Many Pa. municipalities hesitant to regulate drilling through zoning
Faced with arguments from gas drilling opponents at nearly every township meeting, officials in Middlesex decided their only chance at settling the contentious issue of where to allow wells was to update the zoning ordinance.
“We really need something in writing because … I can't keep doing this every month,” former township manager Scot Fodi recalled during a recent appeal hearing on the ordinance.
The ensuing legal fight over that legislation will cost the Butler County community tens of thousands of dollars and potentially last years.
Despite court rulings that affirmed the rights of such municipalities to regulate some drilling activities through zoning, few communities followed Middlesex's path over the past three years. Municipal leaders say that might change soon, though.
Less than 9 percent of municipalities in 33 counties where shale gas is being produced passed any legislation related to the natural gas industry over the past three years, according to a Tribune-Review survey of 650 communities.
“That does not surprise me. To pass an ordinance like that can be very costly,” said Susan Williams, the secretary/treasurer of rural Genesee and president of the Potter County Township Officials Association. Most towns there don't have their own zoning ordinances, she said. None of the Potter County officials who responded to the Trib's requests for information reported new legislation related to natural gas development.
Statewide, most of the 53 municipalities that did report new legislation passed amendments to their zoning to clarify where drilling or construction of related equipment can or cannot occur. Locally, municipalities in Washington and Butler counties — two active regions for drilling — had the most new gas-related legislation, with at least seven communities in each county reporting new rules.
Few communities took steps to keep drilling or related activities out of their communities like Grant in Indiana County, which passed a so-called Community Bill of Rights that bans certain wells. Courts have ruled towns can't enact blanket bans on otherwise legal and regulated industries and Pennsylvania General Energy Co. sued Grant in federal court over the move. The case is pending.
Supporters of the shale gas industry, which grew from a few horizontal wells in 2008 to more than 8,000 now tapping the Marcellus shale and other deep rock formations across half the state, say companies have learned to work closely with local leaders to avoid the conflicts that can prompt zoning changes and bitter fights over ordinances.
“It's because our operators from the beginning have had dialogue with the municipalities where they do business,” said David Spigelmyer, president of the North Fayette-based Marcellus Shale Coalition. “Just because Act 13 was put in place it didn't mean that our operators weren't going to continue to work with communities.”
Others say communities were hesitant to act until the courts decided on challenges to Act 13 of 2012, part of which sought to take some zoning decisions out of local hands to set uniform rules for every town. The state Supreme Court struck that part down in 2013 and Commonwealth Court reiterated the local rights last year.
“There were a lot of places that said, “Let's wait until this plays out,'” said Jordan Yeager, a Bucks County attorney who represents towns that sued the state over Act 13. He works with community groups that have challenged ordinances such as the Middlesex zoning law.
Yeager said some municipalities have “kowtowed” to companies viewed as having deep pockets to fight restrictive ordinances in court, though the industry claims environmental groups are funding some zoning challenges.
“I think it's a good thing that communities now understand they have the rights,” Yeager said.
Williams said towns that have good relationships with drillers are less likely to put in zoning that restricts the activity.
“Our neighbors have been able to handle the traffic and other issues by dealing with the companies themselves,” she said. “I'm hearing companies actually made the roads better than they were previous to them coming in. A lot of municipalities are thankful for this.”
Some communities addressed drilling in their zoning years ago because of a history of conventional gas extraction, or they were early to the shale game.
“We were contemplating changes when Act 13 was passed. With last year's ruling, we have revisited it, and are currently working on a zoning amendment,” said Jodi Noble, manager of Chartiers, which has 75 shale wells. The township in Washington County passed an ordinance in July 2012 to match its zoning with Act 13, and needs to adjust it.
“I think the legal proceedings over the past couple years have probably given townships a reason to step back and see how that worked out, to know what it was OK to do,” she said of the majority that did not change their zoning. “You don't want to spend a lot of money developing an ordinance to have it thrown out.”
The relative quiet of the past three years might be ending, leaders said.
“Several (communities) are looking to upgrade their ordinances,” said John Stickle, manager in South Strabane, which is surrounded by towns with wells and last month had its first wells started. The township is reviewing its existing ordinance that already covered well pads and is planning updates over the next few months to address issues such as pipeline compressors and gas processing.
Other communities that told the Trib they intend to make zoning changes related to gas development this year include East Deer, Franklin in Greene County, Murrysville and Penn Township in Westmoreland County.
“It takes time and effort,” Stickle said. “We have a planning consultant who assists us. The solicitor is involved. There is some cost involved.”
Emotional debate can follow, too, as evidenced in communities that are considering zoning changes to clarify drilling rules or defending against appeals.
In Ligonier Township, a new zoning proposal has drawn hundreds of people to municipal meetings. Officials established special rules for speakers at a meeting scheduled for Thursday in Ligonier Valley High School. Gas companies have drilled three shale wells there.
Peters, one of the townships that sued the state over Act 13, is again considering a land-use ordinance after voiding rules it passed in 2013. Voters there in 2011 rejected a blanket ban on drilling, though the township still has no shale wells.
Fayette County commissioners are considering a countywide zoning proposal that would reduce areas where drilling can occur.
In Middlesex, several groups opposed to drilling challenged the zoning ordinance that supervisors adopted in August. It was modeled on legislation passed in other towns, but opponents say it allows too much activity by gas companies such as State College-based Rex Energy, which drilled eight wells there before the ordinance passed.
Its zoning board has conducted eight hearings on the challenge and a ninth is scheduled for March 31. An appeal of its decision is likely.
“This challenge brings a level of uncertainty and delay to our operations, however we understand and respect the process. That said, we remain steadfast in our commitment to represent the interests of Rex leaseholders and to safely and responsibly develop our acreage in Middlesex Township in the future,” said Rex spokesman Patrick Creighton.
David Conti is a staff writer for Trib Total Media. He can be reached at 412-388-5802 or firstname.lastname@example.org.