Zoning Power and Property Rights after Robinson Township

Abstract

The Pennsylvania Supreme Court recently held that some portions of Act 13 of 2012 are unconstitutional. This ruling returned the right to zone for shale gas activities to the local municipal governments, allowing them to zone as they feel necessary. As a result, many communities located in these areas of existing or potential shale gas development will likely revisit their current zoning ordinances. While revisiting these ordinances, different viewpoints will surely play a role in determining how zoning will regulate shale gas activities. Any revisions or new enactments of zoning ordinances must be within the police power of the municipality. The courts have developed a framework of analysis to be used when determining such. This analysis must consider the interaction between environmental law, environmental concerns, property law, and community concerns. How these factors weigh will likely decide what future development is regulated. This article gives a broad overview of this interaction. It briefly discusses Act 13, the effect it had on zoning, and how Robinson Township affects this interaction. Next, it outlines the common regulatory scheme of zoning ordinances. It discusses the power municipalities have, allowing them to zone and police the land within their boundaries. Finally, it discusses how those regulatory schemes may be limited in their powers. These limits include the inability to engage in exclusionary zoning, including de facto exclusionary zoning.