The opinion of the court was delivered by: Judge McGINLEY
Argued: February 23, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
Arbor Resources Limited Liability Company, Pasadena Oil and Gas Wyoming, L.L.C., Hook 'Em Energy Partners, LTD., and Pearl Energy Partners, LTD., (Objectors) appeal from an order of the Court of Common Pleas of Bucks County (trial court) which sustained Nockamixon Township's (Township) preliminary objection to jurisdiction and dismissed the action filed by Objectors seeking a declaration of general preemption of the Township's land use controls.
Factual and Procedural Background
On May 14, 2008, Objectors filed a Complaint for Declaratory and Injunctive Relief*fn1 and challenged the substantive validity of the Township's zoning ordinances as related to the regulation of oil and gas drilling. Objectors alleged the following:
1. The Plaintiffs [Objectors], who are the owners of 240 oil and natural gas leasehold interests located within Nockamixon Township . . . are being deprived of their legal rights to develop their oil and natural gas property interests under those leaseholds because the Township has improperly enacted two ordinances which unlawfully regulate and restrict the development of oil and natural gas.
2. The Townships' ordinances are unlawful because regulation of the development of oil and natural gas within the Commonwealth of Pennsylvania is exclusively and comprehensively within the control of the Pennsylvania Department of Environmental Protection . . . through the Pennsylvania Oil and Gas Act. [*fn2 ] Oil and Gas Act, Act of December 19, 1984, P.L. 1140, as amended by Act No. 1992-78 § 7, 58 P.S. § 601.101 et. seq. Moreover, the Act expressly preempts such local regulation of development of oil and natural gas. Id. at § 601.602.
3. Because the Plaintiffs have met all of the requirements under the Act for drilling within the Township and have been issued DEP permits to proceed with drilling within the Township, the Plaintiffs have a legal right to develop their leasehold interests.
4. Accordingly, the Township cannot lawfully place additional local restriction on the Plaintiffs, and the Township should be enjoined from enforcing the Ordinances. . . . .
12. On May 18, 2006, the Board [Nockamixon Township Board of Supervisors] enacted Ordinance No. 126, which was incorporated into the Township Zoning Ordinance at § 234-23 R . . . .
13. On April 17, 2007, the Board enacted Ordinance No. 129, which was further incorporated into the Township Zoning Ordinance at § 234-23 R . . . . . . .
17. Ordinance No. 129 per se prohibits oil and natural gas activities in all districts, except those zoned as 'Industrial' and 'Quarry.' Recovery in Industrial and Quarry districts is prohibited unless a written approval is first granted by the Board . . . .
18. Both Ordinance Nos. 126 and 129 . . . place further restrictions upon oil and natural gas activities within the Township that . . . are exclusively regulated by the DEP, pursuant to authority extended by the Act . . . . [*fn3 ]
Count I- Declaratory Relief
27. The Ordinances regulate oil and natural gas operations in a manner expressly preempted by the Act . . . .
28. The Ordinances contain numerous conditions, requirements or limitations . . . on the same features or accomplish the same purposes of oil and natural gas operations regulated under authority of the Commonwealth by the DEP and as such, are expressly preempted. See 25 Pa. Code §§ 78.1-78.314. . . . .
30. The Ordinances require written approval from the Board before commencement of any drilling operations, even where authorization . . . has been granted by the Commonwealth through the DEP under the authority of the Act, and as such, are in direct conflict with the laws of the Commonwealth, and therefore preempted.
Count II -- Declaratory Relief