The opinion of the court was delivered by: Senior Judge Kelley
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Penneco Oil Company, Inc., Range Resources-Appalachia, LLC & Independent Oil & Gas Association of Pennsylvania (hereinafter collectively referred to as "Penneco") appeal from the December 9, 2009, order of the Court of Common Pleas of Fayette County (trial court) granting the motion for summary judgment filed by the County of Fayette, Pennsylvania and the Office of Planning, Zoning and Community Development of Fayette County, Pennsylvania (hereinafter collectively referred to as "Fayette County") and denying Penneco's motion for summary judgment. We affirm.
The following issues raised in this appeal are purely questions of law:
(1) Whether the regulation of oil and gas wells by the Fayette County Zoning Ordinance is preempted by the Oil and Gas Act*fn1 (Act); and
(2) Whether the trial court erred in holding that the Zoning Ordinance does not specifically target the oil and gas industry and that the specific provisions of the Zoning Ordinance regarding the location of oil and gas wells, the issuance of zoning certificates and special exceptions are not exclusively directed at oil and gas well drilling; and in holding that oil and gas wells are referenced only within the "special exceptions" section of the Zoning Ordinance.
The facts are as follows. On November 1, 2006, Fayette County adopted a Zoning Ordinance. On or about August 7, 2007, Penneco filed a complaint against Fayette County and on or about May 5, 2008, Penneco filed, by consent, an amended complaint primarily alleging that the Zoning Ordinance is preempted by the Act and requesting that the trial court declare the Zoning Ordinance invalid. Fayette County filed an answer. The parties agreed by stipulation to forego discovery and cross motions for summary judgment were filed. The trial court determined that the Zoning Ordinance was not preempted by the Act based on two recent Pennsylvania Supreme Court cases: Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009), and Range Resources v. Salem Township, 600 Pa. 231, 964 A.2d 869 (2009). This appeal followed.*fn2
Pursuant to Section 102 of the Act, the purposes of the Act are to:
(1) Permit the optimal development of the oil and gas resources of Pennsylvania consistent with the protection of the health, safety, environment and property of the citizens of the Commonwealth.
(2) Protect the safety of personnel and facilities employed in the exploration, development, storage and production of natural gas or oil or the mining of coal.
(3) Protect the safety and property rights of persons residing in areas where such exploration, development, storage or production occurs.
(4) Protect the natural resources, environmental rights and values secured by the Pennsylvania Constitution.
58 P.S. §601.102. Section 602 of the Act sets forth an express exemption clause: Except with respect to ordinances adopted pursuant to the act of July 31, 1968 (P.L. 805, No. 247), known as the Pennsylvania Municipalities Planning Code, and the act of October 4, 1978 (P.L. 851, No. 166), known as the Flood Plain Management Act, all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded. No ordinances or enactments adopted pursuant to the aforementioned acts shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas well operations regulated by this act or that accomplish the same purposes as set forth in this act. The Commonwealth, by this enactment, hereby preempts and supersedes the regulation of oil and gas wells as herein defined.
It was in Huntley that our Supreme Court first had the occasion to interpret the preemptive language of Section 602 of the Act. Therein, Huntley sought to drill and operate a natural gas well on residential property located in an R-1 (single-family) residential zoning district within the Borough of Oakmont. The Department of Environmental Protection issued a permit approving the drilling of the well on the residential property. Thereafter, the Borough of Oakmont notified Huntley that drilling for natural gas constituted the extraction of minerals, which is only permitted in an R-1 zoning district as a conditional use. As such, Huntley perfected a conditional use application. At the public hearing held before the Borough Council on the conditional use application, Huntley contended, inter alia, that the Borough of Oakmont was preempted from restricting the location of the operation of the natural gas well by the Section 602 of Act. The Borough Council concluded that the Act did not preempt the Borough's power to restrict the location of gas drilling and well heads.
The trial court affirmed and, in an en banc decision this Court reversed holding that the Act did preempt the zoning ordinance. See Huntley & Huntley v. Borough Council of Borough of Oakmont, 929 A.2d 1252 (Pa. Cmwlth. 2007). The Borough of Oakmont and Borough Council, as well as several individual objectors, appealed to the Supreme Court. The Supreme Court granted allocatur primarily to address the preemption issue.*fn3
The Supreme Court recognized that Section 602 of the Act contains express preemption language which totally exempts local regulation of oil and gas development except with regard to municipal ordinances adopted pursuant to the Municipalities Planning Code (MPC) as well as the Flood Plain Management Act. Huntley, 600 Pa. at 221, 964 A.2d at 863. The Supreme Court further recognized that with regard to such ordinances, the express preemption command was not absolute. Id. Accordingly, the Supreme Court concluded that its interpretive task was "to examine the particular wording of [Section 602], together with any other relevant aspect of the statute, in order to determine whether the Legislature intended to leave room for localities to designate certain zoning districts (such as residential ones) where oil and gas wells may be prohibited as a general matter." Id.
Upon review of the statutory language of Section 602 of the Act, the Supreme Court found that the "reference to 'features of oil and gas well operations regulated by this act' pertains to technical aspects of well functioning and matters ancillary thereto (such as registration, bonding, and well site restoration), rather than the well's location." Id. at 223, 964 A.2d at 864. The Supreme Court found further, after a review of the Act's purposes and those of the zoning ordinance in question, that the challenged zoning restrictions did not accomplish the same purposes as set forth in Section 102 of the Act, 58 P.S. §601.102. Id. The Supreme Court pointed out that the traditional purposes of zoning are distinct from the purposes set forth in the Act.*fn4 Id. at 224, 964 A.2d at 865. The Supreme Court stated that while there was some overlap between the goals of the zoning ordinance and the purposes set forth in the Act, most particularly in the area of protecting public health and safety, the most salient objectives underlying restrictions on oil and gas drilling in residential districts appeared to be those pertaining to preserving the character of residential neighborhoods and encouraging beneficial and compatible land ...