Legality of Pa. zoning law questioned

August 22, 2012
By LINDA HARRIS , Shale Play


Shale Play

CECIL TOWNSHIP, Pa. - Cecil Township Manager Donald Gennuso said local government has a lot to lose if the Pennsylvania Supreme Court overturns an appellate court decision lifting zoning limits in the state's new natural gas regulations.

The five-month-old law, known as Act 13, would have allowed drilling, waste pits and pipelines in every zoning district, including residential districts, provided a specified buffer was observed.

A handful of townships, including Cecil, challenged the legality of the Act 13 regulations, and in July an appellate court panel ruled in their favor, voting 4-3 to strike the provision, saying the change would have allowed the drilling industry to sidestep zoning rules under which other home and business owners had made investment decisions, thereby putting those investments at risk.

Pennsylvania Gov. Tom Corbett filed the appeal the following day. Corbett, an industry supporter, has suggested the Commonwealth could lose drilling rigs if its rules were perceived to be less industry-friendly than other states. The oil and gas industry, in fact, had sought even tougher limitations.

"The provisions struck down by the Commonwealth Court are critically important for job creators who are employing more than 240,000 Pennsylvanians, for landowners seeking to exercise their property rights, and for local governments looking for guidance on how they may reasonably regulate oil and gas operations," Corbett said in a statement announcing his decision to appeal. "The provisions are also integral to the enhanced environmental standards and impact fee revenue portions of the Act. Indeed, there would be no Act without each of these crucial pieces."

Gennuso said Corbett's appeal was to be expected.

"I think we just have to remain positive that the lower court's ruling will be upheld," he said. "I think it's extremely important. Our board members thought it was important enough for the protection of the health, safety and welfare of our residents to get involved in the lawsuit in the first place, but there's a major impact to industry also. Cecil was never opposed to oil and gas drilling, we just want it done responsibly. The state took it upon itself to impose (the rules) on municipalities - we always thought it could have been done a better way, Act 13 could have been improved with greater cooperation."

Gennuso said Act 13 in essence "would have made all our ordinances null and void," allowing the industry to "decide where they needed to be, it would have given them the ability to put a facility wherever they wanted to put it."

"It kind of flies in the face of zoning," Gennuso said. "Zoning provides organized development in a community. You just wouldn't want to put industry in the middle of a residential area."

South Fayette Township Board of Commissioners President Deron Gabriel, meanwhile, said he's not worried that the industry will lose interest in the Commonwealth.

"Pennsylvania is so big, I've said all along there's really no need to have industrial activity in residential areas or near schools," Gabriel said. "There are places they can do it that won't impact the health, safety and welfare of residents."

Gabriel said the 66-page appellate court opinion reinforced the right of municipalities to plan development.

"I think we all recognized that it was in our best interests, and our residents' best interests, that we maintain local control," he said. "We want to be able to have zoning, it's the only way we can plan for our (communities) to go forward."

Gabriel pointed out the appellate decision wouldn't have prohibited the oil and gas industry from drilling in Western Pennsylvania's Marcellus shale play; rather, he said it would only require them to "comply with the wishes of local municipalities."

And if the high court were to uphold the appellate decision, Gabriel said he doesn't foresee a drilling shift.

"Pennsylvania doesn't have a severance tax like West Virginia," he said. "We have impact fees, but they're more minimal than a severance tax would have been to the industry, so I don't see why they'd go elsewhere when they've been doing business, as it stands now, profitably in Pennsylvania."

Corbett, though, said he's confident the state supreme court "will adhere to its responsibility in a prompt and timely manner" and overturn the lower court's decision.

"It is the General Assembly and Governor's prerogative to establish policy," he said. "It is the court's job to pass judgment on the constitutionality of this policy, not its merits. Act 13 clearly meets the constitutionality test. ..."



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