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EQT Production Co. v. Borough of Hills

Commonwealth Court of Pennsylvania

May 18, 2017

EQT Production Company and ET Blue Grass Clearing, LLC
v.
Borough of Jefferson Hills, Appellant

          ARGUED: November 14, 2016

          BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          BONNIE BRIGANCE LEADBETTER, Senior Judge

         The Borough of Jefferson Hills appeals from an order of the Court of Common Pleas of Allegheny County (common pleas) reversing the decision of the Borough Council of the Borough of Jefferson Hills (Council) to deny the conditional use application of EQT Production Company and ET Blue Grass Clearing, LLC (the Applicants) to construct, operate, and maintain a natural gas production facility on an area of their property known as the Bickerton Well Site. In support of its denial of the application, Council primarily cited the Applicants' alleged failure to satisfy Section 1003(a) of the Zoning Ordinance of the Borough of Jefferson Hills (Zoning Ordinance), which provides: "The use shall not endanger the public health, safety or welfare nor deteriorate the environment, as a result of being located on the property where it is proposed." Section 1003(a) of the Zoning Ordinance; Reproduced Record (R.R.) at 1068a. On review, we conclude that Council erred in concluding that the burden never shifted to the objectors to establish with probative evidence that there is a high degree of probability that the conditional use will constitute a detriment to the public health, safety, and welfare exceeding that ordinarily to be expected from the proposed use. In addition, we conclude that the objectors' evidence does not constitute the requisite substantial evidence to thwart the Applicants' entitlement to a conditional use as a matter of right. Accordingly, we affirm.[1]

         Located off Ridge Road in Jefferson Hills, PA, the subject property consists of Allegheny County Department of Real Estate Block and Lot Nos. 1003-H-395-0-2 and 1003-M-250 and is situated in both the B-P Business Park Zoning District (B-P District) and OG-U Oil and Gas Unconventional Development Overlay District-Unconventional Wells (Overlay District). December 23, 2015, Decision of Council, Finding of Fact (F.F.) Nos. A.1 and B.1. In the B-P District, oil and gas drilling is permitted as a conditional use. Unconventional gas wells are permitted as a conditional use in the B-P District as part of the Overlay District. Id., F.F. No. B.2.

         In September 2015, the Applicants filed their application for conditional use approval for a proposed unconventional gas well site on the "Bickerton Well Site." "The proposed well site is approximately 126 acres and will include unconventional wells both at the vertical and horizontal laterals and be hydraulically fractured." Id., F.F. No. C.1. The Applicants own both the surface and the oil and gas rights. They have leases for all of the horizontal laterals underground currently permitted and are working on acquiring leases for the non-permitted wells. Id., F.F. No. C.4.

         Regarding some of the specifics of their proposed use, the Applicants stated that they would not use borough roads during well-site construction and would use only state-owned roads. Id., F.F. No. C.6. Further, they testified that water truck traffic to the proposed well site would be alleviated because the Pennsylvania American Water Company had approved a meter vault for the site. Id., F.F. No. C.2. In addition, they stated that the proposed project would not impact streams or wetlands and that all of the lighting requirements set forth in the Zoning Ordinance were met. Id., F.F. Nos. C.8 and C.9. They further indicated that they would not be seeking any compressor station sites within the Borough, that natural gas would flow from the proposed well site to a compressor station in a neighboring community, and that they would explore the possibility of odorizing that gas for leak-detection purposes and report back to the Borough. Id., F.F. Nos. C.13-15. In addition, even absent a requirement, they also agreed to a sound testing program and to use sound walls if required as part of a conditional use approval. Id., F.F. Nos. C.18 and C.24. Further, acknowledging that safety issues similar to any other industrial facility could occur at the site, i.e., minor injuries, illnesses, and fires, they testified that the group putting together the safety and environmental plan for the well locations consisted of two people. Id., F.F. Nos. C.16 and C.17. As for air quality, they presented no evidence as to any monitoring plans but indicated that any complaints would go to Allegheny County as the agency tasked with enforcing those issues. Id., F.F. Nos. C.18 and C.19. Regarding traffic, the Applicants indicated that they would post roads that were not to receive truck traffic and place speed limit signs along the truck routes. Id., F.F. No. C.20.

         In October 2015, the Planning Commission unanimously recommended approval of the application, conditioned upon the Applicants providing updated information before the public hearing on the conditional use in order to show compliance with numerous deficiencies outlined in the borough planning consultant's review letter. Id., F.F. No. A.3. In December 2015, the Council denied the Applicants' conditional use application by a zero to five vote. Council's written decision followed.

         In its decision, Council determined that the Applicants complied with all of the general requirements for conditional uses found in Section 1003 of the Zoning Ordinance except subsection (a), pertaining to the public health, safety, and welfare, and the environment. That subsection provides that, "The use shall not endanger the public health, safety or welfare nor deteriorate the environment, as a result of being located on the property where it is proposed."

         In addition, Council concluded that the Applicants satisfied Section 1004.35 of the Zoning Ordinance, providing additional standards for the specific conditional use of oil and gas drilling. Further, it determined that they met Sections 1503 and 1504 of Ordinance No. 833, [2] pertaining to "oil and gas overlay districts oil and gas development application requirements" and "oil and gas development standards." Id., Conclusion of Law No. F. Based on its determination that they failed to satisfy Section 1003(a), however, Council concluded that "the burden never shifted to the objectors to prove that the impact of the proposed use is such that it would violate the other general requirements for land use set forth in the Borough Zoning Ordinance." Id., Conclusion of Law No. H. Nonetheless, Council found the objectors' testimony to be credible and persuasive such that it gave significant weight to their testimony.[3] Id., Conclusion of Law No. B.

         Moreover, in addition to its analysis under the applicable conditional use criteria, Council considered the Environmental Rights Amendment (ERA)[4] in rendering its decision. Citing the objectors' testimony in support, Council concluded, in relevant part, as follows:

FF. Borough Council, not wishing to permit the infringement of its residents' rights under the [ERA], based upon the above-referenced lack of evidence from Applicants on protecting the public health, safety, welfare and environment and the testimony of various persons regarding the deleterious effects of the proposed use, is unwilling to permit the proposed conditional use due to its tendency of likely causing environmental degradation, diminution and depletion and public health issues such as adversely affected air and water quality and the potential for cancer.
GG. Applicants' succinct statement that it would comply with [Section 1003(a) of the Zoning Ordinance] without providing evidence of accomplishing the same, combined with the evidence presented by those testifying in opposition . . . does not satisfy the Borough's obligations under Article I of the Pennsylvania Constitution to approve the proposed conditional use application.
. . .
II. Applicants' consistent aversion to continuous air quality monitoring places . . . Council in the position of being unable in advance of proceeding to adequately consider the environmental effect of the proposed conditional use application.
. . .
KK. Borough Council's balancing of the present desire for gas development against the right of its residents to a healthy environment result in more weight being given to environmental concerns.
. . .
MM. Borough Council posits that in approving the proposed conditional use application it would neither be promoting the public health, safety and welfare, nor protecting the environment from deterioration, when there is an acknowledged risk that the activity the proposed conditional use allows undermines each of these values.

Id., Conclusion of Law Nos. FF., GG., II., KK., and MM (emphasis added).

         Common pleas reversed without taking additional evidence and without addressing the ERA, concluding that Council erred in determining that (1) the Applicants did not meet their burden of proving entitlement to a conditional use; and that (2) the burden never shifted to the objectors to present substantial evidence of any adverse impact on the public health, safety, and welfare. Regarding the nature of the objectors' evidence, the court characterized it as speculative regarding general oil and gas development and theoretical regarding air pollution and odors. June 21, 2016, Opinion of Common Pleas at 4. In support of its determination, the court cited Gorsline v. Board of Supervisors of Fairfield Township, 123 A.3d 1142 (Pa. Cmwlth. 2015), appeal granted, 139 A.3d 178 (Pa. 2016).[5] In Gorsline, mindful of the board of supervisors' conclusion that the neighbors' "speculation of possible harms" was insufficient to demonstrate that the proposed natural gas well would be detrimental to the health, safety, and welfare of the neighborhood, we concluded that there was no probative evidence offered to show that the proposed well would present such a detriment. Id. at 1153-54. The Borough's appeal to this Court followed.

         It is well established that, "[a] conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body rather than the zoning hearing board." Williams Holding Group, LLC v. Bd. of Supervisors of West Hanover Twp., 101 A.3d 1202, 1212 (Pa. Cmwlth. 2014) [quoting In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006)]. A conditional use, like a special exception, is not an exception to a municipality's zoning ordinance, but rather a use to which an applicant is entitled as a matter of right unless the municipal legislative body determines "that the use does not satisfy the specific, objective criteria in the zoning ordinance for that conditional use." In re Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009). It is the applicant's burden to establish that the proposed use satisfies the specific criteria in the particular zoning ordinance.[6] Williams, 101 A.3d at 1212. "An applicant who satisfies this prima facie burden is entitled to approval, unless objectors in the proceeding offer credible and sufficient evidence that the proposed use would have a detrimental impact on public health, safety, and welfare." Id.

         Additionally, the ordinance must require that an applicant meet reasonably definite conditions and not something in the nature of a policy statement.[7] Id. In that regard, the various burdens can be summarized as follows:

[A]s to specific requirements of the zoning ordinance, the applicant has the persuasion burden, as well as the initial evidence presentation burden. The objectors have the initial evidence presentation duty with respect to the general matter of detriment to health, safety and general welfare, even if the ordinance has expressly placed the persuasion burden upon the applicant, where it remains if detriment is identified . . . . Where the ordinance attempts to place upon the applicant a burden of proof even more vague in its nature, we have refused to give it effect.

Id. at 1213 (emphasis added) [quoting Bray v. Zoning Bd. of Adjustment, 410 A.2d 909, 912 (Pa. Cmwlth. 1980)]. As we summarized in Williams:

Thus, if a requirement is interpreted as one upon which the burden is placed on an applicant, but the requirement is nonobjective or too vague to afford the applicant knowledge of the means by which to comply, the requirement is either one that is not enforceable . . ., or, if it relates to public detriment, the burden shifts to an objector, who must demonstrate that the applicant's proposed use would constitute such a detriment.

101 A.3d at 1213.

         In any case, it is well established that, "[t]he fact that a use is permitted as a conditional use evidences a legislative decision that the particular type of use is consistent with the zoning plan and presumptively consistent with the health, safety and welfare of the community." In re Cutler Group, Inc., 880 A.2d 39, 42 (Pa. Cmwlth. 2005) (citations omitted). In other words, once an applicant establishes compliance with the specific requirements of the ordinance, the proposed use enjoys a presumption that it is consistent with municipal planning objectives and with the public health, safety, and welfare. Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113, 115 (Pa. Cmwlth. 2002). Therefore, "the degree of harm required to justify denial of the conditional use must be greater than that which normally flows from the proposed use." Cutler, 880 A.2d at 43. This is so because the governing body in enacting the ordinance presumptively took into account the impact of the use and considered it not to be a threat to health, safety or welfare. Id. Opponents, therefore, must prove a high degree of probability that permitting the conditional use will cause a substantial threat to the community. Id. In that regard, the burden falls on them to establish with specificity and with more than mere speculative anecdotal testimony that the specific proposal will impose detrimental impacts exceeding those ordinarily to be expected from the use at issue. See Kretschmann Farm, LLC v. Twp. of New Sewickley, 131 A.3d 1044, 1055 (Pa. Cmwlth.), appeal denied, 145 A.3d 168 (Pa. 2016) (holding that objectors' concerns ...


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