Articles, Alerts & Perspectives

The Legal Intelligencer

The Commonwealth Court recently rendered a decision in Lyons Borough v. Township of Maxatawny, 2015 Pa. Commw. LEXIS 310 (Pa. Commw. Ct. 2015), addressing the scope of a municipal governing body’s authority under the Pennsylvania Municipalities Planning Code to impose conditions on a developer’s final land development plan approval. The court’s decision in Lyons is an important development because it significantly restricts the type of conditions a municipality may impose on a final land development approval, finding several conditions routinely imposed by municipalities at that stage to be improper.

In Lyons, Apollo Point L.P. and Saucony Creek L.P. applied to the township of Maxatawny for preliminary land development approval to construct a 192-unit apartment complex on approximately 37.7 acres of land zoned for multi-family housing. The Township Board of Supervisors approved the landowners’ preliminary land development plan subject to 161 conditions relating to, among other things: (1) compliance with the stormwater management requirements under the township’s subdivision and land development ordinance (SALDO); (2) compliance with sanitary sewer and water distribution system requirements under the SALDO; (3) compliance with additional miscellaneous zoning ordinance and SALDO requirements, such as completion of a transportation impact study; and (4) securing necessary permits and approvals from the state and county, including permits and approvals from the county planning commission, the Pennsylvania Department of Environmental Protection, and the Pennsylvania Department of Transportation. Shortly thereafter, the board approved the landowners’ final land development plan, conditioned upon the landowners’ compliance with all of the outstanding conditions cited in the board’s preliminary plan approval.

Concerned with the landowners’ ability to comply with the requirements of the township’s SALDO and zoning ordinance, Lyons Borough, which is located adjacent to the township, and Lyons Borough Municipal Authority, which entered into an agreement with the landowners to accommodate sewage flow from the proposed development, appealed the board’s conditional final plan approval to the trial court. …

Employment Bulletin

A little-noticed provision in the recently-enacted federal budget permits the Occupational Safety and Health Administration (OSHA) to raise its monetary penalties – which have remained unchanged since 1990 – by nearly 80 percent.

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The PIOGA Press

On October 14, the United States District Court for the Western District of Pennsylvania invalidated several sections of a Grant Township, Indiana County, local ordinance that was enacted in an attempt to prevent an oil and gas operator from operating an underground injection well that had been permitted by the United States Environmental Protection Agency (EPA). In Pennsylvania General Energy Company, L.L.C. v. Grant Township, Civil Action No. 14-209, 2015 U.S. Dist. LEXIS 139921 (W.D. Pa. Oct. 14, 2015), Pennsylvania General Energy Company, L.L.C. (PGE) filed a federal complaint against Grant Township to challenge the constitutionality, validity and enforceability of a self-described Community Bill of Rights Ordinance. Babst, Calland, Clements and Zomnir, P.C. in Pittsburgh represents PGE in this case.

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The PIOGA Press

On September 14, the Commonwealth Court of Pennsylvania issued a much-anticipated ruling in Gorsline v. Board of Supervisors of Fairfield Township, 1735 C.D. 2014. The Commonwealth Court reversed a decision of the Lycoming County Court of Common Pleas which found that the development of an unconventional natural gas well pad in a residential and agricultural zoning district was not similar to and compatible with other uses in that zoning district. The decision in Gorsline addressed the compatibility of natural gas development in a zoning district consisting of mixed residential and agricultural uses. This ruling is significant because a considerable amount of natural gas development in the Commonwealth takes place in similarly situated zoning districts.

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Employment Bulletin

Pittsburgh recently joined the wave of localities across the nation to pass a new sick leave law. The Paid Sick Days Act (the Ordinance) (found at http://apps. pittsburghpa.gov/co/Paid_Sick_Time_Legislation_Text.pdf), approved by the Pittsburgh City Council and signed into law by Mayor Bill Peduto in August 2015, requires all employers within the city to create and implement paid sick time policies for their part-time and full-time employees. Although a pending lawsuit threatens to nullify the law, Pittsburgh employers should begin now to familiarize themselves with the basic requirements of the Ordinance, which is anticipated to take effect in March of 2016.

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The American Oil & Gas Reporter

HARRISBURG, PA.– Pennsylvania’s oil and gas industry is facing one of the most stringent regulatory environments in the country, energy leaders there suggest. And if present trends continue, the situation likely will worsen. Pennsylvania Independent Oil & Gas Association Chairman Gary Slagel comments that the commonwealth’s Department of Environmental Protection seems to respond to every complaint or concern it receives about the industry with new requirements or policies. The DEP appears to want to regulate all aspects of the industry, rather than allowing companies and industry groups to develop their own best practices, he says.

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The PIOGA Press

The United States Environmental Protection Agency (EPA) recently released several proposals seeking to reduce greenhouse gas and other emissions from the oil and natural gas sector. EPA’s proposals are part of the Obama administration’s larger Climate Action Plan, a goal of which is to reduce methane emissions from the oil and gas industry by 40 to 45 percent from 2012 levels by 2025. EPA also stated that the proposals seek to protect public health by seeking to reduce emissions of volatile organic compounds (VOCs), a precursor to ground-level ozone formation. In addition to these emissions related measures, EPA also released a proposed rule intended to clarify single source determinations for entities within the oil and gas industry. Together, these proposals will likely affect a wide array of facilities within the industry, including natural gas well sites, processing plants, compressor stations and storage facilities.

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The PIOGA Press

It is common for oil and gas leases in Pennsylvania to allow for the storage of natural gas. Pennsylvania case law regarding dual-purpose oil and gas leases, which grant both production rights and storage rights, is complex and provides very fact-specific holdings which may not be applicable to every dual-purpose lease. However, in this past year, two favorable decisions have been issued providing a better understanding of the status of such a lease that is held by storage operations alone.

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The Legal Intelligencer

The mandated creation of a State Construction Notices Directory to track work on construction projects costing in excess of $1.5 million was one of the many changes made to the Pennsylvania Mechanic’s Lien Law in 2014. To accompany the new directory, the Pennsylvania Legislature also passed several new notice requirements to apply to these construction projects.

Although the new notice procedure is not anticipated to go into effect earlier than December 2016, members of the Pennsylvania construction industry should begin now to familiarize themselves with the changes to the Lien Law to determine how to change their business practices to meet the requirements. Other states’ laws and precedent can be a useful tool in helping owners, subcontractors and their lawyers jumpstart this process. Specifically, the 2014 amendments make Pennsylvania’s mechanic’s lien procedure similar to Ohio, as both the new notice-of-commencement and notice-of-furnishing filings have been required in Ohio for years.

The Anticipated Directory

In October 2014, Act No. 142 was enacted, amending the Pennsylvania Mechanic’s Lien Law, 49 P.S. Section 1101 et seq., and creating a more structured notice procedure for owners and subcontractors to follow. Specifically, the act permits the following four types of filings within the directory: (1) notice of commencement; (2) notice of furnishing; (3) notice of completion; and (4) notice of nonpayment.

A notice of commencement will be filed by an owner prior to the start of construction and must contain: (1) the full name, address and email address of the contractor; (2) the full name and location of the searchable project; (3) the county in which the searchable project is located; (4) a “legal description” of the property, including the tax identification number of each parcel included in the searchable project; …