Agenda - Planning Commission - 12/01/2016

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K November 10, 2016 1 Volume 10 1 Issue 21 Zoning Bulletin store natural gas in this Commonwealth"—which fit the definition of"public utility" as set forth in § 102 of Pennsylvania's Public Utility Code. Based on those statutory provisions, the court reasoned that§3241 conferred the power of eminent domain"only on corporations which are public utilities possessing a certificate of convenience, and, hence, are statutorily authorized to exercise such power."Thus, concluded the court, § 3241 did not, as the Citizens had argued, constitute unconstitutional government-authorized taking of private property for the benefit of a private party. Both the Pennsylvania Public Utility Commission (the "PUC") and the Citizens appealed.The PUC argued that§§3305 to 3309 could be severed from §§3303 to 3304,and could and should be enforced,allowing the PUC to review local ordinances regulating oil and gas.The Citizens argued that§3241 was un- constitutional since it granted"any corporation" (and not just public utilities) the power of eminent domain to take private property for a private purpose. DECISION:Affirmed in part and reversed in part. The Supreme Court of Pennsylvania affirmed the Commonwealth Court's holding that§§ 3305 through 3309 of Act 13 were not severable from(the al- ready deemed unconstitutional and invalid) §§ 3303 and 3304, and were therefore enjoined from enforcement.It also reversed the Commonwealth's or- der with regard to §3241, and determined that§3241 was unconstitutional on its face,as it granted a corporation the power of eminent domain to take private property for a private purpose,in violation of the Fifth Amendment of the United States Constitution and Article I,§§ 1 and 10 of the Pennsylvania Constitution. With regard to §§3305 through 3309,the court explained that those sections were the"enforcement mechanisms"of Act 13,which were intended to"further the legislative goal of maintaining. . . statewide regulatory uniformity,as well as promote Act 13's primary objective of optimizing oil and gas development, by providing an expedited and unitary review process for all local ordinances to ensure that they do not run afoul of any of the statewide standards for oil and gas wells established by Act 13."The court concluded that,it was reasonable to conclude,in light of the legislative objectives behind the enactment of§§3305 and 3306 (i.e. to speed and simplify the local ordinance review process), that, absent the invalidated portions of Act 13 (i.e., §§ 3303 and 3304), "the legislature would not have passed these sections into law merely to have the PUC and the Commonwealth Court engage in the same type of measured and deliberative review process for local ordinances which the MPC already provides."Consequently,the court held that,absent the invalidated§§3303 and 3304 of Act 13,§§3305 and 3306 were"no longer capable of being executed in accordance with the original intent of the General Assembly, and, thus, they [could]not be severed" and were therefore enjoined.Also addressing §§3307 to 3309,the court noted that those sections imposed specific financial penalties on municipalities if, as the result of the review process set forth in §§ 3305 through 3306, it was determined that they enacted an ordinance which contravened the statewide standards set by Act 13.The court found that§§3307 and 3309 were therefore also "inextricably linked to the review provisions of those sections and, likewise, [could] not be severed" and were therefore enjoined from enforcement. With regard to §3241,the court looked at the plain and ordinary meaning of the text of the statute, which again permitted: "a corporation empowered to 10 ©2016 Thomson Reuters