IN REPLY PLEASE COMMONWEALTH OF PENNSYLVANIA REFER TO OUR FILE PENNSYLVANIA PUBLIC UTILITY COMMISSION M-2012-2297862 P.O. BOX 3265, HARRISBURG, PA 17105-3265 September 19, 2012

Terry Carcella, Zoning Administrator Washington Township, Erie County 11800 Edinboro Road Edinboro, PA 16412

Re: Advisory Opinion re Compliance of Washington Township, Erie County, Zoning Ordinance with Act 13 of 2012; Docket No. M-2012-2297862

Dear Mr. Carcella:

Pursuant to Section 3305(a) of Act 13 of 2012 (Act), Washington Township has requested, by its Letter filed with the Pennsylvania Public Utility Commission (Commission) on April 13, 2012, that the Commission review its proposed local zoning ordinance and issue an Advisory Opinion on whether the ordinance violates certain provisions of the Act. On July 26, 2012, the Commonwealth Court of Pennsylvania (Court) issued a decision declaring Section 3304 of the Act unconstitutional, thereby enjoining the Commission from enforcing that section of the Act. See Robinson Township, et al. v. Commonwealth et al., No. 284 M.D. 2012. Although the Court enjoined the Commission from enforcing Section 3304 of the Act, the Commission is still authorized to issue Advisory Opinions determining whether local ordinances are in compliance with Chapter 32, Section 3302 and Section 3303 of the Act and the provisions of the Municipalities Planning Code (MPC).

Accordingly, by this Letter, the Commission now issues this Advisory Opinion to Washington Township regarding the compliance of its proposed local ordinance with Chapter 32, Section 3302 and Section 3303 of the Act and the provisions of the MPC. Please note that this opinion is advisory in nature and is not subject to appeal. 58 Pa. C.S. § 3305(a)(3). As such, this opinion is not a binding legal determination by the Commission regarding the validity of the proposed ordinance and, accordingly, does not preclude any subsequent adjudication by the Commission or the courts in actions brought under Sections 3305(b) or 3306 of the Act to challenge the proposed ordinance. 58 Pa. C.S. §§ 3305(b) & 3306.

Based upon the Commission’s review of the proposed ordinance, it appears that the ordinance DOES comply with Chapter 32 and with sections 3302 and 3303 of Act 13, but DOES NOT comply with the MPC for the following reasons: 1. Section 150-32(C)(4)(h)(5) incorrectly states the law. Section 602 of the MPC provides that the enactment of a zoning ordinance by any municipality, other than the county, whose land is subject to county zoning shall act as a repeal pro tanto of the county zoning ordinance within the municipality adopting the ordinance. Therefore, when there are conflicts between Washington Township’s zoning ordinance and Erie County’s zoning regulations, Washington Township’s ordinance takes precedence. Also, if state or federal law is implicated in a conflict, the superior law would govern, not the most restrictive rule.

Please note that this opinion does not include a determination as to whether the proposed ordinance is in compliance with Section 3304 of the Act. Additionally, due to the pending litigation regarding the Act, the Commission recommends incorporating the following provision into the proposed ordinance: “To the extent any term or provision of this Ordinance is in conflict with Act 13, 58 Pa. C.S. §§ 2301 et seq., the Act shall supersede.” However, the mere inclusion of such provision in the proposed ordinance, without consideration for the above-listed recommended revisions, will not ensure compliance with the Act.

This opinion has been issued as an aid to Washington Township to facilitate its compliance with the effective provisions of the Act. As noted above, this opinion is advisory in nature and is not appealable. If you have any questions regarding the details of this Advisory Opinion, please contact Colin Scott, Assistant Counsel, at 717-787-5949 or by e-mail at [email protected].

Sincerely,

Rosemary Chiavetta Secretary

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