The Pa Environmental Rights Amendment: Lycoming CCCP Weighs In

John R. Embick, Esq.

Chair, Chester County Bar Association, Environmental Law Section


Earlier, I wrote about the Pa Supreme Court’s interesting decision in the case of Robinson Township v. Commonwealth, 83 A.2d 901 (Pa. 2013).  The most intriguing part of this complicated decision, was Chief Justice Castille’s plurality opinion, in which he broke new ground on the meaning and interpretation of Article 1, Section 27 of the Pa Constitution (also known as the Environmental Rights Amendment).

In Gorsline, et al v. Board of Supervisors of Fairfield Township, Docket No. 14-000130, (Lycoming County Court of Common Pleas, August, 2014), Judge Mark Lovecchio was called upon to review an appeal taken by neighbors from a conditional use approval for the construction of gas wells on property owned by Donald and Eleanor Shaheen. 

The property in question was located a zoning district labeled Residential Agricultural (RA).  Only one residence was located within 1,000 feet of the proposed gas development site, but many homes were located within a 3,000 foot radius of the site.  It has been reported that the Shaheens are retired, and were counting on the royalties that would be generated by the gas lease they had signed with the gas producer, Inflection Energy, LLC (“Inflection”).

The court first addressed a dispute about whether the proceeding should be considered under the provisions of the Local Agency Law, or the Municipalities Planning Code (“MPC”).  Judge Lovecchio found that the proceeding clearly was a matter governed by the provisions of the MPC.  This ruling was of particular importance because certain issues raised by the Gorslines in the appeal were not raised in the conditional use matter before the Board of Supervisors below.  The court held that the MPC did not limit the issues that could be raised on appeal.  Judge Lovecchio went on to mention that he would have allowed argument on some of the constitutional issues anyway, since they were significant in his view.

The court then decided that the local zoning ordinance permitted the desired use in the RA district because the ordinance allowed the placement in the RA district of all uses which were neither specifically permitted nor denied in the zoning ordinance.  The ordinance did not address natural gas operations, and the court found that natural gas operations were not included in the definition of surface mining.

The Fairfield Township zoning ordinance permits approval of a conditional use, only if the proposed use is similar to and compatible with other uses permitted in the RA district. The court found that the township abused its discretion in finding that Inflection satisfied this burden, because the decision was not supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion.

In addition, the Fairfield Township zoning ordinance permits approval of conditional use, only if the proposed use is not in conflict with the general purposes of the ordinance.  The Court found that the natural gas operations were in conflict with the general purposes of the ordinance, since it generally discourages industrial uses in the RA district, among other things.  In his discussion, Judge Lovecchio was clearly concerned about the substantial impacts that the development and operation of a natural gas well would entail, at least during an initial period of 2 to 3 years.

Finally, the Fairfield Township Zoning ordinance places a burden on the applicant to demonstrate that the proposed use would not be detrimental to the public health, safety and welfare of the neighborhood where the use is to be located.  The court found that despite the clear wording of the ordinance as to the applicant’s burden, that the case law places the burden upon the appellants (the Gorslines).  After reviewing the evidence, the court found that the appellants presented substantial evidence that there is a high degree of probability that the proposed use will adversely affect the health, safety and welfare of the neighborhood.

Citing Robinson with approval, the court noted that natural gas development inevitably does violence to the landscape, and that the township has a substantial and immediate interest in protecting the environmental and the quality of life in its jurisdiction.  Judge Lovecchio went on to say that the constitution obligation must be respected by all levels of government.  The court then vacated the conditional use approval.

In this decision, the implications of Robinson only crept in at the end of the opinion, and you might argue that Judge Lovecchio’s decision squarely rests on the evidentiary record made in the tribunal below.  However, environmental law practitioners are wondering if there will be more cases like Gorsline and what it means.