Thursday, July 26, 2012
Pennsylvania Court Overturns State Law Preempting Zoning Control of Drilling in Marcellus Shale
Pennsylvania has for some time had an active fracking industry and a continuing controversy over the rights of municipalities to control where fracking occurs. In February of this year the Pennsylvania legislature enacted a law known as Act 13, which attempted to preempt local zoning with regard to drilling in the Marcellus Shale for natural gas. The law essentially attempted to take control of zoning away from municipalities and to determine what could or could not be included in local zoning provisions. It also imposed a state-wide impact fee and gave state officials the authority to waive setback requirements.
In a split decision announced this week, the court overturned on constitutional grounds the attempted preemption of local zoning authority and the provision allowing state officials to waive setback requirements. The court ruled that the preemption provision "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."
In New York, the courts in the Middlefield and Dryden cases discussed earlier in this blog held that the state had not preempted local zoning in the 1981 Oil, Gas and Solution Mining Law. If these decisions are ultimately upheld, the New York legislature will be faced with the difficult decision of whether to expressly preempt local zoning. The words of the Pennsylvania court not only introduce constitutional issues to be considered in any such override, but also highlight the inappropriateness of state control of local zoning laws and local zoning decisions.