Commentary

It is well settled that municipalities are creatures of the state and have only those powers expressly granted to them by the legislature. The power to zone is one of these. Outside of Philadelphia, that power since 1968 has been granted by the state to municipalities in the Municipalities Planning Code.

Municipalities are authorized through zoning to carry into effect comprehensive plans and to accomplish the purposes of the MPC. Those purposes include: “To protect and promote safety, health and morals; to accomplish coordinated development; to provide for the general welfare by guiding and protecting amenity, convenience, future governmental, economic, practical and social and cultural facilities, development and growth…; to guide uses of land and structures, type and location of streets, public ground and other facilities; … and to permit municipalities to minimize such problems as may presently exist or which may be foreseen.”

Article 1, §1 of the Pennsylvania Constitution declares that acquiring, possessing and protecting property is an inherent right of mankind. The purpose of zoning is to protect property owners from activities that interfere with the use and enjoyment of their property. Having vested the power to zone in local government, the legislature has found a number of ways to control the use of that power.

For example, the MPC provides that a zoning ordinance that does not specifically provide districts in the community for single-family, two-family and multifamily dwellings, mobile homes and mobile home parks is invalid. Zoning ordinances must have provisions to protect prime agricultural land, as well as natural and historic features and resources. They must also provide for the reasonable development of minerals in each community. It is where the legislative mandate to provide for the development of natural resources runs into conflict with the goal of municipalities to protect the rights of property owners that controversy currently abounds.

In 1994, the MPC was amended to require that forestry activities, including timber harvesting, must be a permitted use by right in all zoning districts in every municipality. This implicitly required all municipalities to amend their zoning codes to add this provision, coupled with reasonable regulations having a substantial basis in protecting the public welfare.

The central tool used in all zoning ordinances to protect property rights is to divide the municipality into zoning districts and to allow only specific, compatible uses in those districts. The choice of which uses are compatible with one another and thus allowed in a specific district has been delegated to each municipality. However, uniquely, with respect to forestry, municipalities must allow that use in every zoning district.

The legislature can also curtail the power of local municipalities to act by pre-empting the power to legislate in particular fields. For instance, the Uniform Firearms Act provides that no municipality “may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this commonwealth.”

Absent such a clear statement of legislative intent to pre-empt, courts are reluctant to hold that state legislation pre-empts local legislation on the same issue, recognizing the dire consequences of allowing the General Assembly to retain all regulatory and legislative power in areas important to local government.

The salutary posture of the Pennsylvania Supreme Court has been to respect the will of a municipality as expressed through an ordinance unless the conflict between a statute and the ordinance is irreconcilable. The Supreme Court has found a clear intent for the state to totally pre-empt local regulation in only three areas: alcoholic beverages, anthracite strip mining and banking. The court has given local zoning laws great respect in the face of a pre-emption challenge, and has been reluctant to strike them down in cases where the state statute does not directly and inherently conflict with the municipality’s power to zone.

Municipalities hold dear the provision in the Pa. Constitution, Article 1, §27 that:

“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 resources 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.”

Our courts have been clear that municipalities are empowered to enact ordinances to carry out this constitutional obligation to “conserve and maintain” public natural resources that are held in trust “for the benefit of all the people.”

In doing so they are not meddling in the business of the legislature — guarding public natural resources is not the legislature’s exclusive responsibility; that responsibility is shared with municipalities to the extent not pre-empted by state or federal law. Zoning ordinances have been a primary tool for local municipalities to exercise the power to “conserve and maintain.”

While the state has the power through the Department of Environmental Protection to regulate the extraction of natural resources and issue permits to those wishing to do so, those who extract natural resources frequently run afoul of local zoning regulations.

Those who own real estate in Pennsylvania also have a separate property right in the natural resources that lie below the surface of the ground. Thus if one owns real estate under which there is rock suitable for quarrying, that person has a property right that can be sold or leased. When the legislature enacted the Noncoal Surface Mining Conservation and Reclamation Act (52 P.S. §3301, et.seq.) in 1984, it pre-empted all local ordinances and enactments purporting to regulate surface mining except those ordinances enacted pursuant to the MPC.

Thus, local municipalities could regulate where surface mining could take place in the municipality in order to preserve, for instance, the residential character of neighborhoods and the public health, safety and welfare.

In the same year, the legislature enacted the Oil and Gas Act (58 P.S. §601.101 et.seq), which contained an identical provision preserving local zoning regulation. Thus, since 1984, municipalities have been able to apply traditional zoning concepts to the extraction of such natural resources as rock, oil and gas. Those concepts include setbacks and permissible uses within zoning districts.

Through zoning, local officials have been able to impose reasonable conditions on extractions through the grant of conditional uses or special exceptions.

This changed dramatically with the enactment of the amendments to the Oil and Gas Act (Act 13) effective April 16. Act 13, instigated by Marcellus Shale gas production demands, repeals the prior provisions of the Oil and Gas Act in their entirety. It pre-empts all local regulation of Oil and Gas extraction while purporting to maintain the right of municipalities to regulate oil and gas wells through ordinances enacted pursuant to the MPC.

However, Act 13 then sets forth in §3304 a mandate that municipalities amend their zoning ordinances to allow oil and gas operations in all zoning districts pursuant to zoning regulations likewise mandated by the statute. Aggrieved producers are given the right by Act 13 to initiate proceedings in court to assert a violation of the statute by the municipality and to request attorney fees if the court finds the violation by the municipality to be willful. Municipalities that fail to amend their zoning ordinances to conform to the requirements of the statute are ineligible to receive a share of impact fees imposed on producers within that municipality.

This assault on the zoning power heretofore delegated to local municipalities is unprecedented.

Not only does it mandate that oil and gas extraction be permitted on every square inch of land in the state, but the imposed zoning regulations purportedly protecting abutting properties from the impact of that extraction are common throughout, as well. No allowance is made for local conditions; no choices are left to local officials.

Numerous municipalities joined, filing a 12-count petition for review before the Commonwealth Court pursuant to its original jurisdiction. The petitioners alleged that Act 13 violated numerous constitutional provisions. They asserted that they would have to: (1) modify their zoning laws in a manner that fails to give consideration to the character of the municipality, the needs of its citizens and the suitabilities and special nature of particular parts of the municipality; (2) modify their zoning laws in a manner that would violate and contradict the goals and objectives of the petitioners’ comprehensive plans; and (3) modify zoning laws and create zoning districts that violate the petitioners’ constitutional duties to only enact zoning ordinances that protect the health, safety, morals and welfare of the community.

The commonwealth filed preliminary objections. The court’s decision in Robinson Township v. Commonwealth, — A.3d —-, 2012 WL 3030277 (Pa.Cmwlth., 2012), authored by President Judge Dan Pellegrini, was handed down July 26. The court declared the mandates of §3304 to be unconstitutional and enjoined its enforcement. It held that:

“By requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa.C.S.§3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.”

The court’s ruling preserves foundational concepts of traditional zoning regulation. If a zoning ordinance does not have as its purpose either the protection of neighboring property owners from harm, the preservation of the character of neighborhoods and/or the rational classification of uses, then it is suspect of being at odds with the fundamental purpose of zoning. Where zoning is designed to favor a special interest at the expense of the health, safety and welfare of the public, it is unconstitutional. And, as Pellegrini stated, it is not made more constitutional simply because the commonwealth requires that it be done. •

Gilbert P. High Jr., a partner at High Swartz, has devoted his career primarily to the practice of municipal, real estate and land use law, and has extensive experience in legislative drafting, subdivision and land development, zoning litigation, public employment issues, local taxation, public contracting and the law of easements and rights of way.