Alice Robie Resnick, J.
The issue presented for our review is whether certain portions of Newbury Township’s zoning resolution are invalid because they are preempted by R.C. Chapter 1509.
It is the public policy of the state of Ohio to encourage oil and gas production when the extraction of those resources can be accomplished without undue threat of harm to the health, safety and welfare of the citizens of Ohio. To further this policy and to ensure some degree of uniformity throughout the state, local regulation of some aspects of oil and gas well exploration and development is preempted by the statutory plan embodied in R.C. Chapter 1509. At the same time, the General Assembly had no desire to totally strip local governments, such as townships, of the power to regulate activities within their borders. R.C. Chapter 1509 attempts to strike a balance between those aspects of oil and gas well exploration and drilling which are reserved for state regulation and those areas which local governments, such as Newbury Township may permissibly regulate.
The basic scheme that sets forth the areas of regulation of oil and gas well drilling and exploration which are preempted by state law is found in R.C. 1509.39.1 That statute begins by making it clear that local governments are not prevented from enacting and enforcing health and safety standards for the drilling and exploration of oil and gas, provided that they are not less restrictive than existing state requirements. The statute proceeds to list specifically those items and areas that counties and townships may not regulate; and concludes by prohibiting counties and townships from requiring a local permit to drill or operate wells in addition to the state-required permit. The statutory scheme embodied in R.C. 1509.39 guides our consideration of [390]*390the validity of those parts of the Newbury Township Zoning Resolution at issue here.
Because the trial court granted Lomak’s motion for summary judgment, we must review the decision in accord with the requirements of Civ.R. 56(C), i.e., that “no genuine issue as to any material fact” exists. The grant of summary judgment will be affirmed only if it is apparent that “reasonable minds can come to but one conclusion” in favor of the moving party when the evidence is construed most strongly in the non-moving party’s favor.
I
Newbury Township Zoning Resolution Section 801.0 A reads: “No person shall drill any oil or gas well, nor erect, maintain or use a storage tank, separation tank, compressor station or temporary pit for the storage of saltwater and oil field waste, nor use any well for the purpose of storage or disposal of brine or other oil field materials, in any residential district. This prohibition is based on the stated zoning purposes and the type and character of permitted and conditional uses in such districts as they relate to the protection of the public health, safety, morals and welfare.” (Emphasis added.)
Lomak argues that this section of the zoning resolution is not motivated by health and safety concerns, and is therefore preempted by R.C. Chapter 1509. Lomak further argues that the resolution functionally violates the restriction contained in R.C. 1509.39 that a township may not require its own permit to drill, in addition to the permit required by the state.
Newbury Township claims that Section 801.0 A is a valid health and safety regulation, and that no second permit in violation of R.C. 1509.39 is being required. Newbury Township points out that it is not attempting to totally prohibit drilling in the township; oil or gas wells can still be drilled in commercial- and industrial-zoned districts.
The court of appeals implied that this section of Newbury Township’s resolution is an attempt to require a second permit in violation of the prohibition in R.C. 1509.39, and found that this resolution does not deal with health and safety matters.
R.C. 519.02 gives a local board of township trustees the authority to regulate land use within the township confines, and the power to divide the area into such districts or zones as the board determines are proper. While it is not generally the practice of courts to look into the appropriateness of local zoning decisions, Willott v. Beachwood (1964), 175 Ohio St. 557, 560, 26 O.O.2d 249, 251, 197 N.E.2d 201, 204, we note from the drilling permits that, [391]*391even though the areas in Newbury Township in which Lomak desires to drill are zoned as residential districts, many of the areas are essentially not residential, but are primarily agricultural. However, the Newbury Township Zoning Resolution contains no districts designated as agricultural. All land in the township is zoned into three categories, i.e., industrial, commercial, or residential.2
The drilling permits show that the areas in which Lomak wishes to drill are basically agricultural, and are of the type in which oil and gas well drillers such as Lomak would conduct operations. Therefore, in reality it appears that the effect of Section 801.0 A of the zoning resolution is to prohibit the drilling of oil and gas wells in a type of area usually considered to be most appropriate for such activity.
This section of the zoning resolution operates as if Newbury Township has declared oil and gas wells to be nuisances per se in all areas zoned residential within the township, without regard to the fact that some of the areas may be farmland. As in Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 2 O.O.2d 255, 142 N.E.2d 655, the township has attempted to prohibit that which the state encourages. Newbury Township does not appear to have taken into account local factors, such as population densities, in tailoring Section 801.0 A to meet the zoning needs of the township regarding oil and gas well drilling and exploration. Even though this section of the zoning resolution states that it is meant to protect the public health and safety, the broad sweep of the language actually exceeds a township’s authority in “enacting and enforcing health and safety standards” and thus violates R.C. 1509.39.
We reiterate that we do not wish to require courts to evaluate every township zoning resolution to determine if it is appropriate in a case of this type. However, local courts are aware of population densities and special local conditions in townships within their jurisdictions. Those local courts are well equipped to make a determination whether a particular resolution is motivated by health and safety concerns, or is actually an attempt to prohibit, in the guise of a health and safety regulation, that which the state encourages.
R.C. 1509.39 preempts the power of a township to prohibit oil or gas well drilling in areas which are traditionally appropriate for such activity, unless health and safety standards are being adopted by the township zoning resolution. Because Section 801.0 A of the Newbury Township Zoning Reso[392]*392lution is not an attempt to further health and safety goals, we find that Section 801.0 A conflicts with, and therefore is preempted by, state law. See Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph two of the syllabus. We affirm the decision of the court of appeals on this issue.
We determine that this section of the zoning resolution is preempted by state law because it is not an attempt to regulate health and safety.
Free access — add to your briefcase to read the full text and ask questions with AI
Alice Robie Resnick, J.
The issue presented for our review is whether certain portions of Newbury Township’s zoning resolution are invalid because they are preempted by R.C. Chapter 1509.
It is the public policy of the state of Ohio to encourage oil and gas production when the extraction of those resources can be accomplished without undue threat of harm to the health, safety and welfare of the citizens of Ohio. To further this policy and to ensure some degree of uniformity throughout the state, local regulation of some aspects of oil and gas well exploration and development is preempted by the statutory plan embodied in R.C. Chapter 1509. At the same time, the General Assembly had no desire to totally strip local governments, such as townships, of the power to regulate activities within their borders. R.C. Chapter 1509 attempts to strike a balance between those aspects of oil and gas well exploration and drilling which are reserved for state regulation and those areas which local governments, such as Newbury Township may permissibly regulate.
The basic scheme that sets forth the areas of regulation of oil and gas well drilling and exploration which are preempted by state law is found in R.C. 1509.39.1 That statute begins by making it clear that local governments are not prevented from enacting and enforcing health and safety standards for the drilling and exploration of oil and gas, provided that they are not less restrictive than existing state requirements. The statute proceeds to list specifically those items and areas that counties and townships may not regulate; and concludes by prohibiting counties and townships from requiring a local permit to drill or operate wells in addition to the state-required permit. The statutory scheme embodied in R.C. 1509.39 guides our consideration of [390]*390the validity of those parts of the Newbury Township Zoning Resolution at issue here.
Because the trial court granted Lomak’s motion for summary judgment, we must review the decision in accord with the requirements of Civ.R. 56(C), i.e., that “no genuine issue as to any material fact” exists. The grant of summary judgment will be affirmed only if it is apparent that “reasonable minds can come to but one conclusion” in favor of the moving party when the evidence is construed most strongly in the non-moving party’s favor.
I
Newbury Township Zoning Resolution Section 801.0 A reads: “No person shall drill any oil or gas well, nor erect, maintain or use a storage tank, separation tank, compressor station or temporary pit for the storage of saltwater and oil field waste, nor use any well for the purpose of storage or disposal of brine or other oil field materials, in any residential district. This prohibition is based on the stated zoning purposes and the type and character of permitted and conditional uses in such districts as they relate to the protection of the public health, safety, morals and welfare.” (Emphasis added.)
Lomak argues that this section of the zoning resolution is not motivated by health and safety concerns, and is therefore preempted by R.C. Chapter 1509. Lomak further argues that the resolution functionally violates the restriction contained in R.C. 1509.39 that a township may not require its own permit to drill, in addition to the permit required by the state.
Newbury Township claims that Section 801.0 A is a valid health and safety regulation, and that no second permit in violation of R.C. 1509.39 is being required. Newbury Township points out that it is not attempting to totally prohibit drilling in the township; oil or gas wells can still be drilled in commercial- and industrial-zoned districts.
The court of appeals implied that this section of Newbury Township’s resolution is an attempt to require a second permit in violation of the prohibition in R.C. 1509.39, and found that this resolution does not deal with health and safety matters.
R.C. 519.02 gives a local board of township trustees the authority to regulate land use within the township confines, and the power to divide the area into such districts or zones as the board determines are proper. While it is not generally the practice of courts to look into the appropriateness of local zoning decisions, Willott v. Beachwood (1964), 175 Ohio St. 557, 560, 26 O.O.2d 249, 251, 197 N.E.2d 201, 204, we note from the drilling permits that, [391]*391even though the areas in Newbury Township in which Lomak desires to drill are zoned as residential districts, many of the areas are essentially not residential, but are primarily agricultural. However, the Newbury Township Zoning Resolution contains no districts designated as agricultural. All land in the township is zoned into three categories, i.e., industrial, commercial, or residential.2
The drilling permits show that the areas in which Lomak wishes to drill are basically agricultural, and are of the type in which oil and gas well drillers such as Lomak would conduct operations. Therefore, in reality it appears that the effect of Section 801.0 A of the zoning resolution is to prohibit the drilling of oil and gas wells in a type of area usually considered to be most appropriate for such activity.
This section of the zoning resolution operates as if Newbury Township has declared oil and gas wells to be nuisances per se in all areas zoned residential within the township, without regard to the fact that some of the areas may be farmland. As in Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 2 O.O.2d 255, 142 N.E.2d 655, the township has attempted to prohibit that which the state encourages. Newbury Township does not appear to have taken into account local factors, such as population densities, in tailoring Section 801.0 A to meet the zoning needs of the township regarding oil and gas well drilling and exploration. Even though this section of the zoning resolution states that it is meant to protect the public health and safety, the broad sweep of the language actually exceeds a township’s authority in “enacting and enforcing health and safety standards” and thus violates R.C. 1509.39.
We reiterate that we do not wish to require courts to evaluate every township zoning resolution to determine if it is appropriate in a case of this type. However, local courts are aware of population densities and special local conditions in townships within their jurisdictions. Those local courts are well equipped to make a determination whether a particular resolution is motivated by health and safety concerns, or is actually an attempt to prohibit, in the guise of a health and safety regulation, that which the state encourages.
R.C. 1509.39 preempts the power of a township to prohibit oil or gas well drilling in areas which are traditionally appropriate for such activity, unless health and safety standards are being adopted by the township zoning resolution. Because Section 801.0 A of the Newbury Township Zoning Reso[392]*392lution is not an attempt to further health and safety goals, we find that Section 801.0 A conflicts with, and therefore is preempted by, state law. See Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph two of the syllabus. We affirm the decision of the court of appeals on this issue.
We determine that this section of the zoning resolution is preempted by state law because it is not an attempt to regulate health and safety. Therefore, we decline to consider the second-permit issue discussed by the court of appeals. We believe that our analysis in this case comports with the balance sought to be achieved by R.C. 1509.39. Thus, a township may regulate oil and gas well site locations in a residential area in an appropriate situation, if the township’s zoning actions are based on legitimate health and safety concerns.
II
Newbury Township Zoning Resolution Section 801.0 B reads: “No person shall drill any oil or gas well, nor erect, maintain or use a storage tank, separation tank, compressor station or temporary pit for the storage of saltwater and oil field waste, nor use any well for the purpose of storage or disposal of brine or other oil field materials, within 300feet of any inhabited structure, places of resort, assembly, education, entertainment, lodging, trade, manufacture, repair, storage, traffic, or occupancy by the public or other structures as defined in Ohio Administrative Code 1501:9-9-01(R); nor within 200 feet of any street or highway, public or private.” (Emphasis added.)
A
“Street or highway” restriction
The prohibition against drilling within two hundred feet of a street or highway, the final phrase of Section 801.0 B, is in direct conflict with R.C. 1509.39, which prohibits a township from adopting resolutions to regulate the minimum distances from oil or gas wells and “streets, roads, [or] highways.” Because this part of Section 801.0 B of the zoning resolution violates an explicit statutory command of the General Assembly, it is clearly preempted, and is therefore invalid and unenforceable. Whether Newbury Township in adopting this phrase was motivated by health and safety concerns is irrelevant; it is an attempt to regulate something which Newbury Township has no power to regulate.
B
“Inhabited structure” restriction
The part of this section which prohibits drilling oil or gas wells within three hundred feet of any structure that could be occupied by the public presents a [393]*393closer question. This distance limit appears on its face to be designed to promote health and safety. However, for the reasons which follow, we reverse and remand this issue to the trial court for a determination whether this restriction actually is an attempt to adopt health and safety standards.
R.C. 1509.23 gives the Chief of the Division of Oil and Gas the power to promulgate rules to protect public health and safety when oil and gas wells are drilled. Included among those powers is the ability to specify minimum distances from wells to buildings. Ohio Adm.Code 1501:9-1-05 bans the drilling of any oil or gas well within one hundred feet of an inhabited dwelling or public building.3
While R.C. 1509.23 lists those rules the chief of the division may specify, that statute does not forbid townships from adopting their own health and safety regulations. Rather, it is R.C. 1509.39 that specifically lists those areas townships may not regulate.4 Therefore, the implication is that where R.C. 1509.39 does not specifically forbid local regulation, a township may adopt its own regulations, if done for the purpose of enacting health and safety standards. This result is consistent with the plain language of R.C. 1509.39.
Thus, it is significant for our purposes that the General Assembly failed to include in R.C. 1509,39 minimum distances from wells to buildings as one of the areas a township may not regulate. The maxim expressio unius est exclusio alterius is appropriate. (The expression of one thing implies the exclusion of another.) R.C. 1509.39 specifically provides that “no * * * township may adopt * * * resolutions * * * relative to the minimum acreage requirements for drilling units, and minimum distances from which a new well may be drilled * * * from boundaries of tracts, drilling units, other wells, and [394]*394from streets, roads, highways, railroad tracks * * No mention is made of minimum distances from wells to structures and buildings. For this reason, townships may adopt resolutions pertaining to distances from dwellings when it is done to further safety and health standards. Therefore, we remand this cause to the trial court for a determination whether the prohibition contained in Newbury Township Zoning Resolution Section 801.0 B against drilling an oil or gas well within three hundred feet of any structure or building to be occupied by the public is an attempt to adopt health and safety standards. The trial court, when it granted Lomak’s motion for summary judgment, made no specific finding on that issue.
It is possible that the statutory scheme found in R.C. Chapter 1509, as it relates to distances from wells to buildings, so effectively protects the health and safety of all citizens of Ohio, including residents of Newbury Township, that additional local regulation of distances from wells to buildings is unnecessary. If that is the case, then this part of the zoning resolution would not further health and safety goals and would be invalid.
The judgment of the court of appeals that Newbury Township Zoning Resolution Section 801.0 A is invalid because it is preempted by state law is affirmed. The court’s judgment that the regulation of distances from oil or gas wells to streets or highways contained in Newbury Township Zoning Resolution Section 801.0 B is invalid because it is preempted by state law is also affirmed. However, the court’s judgment that the regulation of distances from oil or gas wells to occupied buildings contained in Newbury Township Zoning Resolution Section 801.0 B is invalid because it is preempted by state law is reversed and remanded to the trial court for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
Moyer, C.J., Sweeney, Holmes, Douglas and H. Brown, JJ., concur.
Wright, J., concurs in part and dissents in part.