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Zoning limits in Pa. gas drilling law struck down

HARRISBURG, Pa. — A Pennsylvania appellate court panel on Thursday struck down provisions in a new law regulating the state’s booming natural gas industry that opponents said would leave municipalities defenseless to protect homeowners, parks and schools from being surrounded by drilling sites or waste pits. The decision was a defeat for Gov. Tom Corbett and the natural gas industry, which had long sought the limitations, and a prompt appeal to the state Supreme Court was expected.

The state Commonwealth Court ruled 4-3 in a decision released Thursday that the limitations in the so-called Act 13 violated the state constitution. The opinion’s author, President Judge Dan Pellegrini, said the provisions upended the municipal zoning rules that had previously been followed by other property owners, unfairly exposing them to harm.

Seven municipalities had sued over the sweeping, 5-month-old law, saying it unconstitutionally takes away the power to control property from towns and landowners for the benefit of the oil and gas industry.

“This is a wonderful victory for local government, a recognition that local municipal officials have a valid interest in protecting the property of their citizens,” said Jordan Yeager, one of the lawyers who argued on behalf of the municipalities. “Act 13 took that away and the court said that the governor and the Legislature had gone too far.”

Among the most objectionable provisions cited by the towns were requirements that drilling, waste pits and pipelines be allowed in every zoning district, including residential districts, as long as certain buffers are observed.

The natural gas industry, which has invested billions of dollars in Pennsylvania beginning in 2008 to exploit the Marcellus Shale formation, the nation’s largest-known natural gas reservoir, had sought even stronger limitations than the ones in the new law to make it easier to navigate local ordinances.

Corbett, viewed as a staunch ally of the industry, had also pressed for stronger limitations than the ones he won in the law signed Feb. 14. He viewed the limits as a way to encourage the industry to move rigs to Pennsylvania and at one point warned that Ohio was trying to lure it away with a law wiping out any local regulation.

The public’s interest in zoning is in developing and using land consistently with local demographic and environmental concerns, but the law required zoning changes to the rules under which businesses and homeowners had already made investment decisions, Pellegrini wrote.

“If the commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones for a variety of police powers advancing those interests in their development,” Pellegrini wrote.

Pellegrini, a Democrat, was joined by the other Democrat on the panel, Bernard McGinley, and two Republicans, Patricia McCullough and Bonnie Brigance Leadbetter. Three Republican judges dissented.

“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,” Judge Kevin Brobson wrote for the minority.

Officials from the state Public Utility Commission and the state attorney general’s office, which defended the law, would say only that they were reviewing the ruling. A lawyer for Senate President Pro Tempore Joe Scarnati, R-Jefferson, who helped write the law, said he expects the decision to be appealed to the Supreme Court.