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MITCHELL ENERGY CORPORATION v. ZONING HEARING BOARD SUMMERHILL TOWNSHIP AND LEONARD KREIDER AND JOHN BEEBE (07/30/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 30, 1987.

MITCHELL ENERGY CORPORATION, APPELLANT
v.
THE ZONING HEARING BOARD OF SUMMERHILL TOWNSHIP AND LEONARD KREIDER AND JOHN BEEBE, APPELLEES. MITCHELL ENERGY CORPORATION, APPELLANT V. THE BOARD OF SUPERVISORS OF SUMMERHILL TOWNSHIP AND LEONARD KREIDER AND JOHN BEEBE, APPELLEES

Appeals from the Order of the Court of Common Pleas of Crawford County in the case of Mitchell Energy Corporation v. The Zoning Hearing Board of Summerhill Township v. Leonard Kreider and John Beebe, No. A.D. 1984-851, and in the case of Mitchell Energy Corporation v. The Board of Supervisors of Summerhill Township v. Leonard Kreider and John Beebe, No. A.D. 1985-9.

COUNSEL

Paul D. Shafer, Jr., with him, Louis J. Stack, Shafer, Dornhaffer, Swick, Bailey & Irwin, for appellant.

Richard W. Perhacs, Elderkin, Martin, Kelly, Messina & Zamboldi, for appellee, Zoning Board of Summerhill Township.

Joseph A. Yochim, Colussi, Yochim, Skiba & Moore, for appellees, Leonard Kreider and John Beebe.

David L. Hotchkiss, Culbertson, Weiss, Schetroma & Schug, for appellee, Board of Supervisors of Summerhill Township.

Judges MacPhail and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 108 Pa. Commw. Page 115]

These consolidated appeals arise out of the attempts by Mitchell Energy Corporation (MEC) to place an injection well in Summerhill Township (Township), Pennsylvania. MEC is a corporation engaged in exploration, drilling and production of oil and natural gas. It operates seventy-nine oil and gas wells in the Township, on land it either owns or leases.

On May 11, 1984, MEC applied for a zoning permit to install an injection well in the Township. An injection well is one used to inject brine into the ground.*fn1 In this case the well would have been used to inject brine extracted from oil and gas wells operating in the area, with the injection of brine into the ground from this well taking place at depths ranging between 7,286 feet and 7,326 feet and between 7,764 feet and 7,848 feet. At the site of the injection well, there would also be a shed containing pumping equipment, two 42,000-gallon settling tanks and one 4,200-gallon skim oil tank, and a 7,500-gallon concrete pit, on 505 acres MEC owned in the Township. On May 12, 1984, the Township zoning officer denied the permit.

MEC appealed the denial to the Township Zoning Hearing Board (Board). MEC contended in front of the Board that the injection well was a permitted use in an

[ 108 Pa. Commw. Page 116]

R-1 district under Section 502.13 of the Township Zoning Ordinances.*fn2 Section 502.13 provides:

Recovery of Subsurface Gas And Oil Deposits.

All activities associated with the recovery of subsurface gas and oil deposits are permitted in all zoning districts, except the Flood Hazard Overlay District (in which district they are prohibited), subject to the following requirements.

     a. All structures including wellhead casings shall comply with the yard requirements established for the zoning district in which they are located. A zoning permit shall be obtained before any activity is begun at a site.

     b. The gas and oil well casing and tank structures normally used in drilling and recovery operations shall be a minimum of 200 feet from any habitable building, whether a residence, a commercial or an institutional building, and shall be a minimum of 100 feet from a stream with year-round flow.

     c. The recovery of subsurface gas and oil deposits shall be conducted in such a way that brines, drilling muds and other refuse, which because of its chemical content may be injurious to the natural environment, resulting from the recovery operations shall not be deposited in the natural environment in a manner which would violate the state's Clean Streams and Erosion Control legislation. The township is aware that any enforcement of this provision must be coordinated with PennDER which, in fact, is obliged to handle the enforcement. (Emphasis added.)

[ 108 Pa. Commw. Page 117]

On August 21, 1984, the Board, by a 3-2 vote, denied MEC's appeal. The Board interpreted Section 502.13 as extending "no further than the actual extraction of gas and oil" and "not to extend to sanction the permanent storage of waste generated elsewhere." The Board further opined that Section 502.13 may allow the disposal of brine generated by an oil or gas well, but only on the property where the brine is generated.*fn3 MEC then appealed to the Court of Common Pleas of Crawford County.

Meanwhile, on September 27, 1984, MEC tried to gain municipal approval of the injection well by filing an application with the Township Board of Supervisors (Supervisors) for a conditional use permit under Sections 800*fn4 and 802*fn5 of the Township Zoning Ordinance.

[ 108 Pa. Commw. Page 118]

After a hearing, the Supervisors rejected MEC's application. The Supervisors first held that their power to issue a conditional use permit was limited only to those conditional uses listed in Section 504.2 of the Township

[ 108 Pa. Commw. Page 119]

Zoning Ordinance.*fn6 The Supervisors further found that the injection well was not harmonious with the character of the R-1 district and that the well constituted a solid waste disposal facility that did not comply with the

[ 108 Pa. Commw. Page 120]

    provision of the Township Zoning Ordinance*fn7 regulating such facilities.*fn8 Accordingly, the Supervisors denied the permit and MEC again appealed to the court of common pleas.

[ 108 Pa. Commw. Page 121]

The court consolidated MEC's appeals and rendered its decision without taking additional evidence. The trial court upheld the Board's interpretation of Section 502.13 and ruled that the injection well was not a permitted use in the Township's R-1 district. In the appeal from the denial of the conditional use permit, the court agreed with MEC's contention that Section 800 gives the Supervisors discretion to grant conditional uses beyond those enumerated in Section 504.2, provided that the use is not specifically forbidden by Section 502.9.*fn9

[ 108 Pa. Commw. Page 122]

The court found, however, that the injection well was not harmonious with an R-1 district and that the well constituted a solid waste disposal facility. Since solid waste disposal facilities are permitted as a conditional use in an A-1 (Agricultural) district by the Township Zoning Ordinance, the court found that the use was excluded by implication from the R-1 district. This appeal followed.*fn10

[ 108 Pa. Commw. Page 123]

MEC's first contention is that an injection well is a permitted use in an R-1 zone because it is one associated with the recovery of natural gas and oil. We agree. In interpreting provisions of a zoning ordinance, undefined terms, such as the word "associated" in this case, must be given their plain, ordinary meaning. Appeal of Mount Laurel Racing Association, 73 Pa. Commonwealth Ct. 531, 458 A.2d 1043 (1983). Webster's Third New International Dictionary defines the term "associate" to mean: "1: closely connected, joined or united with another (as in interest, function, activity, or office); sharing in responsibility or authority. . . . 2: closely related in the mind." Id. at 132 (1961). And it is clear that absent a limiting legislative definition, a term permitting a use must be presumed to have been employed in its broadest sense. R. Anderson, Law of Zoning in Pennsylvania ยง 15.05 (1982). Moreover, words in a zoning ordinance should be given their common meanings, and any doubt should be resolved in favor of the landowner. Abington Township v. Dunkin' Donuts Page 123} Franchising Corp., 5 Pa. Commonwealth Ct. 399, 291 A.2d 322 (1972). See also Gilden Appeal, 406 Pa. 484, 178 A.2d 562 (1962).

We have also stated that when appropriate definitions are lacking, we will not attach strained meanings to the words used or find a prohibition by implication. Appeal of Mount Laurel Racing Association. Our Supreme Court has recently reaffirmed the principle that, in construing zoning ordinances, to permit the widest use of land is the rule and not the exception, unless the use is specifically restrained in a valid and reasonable exercise of the police power. Council of Middletown Township v. Benham, 514 Pa. 176, 523 A.2d 311 (1987); Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 182 A.2d 692 (1962).

We now turn to the facts of the present case. It is undisputed that brine is a by-product of the recovery of oil and natural gas. Indeed, Section 502.13(c) of the Township Zoning Ordinance acknowledges that brine is a by-product of recovery. Since the production of brine is associated with the recovery of natural gas or oil, a use involving the disposal of such brine is also associated with recovery.

The common pleas court accepted the Board's interpretation that any activity associated with recovery must be confined to the particular property on which the recovery of oil or gas takes place. This interpretation, which would allow multiple injection wells throughout the Township, does not appear to comport with reason or economic reality. The fact that the brine to be injected by this well will be trucked in from other wells in the Township and the surrounding area, rather than being brine from an oil and gas well located on the same piece of property as the injection well, does not somehow make the use one not associated with the recovery of oil or natural gas. We are not unsympathetic

[ 108 Pa. Commw. Page 124]

    to the fact that the injection well might have deleterious ecological effects on the Township; however, the remedy for this situation lies in amending Section 502.13, rather than having us accept the Board's tenuous interpretation of it. Heck v. Zoning Hearing Board for Harveys Lake Borough, 39 Pa. Commonwealth Ct. 570, 574-75, 397 A.2d 15, 18 (1979).

Having decided that an injection well is a permitted use in an R-1 zone in the Township, MEC's appeal of the denial of the conditional use permit, in which MEC sought the same relief as requested here, is now rendered moot.

Based on the foregoing discussion, the order of the Court of Common Pleas of Crawford County affirming the decision of the Summerhill Township Zoning Hearing Board is hereby reversed.

Order

Now, July 30, 1987, the order of Court of Common Pleas of Crawford County, No. A.D. 1984-851, dated March 17, 1986, which upheld the denial of a zoning permit by the Zoning Hearing Board of Summerhill Township, is hereby reversed. It is further ordered that the case docketed in this court at No. 982 C.D. 1986 is hereby dismissed as moot.

Disposition

Order in case No. 981 C.D. 1986 reversed. Case No. 982 C.D. 1986 dismissed as moot.


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