The PA State Supreme Court announced its long-awaited decision in Gorsline et al. v. Board of Supervisors of Fairfield Township v. Inflection Energy LLC et al., earlier this month, which completes a multi-year journey between PennFuture and its clients, Brian and Dawn Gorsline, and their neighbors, Paul and Michele Batkowski.

PennFuture began representing the Gorslines and Batkowskis in January 2014, when its lawyers appealed a decision by Fairfield Township to issue Inflection Energy a conditional use permit for operation of a shale gas well pad in the residential portion of the municipality’s R-A (Residential-Agricultural) zoning district.  

To issue the permit, the Township’s ordinance required that it conclude that an industrial shale gas well pad was “similar to and compatible with” other uses allowed in the R-A district. The appeal focused on the company’s failure to meet that standard, and that issuing the permit violated our clients’ constitutional rights. 
 
The appeal was heard in the Lycoming Court of Common Pleas by Judge Marc F. Lovecchio, who sided with PennFuture and overturned the Township’s decision.  Recognizing that there were important constitutional issues at play, Judge Lovecchio concluded that Inflection had failed to put on adequate evidence at the local hearing to justify issuance of the permit.
 
The Township and Inflection appealed that ruling to the Commonwealth Court. The Commonwealth Court held that the Township was justified in issuing the permit because the ordinance allows “public service facilities” in all of its zoned districts, and an industrial shale gas well pad was similar to a “public service facility.” The Court had previously used this rationale in another case to allow a compressor station to be located in a light industrial zoned district.  

This case, then, if allowed to stand, would have constituted an outrageous expansion of this rationale that would have swallowed any need for townships to affirmatively regulate where shale gas development would be allowed. Instead of fulfilling the township’s obligations under Article I, Section 27 in choosing where to locate all of the various impacts associated with this vast industry, townships would have been free to issue ad hoc approvals for well pads, processing plants and compressor stations in any of its zoned districts under the ruse that the land use was similar to a “public service facility.”

PennFuture appealed and the Commonwealth Court’s decision went to the Pennsylvania Supreme Court. In its appeal, PennFuture argued that there were four different ways in which the Commonwealth Court made the wrong decision, including that the decision violated Article I, Section 27 of the Constitution and our clients' substantive due process rights. 

The Supreme Court did not decide the case on the broader constitutional arguments that we made, but did agree with our other three arguments. The Court held that:

1. Shale gas development is an industrial land use, and that this industrial land use is not the same as a public service facility;
2. Industrial shale gas well pads are not “in any material respect” similar to and compatible with the other permitted uses in the Township’s R-A District;
3. The Township could not rely on its earlier decisions to allow shale gas development in its R-A District in order to justify issuance of this permit. 

Even though the Court did not decide the case on constitutional bases, the decision established a number of important points. 

• The Court firmly characterized shale gas development as an industrial land use while rejecting industry’s fiction that after construction of the well pads, the facilities have no ongoing impact on public health and the environment.
• The Court rejected the Commonwealth Court’s finding that shale gas well pads are similar and compatible with “public service” facilities. The Court recognized that shale gas is a private enterprise that does not directly provide any public service to area residents. This establishes important precedent that precludes townships from using “public service facility” provisions in existing zoning ordinances for permitting shale gas well pads. 
• The Court stated that shale gas development was not materially similar in any manner to other permitted uses in Fairfield Township’s R-A District. This finding was very important, because even though the Court did not expressly decide the case on constitutional grounds, the finding has important constitutional implications. When exercising its zoning powers, local government takes away, to one degree or another, private property owners’ rights to do with their property whatever they choose, and they do that without paying for the taking of those rights. For government to exercise that power constitutionally, the Supreme Court has said that property owners must also benefit from the existence of zoning districts, and that requires that only similar and compatible uses be allowed in each zoned district. Consequently, when zoning for shale gas development, townships must determine and justify what other land uses are similar and compatible with this particular industrial land use. To the extent shale gas development is not similar and compatible with other uses in a particular zoned district, the municipality cannot constitutionally allow shale gas development to occur in the same zoned district. 
• Finally, the Court’s ruling effectively requires that townships make conscious decisions, with public participation, about how this industry will be regulated on the local level. It is not adequate to, as did Fairfield Township, permit industrialization of a zoned township on an ad hoc basis.  The township must make reasoned decisions that take into account the expectations of its citizenry about the type of land uses that will be allowed in particular zoned districts, and, in the end, those decisions must comport with the state and federal Constitutions.

PennFuture’s success in this case is not just a long-awaited win for our clients, but a win for concerned residents across the Commonwealth.