ACLU calls on Butler County plaintiffs to drop suit over zoning change

  • Jon Hurdle
Civil-liberties campaigners say a lawsuit against opponents of gas rigs like this one in southwest Pennsylvania is a violation of free-speech rights.

Civil-liberties campaigners say a lawsuit against opponents of gas rigs like this one in southwest Pennsylvania is a violation of free-speech rights.

The American Civil Liberties Union of Pennsylvania is urging a group of gas-leaseholders and a real estate developer to drop a lawsuit against opponents of a zoning change that sharply increases the amount of a township’s land that can be used for gas drilling.

The ACLU said on Tuesday it has written to Dewey Homes & Investment Properties and 12 residents of Butler County, western Pennsylvania, saying it will ask a court to impose  sanctions against them if they do not drop the suit — which alleges that leaseholders have been deprived of income because local opposition to the zoning change has delayed construction of a well pad.

The civil-liberties organization argues that the suit, filed in May, is an attempt to stifle public debate and is therefore a violation of free-speech rights under the U.S. Constitution. 

Four of the five defendants plus two environmental groups, Delaware Riverkeeper Network and Clean Air Council, filed their own suit last October against Middlesex Township, seeking to block the township’s decision to open about 90 percent of its land to industrial activities such as gas drilling – up from around a third before the zoning change.

The township’s Zoning Hearing Board rejected the challenge in late May, and that decision is now being appealed to the Butler County Court of Common Pleas. The plaintiffs in that suit are hoping to build on the Pennsylvania Supreme Court’s landmark ruling in the December 2013 Robinson Township case, which established, among other things, that local authorities have a responsibility to zone to protect residents’ health and safety.

Dewey Homes president, Ryan Dewey, declined to comment on the ACLU’s June 29 letter, and said that any response would be made by the plaintiffs’ attorney, Richard Sandow, who did not return a phone call from StateImpact.

Vic Walczak, legal director of ACLU PA, who previously spoke out against the leaseholders’ action, said the civil-liberties group has now decided to represent the defendants because of the high stakes involved in the case.

“Our concern is that if this goes unchallenged, drilling companies or fronts for drilling companies are going to deploy the same strategy,” Walczak said, adding that he knew of no other Pennsylvania case where supporters of gas development have taken legal action to block their opponents.

Walczak said the ACLU’s letter to the plaintiffs was only the second of its kind he had sent in a quarter-century of legal work. “We don’t do this lightly,” he said. “In this country, you can’t sue somebody for standing up at a public meeting and saying ‘I don’t like what’s going on’ or filing an appeal through established channels.”

He stressed that the ACLU takes no position on fracking but is involved in the case because of its free-speech issues.

Walczak termed the leaseholders’ action a “SLAPP” suit, a legal acronym standing for Strategic Lawsuit Against Public Participation, which he said is designed to deter defendants from their actions by subjecting them to an expensive, time-consuming and stressful process regardless of its legal merits.

If a court finds that the leaseholders’ suit was frivolous or filed for an improper purpose, it could order the plaintiffs and their lawyers to pay their opponents’ legal fees. The defendants could also file a separate counter-suit which, if successful, could result in legal fees and compensatory damages being awarded, he said.

The defendants are not anti-fracking activists, Walczak said, but are in fact parents with young families who are concerned about the construction of a gas well pad by a unit of Rex Energy less than a mile from a school in the town of Mars. “They are really worried because this drilling is so close to the school, and if there’s an accident there is no way you are going to be able to evacuate these kids.

“Most of them are saying, ‘We don’t care if you frack. We just don’t want it within two miles of a school, which based on our research is the minimum you need if there’s going to be some kind of a problem,’” Walczak said. “The only thing that our clients did was take steps to protect their children, and what do they get for their trouble? They get sued.”

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