PENNSYLVANIA PUBLIC UTILITY COMMISSION
P.O. BOX 3265, HARRISBURG, PA 17105-3265 / IN REPLY PLEASE REFER TO OUR FILE
September 5, 2012
M-2012-2298565
Raymond J. Stolinas Jr., AICP
Bradford County Planning Director
North Towanda Annex No. 1
Towanda, PA 18848
Re: Advisory Opinion re Compliance of North Towanda Township, Bradford County, Zoning Ordinance with Act 13 of 2012; Docket No. M-2012-2298565
Dear Mr. Stolinas:
Pursuant to Section 3305(a) of Act 13 of 2012 (Act), North Towanda Township has requested, by its Letter filed with the Pennsylvania Public Utility Commission (Commission) on April 13, 2012, that the Commission review its proposed local zoning ordinance and issue an Advisory Opinion on whether the ordinance violates certain provisions of the Act. On July 26, 2012, the Commonwealth Court of Pennsylvania (Court) issued a decision declaring Section 3304 of the Act unconstitutional, thereby enjoining the Commission from enforcing that section of the Act. See Robinson Township, et al. v. Commonwealth et al., No. 284 M.D. 2012. Although the Court enjoined the Commission from enforcing Section 3304 of the Act, the Commission is still authorized to issue Advisory Opinions determining whether local ordinances are in compliance with Chapter 32, Section 3302 and Section 3303 of the Act and the provisions of the Municipalities Planning Code (MPC).
Accordingly, by this Letter, the Commission now issues this Advisory Opinion to North Towanda Township regarding the compliance of its proposed local ordinance with Chapter 32, Section 3302 and Section 3303 of the Act and the provisions of the MPC. Please note that this opinion is advisory in nature and is not subject to appeal. 58 Pa. C.S. § 3305(a)(3). As such, this opinion is not a binding legal determination by the Commission regarding the validity of the proposed ordinance and, accordingly, does not preclude any subsequent adjudication by the Commission or the courts in actions brought under Sections 3305(b) or 3306 of the Act to challenge the proposed ordinance. 58 Pa. C.S. §§ 3305(b) & 3306.
Based upon the Commission review of the proposed ordinance, it appears that the ordinance DOES NOT comply with Chapter 32 of the Act for the following reasons:
1. Page 104, Section 500.51(C) of the Ordinance does not comply with Section 3215 of the Act. Section 3215 of the Act sets forth particular setback requirements applicable to (1) unconventional gas wells and (2) oil and gas wells generally. Section 500.51(C) of the Ordinance purports to apply the setback standards applicable to unconventional gas wells under Sections 3215(a) and 3215(b) of the Act to oil and gas wells in general. Accordingly, in order to comply with the Act, Section 500.51(C) of the Ordinance must expressly specify that such setback requirements set forth in Section 500.51(C) of the Ordinance are only applicable to unconventional gas wells rather than oil and gas wells in general.
2. Page 117, Section 500.68(J) of the Ordinance does not comply with Section 3215(f) of the Act. Section 3215(f) of the Act provides that certain well sites (which may encompass water impoundment areas) may not be drilled within a floodplain unless a waiver is obtained from the Pennsylvania Department of Environmental Protection. Section 500.68(J) of the Ordinance, however, completely prohibits water impoundment areas within FEMA designated floodways. This complete prohibition does not comply with the permissive approach set forth in Section 3215(f) of the Act. Accordingly, in order to comply with the Act, Section 500.68(J) of the Ordinance must conform to the permissive approach contained in Section 3215(f) of the Act.
Please note that this opinion does not include a determination as to whether the proposed ordinance is in compliance with Section 3304 of the Act. Additionally, due to the pending litigation regarding the Act, the Commission recommends incorporating the following provision into the proposed ordinance: “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.” However, the mere inclusion of such provision in the proposed ordinance, without consideration for the above-listed recommended revisions, will not ensure compliance with the Act.
This opinion has been issued as an aid to North Towanda Township to facilitate its compliance with the effective provisions of the Act. As noted above, this opinion is advisory in nature and is not appealable. If you have any questions regarding the details of this Advisory Opinion, please contact Krystle Sacavage, Assistant Counsel, at 717-787-5262 or by e-mail at .
Sincerely,
Rosemary Chiavetta
Secretary