Earlier this year, Claudia Shank blogged about the revival of the Environmental Rights Amendment (the “ERA”) (available HERE) after the Pennsylvania Supreme Court’s decision in Pennsylvania Environmental Defense Fund v. Commonwealth, 161 A.3d 911 (2017).  The PEDF decision breathed new life into the 1972 amendment to the Pennsylvania Constitution, but also left many unanswered questions about the ERA.  The most relevant unanswered question for developers and municipalities was the meaning of the revived ERA in the land use context.  Last week, the Commonwealth Court provided some insight.

In Frederick v. Allegheny Twp. Zoning Hearing Board, 2018 Pa. Commw. LEXIS 593 (Commw. Ct. Oct. 26, 2018), the Court reviewed a substantive validity challenge to a zoning ordinance that permitted oil and gas wells by right in all zoning districts of a township.  In a 5 to 2 decision, an en banc panel rejected the challenge (and the accompanying land use appeal to a zoning permit) that was filed by objectors to an unconventional gas well project in a residential zoning district.  The Court dismissed the objectors’ argument that the adoption of the zoning ordinance violated the township’s trustee duty to prevent the degradation of the local environment, including public natural resources.

In upholding the decisions of the zoning hearing board and trial court, the Commonwealth Court evaluated the township’s trustee duties under the ERA through the lens of a preemption analysis.  The Court concluded that the township has the power to regulate “where” uses are located but not “how” certain uses operate.  Zoning is a municipal tool for regulating where uses occur that accounts for the “natural, scenic, historic and esthetic values of the environment.”  The Court reasoned that the “how,” which is what the court presumed would lead to the alleged degradation of the environment, is better off regulated by the Pennsylvania Department of Environmental Protection (“DEP”) and other state agencies.  The Court noted that municipalities “lack the power to replicate the environmental oversight that the General Assembly has conferred on DEP and other state agencies.”  The Court appears to have divided the trustee duties for evaluating how land use projects comport to the ERA between municipalities (for “where”) and state agencies (for “how”).

The dissenting opinions question how an ordinance that permits oil and gas development in all zoning districts can survive challenge after Section 3304 of the Oil and Gas Act, which did the same thing on a Commonwealth-wide basis, was found unconstitutional in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality).  One dissenting judge suggested that the majority is allowing municipalities to “punt” their trustee duties to DEP.  The majority distinguished the township ordinance from Section 3304 of the Oil and Gas Act by noting that the township ordinance was adopted out of choice by the township rather than mandated as part of a Commonwealth-wide regulatory scheme.

This initial decision on the meaning of the ERA in the land use context is good news for developers and municipalities.  It recognizes – as has been the case in Pennsylvania for over a century – that private property rights are fundamental constitutional rights.  Moreover, it begins to provide an initial level of certainty to municipal land use ordinances and land use decisions in the post-PEDF world.  Finally, it relieves municipal officials of having to wade into the unfamiliar field of environmental regulation and analysis.  But this surely is just the first post-PEDF decision in a land use context.  We expect this area of the law to evolve continuously over the next few years.

Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.