Harrisburg Land Use Briefing

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1 Harrisburg Land Use Briefing September 26, 2017

2 About Stevens & Lee 14 Offices 6 States 150 Lawyers Harrisburg Market Square Office 17 North Second Street, 16th Floor Harrisburg, PA (717)

3 Today s Speakers Ron Lucas Ronald M. Lucas, Esq. and Charles M. Suhr, Esq. Dawn of a New ERA: Implications of Recent Environmental Rights Amendment Decisions for Land Development in Pennsylvania Ambrose W. Heinz Appellate Case Law Update Charles Suhr Ambrose Heinz 3

4 Disclaimer This presentation contains general information only and is based on the experiences and research of Stevens & Lee professionals. Stevens & Lee is not, by means of this presentation, rendering legal, business, financial or other professional advice or services. This presentation is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal and/or professional advisor. Stevens & Lee, its affiliates, and related entities shall not be responsible for any loss sustained by any person who relies on this presentation. Stevens & Lee expressly disclaims any liability in connection with use of this presentation or its contents by any third party Stevens & Lee. All rights reserved. No part of this document may be reproduced, transmitted or otherwise distributed in any form or by any means, electronic or mechanical, including by photocopying, facsimile transmission, recording, rekeying, or using any information storage and retrieval system, without written permission from Stevens & Lee. Any reproduction, transmission or distribution of this form or any of the material herein is prohibited and is in violation of law. 4 4

5 Dawn of a New ERA: Implications of Recent Environmental Rights Amendment Decisions for Land Development in Pennsylvania Ronald M. Lucas, Esq. (717) roml@stevenslee.com Charles M. Suhr, Esq. (717) cms@stevenslee.com 5

6 PA Constitution Declaration of Rights Inherent Rights of Mankind Article 1, Section 1 All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. 6

7 Birth of the ERA April 21, 1969 Representative Franklin Kury (D. Northumberland) Introduced legislation for an amendment to the PA Constitution Opening remarks provide context for political climate at the time: The original version of Pennsylvania s present Declaration of Rights, which was found in article I of the state constitution, was enacted at a time when the preservation of freedom in man s political environment was in doubt. At that time, the population of the nation was so small and the natural resources so apparently inexhaustible, that the future of the physical environment was taken for granted. The passage of two centuries has drastically altered this situation. Our political rights are embedded in our governmental framework. But our physical environment has been depleted and damaged to the point where there is a serious question as to how long mankind can biologically exist on this planet. The situation is so serious that mankind is now considered one of the endangered species. In fact, creation of an earth national park has already been suggested. 7

8 Birth of the ERA (cont d) We must, therefore, ask ourselves whether we can insure a physical climate that will not merely allow man to exist on earth, but also whether it can be maintained in a natural state that is compatible with man s highest aspirations as a social creature. Preservation of our natural resources and environment is of fundamental importance. In fact, if mankind does not solve the challenge of saving his environment, all of the other great world problems we face may well become moot. We take great pride in our Federal and State Bill of Rights, but the fundamental political rights they preserve will not mean much if mankind dies from its own putrefaction. Freedom of speech will be meaningless if we suffocate in polluted air. The situation here in Pennsylvania is serious. Millions of vehicles clog the roads and highways, spewing their exhaust into the air. Too little has been done to stop this pollution. Yet, clean air is vital to our existence. While our State does have a maze of laws dealing with various aspects of our environment and natural resources, the fact is that we lack an over-all governmental framework in which to carry on the fight for conservation. We need a state government policy that is clearly stated and beyond question, one that will firmly guide the Legislature, the Executive and the courts alike. 8

9 Environmental Rights Amendment Article 1, Section 27 The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment Pennsylvania s public natural resources are the common property of all the people, including generations yet to come As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people Adopted May 18,

10 Commonwealth v. National Gettysburg Battlefield Tower, Inc., 311 A.2d 588 (PA 1973) Action by the state to stop construction of proposed 300 foot observation tower near Gettysburg National Battlefield No local zoning regulations in place Lower courts find Commonwealth did not show by clear and convincing proof, that the natural, scenic, historic or aesthetic values of the Gettysburg environment would be injured by Tower PA Supreme Court affirms: ERA not self-executing i.e., need legislation based on ERA to bring suit 10

11 Payne v. Kassab, 361 A.2d 263 (PA 1976) Action against municipal officials to enjoin a street widening project that would impact park land along Susquehanna River within the City of Wilkes-Barre PA Commonwealth Court rules in favor of municipal officials and adopts a 3-part test: 1. Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth s public natural resources? 2. Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? 3. Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion? Since there was a statutory basis for suit (e.g., PennDOT legislation) no need to decide if ERA is self-executing Affirms Commonwealth Court no ERA violation 11

12 PA Courts follow 3-part Payne v. Kassab test Few successful actions brought Why? very hard standards to overcome? 12

13 Act 13 of 2012: The PA Oil and Gas Act The goal was to facilitate the prompt expansion of the Marcellus oil and gas industry in PA Made oil and gas drilling permitted uses in all zoning districts Established uniform statewide setbacks for fracking and drilling operations Essentially pre-empted much local zoning, in favor of state regulation 13

14 Robinson Township v. Commonwealth of Pennsylvania (Robinson #2), 83 A.3d 901 (PA 2013) On December 19, 2013, the Pennsylvania Supreme Court, in a tedious, 115 page plurality (nonbinding, non-precedential), ruled unconstitutional major parts of PA s Act 13. (There was also a Robinson #1 decision, which is unimportant for our discussion) 14

15 Municipal Liability as the Environmental Trustee The Commonwealth (as well as its municipalities) have a duty to refrain from permitting or encouraging the degradation of public natural resources through direct state action or indirectly because of the state s failure to restrain the actions of private parties. Robinson #2, p.957 As a Trustee, the Commonwealth (as well as its municipalities) must act affirmatively to protect the environment, through legislative action. Robinson #2, p

16 Municipal Liability as the Environmental Trustee (cont d) A municipality has to decide if a proposed action places a higher environmental burden on some citizens than on others, because if it does, it will violate the municipal trustee s duty of impartiality to treat the environmental beneficiaries equitably in light of the purposes of the trust. Robinson #2, p. 980 There is a duty to act toward public natural resources with prudence, loyalty and impartiality. Robinson #2 p

17 Who Can Sue Has Always Been Constrained in Pennsylvania Until Robinson #2, a litigant had to show a direct personal interest in a controversy to be able to sue, even under this Section 27 of the PA Constitution Have the floodgates been opened or is this a handout to the plaintiff lawyer s bar? 17

18 Every Person in the Commonwealth Can Litigate, No Matter Where the Project May Be! This Court perceives no impediment to citizen beneficiaries enforcing the constitutional prohibition in accordance with established principals of judicial review. Permitted litigants: Delaware River Keeper, an environmental action group, upon alleging that one of its members is suffering immediate or threatened injury (there is no fracking in the Delaware River basin to date); A medical doctor in Bucks County, where no fracking has occurred, because he alleged that he couldn t accurately report his findings in medical records without disclosure of fracking chemicals; A Township Supervisor in Bucks County, where no fracking has occurred 18

19 Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) 147 A.3d 536 (PA 2016) Robinson #2 was a plurality decision which was remanded back to the Commonwealth Court Robinson #3 again struck down significant portions of Act 13, the 2012 Act which restructured the PA Oil and Gas Act Mercifully, #3 was only 88 pages 19

20 Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) (Now a majority holding) A municipality s duty to protect the environment for the benefit of its residents is not merely a creation of statute, but an affirmative obligation placed on these entities by...our Commonwealth s Constitution This did not authorize municipalities to exercise unconstitutional self-help It did reinstate municipal power to enact ordinances permitted by the MPC where oil and gas interests are concerned Raises questions about which state laws remain preemptive of municipal action 20

21 Robinson Township v. Commonwealth of Pennsylvania (Robinson #3) (Now a majority holding) (cont d) Did not address whether a municipality has an environmental duty as Trustee to the public, and if so, what that duty is Did not address the issue of standing of the oddly permitted litigants leaving that issue in limbo, or arguably, where it was before Robinson #2 with a requirement that a litigant must show a direct, personal interest to be able to sue 21

22 Post Robinson Decisions Feudale v. Aqua Pennsylvania, Inc. & DCNR, 122 A.3d 462 (Pa. Cmwlth. 2015), affirmed, 135 A.3d 580 (PA April 2016) Citizen action against Aqua s proposal to replace 100 year old gravity fed water line through a state forest Aqua s predecessor had obtained water rights before land became state forest Alleged logging and earth moving will destroy a large swath of forest and degrade the area s natural and aesthetic value Aqua had obtained all necessary permits (NPDES) which Feudale did not appeal. Therefore, claims against DCNR dismissed Aqua not a Commonwealth governmental entity. Therefore not a trustee under ERA. Therefore, no duty under ERA to conserve and maintain PA natural resources Commonwealth Court applies Payne v. Kassab test and finds no evidence that DCNR didn t follow proper statutory and regulatory guidelines 22

23 Funk v. Governor Wolf, 144 A.3d 220 (Pa. Cmwlth. 2016), affirmed, 158 A.3d 642 (PA March 28, 2017) Special interest groups brought action against the Commonwealth for failure to develop and implement a comprehensive plan to regulate CO 2 emissions to prevent global warming, as violation of ERA Court noted existing statutory scheme regulating air pollution in PA ERA does not compel government to perform any specific acts. Therefore, performance is not mandatory Commonwealth Court dismisses action and Supreme Court affirms ERA does not allow petitioners to disturb the legislative scheme in place of regulating air quality 23

24 Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania 161 A.3d 911 (PA June 20, 2017) This case examines the contours of the Environmental Rights Amendment in the context of legislation which allows funds to be generated from the leasing of state forest and park lands for oil and gas exploration and extraction (only 45 pages) The court declares the public trust provisions of the ERA to be self-executing 24

25 Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont d) Declares that the ERA contains two rights: A prohibitory clause limiting state power if it is exercised in opposition to the right of citizens to clean air and water, and to the preservation of natural, scenic, historic and aesthetic values of the environment A reservation of the right of common ownership, by the people, including future generations, of the Commonwealth s public natural resources This creates a trust relationship in which the Commonwealth trustee is obligated to protect public natural resources from adverse state or private action 25

26 Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont d) Reaffirms all of the language of the Robinson #2 plurality opinion regarding the self-effectuating nature of the Environmental Rights Amendment Reaffirms the Commonwealth and its subsidiaries (including municipalities) as trustees to the public regarding the use of public natural resources Captures funds generated from public land leases and royalties in a trust for the environmental benefit of the public (funds are currently directed to a Hazardous Sites Clean-up Fund and to an Environmental Stewardship Fund) Rejects and overrules the Payne v. Kassab balancing test first created by the Commonwealth Court in 1973 through which private rights and environmental harm were balanced before environmental actions were taken Does not address the universal standing issue directly 26

27 Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (June 20, 2017) (cont d) Reaffirms that a challenger has the heavy burden of showing that a challenged statute or ordinance clearly, plainly and palpably violates the Constitution. Decision was based on an environmental challenge to the use of public assets, and not to environmental degradation generally Says that municipalities have the same obligations as the Commonwealth. But do they? Is the holding valid in a case in which municipalities have no involvement? Municipalities cannot simply turn down a land development that meets its ordinance requirements on the basis of a perceived ERA violation (EQT Production Company et. LLC v. Borough of Jefferson Hills (Pa Commonwealth May 18, 2017) 27

28 Discussion Points Should a developer always provide an environmental impact report to avoid an ERA challenge or only on a request for legislative action? (e.g., a rezoning) Where is the burden of proof when an ordinance demands that a developer illustrate that its project does not have a material adverse impact on the environment? Can an ERA challenge be raised at any time? If so, with what body or tribunal? If the ERA is self-effectuating, what objective standards are used to determine compliance? 28

29 Questions? 29

30 Appellate Case Law Update Ambrose W. Heinz, Esq. (717)

31 In re: Appeal of AMA/American Marketing Association, 142 A.3d 923 (Pa. Cmwlth. 6/14/2016) (Simpson) Compliance with filing requirements Private easements not a basis for denial of land development plan or conditional use BR Associates v. Board of Commissioners of Township of Upper St. Clair, 136 A.3d 548 (Pa. Cmwlth. 5/5/2016)(Simpson) 31

32 Marchenko v. Zoning Hearing Board of Pocono Tp., 147 A.3d 947 (Pa. Cmwlth. 9/19/2016)(S.J. Friedman) Zoning enforcement case Renting single family home out on a nightly or weekly basis Zoning Ordinance interpretation lodge undefined versus family defined Commonwealth Court held that rentals still qualified as single family under definition J. Pelligrini dissent successive groups of people who share a house for several days cannot be considered a family 32

33 Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408 (Pa. Cmwlth. 2/6/2017) (P.J. Leavitt) Zoning enforcement case SFD with 5 bedrooms and 3-1/2 baths being rented thru VRBO website Renting single family home out for weekends or as long as 1 month at a time to families or several families staying together Zoning Ordinance interpretation Commonwealth Court held that rental to groups still met definition of single family 33

34 Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 164 A.3d 633 (Pa. Cmwlth. 6/21/2017) (Cosgrove) Zoning enforcement case LLC owns and renting out single family home for short-term rentals Zoning Ordinance interpretation Commonwealth Court held that rentals qualified as single family Reliance on Shvekh and Machenko Court mentions Township may amend ZO 34

35 River s Edge Funeral Chapel and Crematory v. Zoning Hearing Board of Tullytown Borough, 150 A.3d 132 (Pa. Cmwlth. 11/16/2016)(McCullough) Ordinance allowed funeral home use by right and crematory as accessory to funeral home on the property ZHB concluded that use was a crematory with an accessory funeral home and so not permitted based on the way the building looked from the outside Commonwealth Court held that the ZHB had to interpret funeral home broadly and under the common usage of that term 35

36 Smith v. Ivy Lee Real Estate, LLC, 152 A.3d 1062 (Pa. Superior 6/27/2017)(Moulton) Property owners claiming a private right of action to enforce SALDO under MPC Section 617 via a quiet title action with request for injunction Trial court denied property owners; property owners appealed to Superior Court MPC Section 617 is in MPC Article 6 (Zoning) but reference to under this act Superior Court transferred case to Commonwealth Court 36

37 Pennypacker v. Ferguson Tp., A.3d (Pa. Cmwlth. 5/17/2017)(S.J. Colins) Objectors appealed approval of Final PRD Plan MPC prohibits appeals from Final PRD approvals where Tentative Plan approval not appealed Objectors did not allege in Notice of Appeal that the Final Plan was different from Tentative Plan Appeal quashed because the Objectors waived only allowable issue Petition for review to Supreme Court is pending 37

38 Costa and Elmtowne Gardens, LLC v. City of Allentown, 153 A.3d 1159 (Pa. Cmwlth. 1/12/2017) (Brobson) Rental Housing Ordinance requiring the issuance of license for residential units Plaintiffs filed declaratory judgment action against City challenging license fee as a tax Trial Court ruled in favor of City Commonwealth Court affirmed Plaintiffs did not meet burden of proof Direct and indirect costs of program 38

39 Borough of West Conshohocken v. Soppick, 164 A.3d 555 (Pa. Cmwlth. 3/29/2017)(Leavitt) Enforcement action against owner related to construction of garage While appeal pending before ZHB, Borough sought to assess fines and penalties through MDJ Trial Court upheld enforcement notice, directed removal of the garage, and upheld assessment of fines and attorney s fees for violations Commonwealth Court reverses assessment of fines and attorney s fees for the period appeal was pending No violation was established until after landowner had exhausted appeal rights 39

40 Delchester Developers, L.P. v. v. Zoning Hearing Board of Township of London Grove, 161 A.3d 1081 (Pa. Cmwlth. 5/9/2017)(S.J. Colins) Township s SWMO was not a land use ordinance whose validity was within the Township s ZHB s jurisdiction to consider Zoning ordinance s restriction on development in groundwater protection district did not violate developer s right to substantive due process Zoning ordinance s restriction on development in groundwater protection district did not constitute a taking 40

41 Delchester Developers, L.P. v. London Grove Township Board of Supervisors, 161 A.3d 1106 (Pa. Cmwlth. 5/9/2017)(S.J. Colins) Subdivision denial Specificity of denial Incorporation of independent consultant reviews Outside agency approvals Claim of bad faith Substantive basis for denial; not mere technical defects No bad faith found 41

42 EQT Production Co. v. Borough of Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 5/18/2017)(S.J. Leadbetter) Conditional use application for natural gas well Applicant met specific requirements, but Council denied use finding applicant did not prove that use would not be detrimental to public welfare and did not prove consistency with Environmental Rights Amendment Court held objectors failed to meet burden of proving harm to the general health, safety and welfare beyond what is normally expected from use Council could not rely on Environmental Rights Amendment where requirements not contained in the Ordinance 42

43 Questions? 43

Pennsylvania Supreme Court Issues Transformative Decision in Environmental Rights Amendment Case

11 July 2017 Practice Groups: Environment, Land and Natural Resources Oil, Gas & Resources Pennsylvania Supreme Court Issues Transformative By Anthony R. Holtzman, Craig P. Wilson, John P. Krill, Jr.,