Act 13 Zoning Decision Could Be a Setback for Progressive Agenda

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You guys know I’m no fan of Act 13, but one thing the Corbett administration had mostly right was the local zoning restrictions. Not just right on the policy, but right on the law.

Pennsylvania has 2562 municipalities. These municipalities are creations of the state. Their legal powers to regulate land use are enumerated by the state’s Municipal Planning Code. In other words, municipalities only have zoning powers because the state gives them those powers. There is no inherent municipal right to do zoning.

What today’s court decision seems to say is that municipalities do have a right to zoning, even when the state – which gives municipalities their power – wants to supersede that power:

The majority opinion states that requiring municipalities to change their zoning rules in a way that would conflict with their development plans should not be allowed “because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.”

I don’t really think it makes sense to allow fracking in all zones either, on the merits, but this is just badly missing the point. It doesn’t matter what the state’s substantive zoning changes are. The fact is that the state has the right to make whatever changes it wants because the state creates municipal powers in the first place.

If Democrats ever wanted to amend the Municipal Planning Code to stop sprawl, and empower regional planning bodies to make legally binding regional land use plans, opponents could potentially use this decision to fight that.

I realize liberals didn’t like this arrangement in the case of fracking, since it meant individual municipalities couldn’t use zoning to effectively ban fracking.

But look beyond the fracking issue, and you’ll see that hyper-local zoning authority is the enemy of progressive change on a whole host of other issues. Fracking is likely the only issue where liberals have a reason to favor hyper-local zoning, as I pointed out earlier this year:

It might be tempting for Democrats to align themselves with a villain like David Sanko of PSATS on this issue, but the cause he’s trying to advance here is seriously malign. Fracking is literally the only issue where hyper-local control of zoning helps the progressive agenda.

In all other cases – economic development, affordable housing, open space and farmland preservation, taxation and inequality, segregation, regional planning, education, public health, crime prevention, transparency and access to information – this fragmented system of 2562 municipal governments is a major major roadblock to enacting progressive political goals.

Defending the most extreme version of home rule may seem politically expedient on this one issue, but think about what’s going to happen if this ends up being the reason the impact fee gets defeated. It’s going to be because state representatives got scared away from weakening hyper-local zoning power.

This makes it less likely that they’ll have the stomach for other progressive reforms that take power away from local zoning boards, like requiring legally-binding land use plans, municipal consolidation, school district consolidation, etc. Every other item on the state-level progressive agenda requires more regional and state interference in local affairs, not less.

(Thanks: Laura Olson)

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3 Responses to Act 13 Zoning Decision Could Be a Setback for Progressive Agenda

  1. Jeff Schmidt says:

    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.

    • Jon says:

      Good points, but I still think there’s an important issue here about where municipal power comes from. Municipal power comes from the state. I’m not happy with the policy implications either, but I think it’s important for the courts to uphold state power over municipal zoning. I think the Sierra Club should be especially concerned about the implications for regional land use planning, urban growth boundaries, and other policies that supersede municipal zoning authority.

  2. Pingback: Act 13: Where Does Municipal Power Come From? - Keystone Politics