Earlier this year, Act 13 was passed into law. Signed by Governor Corbett on February 14, it would erase municipal zoning laws from consideration where drilling for oil or natural gas was involved.
The legislation also placed an impact fee on every well drilled for gas in the Marcellus Shale formation. Some estimates place the revenue generated by the fee at around $180 million. Sixty percent of the revenue was to go to counties and municipalities hosting wells and the rest to various state agencies. It also set state standards for the minimum distance between wells and streams, schools, building and water sources. A distance challenged by many environmentalists as not being enough.
Another element of Act 13 would take away local zoning rules that residents previously followed. Decades of municipal planning could have been wiped out with a request for a drilling permit. Not all zoning laws are perfect, but imagine drillers having the right to drill in the middle of your town or neighborhood (unless it’s a densely populated residential area) without any input from residents or local officials.
If a local government decided to pass ordinances and regulations that go beyond the new state standards, the Public Utility Commission (PUC) would have the power to bar the municipality from receiving any impact fee money (if the municipality was entitled to any).
Fortunately, the state Commonwealth Court ruled in a 4-3 decision released last week that the provision in Act 13 that put the local zoning code into the hands of the state was a violation of the state constitution. Judge Dan Pellegrini said the provisions upended the municipal zoning rules that had previously been followed by other property owners, unfairly exposing them to harm. Seven municipalities had sued saying it unconstitutionally takes away the power to control property from towns and landowners for the benefit of the oil and gas industry.
The state Constitution states, “The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.”
The Commonwealth has since appealed to the state Supreme Court.
In announcing the state’s appeal Governor Corbett issued a statement saying that “It is the General Assembly and Governor’s prerogative to establish policy; 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, and I am confident the Supreme Court will adhere to its responsibility in a prompt and timely manner.”
In the court filing, an attorney for the PUC and the state Department of Environmental protection wrote that the “permanent injunction threatens to disrupt time-sensitive economic development projects ongoing in eastern and western Pennsylvania that will create and retain thousands of jobs—including but not limited to projects at the Philadelphia Refinery in Philadelphia—and the former Horsehead Corporation site in Beaver County that are of substantial public importance.”
But the residents and local government should be able to voice their concerns and protect the nature and character of their municipalities. After all, they live there and have been planning their communities for decades.
Local zoning decisions should be just that - local.