WEIRTON – A local municipality’s zoning regulations concerning oil and gas drilling are not pre-empted by state laws, according to a ruling issued this week in the 1st Judicial Circuit Court.

In a 17-page decision filed in Brooke County Tuesday, Circuit Court Judge Jason Cuomo concluded “that oil and gas companies are permitted to operate in our state; that the operation of such companies, and the permitting of such companies to operate, is to be largely, if not completely regulated by the state DEP; and that local municipalities, although not permitted to completely ban the lawful operation of oil and gas companies within their city limits, are permitted to pass reasonable and rational zoning ordinances/regulations to allow said companies to operate therein while protecting the health, welfare and safety of its citizens.”

The ruling follows a pair of legal complaints filed by SWN against the city of Weirton and the Weirton Zoning Board of Appeals as a result of the zoning board’s decision last September to deny SWN’s application to engage in natural gas drilling within the city limits, specifically on approximately 300 acres of land near Park Drive.

SWN filed an appeal of the Zoning Board’s decision in October, also filing a complaint against the city claiming its zoning regulations were pre-empted by state code under the Oil and Gas Act and the Natural Gas Horizontal Well Control Act.

The cases were consolidated in March.

As part of his conclusion, Cuomo states “that all West Virginia zoning laws are neither expressly nor impliedly preempted by the Oil and Gas Act per W.Va. Code 22-6-1 et. seq. and the Natural Gas Horizontal Well Control Act per W.Va. Code 22-6A-1 et. seq. SWN’s complaint, in so far is it alleges a facial pre-emption challenge to all West Virginia zoning laws, is hereby dismissed.”

All other issues involved in the consolidated complaints are able to move forward.

SWN filed its application for a conditional use permit on June 11, 2021, on the Brownlee site off of Park Drive. Four days prior, Weirton Council gave final approval to an updated Unified Development Ordinance, which went into effect July 7, 2021.

Cuomo, in his order, noted the old UDO permitted oil and gas development and extraction in Planned Development Districts with a 250-foot setback from residences, churches or schools. Under the former UDO, the Brownlee site was zoned PDD.

The current UDO, rezoned the Brownlee site, also placing a 2,500-foot setback requirement.

The Weirton Zoning Board of Appeals conducted hearings on the matter in August and September, denying SWN’s application and issuing its decision on Oct. 1, 2021 stating “SWN has failed to prove that the proposed conditional use is compatible with the goals of the Comprehensive Plan, including objective 2.3, which provides in part that future development in the Three Springs Drive area should be managed ‘to avoid worsening traffic congestion and additional stress on other existing infrastructure.'”

SWN applied for permits with the West Virginia Department of Environmental Protection on Oct. 18 in order to drill on the Brownlee property. The WVDEP issued its permits on Feb. 8.

(Howell can be contacted at chowell@weirtondailytimes.com, and followed via Twitter @ChowellWDT)