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Citizen group challenges validity of Murrysville’s fracking ordinance |

Citizen group challenges validity of Murrysville’s fracking ordinance

| Tuesday, December 4, 2018 4:36 a.m.
Patrick Varine | Tribune-Review
Attorney John Smith gives his opening statement on behalf of the Murrysville Watch Committee on Thursday, Nov. 29, 2018. The group is challenging the validity of Murrysville’s fracking ordinance before the municipality’s zoning hearing board.
Patrick Varine | Tribune-Review
Members of the Murrysville Zoning Hearing Board listen to attorney John Smith’s opening statement on Thursday, Nov. 29, 2018.

The Murrysville Watch Committee challenged the validity of Murrysville’s fracking ordinance last week before the municipality’s zoning hearing board.

On the other side of the table, multiple attorneys for the municipality, landowners who support fracking and a regional driller explained why the ordinance should be left as-is.

“This ordinance was not drafted to serve the interests of Murrysville residents,” said John Smith, a Pittsburgh attorney representing the Murrysville Watch Committee, who are challenging the validity of the unconventional gas ordinance municipal officials approved in May 2017 . “It was not done to ensure the public’s health, safety and welfare. It was done so that Murrysville wouldn’t get sued by the drillers.”

In developing the ordinance, Murrysville officials created an overlay district where drilling could take place. It was superimposed atop existing rural-residential-zoned land and encompasses a little more than a third of the municipality, although that number shrinks to 6 percent after accounting for setbacks and other restrictions.

Smith’s argument centered on drilling as an industrial activity, questioning why it would be permitted anywhere in a rural-residential district.

“Apartments are not permitted in a rural-residential district … a senior nursing-care home is not permitted,” Smith said. “So a driller couldn’t have an apartment there, but could have an industrial drill rig.”

Bernie Matthews, an attorney representing several Murrysville landowners who support fracking, pointed to the Frederick v. Allegheny Township case, in which the state’s Commonwealth Court ruled 5-2 to deny an appeal by Allegheny Township property owners.

Those residents are trying to overturn multiple rulings allowing unconventional gas drilling in all of the township’s zoning districts.

Matthews, who is also Allegheny Township’s solicitor, is very familiar with the case.

“I’m not surprised that Mr. Smith didn’t go into detail about the Frederick case,” Matthews said. “Because the Commonwealth Court pretty much rejected all of the arguments he’s putting forth.”

The plaintiffs in the Frederick case have appealed the Commonwealth Court ruling to the Pennsylvania Supreme Court.

Smith said the overlay district imposed by Murrysville sets aside the expectation current residents have for what can and cannot happen near their homes.

“My clients bought their homes thinking they could rely on this (zoning) district and what was supposed to happen there,” he said.

As it currently stands, Murrysville’s ordinance mandates 750 between the edge of a well pad and any protected structure.

Smith contended the setback, which was originally proposed at 1,600 feet before being whittled down, “is just a number. It’s not based on science, it’s not based on a desire to protect people,” he said. “It’s just a number.”

Matthews said he isn’t aware of any Pennsylvania case where a validity challenge is based on the notion that an ordinance doesn’t go far enough in regulating a particular activity.

“These challenges are nearly always based on the idea that an ordinance has gone too far in its regulation,” Matthews said. “If the Commonwealth Court held up Allegheny Township’s ordinance — which is less restrictive — as valid, then as a matter of law, Murrysville’s ordinance is valid.”

Smith argued that Murrysville officials were simply looking for a way to accommodate drillers, rather than thinking about residents.

“Murrysville did what a lot of municipalities did: they did their best,” Smith said. “But overlay districts are supplemental … They don’t change underlying districts, they provide more protection. This overlay changes the underlying district by permitting industrial drilling.

“Murrysville looked at ‘How can we accommodate drilling and not get sued?’” Smith said.

The challenge hearings will continue on Jan. 24, 2019.

Click here to watch video of the full zoning hearing board meeting from Nov. 29.

Patrick Varine is a Tribune-Review staff writer. You can contact Patrick at 724-850-2862, or via Twitter @MurrysvilleStar.

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