SHOHOLA TOWNSHIP BOARD OF

SUPERVISORS

George C. Fluhr-Gregory  P. Hoeper -Eleanore N. Wall

159 Twin Lakes Road

Shohola PA 18458

(570) 559-7394

Fax (570) 559-7523

November 22, 2011

Representative Michael Peifer

Wayne County Visitors Center

32 Commercial Street

Suite 300

Honesdale, PA 18431

RE:     HB1950, Section 3272

Preemption of Local Zoning

Dear Representative Peifer:

As you are aware, SB 1100 passed in the Senate on November 15, 2011. The issue of gas drilling and land use is one that has been researched by the Township, with the results of that research being published in the enclosed booklet.

Frankly, the portions of SB 1100 that relate to local ordinances are largely consistent with the conclusions reached by our legal analysis of the limits on municipal zoning restrictions of gas drilling operations. So, between this legislation and that set forth in HB 1950, SB 1100 is the more appropriate of the two.

However, please allow us to express our opposition to SB 1100 in its current form, in that it provides for the following provisions:

Section 3304, relating to Attorney General review of ordinances;

Section 3308, relating to sanctions; and

Section 3309, relating to conditions.

First, Section 3304 vests too much authority in the Attorney General. A determination of whether an ordinance constitutes an unreasonable restriction of gas operations should only be made by a court. That being said, the Township does not oppose the provision granting original jurisdiction to the Commonwealth Court.

Second, Section 3308 provides for sanctions where an action of a municipality is determined (after the fact) to have been merely incorrect. The Township’s position is that sanctions should be reserved for instances in which a municipality acts in bad faith and willful defiance of the law. Any attempt to punish a municipality for a good faith effort to exercise its authority is improper. If a municipality is merely incorrect in assessing its proper authority, the remedy for the State or the private individual should be injunctive relief and curative amendment.

Third, Section 3309 is ambiguous, and attempts to cast an unreasonably wide net in restricting a municipality’s ability to impose reasonable conditions. It appears from a plain reading of that section that a municipality would not be permitted to impose a setback greater than that otherwise allowed in that zoning district.

For example, if the front setback permissible in a residential district is 30 feet, then SB 1100 appears to provide that a municipality could not impose a greater setback where drilling is permitted as a conditional use. If this is what is intended, then the Township opposes Section 3309 as drafted. If this is not what is intended, then revision of the language for clarification is appropriate.

The Township has provided this analysis with the aim of contributing constructively to this conversation. Please feel free to contact us with any questions or concerns.

Thank you for the opportunity to address this important issue.

Sincerely,

SHOHOLA TOWNSHIP BOARD OF SUPERVISORS

George C. Fluhr

Gregory P. Hoeper

Eleanore N. Wall

cc:       Senator Lisa Baker

Hon. Robert P. Casey, Jr.