Local Zoning Changes: Preemption Language Returns To Impact Fee, And PUC Takes Charge

February 6, 2012 | 4:29 PM

By Scott Detrow

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How will Pennsylvania’s new impact fee restrict local reg­u­la­tion of nat­ural gas drilling?

The lat­est iter­a­tion of the bill makes sev­eral key changes to the local zon­ing restric­tions law­mak­ers approved in Decem­ber. That’s accord­ing to a draft copy of the bill obtained by StateIm­pact Pennsylvania.

StateIm­pact Penn­syl­va­nia has posted the draft impact fee bill and high­lighted the new local zon­ing restric­tions. Click here to read the document.

Most notably, the Attor­ney Gen­eral will no longer be the arbiter of which local zon­ing reg­u­la­tions are “rea­son­able.” The Pub­lic Util­ity Com­mis­sion will now play that role. If the PUC, Com­mon­wealth Court or Penn­syl­va­nia Supreme Court decide a municipality’s zon­ing or ordi­nances go beyond the frame­work set up by the leg­is­la­tion, the local gov­ern­ment would lose its fee revenue.

Lan­guage “super­sed­ing and pre­empt­ing” local drilling reg­u­la­tions is back in the leg­is­la­tion. The ini­tial House impact fee con­tained a sim­i­lar sec­tion when it was first intro­duced in Novem­ber, but House Repub­li­can lead­ers quickly amended it out of the bill.

The Cor­bett Admin­is­tra­tion has pushed for the pre­emp­tion lan­guage since the gov­er­nor first intro­duced his impact fee pro­posal in Octo­ber.  In a Novem­ber let­ter to law­mak­ers, Cor­bett argued it’s a rein­force­ment of already-existing Penn­syl­va­nia leg­is­la­tion, and not a power grab by the state government.

Like pre­vi­ous ver­sions of the fee, the bill requires munic­i­pal­i­ties to allow drilling in all zon­ing dis­tricts. The new draft includes a loop­hole to the require­ment: local gov­ern­ments can bar gas wells from a res­i­den­tial zone if “a well site can­not be placed so that the well­head is at least 500 feet from any exist­ing build­ing.” CORRECTION: This pro­vi­sion had been included in pre­vi­ous ver­sions of the bill.

The res­i­den­tial drilling man­date had become a polit­i­cal flash­point, and led nine Sen­ate Repub­li­cans to write a let­ter voic­ing their con­cerns about the impact fee’s local zon­ing restrictions.