Argued December 11, 2013
Walter A. Bunt, Jr., Pittsburgh, for appellant MarkWest Liberty & Midstream Resources, LLC.
Patricia L. McGrail, McKeesport, for appellee Cecil Township Zoning Hearing Board.
John M. Smith, Canonsburg, for appellee Cecil Township.
Steven E. Gibbs, Pittsburgh, for intervenor Range Resources Appalachia, LLC.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
ANNE E. COVEY, Judge
MarkWest Liberty Midstream & Resources, LLC (MarkWest) and Range Resources -- Appalachia, LLC (Range Resources) appeal from the Washington
County Common Pleas Court's (trial court) January 21, 2013 order affirming the Cecil Township (Township) Zoning Hearing Board's (Board) decision denying MarkWest's application for special exception and exclusionary zoning challenge. The issues for this Court's review are: (1) whether the Board erred or abused its discretion by denying MarkWest's special exception application; (2) whether the Township's Unified Development Ordinance (UDO), as interpreted and applied by the Board, is unlawfully exclusionary of natural gas compressor stations; and (3) whether the Board erred or abused its discretion by finding that the Township's UDO is not preempted by state law to the extent it precludes operations ancillary to oil and natural gas well development.
MarkWest is a limited liability corporation that owns and operates midstream facilities which transport, compress and process oil, gas and other substances extracted from oil and gas wells. MarkWest operates gas compressor stations in Washington County, Pennsylvania. After consulting with the Township and its Solicitor about building a natural gas compressor station in the Township, MarkWest received a positive response. Section 2 of Township Ordinance No. 2-2010 permits natural gas compressor stations that operate as midstream facilities so long as they are consistent with the Township's UDO which allows them by special exception. See Reproduced Record (R.R.) at 1457a. On September 20, 2010, MarkWest executed an agreement to purchase a 71.5-acre undeveloped parcel of land (Property) from Richard Caruso located in the Township's I-1 Light Industrial District.
On November 29, 2010, MarkWest applied to the Board for a special exception under Section 911.D.1 of the Township's UDO to construct and operate a natural gas compressor station roughly in the center 15 acres of the Property. The proposed facility would consist of up to 8 engines and surrounding sound structures, dehydration facilities, tanks, a vapor recovery unit, a flare and associated piping (Proposed Facility). The Property is adjacent to R-1 Low Density and R-2 Medium Density Residential Districts, but no residence would be closer than 1,000 feet from the Proposed Facility. Board hearings were held on January 17, January 31 and February 21, 2011.
On March 31, 2011, the Board denied MarkWest's special exception application on the basis that MarkWest failed to satisfy the UDO's requirements that the
Proposed Facility would be of the same general character as other uses permitted in an I-1 Light Industrial District, and that its impact would be equal to or less than other permitted uses. On April 21, 2011, MarkWest appealed to the trial court from the Board's special exception application denial and exclusionary zoning challenge deemed denied. On May 20, 2011, Range Resources intervened as an owner or tenant of the Property on which the Proposed Facility would be constructed. The Township intervened on June 13, 2011. On January 21, 2013, the trial court, without taking additional evidence, affirmed the Board's decision. MarkWest (223 C.D. 2013) and Range Resources (232 C.D. 2013) appealed to this Court. This Court consolidated the appeals on August 14, 2013.
1. Special Exception
" A special exception is a use that is expressly permitted by the zoning ordinance, absent a showing of a detrimental effect on the community." Morrell v. Zoning Hearing Bd. of the Borough of Shrewsbury, 17 A.3d 972, 975 (Pa. Cmwlth. 2011); see also Freedom Healthcare Servs., Inc. v. Zoning Hearing Bd. of the City of New Castle, 983 A.2d 1286 (Pa. Cmwlth. 2009).
The applicant for the proposed use has both the duty to present evidence and the burden of persuading the [B]oard that the proposed use satisfies the objective requirements of the ordinance . . . . Once the applicant meets these burdens, a presumption arises that the use is consistent with the health, safety and general welfare of the community. The burden then normally shifts to the objectors of the application to present evidence and persuade the Board that the proposed use will have a generally detrimental effect.
Greaton Props. v. Lower Merion Twp., 796 A.2d 1038, 1045-46 (Pa. Cmwlth. 2002); see also Morrell.
MarkWest and Range Resources first argue that the Board erred or that the Proposed Facility is of the same general character as an " essential service" and permitted manufacturing uses in the Township's industrial district; it met the standards in the UDO for permitted uses in an I-1 Light Industrial District; and
the UDO does not require it to submit studies or reports to demonstrate that the Proposed Facility would have less of an impact than other permitted uses.
MarkWest applied for a special exception under Section 911.D.1 of the UDO (Comparable Uses Which Are Not Specifically Listed). Pursuant to Section 404.B.1 of the UDO, the Board may approve a special exception for the Proposed Facility in the Township's I-1 Light Industrial District, if the Proposed Facility: (1) would have an equal or lesser impact than, and is of the same general character as any of the Township's permitted conditional uses (Section 911.C) or uses by right (Section 911.B);  (2) meets the Township's area and bulk requirements;  (3) complies with the express standards and criteria specified for the most nearly comparable I-1 Light Industrial District use; and, (4) is consistent with the intent set forth in UDO Section 910 for industrial districts. R.R. at 232a-233a, 1180a-1181a, 1396a-1399a.
The narrative of MarkWest's special exception application specifies, in pertinent part:
6. The [Proposed Facility] is of the same general character as an 'Essential Service', a use permitted by right in the I-1 Light Industrial District under § 911.B.14 [of the UDO]. Although MarkWest is not a governmental entity and is not a public utility under the jurisdiction of the Pennsylvania Public Utility Commission, the physical nature of its facilities, consisting of the construction and operation of gas distribution facilities, is of the same general character as other uses falling within the definition of Essential Service. See [UDO] § 202. MarkWest's operations are critical to the downstream supply of gas to consumers; and the Compressor Station is necessary for the health, safety, and general welfare of the community. Accordingly, the [Proposed Facility] qualifies as a comparable use which is not specifically listed, a use by special exception in the I-1 Light Industrial District pursuant to § 911.D.1 of the [UDO].
7. In the alternative, if the [Board] determines that the [Proposed Facility] is not of the same general Character as an Essential Service use, then it would be considered as being of the same general character as the manufacturing
uses that are permitted by right in the I-1 Light Industrial District under the [UDO]. As such, the [Proposed Facility] similarly would qualify as a comparable use which is not specifically listed, a use by special exception in the I-1 Light Industrial District pursuant to § 911.D.1 of the [UDO].
R.R. at 199a (emphasis added).
Section 911.D.1.a of the UDO tasks the Board with first determining whether the impact of the Proposed Facility would be equal to or less than any use specifically listed in the I-1 Light Industrial District and, thereafter, assessing whether the Proposed Facility would be of the same general character as any use permitted by right or listed as a conditional use in that District.
In reviewing the Board's decision, we initially acknowledge:
[T]his Court may not substitute its interpretation of the evidence for that of the Board, the fact-finder in this case. The Board is the sole judge of the credibility of witnesses and the weight to be afforded their testimony. Thus, it is the Board's function to weigh the evidence before it. If the record contains substantial evidence, this Court is bound by the Board's findings that result from the resolution of credibility and conflicting testimony.
Oxford Corp. v. Zoning Hearing Bd. of the Borough of Oxford, 34 A.3d 286, 295 n.9 (Pa. Cmwlth. 2011) (citations omitted; emphasis added). Further,
[i]t is a fundamental principle of administrative law that an administrative agency's interpretation of the statute it is charged to administer is entitled to deference on appellate review absent 'fraud, bad faith, abuse of discretion, or clearly arbitrary action.' Winslow--Quattlebaum v. Maryland Insurance Group, . .., 561 Pa. 629, 752 A.2d 878, 881 ([Pa.] 2000). Our Supreme Court has stated:
It is well settled that when the courts of this Commonwealth are faced with interpreting statutory language, they afford great deference to the interpretation rendered by the administrative agency overseeing the implementation of such legislation.
Turchi v. Phila. Bd. of License & Inspection Review, 20 A.3d 586, 591 (Pa. Cmwlth. 2011). Finally, " ordinances are to be construed expansively, affording the landowner the broadest possible use and enjoyment of his land." Tink-Wig Mountain Lake Forest Prop. Owners Ass'n v. Lackawaxen Twp. Zoning Hearing Bd., 986 A.2d 935, 941 (Pa. Cmwlth. 2009).
The Pennsylvania Supreme Court has made clear that " the authority of a zoning board to act arises exclusively from the ordinance and the enabling statute and the language of both demarcates [its] jurisdiction . . . ." Norate Corp. v. Zoning Bd. of Adjustment of Upper Moreland Twp., 417 Pa. 397, 207 A.2d 890, 893-94, 56 Mun. L Rep. 314 (Pa. 1965). Moreover,
a zoning board is not a legislative body, and it lacks authority to modify or amend the terms of a zoning ordinance. '[Z]oning boards . . . must not impose their concept of what the zoning ordinance should be, but rather their function is only to enforce the zoning ordinance in accordance with the applicable law.' Thus, the Board is required to apply the terms of the Zoning Ordinance as written rather than deviating from those terms based on an unexpressed policy.
Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp.,
918 A.2d 181, 187 (Pa. Cmwlth. 2007) (citation omitted; emphasis added) (quoting Ludwig v. Zoning Hearing Bd. of Earl Twp., 658 A.2d 836, 838 (Pa. Cmwlth. 1995)).
The Board made 22 Conclusions of Law (Conclusions). The Board's first legal conclusion acknowledged that the UDO governs the requirements to be considered relative to MarkWest's special exception application. Board Conclusions 2 through 8 are direct quotes of specific ordinance provisions.
Board Conclusions 9 through 21 are discussed under the heading: " The Proposed Facility, when measured by the requirements of the UDO, including Parts 4, 9 and 16 where applicable, is not of [the] same general character as an essential service." Conclusion 9 quotes the UDO definition of " essential service," as follows:
The erection, construction, alteration, or maintenance, of gas, electrical, and communication facilities; steam, fuel, or water transmission or distribution systems; and collection, supply, or disposal systems. Such systems may include poles, wires, mains, drains, sewers, pipes, sewage treatment plants, conduits, cables, fire alarm and police call boxes, traffic signals, hydrants, and similar accessories. This definition is not intended to include private commercial enterprises such as cellular communications facilities, but only those public facilities necessary for the health, safety, and general welfare of the community.
R.R. at 230a, 1152a.
The Board held in Conclusion 10: " MarkWest is a commercial enterprise which is in the business of providing services for the midstream treatment of natural gas for profit and[,] as such, is neither a public utility nor does it provide a service essential to the public as defined." Board Op. at 12. MarkWest admits it is a commercial enterprise and not a public utility. The remainder of Conclusion 10, that MarkWest does not " provide a service essential to the public as defined," will be addressed below in conjunction with Conclusion 13. Board Op. at 12.
Board Conclusion 11 reads, in pertinent part: " The proposed use by MarkWest is more comparable to cellular communication facilities which are expressly excluded from the definition." Board Op. at 12. The Board made no specific finding upon which to conclude that MarkWest's proposed use " is more comparable to cellular communication facilities." Board Op. at 12. The record is devoid of any evidence to substantiate this legal conclusion.
Moreover, Section 2 of Township Ordinance 2-2010, enacted March 22, 2010, defines a " natural gas compressor station."  R.R. at 1457a. Thus, the Board's conclusion that a natural gas compressor station is excluded from the definition of essential service based on the exclusion of " cellular communication facilities" when both are defined in the ordinance and only one is specifically excluded in the definition of essential service " would conflict with and make superfluous the language of that Section that specifically excludes" the cellular communications facilities. Latimore Twp. v. Latimore
Twp. Zoning Hearing Bd., 58 A.3d 883, 887 (Pa. Cmwlth. 2013). " A zoning ordinance should be construed so that none of its language is superfluous. In addition, in resolving a conflict between provisions in a zoning ordinance, the more specific provisions control over the more general ones." Id. (citation omitted). The exclusion of the cellular communication facilities, as the more specific provision, must therefore control and the Board's conclusion that a natural gas compressor station is " more comparable to cellular communication facilities" is legal error. Board Op. at 12.
The Board in concluding that a natural gas compressor station was comparable to " cellular communication facilities" when the UDO expressly defines that term highlights the Board's unreasonable interpretation and application of the ordinance. The UDO defines " communications facility" as " [a]ny communications antenna or communications tower . . . which is operated by any . . . corporation . . . ." R.R. at 1133a. " Communications antenna" is defined as " [a]ny structure designed for transmitting or receiving radio, television, or telephone communications[.] R.R. at 1133a. The UDO also specifically defines " communications tower" as " [a]ny structure . . . designed to support multiple communications antennae . . . and one or more of the following mounts for antennae: rotatable platform, fixed platform, multi-point side arm and pipe mounts for microwave dishes." R.R. at 1133a. " In reading the plain language of a statute, '[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.' 1 Pa.C.S. § 1903(a)." Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 509 (Pa. Cmwlth. 2014). " Further, '[w]hile it is true that zoning ordinances are to be liberally construed to allow the broadest possible use of land, it is also true that zoning ordinances are to be construed in accordance with the plain and ordinary meaning of their words.' Zappala Grp., Inc. v. Zoning Hearing Bd. of Town of McCandless, 810 A.2d 708, 710 (Pa. Cmwlth. 2002)." Id. at 510. The plain readings of the UDO definitions of " natural gas compression station" and " communication facility" are in no manner even remotely similar.
In addition, there is no record evidence from which one could possibly conclude that the two distinct operations with completely different purposes are somehow " comparable." Given the absence of a specific finding upon which to conclude that MarkWest's proposed use of the Property " is more comparable to [a] cellular communication facilit[y]," and the Board's unreasonable interpretation and ...