Trip to Arkansas

Well you never know where a municipal law practice may take you. I spent last Monday flying to Arkansas on a chartered jet. The purpose of the trip was to view a housing complex for gas drilling rig workers that Nomac Drilling wishes to build/install in Athens Township. The company flew the Board of Supervisors, the Zoning Officer, several Planning Commission members, engineers and the company's attorney and myself to a Searcy, Arkansas. Nomac has a similar facility there. We were able to tour the facility and several other sites as well as speak to some of their local government officials. A very beneficial trip.

Right to Know Applies to Volunteer Fire Companies

On April 3 of this year the Office of Open Records made a final determination on an appeal under the Right To Know Law. The matter was captioned as Scott Pierce v. Morris Township and Morris Township Volunteer Fire Company In the case, Pierce requested five different types of documents. The Township Solicitor responded that the documents requested were not in possession of the Township. An identical request was submitted by Pierce to the Fire Company. Again, the Solicitor responded to the request and this time stated that the Fire Company was not an agency under the act and, therefore, did not have to respond to the request.

An appeal was taken to the Office of Open Records in accordance with the procedures set forth in the Right to Know Law. The Office held that the fire company was an agency under the terms of the act and therefore, was required to produce the requested records.

This is an important ruling for all volunteer fire companies in Pennsylvania. They must be sure to comply with the provisions of the statute such as appointing an Open Records Officer, setting fees for copies, etc. I've started to work with several area fire companies on their compliance issues.

Marcellus Shale Part 2

The other issue that has recently developed as a result of the Marcellus Shale play stems from the installation of pipelines or transmission lines from the wells. Some municipalities havve been approached by companies to use the municipality's right of way to install transmission lines. This creates a serious problem as there is no legal authority for a municipality to grant the use of its right of way to a private company.

A municipality may grant the use of its right of way to public utilities. However, most of these companies do not meet the definition of a public utility. This issue was addressed in a case from Crawford County back in 1988. In Strawn v. C.&K. Well Managemnt Inc. the Court was faced with a company which wanted to construct a pipeline from a well to an ultimate point of sale. The Township gave permission to the company to run the pipeline in the Township's road right of way. Some property owners that abutted the road in question filed suit for the removal of the pipeline. The court agreed.
Several appellate cases have also looked at the definition of utility and would exclude these companies from the definition.

Marcellus Shale Impacts on Rural Municipalities

I was fortunate enough to speak to one of our Councils of Government meetings last evening. My topic was some of the impacts being felt by rural communities from the exploration/ extraction of gas from the Marcellus Shale in our region. I thoght I'd share some of that in this Blog Post.

One of the biggest impacts will be on the local roads. There is data to suggest that the amount of water needed to frac one well is between 1 and 4 million gallons. This means over 360 water truck trips or the equivalent of 3.49 million car trips. Many local roads in our rural area were not built to withstand that kind of travel.

Municipalities can enact ordidnances to establish weight limits on their roads. The roads are then posted with vehicle weight limits and if a hauler want to move loads in excess of the posted limit, a bond or financial security is provided to the municipality. In order to adopt such an ordinance the municipality must adhere to the regulations of the Department of Transportation in 67 Pa. Code Chapter 189 and Publication 221. An engineering study is required in order to set the weight limits.
A number of municipalities don't want to spend the money for the engineering study and are trying to utilize other means to protect their roads. Extreme caution should be used because the Vehicle Code contains a provision that if a local municipality fails to properly administer or enforce the substantive provisions of wieight limits or the PennDOT regulations, the local municipality may suffer the impostion of penalties. Consultation with a knowledgeable municipal solicitor is essential.

Municipal Law Colloquium

I'm spending today and tomorrow in Hershey PA for continuing legal education dealing with municipal law

Pennsylvania Construction Code Litigation Update

Last week, the Pennsylvania Supreme Court announced its decision in several cases which had been consolidated on the appeal. The cases involved the use of third party agencies to administer and enforce the provisions of the Pennsylvania Construction Code Act in those municipalities which opted in to the enforcement of the Act. I posted on the decisions made by the Commonwealth Court last January. The Supreme Court reversed the Commonwealth Court and upheld the right of a municipality to exclusively use one third party agency for inspections.

Agony of Defeat Revisited

If you have followed my blog back in February, I posted about losing a case involving the township auditors in a surcharge action. I spent last week preparing my appellate brief for the Commonwealth Court and just sent it out yesterday. The issues on appeal are whether the auditors proved by a preponderance of the evidence that the supervisors improperly purchased the loader and paid a higher price than they had contracted for a different loader; whether the trial court decision to bifurcate the trial improperly shifted the burden of proof; whether the trial court decision violates the requirements for public bidding and public policy; and whether the trial court failed to recognize the "financial loss" to the township. It will be interesting to see what the Commonwealth Court does with the appeal. I will continue to update.