Cecil Solicitor: PUC's Withholding of Impact Fee From Local Communities Violates Act 13

Cecil Solicitor John Smith wrote a letter to the Public Utilities Commission Monday after finding out that the —saying the move was improper.

Smith who is also spearheading the challenge to Act 13 brought by a cluster of communities including Cecil and Peters townships, as well as a nonprofit organization and medical doctor called the PUC’s move to withhold the money until a review of the municipalities’ ordinances to ensure they complied with the law was “overtly in violation” of the new Marcellus Shale drilling law.

“Nowhere in Act 13 is the PUC given the authority to deem a township ineligible for impact fees merely because a request for review is currently pending, or that the PUC may, at some point, issue an order that the local ordinance violates Act 13 or the (Municipal Planning Code),” wrote Smith, who is also the solicitor of Robinson Township—another of the communities where its ordinance is under review.

Smith noted that a decision to withhold impact fees from those four communities while there is an appeal pending in the state Supreme Court regarding a Commonwealth Court’s earlier finding that portions of Act 13 regarding zoning were unconstitutional was inappropriate.

“Given the current circumstances, including the pending appeals to the Pennsylvania Supreme Court where the four municipalities challenged are in litigation against the PUC, among others, that include challenges to the PUC’s function under Act 13, the failure of the PUC to follow Pennsylvania law is suspect at best," he wrote.

Smith continued: “The PUC’s ‘policy choice’ to withhold impact fee monies demonstrates overtly the violation of the Separation of Powers that Act 13 represents, as the PUC is legislating, adjudicating, and enforcing the law without any appropriate checks and balances, which results in the inappropriate conduct as evidenced here. Likewise, the decision to preemptively withhold payment regardless of whether there has been a required adjudication by statute warranting such withholding is the essence of the deprivation of due process.”

Smith ended the letter by saying, “lf the PUC’s goal is to punish a number of the municipalities for challenging Act 13 and for attempting to protect citizens’ public health, safety and welfare, please note that these municipalities are resilient and will not shirk their responsibilities regardless of the ploys advanced.”

Reached Monday afternoon, PUC Press Secretary Jennifer Kocher said, "We will meet our obligations under the law."

Editor’s Note: To read Smith’s entire letter, click on the attached PDF.