Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin August 25, 2012 I Volume 6 ( Issue 16 3504) pertaining to Oil and Gas—Marcellus Shale, which repealed Pennsylva- nia's Oil and Gas Act and replaced it with a codified statutory framework regulating oil and gas operations in Pennsylvania. The Background/Facts: Among other things, Pennsylvania's Act 13 (58 Pa. C.S. §§ 2301-3504) preempted local regulation, including environmental laws and zoning code provisions (except in limited instances regarding setbacks in certain areas) involving oil and gas operations. In March 2012, several Pennsylvania municipalities, among others (collec- tively, the "Municipalities"), filed a legal action against the Commonwealth of Pennsylvania (the "Commonwealth"). They asked the court to declare Act 13 unconstitutional and to order injunctive relief, permanently enjoining the Commonwealth from enforcing its provisions. The Municipalities' petition was lengthy, consisting of 108 pages and 12 counts. Among other things, the Municipalities alleged that Act 13 specifically § 3304—violated Article 1, § 1 of the Pennsylvania Constitution and violated the Equal Protection Clause (the 14th Amendment) of the United States Constitution. Section 3304 mandated that all municipalities had to enact zoning ordi- nances in accordance with its provisions. It provided that "all local ordinances regulating oil and gas operations shall allow for the reasonable development of oil and gas resources" by, among other things: not imposing more stringent "conditions, requirements or limitations on the construction of oil and gas operations" than imposed on "construction activities for other industrial uses"; not imposing more stringent "conditions, requirements or limitations on the heights of structures, screening and fencing, lighting or noise relating to per- manent oil and gas operations" than "imposed on other industrial uses or other land development within the particular zoning district"; authorizing "oil and gas operations, other than activities at impoundment areas, compressor sta- tions and processing plants, as a permitted use in all zoning districts"; and by not imposing more stringent setback, noise or vehicular access provisions than those specified in § 3304. The Municipalities argued that § 3304 forced municipalities to enact zon- ing ordinances regarding mining and gas operations in all zoning districts, which were incompatible with municipalities' comprehensive plans that denominated different zoning districts —thus making zoning irrational. They argued that, under § 3304, they could not constitutionally enact a zoning ordinance even if they wanted to. Accordingly, they specifically alleged that § 3304 violated Article I, § 1 of the Pennsylvania Constitution and violated the Equal Protection Clause (the 14th Amendment) of the United States Constitu- tion because: it was an improper exercise of the Commonwealth's police power that was not designed to protect the health, safety, morals, and public welfare of the citizens of Pennsylvania; it allowed for incompatible uses in like zoning districts in derogation of municipalities' comprehensive zoning plans and constituted an unconstitutional use of zoning districts; and it was impossible for municipalities to create new or to follow existing comprehen- sive plans, zoning ordinances or zoning districts that protect the health, safety, morals, and welfare of citizens and to provide for orderly development of the community in violation of the Pennsylvania Municipalities Planning Code ("MPC") resulting in improper use of its police power. © 2012 _T_tl=omson Reuters