186 A.3d 375
Pa.2018Background
- Inflection Energy sought a conditional-use permit under Fairfield Township Zoning Ordinance §12.18 to drill, complete, produce, and operate multiple unconventional natural gas wells (fracking) on a 59.877-acre R-A (Residential-Agricultural) parcel (the Shaheen Pad).
- The Ordinance does not list gas-drilling as a permitted or conditional use in the R-A district; §12.18 allows uses neither permitted nor denied to be treated as conditional uses if the applicant proves the use is similar to permitted uses in the zone, not permitted elsewhere, and not in conflict with the Ordinance’s purposes.
- Inflection presented two witnesses (operations manager and a geologist); testimony on similarity to permitted uses was limited to a conclusory, inconsistent response by the operations manager that the proposed use “fits the definition” of a "public service facility." No focused factual evidence tied the drilling operation to any specific permitted use in the R-A district.
- The Fairfield Board approved the conditional-use permit (2–1) without specific findings identifying which permitted R-A use the gas wells were similar to or explaining the basis for similarity.
- Objectors appealed; the Lycoming Court of Common Pleas reversed (finding lack of substantial evidence on similarity and conflict with Ordinance purposes). The Commonwealth Court reversed the trial court, relying on MarkWest and concluding the use was similar to a "public service facility" or "essential service." The Pennsylvania Supreme Court granted allowance of appeal.
- The Supreme Court reversed the Commonwealth Court, holding the record lacked substantial evidence and that an industrial shale gas operation is not similar to the Ordinance’s locally framed "public service facility"/"essential services" categories.
Issues
| Issue | Plaintiff's Argument (Objectors) | Defendant's Argument (Inflection/Board) | Held |
|---|---|---|---|
| Whether the proposed industrial shale gas development is "similar to" permitted R-A uses under §12.18.1 | Board lacked findings and record lacks substantial evidence showing similarity; Mr. Erwin’s testimony was conclusory and inconsistent | The use is similar to "public service facility"/"essential services" (serves the public by producing gas); MarkWest controls | Held for Objectors: no substantial evidence; the proposed use is not similar to locally framed public/essential service uses |
| Whether the Commonwealth Court erred by applying MarkWest to equate drilling with public/essential services | MarkWest is distinguishable (different district, different use: compressor station vs. extraction); R-A purpose discourages industrial uses | MarkWest applies because both involved ordinance "savings clause" and similar definitions | Held: MarkWest is not controlling here; factual and definitional differences make it inapposite |
| Whether prior conditional-use approvals for other gas wells in the R-A district cure an applicant’s burden under §12.18 | Prior site-specific grants do not relieve a new applicant of its burden; relying on them would effectively amend the ordinance without process | Prior approvals demonstrate Board’s consistent practice and support similarity | Held: Reliance on prior, undocumented permits was error; prior permits do not shift applicant’s burden |
| Whether Inflection satisfied §12.18.3 and other Ordinance purposes (no conflict with general purposes) | Evidence showed risk to neighborhood health, safety, and welfare; Board made no specific findings supporting no conflict | Ordinance allows extraction of minerals in some contexts; operations can be conditioned to mitigate impacts | Held: Court found insufficient record support for Board’s conclusion that the use did not conflict with Ordinance purposes (trial court’s related findings upheld) |
Key Cases Cited
- MarkWest Liberty Midstream & Resources, LLC v. Cecil Twp. Zoning Hrg. Bd., 102 A.3d 549 (Pa. Commw. 2014) (held compressor station was similar in general character to permitted public/essential service uses under a local ordinance)
- Robinson Twp. v. Commonwealth, 147 A.3d 536 (Pa. 2016) (Robinson II) (discussed character of fracking and local regulation context)
- Crown Communications, Inc. v. Zoning Hearing Bd., 705 A.2d 431 (Pa. 1997) (explained meaning of "public utility" for zoning purposes and criteria for that characterization)
- Cellco P’ship v. N. Annville Twp. Zoning Hearing Bd., 939 A.2d 430 (Pa. Commw. 2007) (distinguished public vs. commercial benefit in zoning similarity analyses)
- Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637 (Pa. 1983) (definition and standard for "substantial evidence" review in zoning challenges)