
ability to maintain its rural character.
The common pleas court also cited expert testimony that concluded oil and gas
operations coexisted safely within rural
communities throughout the commonwealth.
Although Frederick is binding precedent only in Westmoreland County, it is
the first of its kind, and courts in other
counties and states likely will see this decision as instructive.
On Nov. 13, the objectors appealed the
Frederick decision to the Pennsylvania
Commonwealth Court.
❒

Two Wells Completed, Warren Resources Says
NEW YORK-Two Upper Marcellus
wells drilled in Wyoming County, Pa.,
have a combined daily production rate of
17 million cubic feet a day, Warren Resources Inc. reports.
Warren says it drilled and set pipe for
the two wells in July. The company adds
a successful test of the Upper Marcellus
could potentially add more than 40 well

locations.
According to the company, drilling
costs for the two wells came in 5 percent
under budget and completion operations
10 percent under. It adds it sees an opportunity to reduce drilling and completion
costs by 15 percent for future locations
while maintaining lease operating expenses in the range of $0.75 an Mcf. ❒

Editor's Note: Babst Calland attorneys
involved in these cases representing Inflection Energy, Pennsylvania General Energy, and CNX Gas Company were Timothy Schoonover, Kevin Douglass, Robert
Max Junker, Kevin Garber, James Corbelli, Alana Fortna, Blaine Lucas, Steven Silverman, and Lawrence Baumiller.

KEVIN J.
GARBER

Kevin J. Garber is a shareholder of
Babst Calland's environmental, energy and natural resources, public sector,
and litigation groups. He represents oil
and gas production, midstream, storage
and transportation companies on a
broad range of environmental issues,
including permitting, water supply and
treatment, and resource development,
and on federal, state and local environmental regulations. He received his
Ph.D. in ecology from the University of
Pittsburgh, and J.D. from Duquesne
University School of Law.

BLAINE A.
LUCAS

Blaine A. Lucas is a shareholder of
Babst Calland's energy and natural resources, and public sector groups. He
is responsible for coordinating the
firm's representation of energy industry clients on land use and other local regulatory matters, including obtaining local government approvals for
oil and gas exploration, drilling and
production, and midstream operators.
He has more than 30 years of experience practicing municipal law. He received his J.D. from the University of
Virginia School of Law.
DECEMBER 2015 47

American Oil and Gas Reporter - December 2015

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