Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin August 25, 2012 I Volume 6 I Issue 16 the remaining provisions of Chapter 33 that enforced 58 Pa.C.S. § 3304 (other than 58 Pa.C.S. §§ 3301 through 3303, which remain in full force and effect). See also: Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 168 O.G.R. 524 (2009). Case Note: The Municipalities had brought many other counts, on which the court held as follows: Section 3215(b)(4) is also unconstitutional. It violates Article 2, § 1 of the Pennsylvania Constitution because Act 13 provides insufficient guidance to the DEP as to when to grant a waiver from the setback requirements established by the Legislature —thus giving DEP the power to make legislative policy judgments otherwise reserved for the General Assembly. Act 13 does not violate Article 3, § 32 of the Pennsylvania Constitution —which prohibits passage of "special laws." While Article 13 does treat the oil and gas industry differently from other extraction industries, it is not unconstitutional because the distinction is based on real differences that justify varied classifica- tions for zoning purposes. The Municipalities' claim that Act 13 was unconstitutional under the United States and Pennsylvania Constitutions because it allowed on behalf of a private person the taking of property for storage reservoirs and protective areas around those reservoirs failed because, in order to bring such a claim, the Municipali- ties' had to first take the step of filing preliminary objections to a declaration of taking. Chapter 33 of Act 13 does not violate Article 1, § 27 of the Pennsylvania Consti- tution in taking away municipalities' ability to strike a balance between oil and gas development and "the preservation of natural, scenic, historic and esthetic values of the environment by requiring a municipality to allow industrial uses in nonindustrial areas with little ability to protect surrounding resources and com- munity" because, under § 3203, the General Assembly specifically stated that all local obligation or power to deal with the environment was preempted because Chapter 32 occupied "the entire field to the exclusion of all local ordinances." Because municipalities were relieved of their responsibilities to strike a balance between oil and gas development and environmental concerns under the MPC, the Municipalities failed to make out a cause of action under Article 1, § 27. Section 3305(a) does not violate the Separation of Power doctrine by permitting an executive agency, i.e., the Pennsylvania Public Utility Commission (the "Com- mission'), to perform both legislative and judicial function. Section 3305(a) merely allows the Commission to give a nonbinding advisory opinion, and § 3305(b) specifically gives the Court de novo review of a Commission final order. The setback, timing and permitting provisions and requirements for municipali- ties under Act 13 are not unconstitutionally vague. Both §§ 3304 and 3215 provide specific information regarding the local ordinance requirements. Section 3215 specifically provides well location restrictions and the distance within which they may be drilled from existing water wells, surface water intakes, reservoirs or other water supply extraction points. While § 3304(b)(4) does not provide for ad- equate standards, SS 3304 is not unconstitutionally vague. ©2012 Thomson Reuters 5