Photo credit: Ted Auch, FracTracker Alliance, May 2017
In response to community concerns about traffic, noise, light and health impacts, many residents are asking: Is municipal zoning a tool that can be used to ban fracking?
The short answer is that zoning is not an effective tool for entirely excluding any activity from a community. However, where gas development is already occurring in a community, zoning can be used to limit further impacts.
Exclusionary Zoning and the Fair Share Doctrine
Pennsylvania generally takes a “fair share” approach to zoning. This means municipalities must assume the burden of providing enough space within their borders for development that meets the needs of all people. [1]
Any ordinance which prohibits an otherwise legal use of land is considered “exclusionary”. Exclusionary zoning is illegal. If an ordinance is found to be exclusionary the next step is that it would probably be voided by the local government or state court. [2] The concept of exclusionary zoning comes in part from Article I, § 1 of the Pennsylvania Constitution, which gives individuals the right to enjoy private property, and the 5th and 14th Amendments of the U.S. Constitution which require that governmental exercise of police power interfering with property rights must be reasonable.[3]
Pennsylvania courts consider fracking to be an authorized and legitimate business activity. [4] In support of this, the Municipalities Planning Code, which gives local government authority to enact zoning, requires that “[z]oning ordinances shall provide for the reasonable development of minerals.”[5] The term “minerals” is defined to include natural gas.[6]
The challenge this raises for a municipality is how to protect their community while at the same time ensuring their ordinance allows for the community’s fair share of fracking, or reasonable development of natural gas.
The Pennsylvania courts acknowledge that:
“reasonable development of minerals” is only one of many interests to be considered. The MPC requires a “balancing of interests” to determine whether a zoning ordinance is reasonable. [7] This means multiple factors must be considered, including how the ordinance is balancing mineral development with protection of prime agricultural land, protection of natural and historic resources, and consistency with the overall Comprehensive Plan.[8] At the same time, a “fair share” analysis would likely require considering factors such as: percentage of land available for fracking, the amount of undeveloped land in the community, acreage leased, and existing natural gas development in the community.[9]
Narrow Exceptions to the Rule
It seems plausible that there are certain communities where reasonable development of natural gas is already occurring but after considering all of the applicable factors, there is simply no additional room for future fracking. In that case, a ban on any future development may be upheld. For example, if an area has an uncommonly large amount of unique or specially protected resources like pristine streams or prime agricultural soils, then that municipality may reasonably say there is not enough space for future fracking development.
But as of now, there is no clear rule or standard that explains when the such applicable factors reach the level of warranting a ban on future development. If that question is raised, the courts just address each case individually and make a decision based on the details of the ordinance and the unique factors in the township.
What Can You Do?
Ultimately, a complete ban in the zoning context is very rarely workable, especially for communities with existing fracked-gas development. However, you can create a thoughtful oil and gas zoning ordinance – and implement other local land use tools – that will help to protect your community from the potentially dangerous impacts of fracking. As communities consider methods to better determine their environmental future, zoning can be an important component of a plan, but many additional strategies exist to gather necessary environmental baseline data and information in advance of potential development and impacts; engage in community planning processes, local & state legislative initiatives, and expose community strength through enforcement initiatives; and use community-based priorities to determine the best strategies. Fair Shake Environmental Legal Services offers services in all of those endeavors.
Learn more about how to protect yourself and your environment through the Fracking Help Center a tool developed in partnership between Halt the Harm, Mountain Watershed Association, and Fair Shake. To support our work in communities seeking to better determine their environmental future, donate using the Tip the Scales button above.
[1] See Surrick v. Zoning Hearing Board of Upper Providence Township, 382 A.2d 105 (Pa. 1977).
[2] See Exton Quarries, Inc. v. Zoning Board of Adjustment, 228 A.2d 169 (Pa. 1967).
[3] See Bac, Inc. v. Bd. of Supervisors, 633 A.2d 144 (Pa. 1993).
[4] See Sugarloaf Sanitary Landfill, Inc. v. Armitage, 395 A.2d 678 (Pa. Cmwlth. 1978).
[5] 53 P.S. § 10603(i).
[6] 53 P.S. § 10107.
[7] LaRock v. Bd. Of. Supervisors, 866 A.2d 1208, 1213 (Pa. Cmwlth Ct. 2005).
[8] LaRock at 1213.
[9] See Surrick v. Zoning Hearing Board of Upper Providence Township, 382 A.2d 105 (Pa. 1977); Paradise v. Mt. Airy Lodge, Inc., 449 A.2d 849 (Pa. Cmwlth. Ct. 1982); Cracas v. Board of Supervisors, 492 A.2d 798 (Pa. Cmwlth Ct. 1985); Industrial Construction Corporation v. Wrightstown Township zoning Hearing Board of Adjustment, 20 Bucks Co. L. Rep. 165 (1970); Gill Quarries, Inc. v. East Norriton Township, 113 Montg. Co. L.R. 75 (1983).
