PA PUC Begins Issuing Opinions on Act 13 Zoning Law Compliance

Released by: Saul Ewing, LLP Release date: September 21, 2012

The PUC initially delayed issuing advisory opinions on local ordinances pending the lawsuit challenging the constitutionality of the zoning provisions of Act 13. But last month, agency officials decided to begin reviewing ordinances against the provisions of the Act that they believe were unaffected by the July court ruling. Specifically, the sections at issue concern how the ordinances in question affect oil and gas operations and state environmental laws.

The opinions in the first three jurisdictions varied. Fayette County's ordinance was held to be in compliance. However, the laws in North Towanda Township and the City of Pittsburgh fell short. The PUC advised that North Towanda's ordinance posed illegal requirements for setbacks on oil and gas wells and illegally prohibited drilling water impoundment areas within a floodplain. Regarding Pittsburgh, the PUC stated that in banning gas extraction, the city created its own environmental regulations, which only the state has the right to do. The provisions in the ordinance stating that Pennsylvania Department of Environmental Protection permits are invalid were also held to be in conflict with state law.

Due to the continued Act 13 litigation, all of the opinions included a recommendation to incorporate the following provision into the proposed ordinances: “To the extent any term or provision of this Ordinance is in conflict with Act 13, 58 Pa. C.S. §§ 2301 et seq., the Act shall supersede.” The PUC cautioned, however, that the mere inclusion of this provision in the ordinance, without consideration of the recommended revisions, will not ensure compliance with the Act.

There are several more opinions expected for release in the future. Among those pending are: the Washington County municipalities of Hopewell, Independence, Carroll, South Franklin and West Middletown; the Beaver County municipalities of Monaca, South Beaver, Brighton and Shippingport borough; and Penn Township in Butler County.

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PUC - Act 13

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