Agenda - Planning Commission - 03/06/2014

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February 10, 2014 I Volume 8 I Issue 3 Zoning Bulletin things, the citizens claimed that Act 13 violated the Pennsylvania Consti- tution, including § 27 of the Declaration of Rights in the Pennsylvania Constitution —known as the Environmental Rights Amendment. The Environmental Rights Amendment states: The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural re- sources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. (PA. CONST. art. I, § 27.) Among other things, the Citizens challenged the constitutionality of § 3304 of the Act (58 P.S. § 3304). The Citizens maintained that § 3304's requirement that municipal zoning ordinances be amended to include oil and gas operations in all zoning districts was in violation of the Environ- mental Rights Amendment because it did not allow for the conservation or maintenance of constitutionally -protected aspects of the public environ- ment and of certain quality of life. They also asserted that the requirement that local government permit industrial uses in all zoning districts would result in some communities carrying a much heavier environmental and habitability burden than others, which was irreconcilable with the Environmental Rights Amendment's requirement that the Commonwealth, as trustee, manage public natural resources for benefit of "all the people." The Citizens also challenged the constitutionality of § 3215(d) of the Act. (58 P.S. § 3215(d).) Section 3215(d) listed specific setbacks between a water source and a gas well bore, and broadly authorized waiver of planned statutory setbacks by the Pennsylvania Depaihuent of Environ- mental Protection ("DEP"). Section 3215(d) precluded municipalities from seeking appellate review of the DEP's decisions on restriction waivers. The Citizens argued that restriction "marginalized" participation by residents, business owners, and their elected representatives with environ- mental and habitability concerns, while fostering decisions regarding the environment and habitability that were nonresponsive to local concerns. The Citizens moved for summary relief. So did the Office of the At- torney General and (former) Attorney General of the Commonwealth of Pennsylvania, the Commonwealth's Public Utility Commission and its 'Chaiinuan, and the Commonwealth's DEP and its (former) Secretary (together, the "Commonwealth"). Each party asked the court to find that there were no material issues of fact in dispute and to decide the matter in their favor on the law alone. In July 2012, the Commonwealth Court held Act 13 unconstitutional in part and enjoined application of: (1) Section 3304 and any "remaining pro- visions of Chapter 33 that enforce [section] 3304" (i.e., §§ 3305 through 3309); and (2) Section 3215(b)(4). More specifically, among other things, the Commonwealth Court held that the § 3304 violated the Citizens' due process rights by requiring local governments to "amend their existing zoning ordinances without regard 4 © 2014 Thomson Reuters