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South Fayette ordinance order 10/18/2012

South Fayette ordinance order 10/18/2012

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10/18/2012

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PENNSYLVANIAPUBLIC UTILITY COMMISSIONHarrisburg, PA 17105-3265
Commissioners Present:Robert F. Powelson, ChairmanJohn F. Coleman, Jr., Vice ChairmanWayne E. Gardner James H. CawleyPamela A. Witmer Request for Review, filed by Mr. William F.Sray, Regarding the South FayetteTownship, Allegheny County, ZoningOrdinances Regulating Oil and Gas WellDevelopment and ProcessingDocket No. M-2012-2311408
OPINION AND ORDER BY THE COMMISSION:
Before the Pennsylvania Public Utility Commission (Commission) for consideration and disposition is the Request for Review filed by Mr. William F. Sray onJune 21, 2012, with a follow-up request filed on August 9, 2012, regarding the SouthFayette Township (Township), Allegheny County, Zoning Ordinances Regulating Oil andGas Well Development and Processing (collectively, the Ordinance) made pursuant toSection 3305(b) of Act 13 of 2012, the Unconventional Gas Well Impact Fee Act, 58 Pa.C.S. §§ 2301- 3504 (Act 13 or Act). An Answer to the Request for Review was filed bythe Township on September 7, 2012. For the reasons stated below, we find that theOrdinance violates Chapter 32 as well as Sections 3302 and 3303 of the Act and,accordingly, that the Township will be immediately ineligible to receive any fundscollected under Chapter 23 of the Act. Per Section 3308 of the Act, the Township willremain ineligible to receive funds under Chapter 23 until the Township amends or repeals
 
its Ordinance or this Order is reversed on appeal. The curative action by the Townshipmust be taken and provided to the Commission no later than November 28, 2012, toaccommodate payment of Act 13 impact fee funds by December 1, 2012.
I. History of the Proceeding
On June 21, 2012, Mr. William F. Sray filed a request (Original Request)for the Commission to review the Township’s Ordinance pursuant to Section 3305(b) of the Act. In the Original Request, Mr. Sray requested that the Commission review theTownship’s Ordinance and issue an order regarding the compliance of the Ordinance withChapters 32 and 33 of the Act and the Municipalities Planning Code (MPC). Mr. Srayalso set forth in the Original Request that he is a resident of the Township, “a propertyowner and a gas lease holder” who has been “adversely affected” by the Township’sOrdinance, which allegedly restricts oil and gas operations in violation of the Act.
See
 Original Request at 1.On July 26, 2012, the Commonwealth Court of Pennsylvania(Commonwealth Court) issued a decision declaring Section 3304 of the Actunconstitutional, thereby enjoining the enforcement of Section 3304.
See
 
 Robinson Twp.v. Commonwealth
, No. 284 M.D. 2012, 2012 WL 3030277, at *22 (Pa. Cmwlth. Ct.2012). The Commission, Department of Environmental Protection and Attorney Generalsubsequently appealed the Commonwealth Court’s decision to the Supreme Court of Pennsylvania (Supreme Court).
See
Notice of Appeal,
 Robinson Twp.
, No. 284 M.D.2012. Similarly, the Township, as one of the named petitioners (Petitioners) challengingthe constitutionality of the Act, filed a cross-appeal of the Commonwealth Court’sdecision with the Supreme Court.
See
Notice of Cross-Appeal,
 Robinson Twp.
, No. 284M.D. 2012. Both the appeal and the cross-appeal are pending before the Supreme Court.On August 9, 2012, Mr. Sray filed a follow-up request (Follow-Up Request)
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for the Commission to review the Township’s Ordinance. In the Follow-Up Request, Mr.Sray (1) alleged that the Ordinance contains multiple violations of Chapter 32, as well asSections 3302 and 3303 of the Act and (2) requested that the Commission review theTownship’s Ordinance and issue an Order regarding the compliance of the Ordinancewith such provisions of the Act. Mr. Sray recognized in his Follow-Up Request that theCommission is enjoined from reviewing and enforcing Section 3304 of the Act.
See
Follow-Up Request at 1. The Original Request and Follow-Up Request are collectivelyreferred to herein as the Request for Review.The Commission served a copy of the Request for Review on the Townshipon August 20, 2012, with a notice to respond within 20 days from the date of service. AnAnswer to the Request for Review was filed by the Township on September 7, 2012.
1
Inits Answer, the Township ultimately argued that the Request for Review filed by Mr. Srayshould be dismissed and/or stayed pending a decision from the Supreme Court regardingthe constitutionality of certain provisions of the Act. Specifically, the Township’s Answer sets forth an array of substantive arguments as to its opinion that the Commission shouldnot issue an order in response to Mr. Sray’s Request for Review at this time. TheTownship’s arguments include, but are not limited to, conflict of interest, jurisdiction,stays, standing, separation of powers and special law issues. Importantly for purposes of this Order, the Township’s Answer does not include any responses based on the merits of the allegations set forth by Mr. Sray in his Request for Review.
II.
 
The Commission’s Statutory Obligation to Issue Orders
1
Contemporaneously with the filing of the Township’s Answer, an “Application toEnforce the July 26, 2012 Court Order Which Preliminarily Enjoins the Enforcement of Certain Provisions of Act 13” (Application) was filed by the Petitioners with theCommonwealth Court. The Application was incorporated by reference into the Answer.
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