Ensure that Protective Language Survives Legal Challenge

Ensure that Protective Language Survives Legal Challenge

Adopting or amending your zoning ordinance can require an enormous amount of time and resources, sometimes even several years, to accomplish. If you decide that adopting or amending your ordinance to make it more protective is the right path for your community you should do as much as you can to ensure the best possible chance of survival.  

Before a final draft is even introduced, there are a lot of considerations to take into account,research that should be done, and consultation with professional experts and attorneys.  

If the gas industry feels as though the protections you have introduced might limit their ability to develop in the future, they may threaten or engage in, aggressive legal actions.  For example, they may bring a substantive validity challenge, which - if successful - would invalidate your protective ordinance.

For more discussion on zoning rules that are vulnerable to challenges from the natural gas extraction industry, see Why Can't My Township Ban Fracking?

Keep in mind that local rules have the best chance of surviving legal challenges when they:

• substantially relate to protection of public health, safety and welfare,
• allow for the reasonable development of minerals,
• take into consideration the particular and unique characteristics of your municipality, and
• are based on scientific decision-making and expert opinions.  

In the Delaware Riverkeeper Network's guide Defending the Environmental Rights of Pennsylvania Communities from Shale Gas Development, they discuss factors to consider when determining which protections work best for different communities:

"In the land use planning context, this decision-making process is consistent with what good land use planners should already be doing. Specifically, proper land use planning takes into account a community’s public natural resources (e.g., sensitive groundwater areas, fishing streams, parks and forests, agricultural soils, floodplains, wetlands, steep slopes, etc.); historic resources; roads; existing development patterns including location of residences, schools, and hospitals; and crafts from that a plan of growth and conservation for the future, which is then embodied in a zoning ordinance and other ordinances that dictate which uses are allowed where, and what standards and conservation requirements apply. These considerations should always be a part of determining whether a use is proper in a particular location in a municipality – and that applies whether the use is heavy industry, such as shale gas development, or some other type of use." (continued on page 19 of the guide).

Once you have taken into account the regional-specific attributes of your area you should check out some examples of other area's protective rules.  They may serve as inspiration for language that you can tailor for your area and successfully adopt in your own community.