Municipal, Land Use & Zoning

By: Andrew D.H. Rau

The oil and gas industry’s race to develop the Marcellus Shale across Pennsylvania has brought to the forefront the tension between large-scale development interests and local government.  Pennsylvania boroughs, townships and cities are grappling with the limits of local zoning power as they consider the means of regulating and controlling drilling locations and the related traffic, noise, and other uniquely local impacts.

The appellate courts are helping define this legal landscape, and in a series of recent decisions the dividing line between the state’s oil and gas laws, and local ordinances, is being established.

The Pennsylvania Supreme Court case of Huntley & Huntley v. Oakmont Borough Council, 964 A.2d 855 (Pa. 2009) leaves the door open for local zoning regulation pursuant to the powers granted by the state’s Municipalities Planning Code (MPC).  The Huntley decision expressly recognized the power of the MPC when it comes to zoning prerogatives of the local government.  The court wrote that “the MPC’s authorization of local zoning laws is provided in recognition of the unique expertise of municipal governing bodies to designate where different uses should be permitted in a manner that accounts for the community’s development objectives, its character,” and what was described as the “suitabilities and special nature of particular parts of the community.”  The conclusion—local zoning power lives on in the Marcellus Shale era.

But how far does the municipal power extend?  In Range Resources Appalachia, LLC v. Salem Township, 964 A.2d 869 (Pa. 2009) a case decided at the same time as Huntley, the Supreme Court said that local governments go too far if they try to regulate things already controlled by the state’s Oil and Gas Act, such as detailed technical standards for drilling, oversight of well heads, well casings and capping requirements.

There is more to come.  The case of Penneco Oil Company, Inc. v. County of Fayette, 4 A.3d 722 (Pa. Cmwlth. 2010), was recently issued by the Commonwealth Court, and attempted to further define the limits of local control.  The Commonwealth Court found that appropriate local zoning controls included “preserving the character of residential neighborhoods, and encouraging beneficial and compatible land uses.”  The case also upheld the local government’s right to adopt ordinances requiring special exception applications before a zoning hearing board in some cases.  The gas industry players have asked the Supreme Court to consider an appeal.

Andrew D.H. Rau

Meanwhile, local governments, and oil and gas interests across Pennsylvania, hope for more clarity from the courts.  Contact Andrew D.H. Rau in our West Chester office for more information.

Andrew D.H. Rau is a partner at Unruh, Turner, Burke and Frees. Andrew practices in the areas of municipal and zoning law, real estate and land use. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Amanda J. Sundquist

In ,Crandell v. Pennsbury Township Board of Supervisors, et al. — A.2d — (Pa. Commw. Ct. 2009), the Commonwealth Court addressed public opposition to a plan by a Township Board of Supervisors member.  Fenton, a resident who ultimately became a board member, formed a group to oppose a developer’s plans.  After being elected to the board on a platform of opposing the plans, Fenton wrote various Planning Commissions seeking support, publicly spoke out against the plans at hearings, directly contacted other organizations to block the plans and acted as a consultant to an opposing citizens group.  The developer filed a petition to enjoin and prohibit Fenton and another board member from taking any action with respect to the plans.  The trial court determined that Fenton could not act in an unbiased fashion and prohibited him from participating in decisions and discussion regarding the plans, but allowed the other board member to remain.  The trial court further required a replacement individual to participate in any vote on any matter pertaining to the plans in place of Fenton.  An appeal followed.

Among other issues, the Commonwealth Court looked at whether preemptively prohibiting Fenton from participating in any decision related to the plans and appointing a replacement board member was proper.  The Court focused on Section 603 of the Municipalities Planning Code which specifically protects board members’ right to vote in accordance with a campaign promise or other past statements.  The Commonwealth Court distinguished Crandall from its decision in Prin v. Council of Municipality of Monroeville, 645 A.2d 450 (Pa. Commw. Ct. 1994).  In Prin, the request for recusal occurred in an actual proceeding when a decision was in the process of being made.  Here, the Court found the developer had bypassed the voting procedures by filing suit in advance to prohibit Fenton from not only voting, but also from expressing his opinion at board proceedings.  The board had already granted preliminary plan approval and Fenton had stated an intention to refrain from future plan votes.  As such, the Court found the developer no longer had any reason to fear Fenton’s vote.  Silencing Fenton’s opinion in his public capacity was contrary to Section 603.

The Court also found the developer’s procedure violated the recusal procedure.  Traditionally, a request for recusal is to be directed to the offending official for his own self-assessment.  It is only after an official refuses to recuse himself and some substantive adverse action occurs, that the issue is reviewable.  The Court found that even if the developer’s plans were presented and Fenton refused to recuse himself, the developer had a right to appeal an adverse decision to the Court.  Therefore, the developer had a remedy at law and a “pre-emptive strike” was not necessary.

Finally, the Commonwealth Court found the trial court erred in ordering a replacement board member to act in place of Fenton on matters relating to development.  As the board was composed of three members, a quorum consisting of at least two members was present to vote.

For more information about how this decision may affect you or your local municipal board, please contact our office.

By: Amanda Sundquist

Chester County and other local residents often wonder if they can appeal a decision by their Zoning Hearing Board (“ZHB”). In a recent case, a landowner applied to the ZHB for variances. At the hearing, the ZHB granted a resident party status. The resident tried to appeal the ZHB’s decision. The landowner argued the resident could not appeal because he was not an aggrieved party. The Commonwealth Court determined when a resident attends a hearing to oppose a landowner’s application and the landowner does not object to the resident appearing or becoming a party, the resident is able to appeal the decision.   See Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622 (Pa. Commw. Ct. 2009).

For questions regarding party status or other standing issues in a land use appeal, please contact Amanda Sundquist.