One of the seven Pennsylvania municipalities that sued over the legality of Act 13, the state’s omnibus Marcellus Shale law, is now considering changes to its local drilling ordinance to comply with the measure, a move intended to help it collect more than half a million dollars in impact fee revenue.
Meanwhile, the Pennsylvania Public Utility Commission (PUC), the state agency empowered to ensure local drilling ordinances comply with Act 13, ruled that another plaintiff municipality has run afoul of the measure with its ordinance and therefore can’t receive its share of impact fee money.
Earlier this year, Mount Pleasant Township, which is in Washington County, joined six other municipalities in their lawsuit against Act 13, arguing that portions of the state law were unconstitutional (see Shale Daily, April 2). An appellate court agreed, but the case was appealed to the state Supreme Court, which took up the case last week (see Shale Daily, Oct. 18; July 27).
Last week, with the case Robinson Township et al v. Commonwealth et al (No. 284-MD-2012) playing out in court, the PUC announced a bombshell: Mount Pleasant is owed $511,855.78 in impact fee revenue, but is ineligible to receive it because its drilling ordinance is incompatible with Act 13 (see Shale Daily, Oct. 17).
That news apparently spurred Mount Pleasant officials to action at their meeting on Oct. 17.
“Obviously, you don’t want to lose that kind of money,” Mount Pleasant Township Supervisor Bryan Smith told NGI’s Shale Daily on Tuesday. “I don’t think we would be doing the right thing for the people in our community to lose a half a million dollars. At the same time, I want to make sure it’s a safe place for people to live. What good is the money if you’re pushing people out because of safety or environmental hazards? It’s a fine balancing act, for sure.”
Smith said the township board was considering changes to several portions of the township’s local drilling ordinance but didn’t specify what they were. He added that the township was still closely watching developments with the Supreme Court.
“We’ve decided to go ahead and make some changes sooner rather than later,” Smith said. “Some of these were going to have to happen regardless of the ruling through the Supreme Court. We wanted to try to wait until everything was ruled, that way we didn’t have to go through the process twice.”
The PUC got involved after two Mount Pleasant residents, Tony and Sally Pawlosky, wrote to the agency and made a request for review (RFR) of the township’s ordinance on Sept. 8 (see Shale Daily, Sept. 20). But in a letter dated Oct. 17, Tony Pawlosky asked to rescind that request.
“Since the filing, I have learned the township is willing to change their stance on drilling operations,” Pawlosky wrote. “In short, they have agreed to work with industry to foster a more cooperative atmosphere.
“Based on the township’s promise of a positive tone moving forward, and in the same spirit of cooperation agreed by the township, I would like to formally rescind my request for review. Part and parcel of this notion is the request to have the impact fee restored to the township. I believe the amount in question can and will be used for projects that ultimately benefit the entire community and therefore would like the designated monies sent to the township.”
Smith said he was unaware that Pawlosky had rescinded his request and was surprised by the news.
“After the [Pawlosky] challenge and after we received notice from the PUC, our solicitor advised us that we should probably go ahead and make these changes in a two-part series, unless we want to take a chance on that impact money,” Smith said. “Maybe that’s where [Pawlosky’s] satisfaction came in. Maybe that was the reason for his withdrawal.
“We’re not trying to be hard to get along with. We just have to be certain that we’re doing the right thing. That takes a lot of research and effort and thought process.”
But Mount Pleasant Township isn’t shy of going toe-to-toe with the industry, either. Last year, Range Resources Corp. took issue with the township’s drilling ordinance because it amounted to a conditional use permit. The two sides eventually held mediation talks over the issue (see Shale Daily, June 28, 2011; April 18, 2011; April 13, 2011).
“One of the biggest problems before was that there was a lot of uncertainty on the conditional use procedures,” said Smith, adding that his term in office began after the conditional use debate. “Their industry is time sensitive and it costs a lot of money if a [drilling] rig is sitting.
“I think there are things in place right now that [the industry] is comfortable with, as they stand now and without the Act 13 ruling. At the same time, once the ruling comes from the Supreme Court, we’ll change what we need to change – or not. Ultimately, my goal is to make sure there is a good balance — where the drillers can do what they need to do and yet it conforms to the township’s ordinance in culmination with the Act 13 ruling.”
On Thursday the PUC said South Fayette Township’s drilling ordinance was incompatible with Act 13 and would need to be amended before the municipality, which is in Allegheny County, could collect the $2,731.39 it is owed in impact fee revenue. William Sray, a township resident, had filed an RFR with the PUC on June 20 (see Shale Daily, Sept. 12).
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