Yesterday, a panel of judges from Pennsylvania’s Commonwealth Court (the state’s intermediate appellate court) sided with local units of government in overturning a recently-adopted state law that overruled local zoning authority for hydraulic fracturing operations. In a 4-3 ruling, the Court concluded that Pennsylvania’s Act 13, which the state legislature adopted in February, impermissibly pre-empts local zoning regulation of oil and gas activity in violation of substantive due process under the U.S. and Pennsylvania constitutions. Specifically, the Court nullified Act 13′s provisions requiring localities to amend their zoning ordinances to allow oil and gas drilling for all uses.
Act 13 repealed Pennsylvania’s Oil and Gas Act and replaced it with a wide-ranging series of oil and gas regulations. One if its provisions required localities to amend their municipal zoning ordinances to include oil and gas operations in all zoning districts — including residential zones. Localities and other interested parties challenged that provision on the grounds that it forced them to enact zoning ordinances that are incompatible with their comprehensive plans and incompatible with neighboring land usage, effectively making their zoning irrational. As the Court stated: “Simply put, [appellants] contend that they could not constitutionally enact a zoning ordinance if they wanted to, and it does not make an ordinance any less infirm because the General Assembly required it to be passed.”
The Court agreed with the appellants’ reasoning. Key passage from the opinion:
If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones for a variety of police power reasons advancing those interests in their development. It would allow the proverbial “pig in the parlor instead of the barnyard.” [quoting a seminal land use case, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)]
In this case, by requiring municipalities to violate their comprehensive plans for growth and development, [the provision] 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. Succinctly, [the provision] is a requirement that zoning ordinances be amended in violation of the basic precept that “Land-use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.” City of Edmonds, 514 U.S. at 732 (internal quotation omitted). 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.
Because the changes required by [the provision] do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power.
The Court also overturned a separate provision allowing state officials to waive local setback requirements for gas wells, but the remainder of the legislation remains in effect.
Governor Tom Corbett indicated in a statement that his administration likely would appeal the ruling. The state has thirty days to do so.
The Commonwealth Court’s majority opinion and dissenting opinion can be found here.