Agenda - Planning Commission - 10/09/2014

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September 10, 2014 (. Volume 8 ( Issue 17 Zoning Bulletin and, if not, to withhold impact fees from local governments imposed for the benefit to alleviate the "impacts" caused by the gas drillers and opera- tors —are severable from the enjoined provisions of Act 13 or if they too are unenforceable. DECISION: Application and enforcement of § 3302 as it relates to Chapter 33 of Act 13 enjoined. Application and enforcement of §§ 3305 through 3309(a) enjoined. The Commonwealth Court of Pennsylvania held that §§ 3302 and 3305 to 3309 were not severable and therefore were also unenforceable. The court explained that "[g]enerally, the doctrine of severability requires that upon finding an application or textual component of a statute to be unconstitutional, a court may, in appropriate circumstances, excise the unconstitutional part rather than declare the entire statute invalid." The court further explained that, in determining whether provisions of a statute are severable, the court is guided by the standard provided in § 1925 of the Statutory Construction Act. Under that standard, a valid provision of a statute is severable unless it is "so essentially and inseparably connected with, and so dependent upon, the void provision . . . that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent." The court first analyzed the continued viability of 58 Pa.C.S. § 3302. Section 3302 provided in pertinent part: "[n]o local ordinance adopted pursuant to the MPC [Pennsylvania Munici- palities Planning Code ("MPC"), 53 P.S. §§ 10101-11202] or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32. The Commonwealth, by this section, preempts and supersedes the regulation of oil and gas operations as provided in this chapter." (Emphasis added.) The Commonwealth Court concluded that since the Supreme Court declared the substantive provisions of Chapter 33 unconstitutional (i.e., §§ 3303 and 3304), then the last sentence of § 3302 was also "necessarily incapable of execution and [was] severed from the remaining valid provi- sions of [§ 3302] regarding Chapter 32's regulation of oil and gas operations." Accordingly, the court concluded that §§ 3302 was not en- forceable to the extent that it implemented §§ 3303 and 3304. The court next looked at the viability of 58 Pa.C.S. §§ 3305 through 3309. The Commonwealth's Supreme Court had already held that those procedural provisions giving the PUC jurisdiction over challenges to lo- cal ordinances and impact fees were not severable to the extent that they implemented or enforced the invalid Sections of Act 13 namely 58 Pa.C.S. §§ 3303 and 3304. The court here needed to determine whether 4 a. 2014 Thomson Reuters