Robinson Township v. Commonwealth

DISSENTING OPINION BY

Judge BROBSON.

I agree with the majority’s analysis of the standing and justiciability questions. I also agree with the majority’s decision to sustain the Preliminary Objections of the Commonwealth Respondents directed to Counts IV-VII and IX-XII and dismiss those Counts of the Petition for Review. I further agree with the majority’s decision to grant Petitioners’ Motion for Summary Relief directed to Count VIII. I thus join in those portions of the majority opinion. I write separately, however, because I disagree with the majority’s analysis and disposition of Counts I — III of the Petition for Review. I thus respectfully dissent.

The majority holds that Section 3304 of Act 13, 58 Pa.C.S. § 3304, is an affront to substantive due process because it would allow “oil and gas operations,” what the majority refers to as the “pig,” in zoning districts that, based on a local municipality’s comprehensive plan, allow for incompatible uses — ie., residential and agricultural, to name a few. The majority refers to these incompatible zoning districts as “the parlor.” Instead, the majority appears to argue that this particular pig belongs in an unidentified but different zoning district, which the majority identifies only as “the barnyard.” The majority reasons that if the General Assembly can *495require that municipalities allow this particular pig to be in every zoning district, it could also “require steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones.” (Maj. op. at 482-84.)

The problem with the majority’s analysis is that this particular pig (unlike steel mills, chicken farms, rendering plants, and fireworks plants) can only operate in the parts of this Commonwealth where its slop can be found. The natural resources of this Commonwealth exist where they are, without regard to any municipality’s comprehensive plan. Oil and gas deposits can exist in a residential district just as easily as they might exist in an industrial district. What a local municipality allows, through its comprehensive plan, to be built above ground does not negate the existence and value of what lies beneath.

The General Assembly recognized this when it crafted Act 18 and, in particular, Section 8304. It decided that it was in the best interest of all Pennsylvanians to ensure the optimal and uniform development of oil and gas resources in the Commonwealth, wherever those resources are found. To that end, Act 13 allows for that development under certain conditions, recognizing the need to balance that development with the health, safety, environment, and property of the citizens who would be affected by the development.

Section 3304, however, does not, as the majority suggests, eviscerate local land use planning. It does not give carte blanche to the oil and gas industry to ignore local zoning ordinances and engage in oil and gas operations anywhere it wishes. Section 3304 does not require a municipality to convert a residential district into an industrial district. Indeed, in crafting Section 3304 of Act 13, the General Assembly allowed, but restricted, oil and gas operations based on, and not in lieu of, each local municipality’s existing comprehensive plan.

“Oil and gas operations” is broadly defined to include different classes of activities, or “uses”, related to oil and gas operations — e.g., assessment/extraction, fluid impoundment, compressor stations, and processing plants. Section 3301 of Act 13, 58 Pa.C.S. § 3301. The definition reflects multiple different “uses” related to the oil and gas industry. Recognizing that some of these uses would be more intrusive than others, if not downright unsuitable for certain zoning districts, Section 3304(b) limits where and under what circumstance certain oil and gas operations may be allowed within a particular zoning district of a municipality.

Section 3304(b)(5), for example, provides that a local zoning ordinance must allow oil and gas operations as permitted uses in all zoning districts, but excludes from this command activities at impoundment areas, compressor stations, and processing plants. In terms of wells, Section 3304(b)(5.1) empowers local municipalities to prohibit wells within a residential district if the well cannot be located in such a way as to comply with a 500 foot setback. With respect to compressor stations, Section 3304(b)(7) provides that a municipality must allow them as a permitted use in agricultural and industrial zoning districts only. In all other zoning districts, however, they would be allowed only as conditional uses, so long as certain setback and noise level requirements can be satisfied. Act 13 does not require a municipality to allow a processing plant in a residential district. To the contrary, Section 3304(b)(8) would restrict processing plants to industrial zoning districts as a permitted use and agricultural districts as a conditional use, subject to setback and noise level requirements.

*496The majority cites City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). In City of Edmonds, a city filed a declaratory judgment action, seeking a ruling that its single-family zoning provision did not violate the Fair Housing Act. From City of Ed-monds, the majority excises the following sentence: “Land-use restrictions designate ‘districts in which only compatible uses are allowed and incompatible uses are excluded.’ ” City of Edmonds, 514 U.S. at 732, 115 S.Ct. 1776 (quoting D. Mandelker, Land Use Law § 4.16, at 113-14 (3d ed.1993)). The words “due process” appear nowhere in the Supreme Court’s opinion in City of Edmonds. Yet, the majority, based on this quote, reaches a legal conclusion that any zoning ordinance that allows a particular use in a district that is incompatible with the other uses in that same district is unconstitutional. I find no support for this broad legal proposition in City of Edmonds. Indeed, if accepted, such a rule of law would call into question, if not sound the death knell for, zoning practices that heretofore have recognized the validity of incompatible uses— e.g., the allowance of a pre-existing nonconforming use and authority of municipalities to grant a use variance.

The desire to organize a municipality into zones made up of compatible uses is a goal, or objective, of comprehensive planning. See Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 224, 964 A.2d 855, 865 (2009).1 But it is not an inflexible constitutional edict. Although the inclusion of one incompatible use within a zoning district of otherwise compatible uses might be bad planning, it does not itself render the ordinance, or law, constitutionally infirm. “[A] local ordinance may not stand as an obstacle to the execution of the full purposes and objectives of the Legislature.” Id. at 220, 964 A.2d at 863. This is exactly what the majority has done in this case by deferring to the locally-enacted comprehensive plans and zoning ordinances over the will of the General Assembly as expressed in Section 3304 of Act 13.2

*497Section 3304 of Act 13 is, in essence, a zoning ordinance. Substantive due process cases addressed to local zoning ordinances tend to involve challenges to ordinances as too restrictive of the citizenry’s right to use their property. Here, the challenge is that the law is too lax, in that it allows a use that Petitioners claim is appropriately restricted, if not prohibited, by local zoning ordinances. The inquiry, however, is the same, that being whether the challenged law reflects the proper exercise of the police power. If so, we must uphold it. Our Supreme Court has summarized the appropriate standard for evaluating such challenges as follows:

When presented with a challenge to a zoning ordinance, the reviewing court presumes the ordinance is valid. The burden of proving otherwise is on the challenging party.
A zoning ordinance is a valid exercise of the police power when it promotes public health, safety or welfare and its regulations are substantially related to the purpose the ordinance purports to serve. In applying that formulation, Pennsylvania courts use a substantive due process analysis which requires a reviewing court to balance the public interest served by the zoning ordinance against the confiscatory or exclusionary impact of regulation on individual rights. The party challenging the constitutionality of certain zoning provisions must establish that they are arbitrary, unreasonable and unrelated to the public health, safety, morals and general welfare. Where their validity is debatable, the legislature’s judgment must control.

Boundary Drive Assocs. v. Shrewsbury Twp. Bd. of Supervisors, 507 Pa. 481, 489-90, 491 A.2d 86, 90 (1985) (citations omitted). In addition, “[t]he party challenging a legislative enactment bears a heavy burden to prove that it is unconstitutional. A statute will only be declared unconstitutional if it clearly, palpably and plainly violates the constitution. Any doubts are to be resolved in favor of a finding of constitutionality.” Payne v. Commonwealth, Dep’t of Corr., 582 Pa. 375, 383, 871 A.2d 795, 800 (2005) (citations omitted).

The stated legislative purposes of Act 13 include:

(1) [permitting] optimal development of oil and gas resources of this Commonwealth consistent with the health, safety, environment and property of Pennsylvania citizens[;]
(2) [protecting] the safety of personnel and facilities employed in coal mining or exploration, development, storage and production of natural gas or oil[;]
(3) [protecting] the safety and property rights of persons residing in areas where mining, exploration, development, storage or production occurs[;] and
(4) [protecting] the natural resources, environmental rights and values secured by the Constitution of Pennsylvania.

58 Pa.C.S. § 3202. The stated purpose of Section 3304 of Act 13 is to “allow for the reasonable development of oil and gas resources” in the Commonwealth, consistent with the purposes of Chapter 32 of Act 13. Id. § 3304(a) (emphasis added).

In light of the standards set forth above, which must guide our review, Section 3304 of Act 13 is a valid exercise of the police power. The law promotes the health, safety, and welfare of all Pennsylvanians by establishing zoning guidance to local municipalities that ensures the uniform and optimal development of oil and gas resources in this Commonwealth. Its provisions strike a balance both by providing for the harvesting of those natural resources, wherever they are found, and by restricting oil and gas operations based on (a) type, (b) location, and (c) noise level. The General Assembly’s decision, as re-*498fleeted in this provision, does not appear arbitrary, unreasonable, or wholly unrelated to the stated purpose of the law.

“The line which in this field separates the legitimate from the illegitimate assumption of [police] power is not capable of precise delineation. It varies with circumstances and conditions.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 71 L.Ed. 303 (1926). There is no doubt that Petitioners have legitimate concerns and questions about the wisdom of Act 13. But it is not our role to pass upon the wisdom of a particular legislative enactment. Under these circumstances and conditions, Petitioners have failed to make out a constitutional challenge to Section 3304 of Act 13. For that reason, I would sustain the Commonwealth Respondents’ preliminary objections directed to Counts I through III of the Petition for Review and deny Petitioners’ Motion for Summary Relief directed to those Counts.

Judges SIMPSON and COVEY join in this dissenting opinion.

. In Huntley, the Supreme Court addressed a challenge to a local zoning ordinance that restricted oil and gas extraction in a residential zoning district. The issue before the Court was whether the Oil and Gas Act, Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. §§ 601.101-.605 (repealed 2012) (Former Act), preempted the local ordinance. The Supreme Court held that although the Former Act preempted the field of local regulation in terms of how oil and gas resources are developed in the Commonwealth, it left room for local municipalities, through the MPC, to regulate where those resources are developed: “[AJbsent further legislative guidance, we conclude that the [local o]rdinance sei*ves different purposes from those enumerated in the [Former] Act, and, hence, that its overall restriction on oil and gas wells in R-l districts is not preempted by that enactment.” Huntley, 600 Pa. at 225-26, 964 A.2d at 866 (emphasis added). With Act 13, which repealed the Former Act, the General Assembly has provided the courts with clear legislative guidance on the question of whether Act 13 is intended to preempt the field of how and where oil and gas natural resources are developed in the Commonwealth.

. The majority cites to our Supreme Court’s decision in In re Realen Valley Forge Greenes Associates, 576 Pa. 115, 838 A.2d 718 (2003), in support of its claim that zoning must be in conformity with a local municipalities’ comprehensive plan. A closer reading of the Supreme Court's decision in In re Reálen, however, shows that the Court in that case was dealing with a "spot zoning” challenge, where the municipality attempted to act in contravention of its own comprehensive plan. As stated above, however, the General Assembly cannot be held hostage by each local municipality's comprehensive plan when exercising its police power. Accordingly, the restriction imposed on municipalities in In re Reálen to comply with their comprehensive plans does not extend to the General Assembly when exercising its police power.