Land Use and Zoning: Conditional Use; Burden of Proof: Sufficiency of Evidence

EQT Production Co., v. Borough of Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 2017), allocatur granted Jan. 22, 2018, appeal docket 4 WAP 2018

The Supreme Court granted allocatur to review Commonwealth Court’s holding that evidence presented by objectors at a public hearing on a proposed conditional use involving gas well development did not constitute the requisite substantial evidence necessary to thwart the applicant’s entitlement to the conditional use as a matter of right. A three-judge panel split 2-,1with Senior Judge Bonnie Brigance Leadbetter writing the majority and Judge Michael Wojcik joining to affirm the county court’s order, and Judge Patricia McCullough dissenting.

The case came before Commonwealth Court as an appeal by the Borough Council of the Borough of Jefferson Hills from an order of the Court of Common Pleas of Allegheny County reversing the Council’s decision of to deny the conditional use application of EQT Production Company and ET Blue Grass Clearing, LLC to construct, operate, and maintain a natural gas production facility on an area of their property known as the Bickerton Well Site. Borough Council primarily cited the applicants’ alleged failure to satisfy Section 1003(a) of the Borough’s 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.”

The property subject to the application for conditional use is in the Borough and is situated in both the B-P Business Park Zoning District and OG-U Oil and Gas Unconventional Development Overlay District-Unconventional Wells.  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. The following summarizes the background on the consideration of the application for the conditional use:

  • In September 2015, EQT/ET applied for conditional use approval for a proposed unconventional gas well site on the Bickerton Well Site. They own both the surface and the oil and gas rights and have leases for all the horizontal laterals underground currently permitted and are working on acquiring leases for the nonpermitted wells.
  • EQT/ET stated that they would not use borough roads during well-site construction and would use only state-owned roads, and 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. They stated that the proposed project would not impact streams or wetlands and that all the lighting requirements set forth in the Zoning Ordinance were met. They further indicated that they would not seek 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. 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. 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. Regarding traffic, EQT/ET indicated that they would post roads that were not to receive truck traffic and place speed limit signs along the truck routes.
  • In October 2015, the Planning Commission unanimously recommended approval of the application, conditioned upon EQT/ET 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.
  • In December 2015, Borough Council denied EQT/ET’s conditional use application by a 5-0 vote. In its written decision, Council determined that EQT/ET complied with all 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. Council concluded that EQT/ET satisfied Section 1004.35 of the Zoning Ordinance, providing additional standards for the specific conditional use of oil and gas drilling. Council further determined that EQT/ET 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.”
  • However, based on its determination that EQT/ET failed to satisfy Section 1003(a), 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.” Council found the objectors’ testimony to be credible and persuasive such that it gave significant weight to their testimony.
  • In addition to its analysis under the applicable conditional use criteria, Council considered the Environmental Rights Amendment (Art. I § 27 of the Pa. Constitution) in rendering its decision (see the slip opinion at page 6 for the Court’s summary of Council’s conclusions of law in this regard).

EQT/ET appealed to the common pleas court which reversed without taking additional evidence and without addressing Art I, § 27. Common pleas concluded that Council erred in determining that (1) EQT/ET 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. 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, Commonwealth Court 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 followed.

The Commonwealth Court majority began its analysis with the following summary of the applicable law:

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. 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. 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 did not constitute probative evidence that the applicant’s compressor station would adversely affect the public health, safety and welfare in a way not expected for a usual compressor station); Cutler, 880 A.2d at 43 (holding that, “[t]he evidence of the protestants cannot consist of mere bald assertions or personal opinions and perceptions of the effect of the use on the community.”)

Accordingly here, once the Applicants satisfied the specific, objective criteria for the conditional use, the burden shifted to the objectors. See Williams, 101 A.3d at 1213. Therefore, we must consider whether objectors’ testimony constitutes substantial evidence of a high degree of probability that Applicants’ proposal will impose detrimental impacts exceeding those ordinarily to be expected from unconventional gas wells. Kretschmann Farm, 131 A.3d at 1055; Cutler, 880 A.2d at 43.

Slip op. at 7-10 (footnotes omitted).

The majority at pages 10-13 of the opinion then summarized in detail the objectors’ testimony found credible by the Borough Council. After this review, the majority found objectors’ testimony insufficient as follows:

Having carefully reviewed the objectors’ testimony, we conclude that it is insufficient to meet their burden of proof. Without a doubt, they testified about serious problems at other well sites or the harms posed by drilling and operation of unconventional wells generally. While such testimony might persuade legislators to prohibit such drilling, it does not satisfy their burden to show that the development of the Bickerton Well Site would have an impact on public health, safety, and welfare beyond that normally associated with any other unconventional well site. Besides asking some questions, they failed to present either lay or expert testimony specific to the Bickerton Well Site proposal. As common pleas noted, their testimony was the kind of speculative evidence insufficient to constitute proof of detriment to health, safety, and welfare exceeding those ordinarily to be expected from the proposed use. See Kretschmann Farm, 131 A.3d at 1055. Accordingly, given the fact that there has been a legislative decision that the particular use is presumptively consistent with the health, safety, and welfare of the community, the objectors’ testimony is insufficient to satisfy their burden, and it is not the role of the Council in adjudicating a conditional use application, let alone for the courts, to second guess the legislative decision underlying the ordinance.

Slip op. at 13-14 (footnote omitted). In addition, as to Art. I, § 27, the majority concluded that:

Finally, Council’s decision to augment the conditional use requirements with criteria based on the ERA is tantamount to an attempt to, sub silentio, abrogate the legislative determination that a conditional use for oil and gas drilling is consistent with municipal planning objectives and with the public health, safety and welfare, including protection of the environment. Therefore, once [EQT/ET] met the specific requirements of the ordinance, their proposed use enjoyed a presumptive consistency with that legislative determination. See Sheetz, 804 A.2d at 115.

Slip op. at 14-15 (footnote omitted).

The majority thus affirmed common pleas court’s decision reversing Borough Council’s denial of the conditional use application. However, the majority noted that, because of Council’s outright denial, it did not consider attaching reasonable conditions to EQT/ET’s project, to at least some of which they had expressed their amenability, such as water testing and noise reduction. Recognizing that, and given the environmental sensitivity of unconventional gas well drilling, the majority concluded that it was appropriate to remand so that reasonable conditions may be considered and, if found to be necessary, attached to the grant of this conditional use. The majority directed that such consideration could be accomplished by common pleas on remand, or that court could remand further for consideration by Borough Council.

In her dissent, Judge McCullough disagreed that the objectors’ testimony was too speculative to provide proof of detriment to the public health safety and welfare beyond that ordinarily expected from the proposed use. She began by noting that “on a conceptual level, where, as here, an applicant seeks a conditional use and proposes to install novel infrastructure within a municipality’s borders, it is relatively difficult for the objectors to demonstrate that the infrastructure will have a negative impact on the health, safety, welfare, or environment of the community.” Slip op. at PAM -2. She noted further the explanation in the Borough’s brief that “[b]ecause there is presently no unconventional oil and gas development within the Borough, the focus of [Objectors’] evidence was associated with EQT’s existing [Trax Farm] unconventional well site in Union Township, Washington County, that was similar to what was proposed in the [Borough].” Id. at PAM-5.

Following a discussion of applicable caselaw, Judge McCullough stated that:

Contrary to the Majority, I would conclude that Objectors’ testimony is not speculative or incompetent as a matter of law, but, instead, is admissible evidence capable of being assessed for the worth that the fact-finder decides to provide it. In its role as the ultimate fact-finder, see In re Thompson, 896 A.2d 659, 668-69 (Pa. Cmwlth. 2006), the Council in this case determined that Objectors’ testimony was credible and persuasive, afforded significant weight to the testimony, and found as fact that the grant of the conditional use would not protect the health, safety, and welfare of Borough as required by the Ordinance . . . In particularized detail, Objectors testified how the Trax Farm Well Site released harmful chemicals that have had an adverse effect on the residents (or then residents) of Union Township, most notably their physical and mental health. From this evidence, it was within the exclusive province of the Council, as the fact-finder, to draw the inference that it is likely that the same effects will happen to the Borough’s residents with the Bickerton Well Site. That is just what the Council sought to do here when it considered what had happened at the Trax Farm Well Site and denied EQT a special exception in the name of protecting “the public health, safety, [and] welfare” of the Borough. (Ordinance, §1003(a).)

Slip op. at PAM-10.

The Supreme Court on January 22 granted the Borough’s the Petition for Allowance of Appeal limited to the following issue, as stated by the Borough:

Whether the Commonwealth Court erred as a matter of law by imposing a standard upon the admissibility of objectors’ evidence that effectively eliminates the ability to raise any objection to a land use application based on firsthand experience with a similar use when the proposed use does not already appear within municipal borders?

For more information, contact Kevin McKeon or Dennis Whitaker.