Pennsylvania

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Commonwealth Court: Act 13′s Zoning Restrictions Are Unconstitutional

Scott Detrow / StateImpact Pennsylvania

Act 13's zoning restrictions have been thrown out by Commonwealth Court

Correction: An earlier version of this article stated Commonwealth Court found Act 13 violated the state constitution’s right to clean air and water. In fact, the court rejected that claim. StateImpact Pennsylvania regrets the error.

Pennsylvania’s Commonwealth Court has thrown out restrictions on local governments’ ability to zone and regulate natural gas drilling.

The limits on local zoning — part of Act 13, which rewrote Pennsylvania’s natural gas drilling laws —  violate municipalities’ substantive due process, according to the ruling. Commonwealth Court has determined Act 13’s restrictions unconstitutionally bar local governments from their right to  separate industrial activity from residential neighborhoods.

The decision leaves the rest of the legislation, including the $50,000 fee on wells drilling in the Marcellus Shale – intact.

A spokeswoman for the Public Utility Commission, which would enforce the local zoning standards, said the agency has not made any decisions on whether or not it will appeal the ruling. “Right now it’s just too early to tell what we will do,” said Jennifer Kocher. “The court just issued their decision this morning, and we need some time to digest it and make decisions from there.” A spokesman from the Office of the Attorney General would only say “the ruling is being reviewed,” and Governor Corbett’s office has not responded to a request for comment.

StateImpact Pennsylvania has highlighted the most important sections of the Commonwealth Court ruling, and posted them at the bottom of this article.

The law bars local governments from receiving money derived from fees on natural gas wells, if they enact zoning standards that go beyond guidelines spelled out in the legislation. Act 13 also prevents municipalities from zoning drilling operations out of residential areas.

The natural gas drilling industry has long-pressed for statewide zoning consistency, claiming different guidelines in different municipalities made it harder to expand drilling operations. Governor Corbett championed their cause as the legislation was being drafted, telling legislators statewide standards would create ”the predictably and con­sis­tency that any busi­ness needs to grow and thrive, as well as the pri­or­ity we place on the pri­vate property rights of our citizens.”

The Commonwealth argued during hearings that the General Assembly had legal authority to create these statewide standards, but the court has rejected those claims. “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 firework plants in residential zones for a variety of police power reasons advancing those interests in their development,” the ruling reads. “It would allow the proverbial ‘pig in the parlor instead of the barnyard.’”

The court order declared the zoning requirements “unconstitutional, null and void,” and bars Pennsylvania from enforcing them. It also throws out a section giving the Department of Environmental Protection the right to waive required setbacks between natural gas wells and water sources.

Brian Coppola is the chairman of Robinson Township’s Board of Supervisors. The Allegheny County township helped spearhead the Act 13 legal challenge. He praised the ruling, saying, “the zoning authority that local communities have is the only way they can protect their surface areas. …In order to protect the future development of all the communities across the state, they need their zoning to be intact.”

The Marcellus Shale Coalition, on the other hand, is sticking by its call for statewide zoning consistency.  “The premise for the General Assembly’s action earlier this year was to provide certainty and predictability that encourages investment and job creation across the Commonwealth,”  said Marcellus Shale Coalition President Kathryn Klaber in a statement. “Lack of uniformity has long been an Achilles’ heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits.”

Read StateImpact Pennsylvania’s annotated version of the Commonwealth Court ruling below:

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