Agenda - Planning Commission - 01/03/2019

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December 10, 2018 I Volume 12 I Issue 23 Zoning Bulletin an unconventional gas well use was not a use compatible with agricultural - residential use. They expressed concerns that the gas well would impact water wells and the local water supply, would present noise and light pollution nuisances, would result in traffic inconveniences, and would decrease their property values. Ultimately, the Board rejected Objectors' challenges to the substantive va- lidity of the Ordinance. The Board concluded that the Ordinance comported with the MPC and promoted the public healthy, safety, and welfare of the Township "by permitting [Township citizens] to benefit economically from oil and gas resources and royalties, in order to help their livelihood and way of life" (such as by allowing faimers to benefit financially through oil and gas well leases, which in turn allowed them to keep their land in farming). The Board also rejected Objectors' claim that the Ordinance instituted a scheme of impermissible "spot zoning," noting that the Ordinance allowed oil and gas development by right in all districts and not in one "spot" singled out for special treatment. Objectors appealed. The trial court affirmed the Board's decision. Objectors again appealed. DECISION: Judgment of trial court affirmed. The Commonwealth Court of Pennsylvania first held that the Ordinance did not violate substantive due process. In so holding, the court explained that the Ordinance would be found to be a valid exercise of the police power of zoning if it promoted "public health, safety or welfare," and its regulations were "substantially related to the purpose the ordinance purports to serve . . .." The court explained that when performing a substantive due process analysis, as it was tasked to do here, it must "balance the public interest served by the zoning ordinance against the confiscatory or exclusionary impact of regulation on individual rights . . .." The court further explained that the party challenging the constitutionality of certain zoning provisions (i.e., here, the Objectors) must establish that the zoning provisions are "arbitrary, unreasonable and unrelated to the public health, safety, moral and general welfare." Where the validity of zoning provi- sions are debatable, the zoning board's judgment "must control," said the court. Here, the court determined that the Objectors failed to prove that the Ordinance violated substantive due process. The court found that the Objec- tors lacked evidence with probative value. The court found that the Objectors had merely speculated on possible harm. The Objectors also had argued that a gas well was "incompatible with and must be segregated from the other uses in the R-2 Zoning District," but the court disagreed. In fact, to the contrary, the court concluded that the Ordinance "preserve[d] the protected `rights of prop- erty owners' to realize the value of their mineral deposits but without causing cognizable injury to their neighbors." Accordingly, the court concluded that the Ordinance did not violate substantive due process. The court also held that the Ordinance did not, as the Objectors had argued, violate the MPC by placing health, safety, and general welfare at risk. The MPC requires zoning ordinances promote, protect and facilitate the public 8 © 2018 Thomson Reuters