Agenda - Planning Commission - 04/05/2012

Home

Zoning Bulletin February 25, 2012 1 Volume 61 No. 4 as a "special" or "permitted" use, and all "unlisted" uses were "deemed prohibited" under the City's zoning code. Tri -Power brought a legal action against the City. Among other things, Tri -Power asked the court to declare that the City was not au- thorized to prohibit the drilling of an oil or gas well within its municipal limits. In support of its argument, Tri -Power maintained that pursuant to § 11 -56 -1 of the Illinois Municipal Code (the "Code ") (65 ILCS 5/11- 5 6 -1) and § 13 of the Illinois oil and Gas Act (the "Act ") (225 ILCS 725/13), the City had "limited authority" to regulate the drilling or op- eration of an oil or gas well within its municipal limits, but was not au- thorized to bar or prohibit such activity. Section 11 -56 -1 of the Code provides: "The corporate authorities of each municipality may grant permits to mine oil or gas, under such re- strictions as will protect public and private property ...." • Section 13 of the Act provides that an application to the State for a permit for oil or gas well operations must be accompanied by: a "certi- fied copy of the official consent of the municipal authorities for said well to be drilled, and no permit shall be issued unless consent is secured and filed with the application." Tri -Power contended that SS 11 -56 -1 and 13 should have been "con- strued together as giving the City the authority to `impose reasonable re- strictions on the issuance of a permit to drill an oil or gas well inside the City limits' but not the `authority to refuse to grant such a permit, where any or all conditions have been met or alternatively, as in the in- stant case, where none exist.'" The circuit court disagreed with Tri - Power. It interpreted § 13 of the Act as granting the City the authority to prohibit the operation of an oil or gas well within its municipal limits. Tri -Power requested certification of the issue to the appellate court. The circuit court and the appellate court both granted that request. DECISION: Affirmed. Agreeing with the circuit court, the Appellate Court of Illinois, Fifth District, held that a non - home -rule unit of government may prohibit the drilling or operation of an oil or gas well within its municipal limits. In so holding, the court construed the plain language of the rel- evant statutes. The court found that 13 of the Act gave the City the power to prohibit the operation of an oil or gas well within its municipal limits. The court found that § 11 -56 -1 of the Code further supported that determination. Tri -Power had argued that the use of the term "consent" in § 13 should have been interpreted as referring to "the municipality's determination that all conditions or reasonable restrictions imposed [on drilling within its mu- nicipal limits] have been met." Accordingly, Tri -Power maintained that the State's authority to issue permits for oil and gas operations was preemptive. © 2012 Thomson Reuters 3