ARGUED: November 14, 2016
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE
MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE
LEADBETTER, Senior Judge
BRIGANCE LEADBETTER, Senior Judge
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.
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.
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.
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.
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.
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."
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,  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. Id., Conclusion of Law No. B.
in addition to its analysis under the applicable conditional
use criteria, Council considered the Environmental Rights
Amendment (ERA) 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
. . .
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
. . .
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).
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). 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.
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.
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
the ordinance must require that an applicant meet reasonably
definite conditions and not something in the nature of a
policy statement. 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.
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