My Quick Take and “Tea Leaf Reading” the Pa Supreme Court’s Gorsline Opinion

 


The Supreme Court’s long awaited decision in
Gorsline v. Bd. of Supervisors of Fairfield Twp. regarding unconventional oil and gas development in residential and agricultural zones issued on June 1, 2018.  The opinion, as I personally have long anticipated, was a narrow decision that turned on the unique and strange details of the local ordinance. 

This ordinance has a “savings clause” which states generally that if a use is not specifically permitted in the Residential-Agricultural zone, it can still be permitted as a conditional use if it’s similar and compatible with other permitted uses in the R-A zone and would not be detrimental to public health safety and welfare.  The ordinance also clearly states that the burden of proof lies with the applicant to prove the above.  The Supreme Court found that the zoning board below failed to provide findings of fact regarding the similarity of use and thus disallowed this development in the R-A zone under the terms of the ordinance.

In overturning the Commonwealth Court’s approval of unconventional drilling in the R-A Zone, the Supreme Court stated:

Because we may decide this case on nonconstitutional grounds, we decline to decide Objectors’  first issue, relating to this Court‘s decision in Robinson I based on a claimed violation of  substantive due process rights and the Environmental Rights Amendment of the Pennsylvania Constitution (Article I, Section 27). See Blake v. State Civil Serv. Comm’n, 166  A.3d 292, 297 (Pa. 2017) (recognizing that constitutional questions should not be decided if the case can be resolved on alternative, non-constitutional grounds).

Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *14-15, 48 ELR 20089.  The court has thus understandably and in accordance with sound principals of judicial review left many in the dark a bit and explicitly reserved the constitutional issues for future pending cases where the need to rule on these questions is essential to resolve the case.

Did the Supreme Court, however, make any statement that could bolster such pending constitutional challenges?  I believe they did.  First, the heated battle regarding whether unconventional oil and gas development is an industrial use or merely construction activities related to a non-industrial use (like building a house) appears to be finally and clearly decided and settled in favor of unconventional drilling being itself an industrial use.  The Supreme Court, favorably quoting the Robinson Case in footnote one states that:

The natural gas wells in this case were being constructed to extract natural gas from Marcellus Shale. This is done by hydraulic fracturing, more commonly known as “fracking.” As we previously explained in Robinson Twp. v. Commonwealth, 637 Pa. 239, 147 A.3d 536  (Pa.2016) (“Robinson II“), fracking involves “pumping at high pressure into the rock formation a mixture of sand and freshwater treated with a gel friction reducer, until the rock cracks,  resulting in greater gas mobility.” Id. at 543 n.4 (quoting Robinson Twp. v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 914-15 (Pa. 2013) (plurality) (“Robinson I“)). In Robinson [*2]  I, a plurality of this Court described fracking operations as an industrial use involving “air, water, and soil pollution; persistent noise, lighting, and heavy vehicle traffic; and the building of facilities incongruous with the surrounding landscape.” Robinson I, 83 A.3d at 979. In a concurring opinion, Justice Baer was even more descriptive, explaining that “these industrial-like operations include blasting of rock and other material, noise from the running of diesel engines, sometimes nonstop for days, traffic from construction vehicles, tankers, and other heavy-duty machinery, the storage of hazardous materials, constant bright lighting at night, and the potential for life-and property-threatening explosions and gas well blowouts.” Id. at 1005 (Baer, J., concurring).

Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *1-2.  The Court in the final page of its opinion quotes the Municipalities Planning Code and states on the bigger constitutional issues that, “this decision should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses”.  I think we need to go into the weeds and “count the angels on the head of the pin” on this statement.  In making this statement, notice that the court states, “oil and gas development” not industrial unconventional oil and gas development.  This is a big factual distinction given that shallow well, traditional oil and gas development is a much less intensive and historic Pennsylvania use as many including our office have successfully shown in other cases.  Further, the court is clearly not stating the inverse of this statement that unconventional oil and gas development is compatible in Residential and Agricultural Zones.  The court in this factual setting is simply taking a pass on this issue.  I would still contend that looking to the 2012 Commonwealth Court opinion in Robinson is the soundest logic for always incompatible in residential zones.

The Court then appears to impose a requirement that, “the governing body must, however, actually amend its zoning ordinances to permit drilling in designated areas, setting forth whatever limitations and conditions it decides are appropriate for the protection of its citizenry”.  Gorsline v. Bd. of Supervisors of Fairfield Twp., 2018 Pa . LEXIS 2781, *28, 48.  These proposed amendments, however, obviously must also pass constitutional muster, specifically regarding substantive due process rights and the Environmental Rights Amendment, thus bringing us full circle back to the big unanswered questions.  I think, though, that the law is narrowing in favor traditional zoning advocates in segregating unlike industrial uses from compatible residential and agricultural uses.  To be continued… :-)

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

 

 

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.

 

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

Unemployment Compensation if you Voluntarily Quit Work? It depends…

            Unemployment compensation is normally unavailable to an individual who voluntarily quits their employment, and is reserved for people who have lost their job through no fault of their own.  That is the general rule.  Pennsylvania law, however, holds that, “an employee who has voluntarily quit his job may nevertheless be entitled to unemployment compensation if his or her leaving work was with good cause.  Such “good cause” must be of a necessitous and compelling nature.  Fike v. Commonwealth, Unemployment Compensation Bd. of Review, 77 Pa. Commw. 176, 465 A.2d 136 (1983).  The burden of proof rests squarely with the claimant to prove that he or she quit for a necessitous and compelling reason.

            The courts, in an effort to add meat to those bones, have stated that, “cause of a “necessitous and compelling” nature is such cause as results from overpowering circumstances that produce both real and substantial pressure to terminate employment and that would compel a reasonable person to terminate employment.  Draper v. Unemployment Compensation Bd. of Review, 718 A.2d 383 (Pa. Commw. Ct. 1998).

            That doesn’t seem to help us much, does it?  In 2012, however, the Pennsylvania Commonwealth Court outlined a four part test, stating that, “in order to show necessitous and compelling cause, the claimant must establish that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) he or she acted with ordinary common sense; and (4) he or she made a reasonable effort to preserve employment.  Middletown Township v. Unemployment Compensation Bd. of Review, 40 A.3d 217 (Pa.Cmwlth. 2012).

            Well, surely that helped?  Maybe a little.  A survey of the current case law shows that quitting employment for being moved to a different shift, having your hours changed, fear of lay-off, leaving to start a business, or general personal conflicts at work are not necessitous and compelling reasons to quit and the employee will therefore not receive benefits.  Reasons to quit that have been held to be necessitous and compelling, however, are sexual harassment, and more serious personal conflicts at work that effect the employee’s health and/or morals.  That, as is usual, still leaves plenty of gray subjectivity in the law.  The lawyer answer to our question then is, as always; “It depends…”    

Hello!

Hi, my name is Chris, and I’m hoping to provide you with bunches of useful and interesting legal and life information to help you, your family, and your small business.  I’m an attorney (my website), real estate investor, gentleman farmer (think Green Acres), and a very amateur Cello player.  I’m looking forward to sharing a few helpful ideas with you!

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.