Elizabeth Township fracking decision overturned
A state appeals court ruled that the township violated its zoning law by permitting a gas well pad in a “rural residential” area.
A three-judge state appeals court ruled unanimously last month that Elizabeth Township violated its own zoning law when it allowed a gas well pad to be built in a rural residential area.
According to the ruling, the township should not have allowed for the construction of a “principal structure” well pad, owned by Canonsburg-based Olympus Energy LLC, and a related natural gas pipeline, gravel access road and interconnect pad. The Heracles well was built in a part of the township zoned “rural residential.”
The township’s zoning law “prohibits the [well pad and related infrastructure], as principal structures, from being located on the proposed lots as the lots contain existing single-family dwellings,” the judges found.
“In this case, there’s some vague language in our ordinances as far as structures, and what is a structure,” said Scott Taylor, president of Protect Elizabeth Township. “Olympus has their interpretation of what a structure is. The township kept it vague so the commissioners could rule it as they see fit, and the justices said, ‘That is not our job to read your mind. It has to be in black and white if you want it to work in your favor in the future.’” Taylor said the latest ruling was one of 20 zoning arguments. There are more still up for argument, and the commonwealth ruled on one point for the permission to have only one primary use per parcel of property.
The trial court reasoned the board properly concluded the pads are authorized conditional uses under the Oil and Gas Ordinance because the well pad is undisputedly authorized, and the company established that the interconnect pad “is an integral part of any oil and gas operation,” according to court documents.
Appellants argue that the board erred because its approval of the pads as conditional uses on lots with existing single-family dwellings violates Section 303(C) of the Zoning Ordinance and that the pads are “principal structures,” and thus prohibited by Section 303(C), because they contain “structures,” as defined by Section 201 of the Zoning Ordinance “in which the principal use is conducted.”
Court records stated that the commonwealth appeals reversed the trial court’s order because the board erred in approving the companies’ conditional use applications as the companies did not demonstrate compliance with Section 303(C) of the Zoning Ordinance.
“They are going to keep (the FRACKING •A2
“In this case, there’s some vague language in our ordinances as far as structures, and what is a structure.”
SCOTT TAYLOR
PROTECT ELIZABETH TOWNSHIP wells) this as long as they can so they can have as much gain from the wells as they can. It’s also my belief that the township does not gain monetarily from this well site, which further goes with the argument that you have no obligation to appeal this to the courts for a redecision,” Taylor said. “If they accepted this decision tomorrow, I would go after the other two well pads with the same arguments.”
Background
Since 1859, it’s estimated that approximately 300,000 to 760,000 oil and gas wells have been drilled across Pennsylvania, according to the Elizabeth Township website.
Permitting requirements were not implemented until the mid-1900s, which means there are likely hundreds of thousands of wells that were never reported located across the oil and gas producing regions of the state.
It’s been five years since the 43rd Statewide Grand Jury recommended expanding no-drill zones in Pennsylvania from the required 500 feet to 2,500 feet.
On May 3, 2022, court records state that Olympus filed a conditional use application with the township seeking to develop and operate an unconventional natural gas well pad on an approximately 187-acre lot.
From September to November 2022, the board held a series of public hearings regarding company applications.
The judge board explained that because township ordinances authorize oil and gas drilling and operations as conditional uses within R-1, rural residential districts, “the township has already decided that development of the proposed (pads) is consistent with the general public health, welfare and safety of that zone.”
The board also explained in the case files that “the presumption that the use is consistent with the health, safety, and welfare of the community applies” and companies “were not required to present evidence with respect to the same.”
Although “sympathetic to the understandable concerns” of appellants, the board concluded that they did not meet their burden because they merely “express(ed) vague ‘concerns’ about alleged impacts of the company.”
The well pad was approved by Elizabeth Township’s Board of Commissioners in January 2023. State records indicate that several wells were drilled on the pad starting in September 2023.
Three or four wells are in production at the Hercules site, according to Taylor, who added that it’s not public information. The township gets royalties from the other well pads as well.
On April 22, EQT said it plans to buy the upstream and midstream assets of Olympus Energy for $1.8 billion to expand its presence in the natural gas-rich Marcellus region, the Pittsburgh Post Gazette reported. That acquisition should be complete in December if it happens.
“We’re curious if Olympus has sold all of their equipment off, why are they still involved in the litigation side of things?” Taylor said. “To try to keep it alive because it still belongs to them. They all know what each other is doing.”
The impact of the well pads
Protect Elizabeth Township, which has challenged the well pad approval in court, is a local grassroots community organization focused on advocating for protection of resident rights while striving to help build a better community.
The pad has been controversial because it was built less than half a mile from a high school. Residents have been opposing the well pads since 2023 due to concerns about safety and potential health impacts.
Residents worry about the effects of noise, air pollution and potential accidents on students and staff at the school. Concerns have also been expressed about the well pads being near residential neighborhoods.
In the January 2023 decision, the board granted Olympus Energy LLC’s and Hyperion Midstream LLC’s applications for conditional use under Chapter 27 of the Code of the Township of Elizabeth.
Residents cite a study linking unconventional oil and gas development to increased leukemia rates in children. Concerns exist about the lack of clarity in emergency plans in case of accidents at the well pad, particularly regarding school evacuation procedures.
According to the Elizabeth Township website, abandoned wells can be hazardous to people and cause pollution of soil and water. Old wells can be a safety hazard simply because the associated aging infrastructure may cause bodily harm, or they can deteriorate into large holes in the ground.
Methane (the primary component of natural gas) leaking from wells is also a hazard and can create explosive environments inside of buildings, the website added.
Sometimes wells identified by a landowner are equipped with a well head and other equipment, such as piping and tanks. Many times, the well is so old that the equipment is no longer present, or someone may have intentionally buried the top of the well pipe below ground surface.
Appeal process
Both the township and Olympus Energy have appealed the decision to the full 11-member Commonwealth Court for review.
Taylor said with the amount of revenue they gain from these well pads, its’ not surprising they are appealing the decision.
In a legal brief appealing the decision, the company and township argue that the well pad and related infrastructure were allowed because they are not buildings. The township’s zoning code forbids more than one “principle building or structure” on a lot, which it defines as a “building structure in which the principled use is conducted.”
Taylor said the township would lose millions of dollars if the latest decision stands. If the township’s appeal does not work — and he doesn’t expect it to be taken to the Pennsylvania Supreme Court because the decision was unanimous — the well pad will be removed or rezoned. It can be up to six months to a year until a decision is made.
“The township joined the joint application for reargument to the commonwealth court,” Taylor said. “It’s my understanding that the township does not have an obligation to appeal this decision.
“The correct course of action for them at the time was to subdivide the properties and then apply for their permits then. We’ll obviously fight it all the way through. In the interim, there will be cease and desist letters that will go out that will have them stop actions, and start the removal process because there are no guarantees that they can subdivide and do this.”
Solicitor Matt Racunas said the township does not comment on pending litigation.
“It’s under appeal, and that goes for whether the decision is affirmed, returned or whatever, we aren’t going to make public comments on it,” he said.
Olympus Energy did not respond to The Mon Valley Independent’s request for comment as of press time Tuesday.
