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

Cecil Solicitor John Smith wrote the PUC a letter in opposition to Monday's decision to withhold impact fee money from those municipalities where their oil and gas drilling ordinances are under review by the state.

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.

Pat Henry October 16, 2012 at 03:38 PM
You fail to mention that the PUC also has a duty to review ordinances based on Section 3305 and do so within 120 days. It would be completely inappropriate for the PUC to provide impact fee money when there is an outstanding question to validity. Since you seem to believe that there is no issue with any of these ordinances why don't you act as a responsible mediator and recommend the money be placed in escrow until a determination can be made? You won't do that because you know the ordinances are invalid and you've done nothing to encourage reform of those ordinances. Even PSATS has encouraged municipalities to comply with Ch. 32, 33 and the MPC but you remain intransigent in your silence refusing to tell municipalities that they have to modify their ordinances. You are abdicating responsibility as a legislator to inform your constituent municipalities of their need to reform their ordinances. If anyone is to blame for this situation it is you and your complete failure at leadership.
Concerned Citizen October 16, 2012 at 04:47 PM
Jason Parks I appreciate the compliment, but I am not Jesse White. He clearly posts in his own name and isn't afraid to say what he thinks using his own name. (Something I very much respect about him). Lets just get a few things clear. I am not against drilling ( neither is Jesse White or Solicitor Smith). As I have said numerous times before there is a time and place for it. I am for the challenge of Act 13 because its intentions were not to benefit the citizens of Pennsylvania, but to soley benefit the oil and gas companies. The setbacks and regulations are a joke. Act 13 literally opens up drilling in any zoning area. Does it really make sense to have a well pad or a compressor station in a residental area?? Anyone who has truly read Act 13 with an open mind understands this. The gas companies helped orchastrate Act 13 in order for them to be able to make more money with less hassle. If you truly belive that they werent making money before Act 13 you clearly havent looked at their financial statements. Actually all you really have to do is watch the TV, since every other commercial is for Range Resourses. Clearly they aren't hurting financially. The PUC is clearly on the side of the oil and gas companies and if they are willing to violate their own law and withhold impact fee money that is clearly due, what is next? It is the PUC's job to protect the citizens of the state of Pennsylvania not the financial statements of the gas companies.
Concerned Citizen October 16, 2012 at 04:49 PM
What township meeting Robinson or Cecil?
Me October 16, 2012 at 06:19 PM
Oct. 1, 2012 I attended the Cecil Twp meeting. One supervisor ask John Smith if the the twp. was in compliance with Act 13. He replied no. He was encouraged to take care of it so the twp did not lose the impact fee. Someone was to busy writing a new policy to control the people and one supervisor who ask to many questions.The meeting s have never been out of control. There is occasional clapping and yelling out. I have attended meetings for over 2 years and there was never a need for police intervention. If John Smith is the reason Cecil lost the impact fee he needs to go and I wonder if someone got payed for write the new policy or was it pro bono...
A Robinson Resident October 16, 2012 at 06:43 PM
It's amazing to me the lack of understanding some people have about this issue. People seem to want to lump a bunch of different issues into one. There are clearly three different issues here. One, is whether or not Act13 is Constitutional. Second, is whether municipalities are in compliance if the Act IS Consitutional. And third, is if the PUC is overstepping it's bounds by withholding money from the municipalities without a judgment that a municipality is in violation of the Act, again IF it is Constitutional. You have to address each issue spearately, and several people on here have muddied the waters by mixing fact, fiction, and opinion. First, Act 13, in and of itself was not challenged as being Unconstitutional. What was challenged was the local zoning portion of the Act. The has been determined by Commonwealth Court to be unconstitutional and is currently being appealled to the State Supreme Court. But, there was also an injunction issued preventing the zoning portion from going into effect for 6 months and municipalites have until December to come into compliance... again only IF Act 13 is determined to be Constitutional and goes into effect.
A Robinson Resident October 16, 2012 at 06:44 PM
Second, municipalities CANNOT be in violation of Act13's local zoning section because the court has determined that portion to be unconstitutional. Until and only IF that decision is overturned by the Supreme Court will that occur. The cost and time involved in changing an ordinance makes it impractical to do before a determination is made by the court as to whether they Act is Constitutional. Think about it... why would I change my laws if the Act telling me I have to is determined to be unconstitutional??? Once the lawsuit is finished, then, and ONLY then should municipalities make changes to their ordinances if they are in violation of Act 13. There are advertising requirements, public meeting requirements, and cost associated with doing so, so those municipalities who have not done so yet pending the outcome of the lawsuit are being prudent with their taxpayers money.
A Robinson Resident October 16, 2012 at 06:50 PM
Lastly, the PUC is clearly overstepping the Act itself. The Act states that withholding of funds occurs IF a determination is made that a municipality is in violation. Not only are they acting before a determination is made, but considering the courts have stated the local zoning portion is unconstitutional, how can PUC state a municipality is in violation??? The answer is that they can't. This move is nothing more than the Governor and PUC trying to punish those municipalities for standing up for their citizens and is a clear example of why this law is bad legislation. One last thought... to those arguing that there needs to be one set of rules.... What makes the gas industry so special that they need their own set of rules? Any other business looking to operate in a municipality has to follow the local rules, which differ from place to place. It's only because the Gov and his cronies are getting paid off that this industry gets special treatment. And that special treatment is one of the major reason the Act is unconstitutional!
Me October 16, 2012 at 07:23 PM
I do know we want Act 13 in Cecil Twp We do not want John smith making the decision in drilling in Cecil Twp. Save our Township
Kittypepper October 17, 2012 at 12:35 AM
Some residents of Cecil Twp don't want Drilling. Peters Twp of all twp on the 6 o'clock news proud as peacocks being they are getting their impact fees in the amount of $261,627.72 stated that it will go to improve roads, bridges etc. What is wrong with some of Cecil Twp. officials???????????
Marc October 17, 2012 at 12:41 AM
YEP!! Robinson Resident, you got it 100% right! The entire Act 13 was "payback" to the gas industry for their massive financial contributions to Corbett and his legislative cronies. The gas industry has produced the biggest scam and sham of the 21st century on our local residents and country! The gas industry should be treated no differently than the coal industry, shopping mall, grocery store, office building, etc. All should be subject to LOCAL zoning rules. PERIOD!!!
Jason Parks October 17, 2012 at 02:10 AM
Hey look, everyone! Robinson Resident has it all figured out. Guess that means Smith can drop the suit, right? Whew, you just saved a lot of time. Marc--so natural gas is a scam and a sham but you want it treated like grovery stores and coal? So grocery stores are a scam and a sham? Thanks for clearing that up. Back to the point of the article--solicitor Smith gave bad advice, got caught and is not trying to distract people. Jesse white gave bad advice, got caught and is trying to distract by throwing out cuckoo conspiracy theories about range, the dep, the puc, black helicopters, psych warfare and "illegal" laws that were somehow passed legally. Its all so sad. People in Cecil should be asking about the next step.
Jason Parks October 17, 2012 at 02:11 AM
Whoops. Should read "smith is now trying to distract people". It says "not". I'm not perfect.
Marc October 17, 2012 at 03:26 AM
Jason, you misunderstood my comment. Yes, the way the gas industry operates and prefers to operate with impunity is a national scam and sham. Their mouthpieces spew garbage about "how good it is for America". That is a big fat lie. It is mainly good for their bottom lines. They choose to sell much of the gas from our area to higher bidders such as China and India. How does that promote American energy independence? China and India can consume as much gas (and more) as this greedy industry is willing to provide. They believe they should be able to dictate to our local communities exactly where and how they want to operate. Well, this IS America, and NOT China or Russia. We fought the Revolutionary War, in part, to free ourselves from the control of what we perceived as a threat to our existence and favored way of life. The gas industry is definitely a real threat to our lives and favored way of life -- health, environment, property values, etc. Bottom line is that gas industry should not be given special treatment, i.e., exemptions from local zoning whereas other industries such as coal, commercial, agricultural, industrial establishments, etc. are forced to adhere to local zoning regulations. Local zoning is instituted for good reasons. Let’s not permit one favored (gas) industry to pervert and make a mockery of those reasons for local zoning.
cecil resident October 17, 2012 at 03:56 AM
Jason you won the debate and Marc comparing grocery stores to the gas and oil industry is way off . If you built a grocery store in Cecil Township it remains in the broundry of the township it is not crossing into other townships and clear across the state the gas and oil industry is not located in the broundries of Cecil Township. It is in a bigger playing field that covers the state of Pa. it can't have a set of rules in each township that can change at the drop of a hat everytime someone who doesn't like the industry complains. I have seen how our township works earlier this year we had two neighbors fighting over feeding birds and cats one complained to the township supervisors and lo and behold at the next meeting had an ordinance drawed up that affected everyone in the township. The whole bill was a joke one of the things that stands out was you could be fined if I remember correctly a $1000 if you didn't clean up bird seed on the ground and it limited you to one bird feeder. It was a good thing that concern taxpayer were at the meeting because they got wind of this new ordinance and voiced their opinion and it wasn't passed.If we didn't have state and federal laws to rein in some of the township laws we would be living in a nightmare.Think of it this way say the steelers are the gas and oil industry and in every state they played in had a different set of rules and could change in the middle of the game. How successful do you think they would be?
cecil resident October 17, 2012 at 04:26 AM
Marc say you are right about China and India then that's what we should be fighting not the industry makings us energy independent. Enviromentally go back in the Observer-Reporter archives July 23, 2012. "Experts say critics of fracking using bad science". Some of the highlights inTexas were fracking has been going on a lot longer and have more wells then we do, the activists were saying breast cancer has spiked because of the fracking. The Susan G. Komen for the cure of breast cancer stated it wasn't true . Now the air when the new stats come out even some enviromental groups are saying that natural gas is having a positive affect on air quality. Don't take my word for it go to the archive and look it up it was on page A3. Is their problem with the industry yes their is with every industry, do we need regulations certainly but not over regulations by every township Act 13 doesn't take all the laws from the township it keeps them from being a burden on the industry . I personally don't want to see any more blood spilled in a foreign land with people that hate us for a barrel of oil when it lies right beneath our feet.
Cindy McPherson October 17, 2012 at 04:33 AM
Okay, so let's step out from behind the shadows and let people see who is really driving this 'debate': proud american = janice gibbs, crony of Elizabeth Cowden, who ran for supervisor as the eyes and ears of Range Resources pat henry = James Protin, PE, who works in the natural gas industry and is a close personal friend of and contributor to gas industry puppet Senator Tim Solobay jason parks = someone who clearly works for the natural gas industry, most likely Range Resources, which means it's either Jim Cannon or Mark Windle If I'm wrong, feel free to use your real names to correct me, but we all know I'm right. So now that we've identified some of the players, let us continue our game...
Marc October 17, 2012 at 05:03 AM
Proud American, one can not force the gas industry to sell their product in USA if they can reap higher prices from China and India! And those "experts or scientific studies, or groups", one must always look to see who is funding them. Yes, always follow the money.....
Marc October 17, 2012 at 05:07 AM
Proud American, I disagree with your comment "comparing grocery stores to the gas and oil industry is way off" . Yes, you are correct in that if grocery store is built in a township it remains there and does not cross state lines. Now, if gas well is built on my neighbor's property, it also remains there and it definitely affects me! It doesn't matter to me what the zoning is statewide. All I know is that there is a gas well next to me. My neighbor can not build a grocery store, office building, etc. on his property, so there is no reason to give gas industry carde blanche to do so. Zoning was instituted for good reasons in most communities; that being, to prevent businesses or industries such as gas industry from setting up shop wherever they like. When I purchased my property, I did so knowing there would not be an office building, grocery store, coal mine portal, or GAS WELL next to me. If my neighbor wants to build a store, he either must do so in an appropriately-zoned area of the township or ask our local township officials for a hearing to change the zoning. If it comes to that, then locals will have real input. The state has no business taking away my rights. Regarding your sports analogy, baseball does have “ground rules” specific to each ballpark. As long as every team knows the rules and plays by them, there is not an issue. The problem arises when one team (gas industry) wants to come into EVERY ballpark and use the same set of rules! They need to butt-out!
Pat Henry October 17, 2012 at 10:20 AM
Really, the constitutionality of Act 13 was never questioned? The multiple references to the constitutionality of Act 13 refer to what then? There were nearly a dozen individual issues brought up with the Act and the original petition asked for the entire Act to be thrown out because of constitutional issues. So, yes John Smith wanted the impact fee thrown out as well. Fortunately the Commonwealth Court had more common sense than to throw out the entire act and focus solely on the zoning issue and ignore the other sections that were brought up. The injunction only temporary until the court decision was issued so a little loose with the facts here.
Pat Henry October 17, 2012 at 10:23 AM
Again, incorrect. The Court only overturned 3304 but left in place the need to comply with 3302 and 3303 which stated that municipalities have to be in compliance with Ch. 32 of the act, cannot regulate environmental laws and must comply with the MPC. These are also things that municipalities have never been able to do but they have persistently done. This is the crux of the issue. Places like Cecil trying to control areas over which they have no control. How difficult would it have been for them to strike provisions governing environmental laws? One session, no advertising. Hubris prevents them from doing so along with John Smith's ego and Jesse's failure to advise them better.
Pat Henry October 17, 2012 at 10:25 AM
Once again you improperly categorize the court as having overturned all of zoning. Hardly correct. Only 3304 was overturned. A rather simplistic characterization of the ruling and completely incorrect. What you have are municipalities whose ordinances have been in violation for years, who were now aware that there was a need to make changes and chose not to. They were called out on this and now they are stomping their feet crying because they've been caught. The fact is these municipalities have overstepped their bounds.
Roger October 17, 2012 at 10:27 AM
So what? Is the information they post right or wrong?
cecil resident October 17, 2012 at 01:02 PM
If you think township zoning is going to protect you that can also change at the drop of a hat. I've been to many meeting where they give a variance on zoning and public input didn't mean a thing they may go thru the motions to make it look good but will end up doing what they want. Just because the township says it now doesn't mean it will be that way next month. You want your right as a property owner but you don't want your neighbor to have their rights. I would much rather have a gas well next to me then one of many of the housing plans that has destroyed hundreds of acres that totally destroy everything down to the bare earth and put down concrete and pavement. Instead of green trees we see roof tops , a concrete pad some pipe and green grass surrounding the site is a lot more appealing. If you think the township is fighting so hard against Act 13 for all the right reasons as a life time long resident in Cecil Township I have my doubts. Just ask the residents in cool valley where a developer wants money from the state thru TIF funding and the township never informed them they were be included included in an area declared blighted a resident found out in the paper and is battling this herself. If you think a well drops your property value imagine what being in a blighted area will do if it happened to those residents it can happen to you.
cecil resident October 17, 2012 at 01:09 PM
Marc to you feel the Susna B. Komen group who has been fighting breast cancer for years is in the hands of the gas and oil industry. The fedral government can lay out rules and regulation about the amount of gas and oil leaving this country.
Marc October 17, 2012 at 01:15 PM
Your right to access your gas ENDS where the exercising of those rights interferes with MY rights as guaranteed under the Pa. state Constitution. Article I, section 27 of the Pennsylvania Constitution Article I, section 27 of the Pennsylvania Constitution provides as follows: Sec. 27. Natural Resources and the Public Estate The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
cecil resident October 17, 2012 at 01:53 PM
Cindy let me tell you what I really am ,a concerned taxpayer of Cecil Township and I vote in every election I don't blindly vote for people because of the party they represent. When I back a person for office I do my research and no person can buy my vote I stick by my principles, it is because I felt we needed change , a voice for the citizens in the township that how I made my decision and if you think we are just two or three people , your wrong we were able to unseat one candidate and put a new one in. You want to use names and give people titles and guess what their agenda is that is your right it is something called FREE SPEECH and we have the same rights as you do and we are using our rights to voice our opinions.Everything I have stated in this debate is my personal beliefs I don't call people names I state the facts as I have seen them. Just because a person backs a candidate doesn't make them a puppet or a crony. I will give credit where credit is due Rep. White got residents in Cecil half of their fee they paid for sewage, good thing. Senator Solobay is looking towards the future and energy is part of it, good thing. Senator Murphy works hard for the military and senior issue a good thing. Rep. Nueman is working on a program for young people and jobs, good thing. If I have upset you with my opinion I apologize for upsetting you but not my opinions that is my rights as an American. You worry about names and peoples agenda what is Cindy McPherson "name" & agenda?
cecil resident October 17, 2012 at 02:10 PM
Marc the truth about this whole debate boils down to laws some you argee with some you don't and we can all dig up info to support or case. This is more than just a township and state debate it is an American debate. Looks what is happening to our country to day because we are relying on our needs from foreign countries. Why should one more young man and woman die for foreign oil when this country has it all right beneath our feet. Lets work to make it safer not to fight it.
Jason Parks October 17, 2012 at 03:05 PM
Marc--where do I begin..its ironic you should mention the Revolution. It was fought over taxes. What is the impact fee? A tax. Ergo you should be in favor of the industry, not the townships. Next, coal actually does get special treatment. There are state laws that deal with it. Try picking up a book instead of sitting online all day. Finally, its odd you should bring up property rights. You write "the state has no business taking away my rights". I agree. That's why people who want drilling on their land have just as much say as you do. It's their property so who is a local supervisor to take away THEIR rights? Cindy McPherson=jesse white staffer.
Marc October 17, 2012 at 03:26 PM
Jason, the American Revolution was fought for many more reasons than taxation without proper representation! Please get a copy of the Declaration of Independence and read it. That will bring you up to snuff. In my opinion, you are dead wrong regarding rights. As I said before, Your "right" to access your gas ENDS where the exercising of those "rights" interferes with MY true rights as guaranteed under the Pa. state Constitution. I will fight tooth and nail on this issue and so will many others. Jason, you seem similar to the smoker who believes it is still within his rights to smoke in a non-smoking establishment. Face it, the zoning portion of Act 13 was thrown out for good reasons, and hopefully it will remain out. Bureaucrats in Harrisburg have no business in this LOCAL issue.
Concerned Citizen October 17, 2012 at 05:37 PM
Thank you Marc! Very well said. I will also fight tooth and nail!

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