BREAKING: State judges throw out Act 13 zoning provisions
HARRISBURG — A Commonwealth court panel this morning threw out Pennsylvania’s attempt to establish statewide zoning for Marcellus Shale drilling.
The court ruled that the state cannot take away zoning control away from local municipalities as it tried to do when the Legislature passed Act 13 in February.
That law, signed by Gov. Tom Corbett in February, enacted a sweeping set of changes for how the oil and gas drilling industry operates within Pennsylvania, including creating an impact fee and, most controversially, dictating what municipalities can and cannot include in their zoning standards for gas drilling.
A lawsuit was filed in March, challenging the zoning provision primarily, arguing that the new law prevented local officials from protecting the health and safety of their residents.
An order attached to this morning’s filing declares the zoning provision null and void. A separate provision that allows state environmental officials to waive setback requirements for gas wells also is overturned.
The majority opinion states that requiring municipalities to change their zoning rules in a way that would conflict with their development plans “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.”
“If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done,” the opinion states.
A dissent was released from three members of the court panel — Judges Kevin Brobson, Robert Simpson and Anne Covey — arguing that the municipalities challenging the law failed to make their constitutional claim.
The ruling comes a little more than three months after another state appellate judge granted a 120-day injunction to prevent the zoning section of the law from going into effect in mid-April.
Seven municipalities — including the southwestern towns of Cecil, Peters, South Fayette, Mt. Pleasant and Robinson, plus two towns in Bucks County — filed the lawsuit, along with a Monroeville doctor and environmental activists from the Delaware Riverkeeper Network.
Canonsburg attorney John Smith, one of several attorneys representing the municipalities in the lawsuit, argued during a June en banc hearing that allowing drilling activities in areas the state proscribed will make it difficult for local governments to protect their residents, and that the statute allows the drilling industry privileges in permitting and land use that others do not have.
State lawyers replied that municipalities do not have a constitutionally protected right to zoning, and that those powers can be altered by the Legislature as they see fit.
A spokesman for the state attorney general’s office, which defended the commonwealth in the lawsuit, could not immediately be reached for comment.
Harrisburg Bureau Chief Laura Olson: firstname.lastname@example.org or 717-787-4254.
Story by: Laura Olson