Pennsylvania Supreme Court Reiterates that Zoning Must Be Precise
Gorsline Strongly Reminds That Municipalities Must Protect the Rights of All Property Owners
On June 1, 2018, the Pennsylvania Supreme Court sent another wake-up call to municipalities. In Gorsline vs. Fairfield Township, the Pennsylvania Supreme Court held that local municipalities cannot play fast-and-loose with the definitions in a zoning ordinance, especially for uses not expressly provided for, and cannot ipse dixit (because we say so) grant uses not provided for in a zoning ordinance. So-called “catch-all provisions” now may fail under the recent Supreme Court guidance. The message: define, define, define.
In part,the Supreme Court reminded:
[t]he 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. What a governing body may not do, however, and what the Fairfield Township Board of Supervisors did in this case, is to permit oil and gas development in residential/agricultural districts without first enacting the necessary [zoning] amendments, based upon a clearly inadequate evidentiary record and no meaningful interpretative analysis of the language of its existing zoning laws. Gorsline at 23-24.
Gorsline, while not decided on constitutional grounds, sends yet another strong message to municipalities that a municipality must follow the law intended to protect the rights of all property owners, not just those of an applicant. The opinion also shows that municipalities cannot just go-through-the-motions when applying the law to specific projects or when drafting zoning ordinances.
Gorsline Sharply Limits On-the-Fly, De Facto “Amendments” to Zoning
Gorsline arose from yet another fracking company trying to shoe-horn fracking gas drilling operations near a residential community by exploiting alleged vagueness in zoning ordinances. In Fairfield Township, the zoning ordinance did not permit fracking (or other gas operations) in the residential-agricultural zoning district (R-A). The R-A Zoning District provided:
The purpose of the regulations for this [R-A] district is to foster a quiet, medium-density residential environment while encouraging the continuation of agricultural activities and the preservation of prime farmland. Gorsline at 2.
Inflection Energy, the fracker behind the case, argued that a 300 foot by 350 foot fracking pad with a separate, two million gallon fracking waste retention impoundment was “similar to” other uses in the farming and residential area. Gorsline at 4-5. Inflection also argued that the fracking pad was a “public service facility,” Gorsline at 4-5.
The Fairfield Township Board, without substantial evidence according to the court, granted the fracking application. Multiple appeals ensued. The Court of Common Pleas reversed the Township Board (now disallowing the fracking). The Commonwealth Court then reversed the Court of Common Pleas (then allowing the fracking) by relying on the troubling MarkWest Liberty Midstream & Resources, LLC v. Cecil Twp. Zoning Hrg. Bd., 102 A.3d 549 (Pa. Commw. 2014).
Finally, in a detailed opinion, the Supreme Court overturned the Fairfield Township and disallowed the permit application while holding:
- in its hearings, Fairfield Township failed to find specific and substantial evidence that the fracking pad was “substantially similar” to other uses based on specific facts (not just conclusions of an applicant) Gorsline at 15-17;
- references in an ordinance, unless expressly defined, carry the ordinary meaning within context of the ordinance therefore “public service facility” and “essential services” mean structures used for servicing local residential needs and not a generalized, public-benefit, as the fracking applicant argued Gorsline at 17-20; and
- even if a municipality previously granted similar conditional uses, those grants, without specific analysis by the municipality on the record and supported by substantial evidence, do not and cannot constitute a waiver of the zoning requirements and do not constitute a de facto, zone-wide “amendment” Gorsline at 20-23
As Gorsline emphasizes, the municipality must use substantial and demonstrable evidence when making decisions; must define terms precisely; cannot rely on catch-all provisions on one-the-fly “zoning;” and must carefully follow the MPC and law—arbitrary or conclusive statements do not meet legal standards.
Gorsline Dissent Subtly Reveals a Growing, Fundamental Constitutional Conflict in Pennsylvania
Three justice dissented in Gorsline. The Dissent argue that Fairfield Township properly granted the application, Gorsline Dissent at 13. The alternate conclusion relies heavily on a rote and permissive interpretation of language and zoning law and deference to the municipality.
The Dissent also cites the quantity of materials supplied by the applicant as constituting supporting evidence rather than quality of the materials as the Majority requires. Gorsline Dissent at 5. As anyone familiar with municipal zoning and planning understands, sophisticated applicants often submit binders full of “studies” and data along with an application. However, as the Majority suggests, perhaps going-through-the-motions and supplying copious paper does not constitute relevant evidence. (And the Dissent, with respect, does not explain how the material supported the application, was even relevant, or addressed the questions at hand. The fact that is was there at all along with deference to the muncipality seems enough for the Dissent.)
Nevertheless, the dissenting opinion also raises, albeit not expressly, an increasing conflict in Pennsylvania law. Pennsylvania law continues to labor under a self-imposed limitation of deciding cases on non-Constitutional grounds, Gorsline at 12, even when fundamental constitutional issues arise.
The differences between the Majority and the Dissent reflect the growing discord arising from ignoring the Constitutional rights of all parties. That is, the Dissent cites 53 P.S. §10603.1, which statutorily requires interpretation of zoning law, when ambiguous or unclear, “against extension of the restriction.”
What rote adherence to 53 P.S. §10603.1 fails to address are the constitutional rights of others affected by the zoning decision—that is, limiting the restriction on the applicant to validate its rights does not address the procedural and substantive rights of those affected by a poorly drafted or interpreted law under, for example, takings or Pennsylvania Constitutional law. Those questions, according to Gorsline, remain painfully open but will need to be decided.