Agenda - Planning Commission - 03/06/2014

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February 10, 2014 I Volume 8 I Issue 3 Zoning Bulletin right" in every zoning district throughout the Commonwealth, including in residential, commercial, and agricultural districts. The court found that the General Assembly's "disposal," through § 3304, "of the regulatory structures upon which citizens and communities made significant financial and quality of life decisions" "sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts." The court found that was a breach of the General Assembly's duties as trustee under the Environmental Rights Amendment. Second, the court found that under § 3304, some properties and com- munities would carry a much heavier environmental and habitability burden than others. The court found that "disparate effect" was irreconcil- able with the express command that the trustee (i.e., here the Com- monwealth) manage the corpus of the trust (i.e., the environment re- sources) for the benefit of "all the people." The court acknowledged the Commonwealth's police powers and its compelling policy arguments that Pennsylvania's populace would benefit from the exploitation of the natural gas found in the Marcellus Shale Formation. However, the court admonished that economic and energy benefits were not the only considerations at issue. The court found that the Environmental Rights Amendment was intended "as a bulwark against enactments, like Act 13, which peiinit development with such an immedi- ate, disruptive effect upon how Pennsylvanians live their lives." In short, the court found that, under § 3304, the General Assembly failed to fulfill its obligations as trustee under the Environmental Rights Amendment. The court explained that to comply with the constitutional command of the Environmental Rights Amendment, the General Assembly must exercise its police powers to foster sustainable development in a manner that respects the reserved rights of the people to a clean, healthy, and esthetically -pleasing enviromnent. As to § 3215(d), the court found that its preclusion of municipalities from seeking appellate review of DEP's decisions on restriction waivers, violated the Enviromnental Rights Amendment because it "marginalized participation by residents, business owners, and their elected representa- tives with environmental and habitability concerns" and thus fostered de- cisions regarding the enviromnent and habitability that were nonrespon- sive to local concern. As with § 3304, said the court, that failure to account for local conditions, causes "a disparate impact upon beneficiaries of the trust." Moreover, without account for local concerns, the court noted that § 3215(d) failed to ensure that any disparate effects would be attenuated, and the court found that inequitable treatment of trust beneficiaries was ir- reconcilable with the trustee duties of managing the public natural re- sources for the benefit of all people. The court concluded that, as an exercise of police power, §§ 3304 and 3215(b)(4) were incompatible with the Commonwealth's duty as trustee of Pennsylvania's public natural resources under the Environmental Rights Act. Accordingly, the court held that those provisions were unconstitu- tional in violation of the Environmental Rights Amendment. 6 © 2014 Thomson Reuters