Agenda - Planning Commission - 03/06/2014

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Zoning Bulletin February 10, 2014 I Volume 8 I Issue 3 for basic zoning principles and, thereby, failing to protect interests of property owners from harm and altering the character of neighborhoods." The court also rejected the Commonwealth's attempt to justify Act 13's "abrupt disruption of existing zoning schemes" as an exercise of police power rationally related to its stated purposes (i.e., the optimal develop- ment of the Commonwealth's natural resources), finding the interests that justified the exercise of police power in zoning and in the development of the oil and gas industry were not the same. The court said that zoning ac- tion is only justified if compliant with the comprehensive plan of the community. Regarding § 3215(b)(4), the Commonwealth Court concluded that it failed to constrain or guide the exercise of discretion by the DEP as to when setback waivers were appropriate. The court concluded that in precluding municipalities from seeking ap- pellate review of the DEP's decisions on restriction waivers, Act 13 gave the executive branch "the power to make legislative policy judgments otherwise reserved for the General Assembly" and was, therefore, uncon- stitutional on that ground. The parties filed direct cross -appeals with the Supreme Court of Pennsylvania, which were later consolidated. DECISION: Judgment of Commonwealth Court t affirmed (as to the parts discussed herein). The Supreme Court of Pennsylvania upheld the Commonwealth Court's decision. Among other things, it held that: (1) the requirement of § 3304 that municipal zoning ordinances be amended to include oil and gas opera- tions in all zoning districts was in violation of Environmental Rights Amendment; and (2) § 3215(b)(4), which precluded municipalities from seeking appellate review of DEP's decisions on restriction waivers, violated the Environmental Rights Amendment. In regards to its holding as to § 3304, the court noted that among other fiduciary duties under the Environmental Rights Amendment, the General Assembly has "the obligation to prevent degradation, diminution, and depletion of our public natural resources, which it may satisfy by enacting legislation that adequately restrains actions of private parties likely to cause harm to protected aspects of our environment." The court found that § 3304 fell "considerably short" of meeting that trustee obligation for two reasons: First, the court found that a new regulatory regime permitting industrial uses as a matter of right in every type of preexisting zoning district is "incapable of conserving or maintaining the constitutionally -protected aspects of the public environment and of a certain quality of life." Protection of environmen- tal values, in this respect, is a "quintessential local issue that must be tailored to local conditions," said the court. The court noted that Act 13 "displaced local development guidelines, which offered strict limitations on industrial uses in sensitive zoning districts," instead, permitting industrial oil and gas operations as a use "of ©2014 Thomson Reuters 5