On June 1, 2018, the Pennsylvania Supreme Court, in a 4-3 decision, held that a municipality was required to amend its zoning ordinance before it could allow natural gas operations in a residential-agricultural zoning district. Gorsline v. Bd. of Sup. of Fairfield Twp., et al., No. 67 MAP 2016, 2018 WL 2448803 (June 1, 2018).  Specifically, the Court ruled that the Fairfield Township Board of Supervisors improperly found that the drilling and operation of a natural gas well in a Residential-Agricultural (“R-A”) district was “similar to” other uses in the R-A district.  Although the Township’s zoning ordinance did not specifically allow drilling, the zoning ordinance provided that when a use is not specifically permitted by the zoning ordinance, the Supervisors may permit the use if, among other things, it is “similar to and compatible with the other uses permitted in the zone where the subject property is located.”  The Supervisors found that Inflection Energy, LLC’s proposed gas drilling was “similar to” other uses in the R-A district.  The Commonwealth Court upheld the Supervisors’ decision, finding that the gas drilling was similar to and compatible with a “public service facility,” which is a conditional use in the R-A district, and which is defined as the “erection, construction, alteration, operation or maintenance of buildings, power plants or substations, water treatment plants or pumping stations; sewage disposal or pumping plants and other similar public service structures by a utility, whether publicly or privately owned, or by a municipal or other governmental agency, including the furnishing of electrical, gas, communication, water supply and sewage disposal services.”  

The Supreme Court reviewed the zoning ordinance’s definitions of R-A district and public service facility and ultimately reversed the Commonwealth Court, finding that the proposed gas drilling was not similar to other uses permitted in the R-A district.  The Court cautioned that its decision “should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses.”  The Municipalities Planning Code allows a municipality to amend its zoning ordinances to permit oil and gas development in any or all of its zoning districts and establish “whatever limitations and conditions it decides are appropriate for the protection of its citizenry.”  The Court held that a municipality may not “permit oil and gas development in residential/agricultural districts without first enacting the necessary amendments." 

Many expected the Supreme Court to address arguments brought under the Environmental Rights Amendment.  The Court, however, held that, “[b]ecause we may decide this case on nonconstitutional grounds, we decline to decide Objectors’ first issue, relating to this Court’s decision in Robinson I based on a claimed violation of substantive due process rights and the Environmental Rights Amendment of the Pennsylvania Constitution (Article I, Section 27).”

After Gorsline, municipalities that wish to permit natural gas operations in residential-agricultural zoning districts may need to amend their zoning ordinances to specifically allow for it, while imposing certain conditions to protect their residents. Drillers who require local land use approvals should take time to review the applicable zoning ordinance and develop an adequate evidentiary record to ensure that zoning decisions are defensible. Gorsline also teaches us that the Justices of the Pennsylvania Supreme Court will carefully choose the cases in which they will address the Environmental Rights Amendment.

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