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PA Preemption Decision

By Greg Russell

The Commonwealth Court of Pennsylvania in Penneco Oil Company, Inc. v. The County of Fayette, Pennsylvania, recently affirmed a lower court decision holding that a local zoning ordinance was not preempted by the state's Oil and Gas Act (58 P.S. §§601.101-601.605).  The court observed that the ordinance provided that an oil or gas well would be a permitted special exemption - in instances where it would otherwise be prohibited - under certain conditions (e.g., that it was not located within the flight path of an airport's runway facility; and that fencing and shrubbery were located around the pump head and support frame).  Relying on prior state Supreme Court cases, the court concluded:

[T]hat while there may be some overlap between the goals of Fayette County’s Zoning Ordinance and the purposes set forth in the Act, the most salient objectives underlying restrictions on oil and gas drilling in certain zoning districts appears in Fayette County to be those pertaining to preserving the character of residential neighborhoods, as well as each zoning district, and encouraging beneficial and compatible land uses. As such, the limited provisions of the Zoning Ordinance governing oil and gas wells in Fayette County do not accomplish the same purposes as set forth in Section 102 of the Act, 58 P.S. §601.102. ***.

Accordingly, we conclude that the provisions of the Zoning Ordinance do not reflect an attempt by Fayette County to enact a comprehensive regulatory scheme relative to the oil and gas development within the county but instead reflect traditional zoning regulations that identify which uses are permitted in different areas of the locality. The Zoning Ordinance, on its face, is clearly a zoning ordinance of general applicability like the ordinance in Huntley. Therefore, the Zoning Ordinance is not preempted by the Act.

For a copy of the decision, see here (Docket No. 18 C.D. 2010) (filed July 22, 2010).

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