Judge halts zoning limits in Act 13

Posted April 12, 2012

Staff and wire reports

HARRISBURG - A judge on Wednesday ordered a temporary halt to the section of Pennsylvania's new Marcellus Shale law that puts limits on the power of municipalities to regulate the booming natural gas exploration industry, a victory for the seven municipalities that sued.

However, the Commonwealth Court senior judge, Keith Quigley, suggested that the wider challenge to the constitutionality of the local zoning limitations is questionable, saying in a two-page order that he's not convinced that the "likelihood of success on the merits is high."

Still, Quigley said, municipalities need enough time to develop new zoning rules under the 8-week-old law and have them in place to regulate oil and gas drilling before their existing zoning becomes invalid Saturday.

Quigley ruled several hours after listening to arguments in court for a half-hour and then speaking with lawyers privately in his chambers.

Brian Coppola, chairman of the Robinson Township board of supervisors, which initiated the lawsuit, said he was not that surprised at the court ordering an injunction. Robinson was joined in the suit by Mt. Pleasant, Cecil and Peters townships in Washington County and South Fayette Township in Allegheny County, as well as two municipalities in eastern Pennsylvania.

"We were pretty confident we would get a stay," he said. "Act 13 would have left us without any zoning protection. We thought we had a strong constitutional challenge."

Coppola traveled to Harrisburg for the hearing but was not called as a witness. John Smith, the attorney who represents both Cecil and Robinson townships, said after the initial argument, the parties continued their oral arguments in the judge's chambers for about an hour.

The result of the injunction, Smith said, allows the court to make a ruling before the act becomes effective. This allows townships and municipalities to continue to operate with their current zoning ordinances. Otherwise, he said, they would have been left in a vulnerable position with laws on the books.

William Johnson, solicitor for Mt. Pleasant and Peters townships, said he received the order at 3:20 p.m. Wednesday.

"It's all we could have gotten today, the preliminary injunction," Johnson said. "I'm somewhat relieved, as it appears to give us some additional time to determine where things are. I think it's as much as the court could have given today, to grant the preliminary injunction."

Andy Schrader, a supervisor in Cecil Township, said the injuncton was "great news."

"We were really worried about what we were going to do if (Act 13) went into effect," he explained. Schrader said the township already went through its own oil and gas drilling ordinance to see what would have had to have been changed to make it conform to Act 13, and the alterations "would have been substantial."

At the South Strabane Township supervisors' meeting Tuesday, the board voted on a resolution supporting Robinson, Cecil, Peters and Mt. Pleasant townships in their effort to defeat Act 13. At the meeting was state Sen. Tim Solobay, D-Canonsburg, who said those four municipalities will receive $1.5 million in impact fees.

A spokesman for Gov. Tom Corbett pointed out the judge's doubt about the ultimate success of the lawsuit and said the administration is considering its options, including whether to appeal.

"All this decision means is that municipalities will get an additional 120 days to come into compliance with the zoning provision of the law," Corbett spokesman Eric Shirk said.

The law's local-zoning provisions, which had been scheduled to take effect Saturday, set statewide limits on the extent to which a municipality can regulate the booming Marcellus Shale industry, including well drilling and construction on pipelines and compressor and processing stations.

But lawyers for the municipalities argued that allowing the law to invalidate ordinances later this week would not have given towns enough time to rewrite their rules to comply with the law, or to challenge its constitutionality. As a result, they said, towns would be temporarily powerless to protect their residents' quality of life and property values, especially if companies promptly seek permits in the coming days and weeks.

About 125 municipalities had at least one oil and gas zoning ordinance in effect earlier this year, according to the Marcellus Shale Coalition, an industry group, although not all of those are necessarily invalidated by the law.

The municipalities also are seeking to have the law's local zoning provisions struck down as unconstitutional, and they had asked Quigley to allow local zoning ordinances to stand in the short term. His order granted that request.

Among the objectionable provisions cited by the towns' March 29 lawsuit are requirements that drilling, waste pits and pipelines be allowed in every zoning district, including residential districts, as long as certain buffers are observed.

Senior Deputy Attorney General Howard Hopkirk argued to Quigley that the state created the municipal planning code, and municipalities have no right or standing to complain about perceived harm to its residents if the state pre-empts parts of it.

Corbett's spokesman has said the administration is confident the law will withstand judicial scrutiny.

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