Did the Commonwealth Court throw a Wet Blanket on the Robinson Case in Zoning?

Certain language contained in the body, and even the footnotes, of the 2015 Commonwealth Court case of P.E.D.F. v. Commonwealth, 2015 Pa. Commw. Lexis 9 (2015) has recently been used by industry attorneys and municipalities to justify ignoring the logic, rationale, and precedential value of the landmark Pennsylvania Supreme Court Robinson Township v. Commonwealth case.  They are using this P.E.D.F. case as a tool to ignore the constitutional private property rights to quiet enjoyment of land and to clean air and pure water by permitting the heavy industrial use of unconventional, deep well, oil and gas development in residential and agricultural zones, to the exclusion of all other industrial and commercial uses.  We feel reliance on this case by municipalities is seriously misplaced and that the reasoning of Robinson is sound, historically rooted in Pennsylvania jurisprudence, and alive and well.

First, it must be noted that P.E.D.F. v. Commonwealth has absolutely nothing to do with local zoning and the health, safety and welfare of citizens regarding industrial oil and gas development in incompatible zoning areas, but instead is a review of a Pennsylvania Environmental Defense Fund Declaratory Judgement Petition regarding monies from the leasing of certain state land.  The Court in PEDF states that, “what is at issue here is revenue generated not from natural gas development on private property, but from the leasing of State lands and disposition of state natural resources held in trust by the Commonwealth for an express purpose—i.e., conservation and maintenance”.  Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. 9, *72 (Pa. Commw. Ct. 2015).

Second, the PEDF case only discusses briefly the Article 1, Section 27 Environmental Rights Amendment, but makes no mention and thus has no bearing on the Substantive Due Process and Spot-Zoning arguments advanced by both the Commonwealth and Supreme Courts in Robinson Township v. Commonwealth and from many other precedential cases.  In the Robinson Commonwealth Court opinion, Justice Pellegrini, writing for the majority of the en banc panel, struck down sections of Act 13 with identical structure and effect to the Allegheny Township Zoning Scheme (unconventional development everywhere by right), using only the above Substantive Due Process arguments.  These same Substantive Due Process arguments were then affirmed by the Robinson Township Supreme Court opinion in both the plurality opinion of Chief Justice Castille (relying upon the Section 27 arguments, but clearly incorporating Substantive Due Process as well) and in the concurrence of Justice Baer, who relied upon these Substantive Due Process arguments solely.  See Robinson Township v. Commonwealth, 83 A.3d 901 (2013).

Finally, PEDF, a lower court, actually affirms much of the rationale of the Justice Castille Section 27 argument in the Robinson Township Supreme Court case.  The PEDF court stated that, “when environmental concerns of development are juxtaposed with economic benefits of development, the Environmental Rights Amendment is a thumb on the scale, giving greater weight to the environmental concerns in the decision-making process.  Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. LEXIS 9, *74 (Pa. Commw. Ct. 2015) at 170.  Further, the PEDF court enthusiastically endorsed the analysis of the Robinson Supreme Court plurality, stating:

The first clause of the Environmental Rights Amendment requires each branch of government to consider in advance of proceeding the environmental effect of any proposed action on the constitutionally protected features.

 

Further the PEDF court states that, with respect to the preservation of natural, scenic, historic and esthetic values of the environment, our Supreme Court held that the Environmental Rights Amendment protects the people from governmental action that “unreasonably causes actual or likely deterioration of these features.”

The PEDF court states that, “the second and third clauses of the Environmental Rights Amendment create a public trust in favor of the people (i.e., the trust beneficiaries), including future generations, which encompasses our public natural resources,…the Commonwealth is the named trustee of this public trust: As trustee, the Commonwealth is a fiduciary obligated to comply with the terms of the trust and with standards governing a fiduciary’s conduct.  PEDF states that, “the Supreme Court described the Commonwealth’s trustee obligations as two-fold:

The Commonwealth has an obligation to refrain from performing its trustee duties             respecting the environment unreasonably, including via legislative enactments or               executive action. As trustee, the Commonwealth has a duty to refrain from                           permitting or encouraging the degradation, diminution, or depletion of public natural             resources, whether such degradation, diminution, or depletion would occur through             direct state action or indirectly, e.g., because of the state’s failure to restrain the                  actions of private parties. . . .The second obligation peculiar to the trustee is . . . to              act affirmatively to protect the environment, via legislative action.

Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. 9, *74 (Pa. Commw. Ct. 2015) at 157.  The PEDF court went on to further endorse Chief Justice Castille’s opinion in detail by stating:

Turning to the Environmental Rights Amendment, it is evident that in ratifying the             Environmental Rights Amendment the citizens of this Commonwealth intended to               place Pennsylvania’s “public natural resources” in trust and to impose a duty on                 the Commonwealth, as trustee, to “conserve and maintain” them for the benefit of               all the people.” Pa. Const. art. I, § 27 (emphasis added). The only guidance we                   have on the meaning of the phrase “public natural resources” is from the Robinson             Township plurality…

 

Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 170, 2015 Pa. Commw. LEXIS 9, *74 (Pa. Commw. Ct. 2015) at 157 at 169 and 169.  Far from neutering Justice Castille’s Supreme Court opinion, the P.E.D.F. case affirms the majority of his rationale, and has no bearing on Zoning and the Substantive Due Process rationale of the Commonwealth Court opinion in Robinson (“pig in the parlor instead of the barnyard”).  Further, Robinson itself rests on the strong and deep foundation of a well developed body of Pennsylvania law holding that like property uses belong together to the exclusion of unlike and more intensive property uses.  One Industry, to the exclusion of all others, logically does not belong in residential and agricultural zones.  Residential and Agricultural property owners have investment backed expectations and constitutional guarantees that their respective zones will remain intact and remain as promised by the local ordinance.  That cannot be overturned with an oft cited footnote from the Commonwealth Court.

 

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