This April 2011 legal memorandum has been prepared to facilitate Pennsylvania municipalities in drafting zoning ordinances with respect to proposed gas extraction operations. This memo, the corresponding model ordinance, and legal assistance to local governments is a service from Damascus Citizens for Sustainability made possible by a grant from the Colcom Foundation in Pittsburgh, Pennsylvania to protect the common good. Jordan Yeager is a leading attorney specializing in Pennsylvania municipal law.
Taken together, these cases provide a framework within which a municipality may operate in order to enact meaningful ordinances while limiting the risk of validity challenges:
- Municipalities may regulate the location of oil and gas wells within their zoning powers;
- Municipalities should avoid ordinance provisions that seek to regulate features of oil and gas operations regulated by the Oil and Gas Act, such as pre-drilling bonding requirements, casing requirements for wells, plugging of wells, well-head and capping regulations, and site restoration;
- Municipalities should avoid establishing a regulatory regime that clearly tracks that of the Oil and Gas Act;
- Municipalities may impose additional conditions for approval of special exemptions or conditional uses, provided such additional conditions are within the regular purposes of zoning and do not preclude issuance of a zoning permit if the conditions are achieved by the applicant;
- Municipalities should utilize overlay ordinances that protect significant natural resources, wherever they are found in the municipality;
- To the extent that municipalities seek to address concerns about the impacts of industrial and mineral extraction activities, it should do so in a manner that addresses all similar uses, rather than singling out gas drilling for special regulations;
- Zoning ordinances should minimize provisions that treat gas drilling differently than other industrial or mineral extraction uses; and
- All ordinances should contain a severability clause and should be drafted with discrete sections, so that if any section is found invalid it minimizes the risk that the entire ordinance will be invalidated.