Agenda - Planning Commission - 05/07/2009

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() (): (-. ) '-=:,' Zoning Bulletin April 10, 20091 Volume 31 No.7 The trial court granted partial sununary judgment to the OGPs. It found that the Act preempted the Township's Ordinance. The Township appealed. The Commonwealth court affirmed. The Township again appealed. On appeal, the Township argued that the trial court erred in invalidating the Ordinance wholesale, rather than under- taking a section-by-section analysis of the Ordinan~e against the Act's regu- latory provisions. Moreover, the Township contended that its segulation of ~ a particular surface acti~ity ancillary to oil and gas drilling should only be deemed preempted if the activity: (1) related to the technical operationsbf the oil and gas industry; (b) flowed directly from the operation of an oil or gas well; and (c) was unique to the oil and gas industry. Under that standard, the Township argued that, as traditional local controls over land use, the fol- lowing of the Ordinances' regulations were permissible and not preempted: regulations pertaining to the submission of site plans; storm water manage- ment plans; erosion and sediment control plans; grading of access roads; road bonding requirements; and other related surface disturbance. activities or surface elements (such as the placement and subsequent removal of water treatment facilities). The OGPs countered that the Act preempted all local oil and gas regula- tions that sought to accomplish the Act's purposes or overlapped with the . Act's regulatory features. The OGPs argued that it was proper to invalidate the Ordinance wholesale because it was directed exclusively at regulating oil and gas development in the municipality-and thereby sought to accom- plish the purposes of the Act. They argued that while general local regula- tions such as those pertaining to municipal roads and bridges and the use of municipal facilities by all industries might pass the Act's test for preemption because those features were not addressed in the Act, the Ordinance, which specifically targeted the oil and gas industry m)lst be invalidated as a whole (despite such provisions) because it sought to accomplish the purposes set forth in the Act. DECISION: Affirmed. The court held that the Ordinance, which regulated surface development related to oil and gas well drilling operations, was-as a whole-preempted by the Act. This was because the court found the Ordinance: purport~d to police many of the same aspects of oil and gas extraction activities addressed by the Act; in its "comprehensive and restrictive nature" represented an ob- stacle to the legislative purposes underlying the Act; and had stated purposes that overlapped substantially with goals set forth in the Act. The court agreed with the Township that the Act did not preempt all mu- nicipal land use regulation. Municipalities could enact traditional zoning regulations that identified which uses were permitted in different areas of the locality--'-even if such regulations precluded oil and gas drilling in certain @ 2009 Thomson Reuters 11 .1 I i .j I I I I i I , 53