The Supreme Court’s long awaited decision in Gorsline v. Bd. of Supervisors of Fairfield Twp. regarding unconventional oil and gas development in residential and agricultural zones issued on June 1, 2018. The opinion, as I personally have long anticipated, was a narrow decision that turned on the unique and strange details of the local ordinance.

This ordinance has a “savings clause” which states generally that if a use is not specifically permitted in the Residential-Agricultural zone, it can still be permitted as a conditional use if it’s similar and compatible with other permitted uses in the R-A zone and would not be detrimental to public health safety and welfare. The ordinance also clearly states that the burden of proof lies with the applicant to prove the above. The Supreme Court found that the zoning board below failed to provide findings of fact regarding the similarity of use and thus disallowed this development in the R-A zone under the terms of the ordinance.

In overturning the Commonwealth Court’s approval of unconventional drilling in the R-A Zone, the Supreme Court stated:

Because we may decide this case on nonconstitutional grounds, we decline to decide Objectors’ first issue, relating to this Court‘s decision in Robinson I based on a claimed violation of substantive due process rights and the Environmental Rights Amendment of the Pennsylvania Constitution (Article I, Section 27). See Blake v. State Civil Serv. Comm’n, 166 A.3d 292, 297 (Pa. 2017) (recognizing that constitutional questions should not be decided if the case can be resolved on alternative, non-constitutional grounds).

.Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *1-2. The Court in the final page of its opinion quotes the Municipalities Planning Code and states on the bigger constitutional issues that, “this decision should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses”. I think we need to go into the weeds and “count the angels on the head of the pin” on this statement. In making this statement, notice that the court states, “oil and gas development” not industrial unconventional oil and gas development. This is a big factual distinction given that shallow well, traditional oil and gas development is a much less intensive and historic Pennsylvania use as many including our office have successfully shown in other cases. Further, the court is clearly not stating the inverse of this statement that unconventional oil and gas development is compatible in Residential and Agricultural Zones. The court in this factual setting is simply taking a pass on this issue. I would still contend that looking to the 2012 Commonwealth Court opinion in Robinson is the soundest logic for always incompatible in residential zones.

The Court then appears to impose a requirement that, “the governing body must, however, actually amend its zoning ordinances to permit drilling in designated areas, setting forth whatever limitations and conditions it decides are appropriate for the protection of its citizenry”. Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *28, 48. These proposed amendments, however, obviously must also pass constitutional muster, specifically regarding substantive due process rights and the Environmental Rights Amendment, thus bringing us full circle back to the big unanswered questions. I think, though, that the law is narrowing in favor traditional zoning advocates in segregating unlike industrial uses from compatible residential and agricultural uses. To be continued…

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Robert Frost’s poem says “good fences make good neighbors”, but what if the fence is in the wrong place? Is the fence on the actual border or not? In our litigious and increasing socially isolated world, where neighbors sadly often don’t get along, what do you do if you review your deed and realize that your neighbor has been possessing property as long as you can remember that belongs to you according to your legal description that you just read. This is property that you are paying taxes upon. Worse, what if your neighbor approaches you after he obtains a fancy new survey that states that your garage, built twenty years ago, is really on his property and he wants you to tear it down immediately or pay him exorbitant rent? What can you do and what issues do you need to consider?

Legal Description Nightmares. While the precise dimensions of city lots are normally, (although not always) reasonably well established, trying to determine the precise dimensions of a rural parcel can often be a nightmare. In rural properties, for example, the description may say, “600 feet from Miller’s Oak tree” with nary an Oak in sight or “100 feet south of the large rock” with no rock.

Family Compound Confusion. Also, in rural properties, often a portion is subdivided and given to children, but the land is used practically as one large parcel by the whole family as a quasi-family compound and the borders are practically blurred or non-existent, adding confusion for subsequent non-family buyers.

Survey and Description vs. History. The question we are asking is, what if the practical and historical use of the property between neighbors and parcels is contrary to the legal description or survey result? What controls? While a good survey and a clear legal description are certainly the best evidence to show you own the property under dispute, can the survey be defeated based upon the historical use of the property? The surprising answer sometimes is yes. If there is ambiguity in the ownership of a disputed portion of property the Pennsylvania legal doctrines of adverse possession, consentable boundaries, consentable lines, and/or acquiescence, may apply and vest ownership, title, and possession in the party that the “survey says” is not the record owner.

How Does this Work? Although the precise elements of these doctrines vary by circumstances, the gist of them is that if the neighbors (or the prior landowners) historically agreed or permitted to exist a common border for a long period of time, despite it not being the actual border, the law may vest title in the neighbor who is not the record owner and affirm the factual situation on the ground. The party trying to contradict the survey or legal description must prove that their acts and declarations (and those of their predecessors in interest in their real property) have clearly and exclusively occupied and claimed for over 21 years the land in dispute. They also must prove that their neighbor, whom the survey says is the record owner, by their acts and declarations (and those of their predecessors in interest in their real property) have clearly recognized and /or acquiesced that the other party, their neighbor, is the sole owner and possessors of the land in dispute for over 21 years. Further in most cases it must be proven that the party claiming ownership on these historical usage grounds and their predecessors in interest in their real property have actually, distinctly, continuously, uninterruptedly, exclusively, visibly, notoriously, and hostilely possessed the entire subject real property, including disputed portion thereof, for a period of time over 21 years. That entire litany of adjectives have distinct legal meanings and must be explored, but it the right factual circumstances, it can be proven and title can be given to the non-record title holder.

Legal Procedure – Ejectment or Quiet Title? How would one proceed under the Pennsylvania Rules of Civil Procedure with these issues? There are complex rules on these matters, but generally speaking, in our first hypothetical, where the landowner discovers that his neighbor is possessing land that is actually his, he would bring an action in Ejectment because the neighbor is in possession and he now wants possession. In the second hypothetical, where the landowner is approached by the neighbor that his garage is on his property, the landowner would bring an action in Quiet Title, as he is in possession. This would proactively force the neighbor to bring his own action in Ejectment to remove him from the property within a certain period of time or be forever barred from asserting any claim in the property.

More Details. This is just the forest, not the trees, in boundary dispute issues. Feel free to call our office to schedule a free consultation to discuss these issues in more depth. Have a lovely weekend.

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My Quick Take and “Tea Leaf Reading” the PA Supreme Court’s Gorsline Opinion

Good Fences and Your Neighbors. Boundary Disputes in Pennsylvania