The Commonwealth Court, in a 4-3 decision, has declared that the provisions in Act 13 that preempt local zoning are unconstitutional, null and void.
I’ve read the decision and one thing is still puzzling. There were 7 judges that heard the case, and 3 filed a dissenting opinion. In footnote number 1, it states that there was a recusal and that the vote of the remaining commissioned judges on Counts I, II, and III resulted in a tie, requiring that the opinion be filed pursuant to Section 256(b) of the Internal Operating Procedures of the Commonwealth Court. That rule states: "When there exists a vacancy or a recusal among the commissioned judges that results in an even number of commissioned judges voting on a circulating panel opinion or en banc opinion, and when the vote of all participating commissioned judges results in a tie, the opinion shall be filed as circulated. The opinion shall contain a footnote on the first page indicating that the opinion is filed pursuant to this paragraph. Unless there is a majority vote of the participating commissioned judges to publish, the opinion shall not be published." I am at a loss to explain the significance of footnote one or that the vote was a tie. Maybe someone reading this posting can explain what it means.
As written, the ruling declares that Section 3304 and 3215(b)(4) of Act 13 are declared null and void. Section 3304 is the section that preempted local zoning ordinances. Section 3215(b)(4) is the section that allowed PADEP to waive set back requirements in certain circumstances. The Court’s decision relies upon Article 1, Section 1 of the PA Constitution, striking down the preemption provision as a violation of due process. The Court found that Section 3304 would force municipalities to violate their comprehensive plans for growth and development. It said that violates substantive due process, "because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise." The dissent, on the other hand, asserts that Section 3304 "is a valid exercise of the police power." The dissent further states: "There is no doubt that Petitioners have legitimate concerns and questions about the wisdom of Act 13. But it is not our role to pass upon the wisdom of a particular legislative enactment."
I would expect that the Commonwealth will appeal the decision to the PA Supreme Court. I will post additional information after reviewing the decision in greater detail.