Act 13: Where Does Municipal Power Come From?

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Jeff Schmidt of the PA Sierra Club makes some good points in the comments pushing back on my post about Act 13, but I’m not totally satisfied with this:

I think your logic is flawed. Act 13 created a dangerous precedent. It required municipal governments to allow the industrial activity of gas drilling in all zoning districts, including residential and conservation zones. It required local governements to allow drilling pads within 300 feet of homes, schools, nursing homes and day care centers. And it gave DEP the right to waive even this weak set-back requirement. Act 13 took away the existing right of local governments to limit drilling and associated activities, such as pipelines and compressor stations to industrial zones. No other industry has previously had this extraordinary exemption from zoning requirements.

As Commonwealth Court found, if these provisions of the law were allowed to stand, any number of industries would line up to get their own exemptions from local zoning. Fracking was the wedge that other industries were hoping for.

The Municipalities Planning Code requires all municipalities to provide for all legal land uses somewhere in their jurisdiction. Thus, a blatent attempt to ban fracking or other drilling-related activities from all zones would be found illegal by the courts. But now, local governments can return to the practice of preventing industrial activities from being located in residential zones. This is a legitimate exercise to protect the health and welfare of the public from a dangerous and polluting industry.

I also would prefer it if municipalities, or really Counties, could decide where within their political territory fracking would be most appropriate – as long as they couldn’t ban it outright.

However, I think there’s a larger issue at stake here about where zoning power comes from, and really where municipal power comes from. The state Constitution is clear on this – municipal powers come from the state. Municipalities don’t have inherent powers other than those explicitly given to them by the state. It’s important, especially on land use politics, for the courts to uphold the principle that municipal zoning authority can be superseded by a higher government body like the state or county. For instance, if the state wanted to put Counties in charge of land use planning, or a regional planning organization.

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