Mark West Liberty Midstream and Resources, LLC v. Cecil Township ZHB -- Appeal of: M. Warzinski, D. Warzinski, J. Adamski and M. Dawson
904 C.D. 2016
| Pa. Commw. Ct. | Jan 11, 2018Background
- MarkWest applied in 2010 for a special exception to build a natural gas compressor station in Cecil Township; the property is in an I‑1 district but adjacent to residential districts with homes within roughly one mile.
- The Township Zoning Hearing Board (Board) denied the special exception in 2011; MarkWest appealed and this Court in 2014 (MarkWest I) reversed and remanded, directing the Board to grant the special exception subject to lawful conditions.
- On remand the Board, after public comment, adopted conditions and granted the special exception in June 2015; MarkWest appealed that decision to the trial court.
- In July 2015, four nearby homeowners (Petitioners) filed a notice to intervene; the trial court struck the notice and, after a Rule 2327 petition to intervene and a December 2015 hearing, denied intervention on May 6, 2016 citing undue delay and prejudice.
- Petitioners appealed, raising (1) appealability of the denial, (2) whether the trial court erred in denying intervention, and (3) whether denial violated due process and the Environmental Rights Amendment.
- The Commonwealth Court affirmed: the denial of intervention was appealable as a collateral order; Petitioners had the requisite interest but intervention was properly denied under Rule 2329(3) for undue delay; no due‑process or Article I, §27 violation was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of trial court's order denying intervention | Denial of intervention is appealable because Petitioners have important rights to protect their homes | Order is interlocutory and not appealable as of right | Order is a collateral order appealable under Pa.R.A.P. 313 because home‑protection interest is too important to be denied review |
| Whether Petitioners could intervene under Pa.R.C.P. 2327(4) | Petitioners live within ~1 mile and thus have a legally‑enforceable interest to intervene | MarkWest: Petitioners are not in immediate vicinity and have only general public interest; intervention is unnecessary | Petitioners have the requisite interest under precedent (owners within one mile qualify) but that alone does not mandate intervention if refusal grounds apply |
| Whether intervention should be denied under Pa.R.C.P. 2329 (undue delay/prejudice) | Petitioners contend they sought only to support conditions and did not oppose the conditions themselves; no unfair prejudice | MarkWest: Petitioners waited ~5 years and late intervention would prejudice parties and delay finality after remand | Trial court properly exercised discretion to deny intervention under Rule 2329(3) for undue delay and prejudice; affirmed |
| Due process and Article I, §27 claims (environmental rights) | Denial of intervenor status deprived Petitioners of procedural rights and ability to protect environmental interests under PA Const. art. I, §27 | Record shows Petitioners had notice, participated in remand proceedings, and failed to allege how Commonwealth breached trustee duties; claims are conclusory | No due process violation (notice and opportunity to be heard were provided); §27 claim waived/lacks specificity and law of the case (MarkWest I) controls |
Key Cases Cited
- MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3d 549 (Pa. Cmwlth.) (remanding and directing Board to grant special exception subject to lawful conditions)
- Larock v. Sugarloaf Twp. Zoning Hearing Bd., 740 A.2d 308 (Pa. Cmwlth.) (owners in immediate vicinity have interest to intervene under Rule 2327(4))
- Grant v. Zoning Hearing Board of the Township of Penn, 776 A.2d 356 (Pa. Cmwlth.) (owners within one mile qualify as in immediate vicinity for intervention)
- Atticks v. Lancaster Twp. Zoning Hearing Bd., 915 A.2d 713 (Pa. Cmwlth.) (denial of intervention is interlocutory/collateral order considerations)
- Cogan v. County of Beaver, 690 A.2d 763 (Pa. Cmwlth.) (denial of intervention review requires showing entitlement to intervene)
- Pendle Hill v. Zoning Hearing Bd. of Nether Providence Twp., 134 A.3d 1187 (Pa. Cmwlth.) (standard of review for denial of petition to intervene)
- Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa.) (standard for Article I, §27 environmental trustee duties)