Thursday, October 18, 2012

Pa's top court hears shale-drilling vs. local zoning appeal

Photo by Ari Moore

Pennsylvania Supreme Court justices listened to nearly two hours of arguments in Pittsburgh yesterday over whether parts of the state's new Marcellus Shale drilling law take too much power away from local governments.
State attorneys were contesting the Commonwealth Court's July decision to overturn a portion of Act 13, the law that limited what local zoning rules can and cannot address regarding drilling activity, the Pittsburgh Post-Gazette reported.
A majority panel of that court sided with a set of municipal officials, who argued that the new law was unconstitutional because it would require them to allow well pads and compressor stations in areas where the activity would otherwise be prohibited by their local development plans.
The Tribune-Review reported that the standing-room-only crowd of attorneys, local officials ad cheering anti-fracking activists 'inspired a raucous atmosphere," and, after some of the 130 people applauded in the normally staid courtroom, Chief Justice Ronald D. Castille demanded order and threatened to throw out those who did not pipe down. 
There was laughter when Matt Haverstick, a Philadelphia attorney representing the state Public Utility Commission and the Department of Environmental Protection, responded to a question on whether zoning is intended to mainatin similar uses in an area by stating that is one--but not the only--purpose of zoning.
Justice Castille's warning followed a round of applause after Justice Seamus McCaffery commented that under the law, residential communities "can now be turned into industrial areas." 
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Haverstick defended the law, repeating prior arguments that all municipal zoning rights are given by state government and those rights can be changed at any time by the General Assembly. He said there's no constitutional protection 
against having some incompatible uses in a particular zoning district, arguing that both property owners and their neighbors have protected rights.  
"All other things being equal, owners of property should be free to use their property the way they want to,"  Haverstick said.
Attorneys for the mostly southwestern towns involved in the challenge argued that Act 13, approved in February, places the offer of a predictable regulatory environment to gas drillers above ensuring residents the knowledge of what type of development might occur in their neighborhoods.
Attorney John Smith said state officials also must weigh the same criteria that towns do in determining zoning: whether it protects the health, safety and welfare of residents.
"That analysis was not undertaken by the General Assembly because the General Assembly didn't understand it was zoning or didn't care," Mr. Smith said.
The Justices gave no indication of when they would rule on the constitutionality of the 8-month-old law.

Related environmental news stories
State Supreme Court hears arguments over Marcellus Shale law  
Large, lively crowd turns out for Supreme Court arguments on gas drilling laws

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