Zoning Ordinance? What Zoning Ordinance?: Chesapeake Disobeys Cease and Desist Order from Pennsylvania Town Zoning Officer

Although a recent court order has prevented the portions of Pennsylvania’s new Act 13 poised to obliterate most local zoning authority over fracking from taking effect until next winter, you wouldn’t know it by the way one fracking company, Chesapeake Appalachia, is behaving.  Two weeks ago, the Oklahoma driller started work on a frack well site without a necessary permit in direct violation of Darlington, Pennsylvania’s local zoning ordinance.  When the Township zoning officer sent a cease and desist order to the company on April 13, Chesapeake did the opposite of what any law abiding citizen would do – it completely ignored the order and continued to prep the site for drilling.

At issue is exactly what the Darlington Township zoning ordinance says. Darlington officials say that the ordinance requires all drillers to obtain a “conditional use permit” (CUP) from the Township before drilling (a CUP is a common zoning tool that allows a town to permit potentially risky activities provided the permit holder follows certain conditions designed to ensure public safety).  Chesapeake claims that the ordinance says no such thing, which is no doubt why – after initially applying for a CUP and scheduling a permit hearing – the driller subsequently withdrew its application according to Township officials.

The provision of the relevant Township zoning ordinance that Chesapeake claims lets them off the hook is Section 4A, which says the following:

• No oil or gas well… shall be dug or drilled, nor shall any work in preparation therefore be commenced within the boundaries of Darlington Township unless and until the owner or operator of such operation makes conditional use application in conformity with this Ordinance. [emphasis added].

In a letter to the Township, Chesapeake argues that because it submitted an application for a permit, this entitles it to proceed “with the construction and development of the project” without having to endure the hassle of actually getting a permit from the Zoning Hearing Board (ZHB). 

On the plain reading of just this section, this argument may make a small point, even if it completely contradicts the spirit of the law.  Section 5, however – the very next section of the ordinance – has this to say:

• No oil or gas well site… shall be constructed or located within Darlington Township unless a conditional use permit has been issued by the Township to the owner or operator approving the construction or preparation of the site for oil and gas development… [emphasis added].

Now I’ll admit that I am just a young lawyer, but the seasoned attorneys over at Chesapeake have clearly forgotten the old rule of thumb taught to any first year law student – if you are interpreting a law, read the whole law.  If the Supreme Court read the Constitution like Chesapeake read this ordinance, women wouldn’t be able to vote and slavery would still be legal.

To be fair to Chesapeake, this dispute is part of a larger legal battle between the driller and the surface owners of the parcel – the McRoberts family.  On March 29, the company received a temporary restraining order to clear trees on the McRoberts’ property over their objection, and had only until the end of March to get the work done.  The township, however, has said that Chesapeake’s activities have gone far beyond tree clearing, and in any event, a court order preventing the McRoberts family from stopping tree cutting does not give the driller a blank check to disregard local zoning law.

In the end, this is about a very clear town zoning ordinance, and an even clearer cease and desist order – both of which Chesapeake deliberately and unabashedly ignored.  If this is how drilling companies respect the law now while local zoning laws are still in effect, what will happen if and when Act 13 takes effect and allows companies to put well sites and impoundment ponds in most of Pennsylvania’s residential neighborhoods without the town being able to say a darn thing about it?