162 A.3d 554
Pa. Commw. Ct.2017Background
- EQT Production Co. and ET Blue Grass Clearing applied for conditional-use approval to build and operate an unconventional (hydraulically fractured) natural gas well site (Bickerton) in Jefferson Hills, in a district where such wells are a conditional use under Borough Ordinance No. 833.
- Applicants presented plans addressing roads, water metering, lighting, wetland avoidance, no compressor stations in the Borough, voluntary sound testing and potential sound walls, and safety/environmental planning; the Planning Commission recommended approval with updated information.
- Borough Council denied the application, finding Applicants met most ordinance requirements but failed Section 1003(a) (use shall not endanger public health, safety, welfare or deteriorate the environment), crediting testimony from nearby residents about harms at EQT’s Trax Farm site and invoking Pennsylvania’s Environmental Rights Amendment.
- Common Pleas reversed Council without taking new evidence, holding Council erred by concluding the burden never shifted to objectors and that objectors’ testimony was speculative and insufficient to rebut Applicants’ entitlement to the conditional use as a matter of right.
- This Court affirmed Common Pleas: once Applicants satisfied the ordinance’s objective criteria, the presumption in favor of the conditional use applied and objectors failed to present substantial, non-speculative evidence showing a high probability of harm beyond that ordinarily attendant to such wells; remanded to consider reasonable conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Applicants satisfied objective ordinance criteria for conditional use | Applicants met specific, objective standards in the ordinance and related overlay provisions | Council disputed only Section 1003(a) and argued Applicants failed to prove no endangerment to health, safety, welfare, environment | Held: Applicants met the objective criteria; presumption favors approval once criteria are met |
| Allocation and shift of burden regarding general detriment (Section 1003(a)) | Once objective criteria met, burden shifts to objectors to present probative evidence of high probability of extraordinary harm | Council argued the burden never shifted and objectors’ credible testimony sufficed | Held: Burden shifted to objectors; they must show with specificity a high degree of probability of harm exceeding that normally associated with the use |
| Sufficiency of objectors’ evidence (testimony about harms at a nearby EQT site) | Objectors offered firsthand, concrete testimony about harms at a substantially similar nearby site (Trax Farm) supporting likely harm here | Applicants and majority characterized that evidence as speculative, general, and not specific to Bickerton | Held: Objectors’ testimony was insufficient as a matter of law to meet the high-probability, substantial-evidence standard; Common Pleas and this Court deferred to the statutory presumption favoring conditional use |
| Use of Environmental Rights Amendment (ERA) to augment ordinance criteria | Council relied on ERA to deny application citing possible environmental degradation and health risks | Applicants argued ERA could not be used to abrogate legislative zoning determination allowing conditional use | Held: Council’s use of ERA to override the ordinance’s conditional-use allowance was improper; denial on ERA grounds amounted to sub silentio abrogation of legislative determination |
Key Cases Cited
- Williams Holding Group, LLC v. Board of Supervisors of West Hanover Twp., 101 A.3d 1202 (Pa. Cmwlth. 2014) (explains burden allocation and presumption favoring conditional uses when objective criteria are met)
- Cutler Group, Inc. v. Zoning Hearing Bd., 880 A.2d 39 (Pa. Cmwlth. 2005) (denial of conditional use requires proof of harm greater than ordinarily expected from the use)
- Gorsline v. Board of Supervisors of Fairfield Township, 123 A.3d 1142 (Pa. Cmwlth. 2015) (neighbor speculation insufficient to show probative evidence of harm from gas well)
- Kretschmann Farm, LLC v. Township of New Sewickley, 131 A.3d 1044 (Pa. Cmwlth. 2016) (objectors must show detrimental impacts beyond those normally associated with the use)
- Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Cmwlth. 2002) (conditional-use allowance evidences legislative determination of consistency with public health, safety, welfare)
- Visionquest National, Ltd. v. Board of Supervisors of Honey Brook Township, 569 A.2d 915 (Pa. 1990) (testimony about prior specific experiences with a use can carry weight and is less speculative)