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Case challenges township’s right to change zoning in favor of gas development

A natural gas rig in the Tioga State Forest. Critics of a zoning change in Middlesex Township fear more rigs like this will be built in previously residential areas.

Joe Ulrich / WITF

A natural gas rig in the Tioga State Forest. Critics of a zoning change in Middlesex Township fear more rigs like this will be built in previously residential areas.

Local rights to zone for oil and gas development in Pennsylvania are being tested by a Butler County case in which plaintiffs claim a township has acted unconstitutionally by failing to protect residents from the effects of a sharp increase in industrial activity.

Middlesex Township, about 35 miles north of Pittsburgh, approved an ordinance in August last year that allows industrial development on about 90 percent of its land area, up from about 30 percent before the ordinance was passed.

The measure has been challenged by two environmental groups, Clean Air Council and Delaware Riverkeeper Network, and four township residents, partly on grounds that it violates citizens’ rights to health and safety under Article 1 of the Pennsylvania Constitution.

The plaintiffs also argue that Ordinance 127 violates the state Constitution’s Environmental Rights Amendment, under which government has a responsibility to maintain environmental quality for its citizens.

The challenge, which will be reviewed at the township’s Zoning Hearing Board on Wednesday, May 27, attempts to build on the Pennsylvania Supreme Court’s landmark Robinson Township ruling in December 2013 that, among other things, established local responsibility to zone in a way that protects the health and safety of local residents.

In the Robinson ruling, the court ruled as unconstitutional three parts of Act 13, Pennsylvania’s wide-ranging 2012 gas law, which pre-empted municipalities’ ability to set their own zoning for oil & gas development; required local ordinances to allow for “reasonable” oil and gas development, and gave gas companies the right to obtain waivers of state rules designed to keep wells and rigs a certain distance from natural water sources.

Now, the Middlesex plaintiffs hope to establish the principle that municipalities must take residents’ health and safety into account when making industrial zoning decisions.

“We see it as a logical outgrowth of the Robinson Township decision, providing opportunities to further develop the Environmental Rights Amendment jurisprudence and establish that municipalities have a responsibility to zone for unconventional natural gas development in a manner that is protective of the health and safety of local residents,” said Aaron Jacobs-Smith, Philadelphia-based Managing Attorney for the Clean Air Council.

If, as expected, the local zoning board rejects the plaintiffs’ arguments at its upcoming meeting, Jacobs-Smith said he expects the case to be appealed to the Butler County Court of Common Pleas, and then to the Commonwealth Court.

Township manager Eric Kaunert declined to comment, and referred an inquiry to the township’s attorney, Mike Hnath, who did not return two phone calls seeking comment.

Crystal Yost, a township resident, said she supports the lawsuit because the new zoning allows a compressor station to be built on a site about 1,000 feet from her home. Yost said she was unaware of any plan for such a plant but fears she and her three children could be exposed to noise and pollution if it is built.

She also fears that a nearby compressor station would erode the value of her property.

“If I do find out they are going to put one in, I don’t want to live here,” she said. “So will I be able to sell my house then? Will someone want to buy my house?”

Plaintiff David Denk, who lives with his wife and two daughters less than a mile from a potential well pad, said that in considering the effects of gas-well development near his home, he is most concerned with the possibility of air pollution and explosions.

“I understand that the risk is relatively low, but when it comes to the safety of my kids I don’t see why any risk is acceptable,” he said. “I live just over 1,000 feet downwind of a proposed well pad and my kids attend the Mars Area School District which is approximately half a mile from the well pad.  This means that my kids will be exposed to these hazards 24/7, which is not acceptable to me.”

If the courts uphold the township’s zoning change, Denk said he and his wife will consider moving away from the township where they had expected to live permanently.

“I still can’t understand why township officials, or anyone for that matter, would think that allowing dangerous industrial activity immediately adjacent to schools and heavily populated housing communities is considered responsible zoning,” he said. “It’s not.”

The plaintiffs note that all three township supervisors and all four members of the Zoning Hearing Board have leases with gas companies, and stand to gain financially from the zoning change.

“If the ordinance takes effect, those leased lands stand to benefit,” Jacobs-Smith said

Butler County documents show that three zoning board members signed leases with R.E. Gas Development, the parent of Rex Energy, between 2010 and 2012, and that one signed with Huntley & Huntley Energy Exploration in 2013. The three township supervisors signed leases between 2008 and 2014.

None of the supervisors returned a phone call to the township seeking comment.

In their 64-page complaint, presented to the Zoning Hearing Board last October, the plaintiffs argue that the ordinance allows gas development in areas previously zoned for residential, agricultural, and commercial uses.

“The ordinance injects industrial uses into non-industrial zones…upending established expectations, conflicting with the very purposes of the non-industrial districts, and making the districts themselves irrational,” the complaint says.

It cites five zones where oil and gas development was previously banned but where it may now take place.

In three of the areas, zoned for residential and/or agricultural use, the township’s board of supervisors made no provision for public hearings from any residents who might object to the changes, the case says.

It claims the township has created a “false equivalency” between oil and gas development and non-industrial land use. “In sum, the township has premised the changes to its zoning on the unexamined and erroneous assumption that industrial shale-gas development is as innocuous as a single-family home,” the document says.

The threat to the local environment is illustrated by development of a well pad on a previously residential/agricultural parcel in the town of Mars where Rex Energy has obtained state and local permits to drill and operate six wells, the complaint said.

The company did not return a phone call seeking comment.

Elsewhere in western Pennsylvania, challenges to zoning ordinances have been brought against Pulaski Township in Beaver County; Allegheny Township in Westmoreland County, and against Robinson Township, which recently elected a board of supervisors who are more friendly to the gas industry than their predecessors who successfully challenged Act 13, Jacobs-Smith said.

He argued that the Middlesex challenge is further advanced than the others and so is being watched as an indicator of whether zoning ordinances will be able to control oil and gas development statewide.

In a reply brief to Rex Energy and the township on May 8 this year, the plaintiffs argue that the township has a legal duty to protect residents’ “health, safety, morals and general welfare,” which they say would be endangered by more oil and gas development.

People living near unconventional natural gas development are at increased risk of health problems ranging from birth defects to cancer, the plaintiffs argue, and townships have a responsibility to protect their residents from those effects. Supervisors may not violate residents’ constitutional right to health and safety any more than they may violate their right to bear arms, the plaintiffs say.

They accuse supervisors of ignoring the health concerns of its citizens in the zoning decision.

The township’s proposed findings barely mention health and in fact ask the board to believe that public health is not even “relevant to the issues pending before the ZHB,” the document says.

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