By Zack Needles
Of the Legal Staff
The state Public Utility Commission has asked the Commonwealth Court to modify its order placing a temporary injunction on the zoning portions of Act 13 in order to clarify whether the delay enjoins the agency from reviewing existing zoning ordinances to determine whether they violate either the Municipalities Planning Code or Act 13.
The plaintiff municipalities, however, have responded that the order clearly prohibits such review until the injunction is lifted.
The PUC said it had intended to issue an implementation order laying out its responsibilities under Act 13, which amends the state’s Oil and Gas Act, on April 26, but has delayed doing so until Keith Quigley, a visiting judge on the Commonwealth Court, clarifies his April 11 order granting a preliminary injunction barring amendments to the Oil and Gas Act related to zoning from taking effect for 120 days.
HB 1950, which was signed into law as Act 13 of 2012 on Feb. 14, prohibits local municipalities from enacting zoning ordinances aimed at banning drilling and restricts ordinances "that are more stringent than the conditions, requirements or limitations imposed on other industrial uses or other land development within the particular zoning district where the oil and gas operations are situated within the local government."
On March 28, the Washington County townships of Robinson, Peters, Cecil and Mount Pleasant, along with South Fayette Township in Allegheny County and Yardley Borough and Nockamixon Township in Bucks County, as well as the Delaware Riverkeeper Network, filed suit against the state, the PUC, the Office of the Attorney General and the Department of Environmental Protection.
The plaintiffs in Robinson Township v. Commonwealth alleged that Act 13 "eliminates the role municipalities must play in protecting the health, safety and welfare of their communities" and transfers that regulatory power to the oil and gas industry itself.
The Act 13 amendments were set to go into effect on April 14, giving municipalities until Aug. 14 to implement new zoning laws, but Quigley said in his April 11 order that the municipalities need more time to prepare.
The amendments not related to zoning, such as those imposing impact fees on drillers, took effect on April 14 as scheduled. The April 11 order gave municipalities 240 days from that date to bring their zoning ordinances into compliance with the new law.
But, according to the PUC, one part of Quigley’s order seemed to suggest that the sections of Act 13 that allow aggrieved parties to seek review of zoning ordinances from either the PUC or the Commonwealth Court were effective immediately, while another portion of Quigley’s order seemed to prohibit such review until the 240-day injunction period expires.
“The Commission simply does not know if it has to tell those parties to wait and see what happens here for the next 240 days or perhaps beyond, or whether it is permitted to review and determine the validity of any pre-existing ordinances that may be challenged due to alleged non-compliance with Act 13,” the PUC said in its April 25 application to modify Quigley’s order.
But the plaintiff municipalities said in their response, filed April 27, that no clarification was necessary because Quigley’s order clearly stated that since the portions of Act 13 related to zoning are not yet in effect, municipalities’ ordinances cannot yet be challenged as allegedly violating Act 13.
The plaintiffs alleged that the PUC is seeking “adjudicatory power ahead of the need or ability to comply with portions of Act 13.”
“Because Section 3309 of Act 13 has been expressly enjoined, neither the PUC nor its chairman have any jurisdiction at present to consider challenges to municipal ordinances under Act 13,” the plaintiffs said.