Lead Opinion
OPINION BY
The 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
Located 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.l. 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.
In .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.l. 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.
Regarding 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 ás part
In 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.
In its 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.”
In 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,
Moreover, in addition to its analysis under the applicable conditional use criteria,
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.
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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 application.
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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 environmental concerns.
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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).
Common 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,
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.,
Additionally, the ordinance must require that an applicant meet reasonably definite conditions and not something in the nature of a policy statement.
[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 toith 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,
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 dem*561 onstrate- that the applicant’s proposed use would constitute such a - detriment.
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.,
Accordingly here, once the Applicants satisfied the specific, objective criteria for the conditional use, the burden shifted to the objectors. See Williams,
Eight objectors credibly testified at the public, hearing in opposition to the conditional use application.
Mr. Baumgartner testified as to his proximity to the Trax Farm well site and commented on negative impacts there, such as noise, vibrations, and odors. Stating that Southwestern Regional Health Association had advised him as to the presence of airborne particulate matter restricting outdoor activities, he alleged that air quality levels and diesel odors had required him and his wife to evacuate their home several times and had forced his pregnant daughter to move out on her doctor’s advice. In addition, he stated that he had a respiratory illness requiring hospitalization due to the issues at the well site. Finally, alleging that he and his wife were going to sell their house, he encouraged Council to investigate EQT’s fines and violations. Id., F.F. No. 22(c).
Mr. Gniadek, a water truck driver who had worked in the oil and gas industry, testified as to an incident near the Trax Farm well site where he witnessed a malodorous, thick, white cloud which caused him to fall ill, return to his house, and call an EQT contact. Gniadek relayed that the contact indicated that there had been no other complaints and laughed at him. Thereafter, Gniadek stated that he had red dots over his entire body and later was told that they were indicative of asphyxiation. He also stated that EQT offered him $50,000 as part of an offer that was being made to everyone on his street that they all had to accept, which was later changed to permit each neighbor to decide individually. Finally, like Mr. Baumgartner, he testified that, after noise complaints, EQT would change its operations during an investigation period. Id., F.F. No. 22(d).
Mr. Tullai, who had recently moved to Jefferson Hills from near the Trax Farm well site, testified as to issues that had occurred at the Trax Farm site such as sleep-disrupting noise and annoying diesel fumes. He recommended freshwater im-poundment testing to ensure that hydraulic fracturing water is left in the impound-ments. Id., F.F. No. 22(e).
Ms. Caulkett testified that she lives approximately one thousand feet from the proposed Bickerton Well Site and expressed concerns about noise, smell, and the effect of the vibrations on underground mines. She was concerned about mine subsidence and whether the drilling would exceed the two parcels at issue. Id., F.F. No. 22(f). Raising the possibility of the drilling going underneath her house, she asked whether EQT would enter into a deal and reimburse her for that portion of the gas. November 10, 2015, Hearing, Notes of Testimony (N.T.) at 188-190; R.R. at 663-665a.
Ms. Morgan discussed the hearing notice and opined that there should have been better notice to the residents. She also asked questions as to the mechanics of how Council would proceed, what it would consider, and whether there would be additional hearings. She noted that many of her questions had been answered during the presentation and comment period. Id. at 200; R.R. at 675a.
Ms. Marcucci, who resides in Pleasant Hills, PA, but not in the Borough, is employed as a community outreach coordinator for the Environmental Integrity Project. She testified that EQT was fined as a result of her employer’s research project on one of EQT’s sites in Tioga County due to switching permanent freshwater im-poundments into flowback ponds. In addi
Ms. Kaufmann, a borough resident and family nurse practitioner with a doctorate in public health,
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
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
Accordingly we affirm the decision of common pleas which reversed the Council’s denial of the conditional use application. Nonetheless, because of Council’s outright denial, it did not consider attaching reasonable conditions to Applicants’ project, to some of which Applicants had expressed their amenability, such as water testing and noise reduction. Given the environmental sensitivity of unconventional gas well drilling, we believe it is appropriate that we remand so that reasonable conditions may be considered and, if found to be necessary, attached to the grant of this conditional use. This consideration may be accomplished by common pleas on remand,
ORDER
AND NOW, this 18th day of May, 2017, the order of the Court of Common Pleas of Allegheny County is hereby AFFIRMED. However, the matter is remanded to the Court of Common Pleas, in accordance with the foregoing opinion, for consideration of whether the conditional use application should be subject to reasonable conditions and, if so, imposing such conditions. Jurisdiction relinquished.
Notes
. Where, as here, common pleas did not take additional evidence, we are limited to reviewing whether the local governing body committed an error of law or made findings which are not supported by substantial evidence. Whitehall Manor, Inc. v. Planning Comm'n of the City of Allentown,
. In June 2014, the Borough enacted Ordinance No. 833, which specifically provides for the zoning of oil and gas drilling operations. In so doing, the Borough found as follows:
[T]he proposed new provisions ... will promote the public health, safety and welfare and practical community development in the Borough ... and will provide for gas and oil drilling to take place in areas of the Borough in locations which will allow extraction of gas and oil with the least detrimental impact on residentially zoned property, historic or recreational resources, hospitals, nursing homes, daycare centers and schools. As such, the proposed provisions will further the goals of the Comprehensive Plan to preserve the single family character of the Borough, to manage and promote future growth and to protect natural sites.
Section 1(1)(A) of Ordinance No. 833; R.R. at 1144a.
. As the fact finder, it is within the province of the municipal legislative body to render credibility determinations and to assign weight to the evidence. Joseph v. N. Whitehall Twp. Bd. of Supervisors,
. The ERA provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.
PA. CONST. art. I, § 27, els. 1-3.
. The Supreme Court’s grant review for consideration of four issues primarily relates to this Court’s holdings regarding an industrial shale gas development being similar to and
. What the applicant must establish to obtain conditional use approval depends on what the specific ordinance requires. See Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Twp. Zoning Healing Bd.,
. As we stated in Bray v. Zoning Board of Adjustment,
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. See November 10, 2015, Hearing, Notes of Testimony (N.T.) at 129-217; R.R. at 604-692a.
. There is no indication from the hearing transcript that Ms. Kaufmann was qualified as an expert.
. The Borough has raised a concern that the testimony of lay witnesses based on their own personal experiences will never be sufficient to constitute the requisite probative evidence to establish that a conditional use poses a detriment to public health, safety, and welfare. We do not in any way suggest that the testimony of lay witnesses is insufficient, per se, but instead, that probative evidence may not consist of speculation or testimony, even if concrete, which relates generally to potential harmful effects of the use permitted by the ordinance.
. See note 2 at 5, supra, quoting Section 1(1)(A) of Ordinance 833. No argument is being made here that the conditional use allowance of unconventional gas wells, which is specifically authorized by Pennsylvania statute, violates the ERA.
. Section 1006-A of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11006— A. Section 1006-A was added by the Act of December 21, 1988, P.L. 1329.
Dissenting Opinion
DISSENTING OPINION BY
I respectfully dissent from the thoughtful Majority because I do not agree that Objectors’ testimony and documentation “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.” (Maj. op. at 563.)
But this case is clearly distinguishable from JoJo Oil Company, Inc. Objectors’ evidence in this case is of a different pedigree altogether. Objectors are not merely expressing “concerns” or “fears” of abstract possibilities in a realm of conjecture. To the contrary, Objectors’ evidence is specific and concrete and they have established, through comparative evidence, that a substantially similar natural gas production facility owned and operated by EQT— the “Trax Farm Well Site”—has had a detrimental effect on Union Township, a neighboring municipality. As the Council found as fact:
1. The proposed [Bickerton Well Site] is approximately 126 acres and will include unconventional wells both at the vertical and horizontal laterals and be hydraulically fractured. [EQT] testified that the proposed wells would likely descend, six thousand to seven thousand (6,000-7,000) feet vertically before being turned horizontal outward up to ten thousand (10,000) feet.
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7. Exhibit C evidences the presence of wetlands and unnamed tributaries to Peters Creek very near the vicinity of the 126 acre proposed well site.
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22. The following persons, after being duly sworn, testified at the November 10, 2015 public meeting:
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b. Bob Dorman—Union Township: Commented on “gag agreements” EQT offered residents hear the EQT Trax Farm well site wherein residents would grant an easement/right-of-way over and above their properties to EQT for noise, dust, light, smoke, odors, fumes, soot or other pollution, vibrations, adverse impacts or other conditions or nuisances which may emanate from EQT’s operations; provided. [Council] with copies of such agreements; [and] noted the proximity of neighborhoods to the proposed Bick-ertori well site and . how many of them would be within the half mile safety radius [EQT] discussed ....
c. Gary Baumgartner—Union Township: Provided [Council] with an exhibit demonstrating his home’s geographic relationship to the EQT Trax Farm well site[;] commented' on the life-disrupting levels of vibration coming from the Trax Farm well site which he alleges cause sleep deprivation and visible shaking of household items; dis*566 cussed odors such as diesel fumes and sulfur coming from the well site; commented upon advice given to him by the Southwestern Regional Health Association regarding the presence of airborne particulate matter emanating from the hydraulic fracturing operation and settling on nearby properties restricting outdoor activities such as lawn mowing, gardening, and playing in grass; alleged air quality levels and diesel odors requiring evacuation of his home; stated that issues with noise, air quality, and odors forced his pregnant daughter to move out [of the house] at the recommendation of her doctor and that he and his wife also had to move out countless times; [and] alleged a respiratory illness requiring hospitalization was due to issues from the Trax Farm well site ....
d. Mickey Gniadek—Union Township: [Testified about a December 4, 2013 incident where he went outside of his house near the Trax Farm well site, witnessed a thick white cloud about three-and-half feet off the ground, [and] smelled an acidic and then chlorine-like smell; stated that after this incident he had red dots over his entire body and was later told his symptoms were one of the signs of asphyxiation; [and] recounted that after this incident an EQT subcontractor arrived at his house to offer him $50,000.00 as part of an offer that was being made to the people in his neighborhood, which first required everyone to sign on and was later changed to allow each neighbor to decide individually ....
e. Andy Tullai—Jefferson Hills, Pennsylvania: Recently moved from near Trax Farm well site to Jefferson Hills; testified about low frequency sounds that would come from the Trax Farm well site and cause loss of sleep; [and] commented on the annoyance of diesel fumes ....
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h. Judith Kaufmann—Jefferson Hills, Pennsylvania: Family nurse practitioner, holds a doctorate in public health, wanted to testify based on her professional roles and Borough resident status[;] stated that the American Academy of Pediatrics had recently released a consensus statement warning people and urging them to not move forward with fracturing until health data can be reviewed due to the apparent ability of fracturing related toxins to cross the placenta during pregnancy and contaminate cord blood, amniotic fluid, and breast milk in addition to the placenta; [and] noted that fracturing chemicals such as benzene, ethylene and formaldehyde can cause cancer and in the case of ethylene, it is also considered a neurotoxin ....
(Council’s F.F. Nos. 1, 7, 22b-e, h) (citation omitted).
In its brief, the Borough explains: “Because 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].” (Borough’s brief at 18.)
Previously, this Court reaffirmed that while an objector’s “bald assertions, personal opinions and speculation will not” suffice to prove detrimental impact on a community, “[t]estimony based on specific past experiences can satisfy this burden .... ” Servants Oasis v. Zoning Hearing Board of South Annville Township,
Citing case law from this Court, our Supreme Court in Visionquest stated that “testimony as to prior experiences with the specific proposed use, while the use was conducted unapproved or unlawfully, should be given greater weight in determining the detriment to the community as such testimony is clearly not speculative.” Id. at 918 (citing Tuckfelt v. Zoning Board of Adjustment of the City of Pittsburgh,
Although the Supreme Court in Vision-quest pointed to incidents occurring at another facility operated by the applicant to bolster the objectors’ testimony, it appears that neither the Supreme Court nor this Court has ever determined whether the rule announced in Visionquest applies in the situation where the objectors’ testimony is based solely upon the effects they experienced at a substantially similar facility located in an adjoining municipality. Nevertheless, logic and fundamental fairness dictate that such an extension should be made, at least in the context of this case, where there is no unconventional gas well located within the Borough upon which to compare generally or analyze when it is operated unlawfully/unapproved and prior to an application for a special exception. After all, “specific past experiences,” Visionquest,
Moreover, this extension , of the Vision-quest rule is an extremely modest-one that has a strong foundation in other areas of the law. In point of fact, evidence of a substantially similar accident or harmful consequence is admissible, in civil law cases to prove that an instrumentality or condition is defective or dangerous, see Blumer v. Ford Motor Co.,
-Notably, Objectors’ testimony is based on their first-hand observations and experiences at the Trax Farm Well Site and is by no means “speculative” in that sense of the legal term. See Gibson v. Workers’ Compensation Appeal Board (Armco Stainless & Alloy Products),
The Majority’s conclusion requiring Objectors “to present either lay or expert testimony specific to the Bickerton Well Site,” (Maj. op. at 163), is unduly restrictive and impracticable, has the effect of placing upon Objectors an almost insurmountable burden, of proving detrimental harm, and threatens “the ‘inherent and
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,
Accordingly, I would conclude that Objectors’ evidence was sufficient to satisfy their burden of proof and that EQT failed to persuade the Council that the Bickerton Well Site would not have negative impact on the Borough. Hence, I respectfully dissent.
. Pursuant to the Ordinance of the Borough of Jefferson Hills (Borough), as implemented and modified by our decision in Bray v. Zoning Board of Adjustment,
Distilled to its essence, the only issue in this appeal is whether Objectors satisfied this burden because the Borough Council of the Borough of Jefferson Hills (Council) determined that EQT failed to persuasively demonstrate that operation of the Bickerton Well Site would not result in a detrimental impact. Council's Findings of Fact (F.F.) Nos. 25, 27; Conclusion of Law (COL) at GG. Because the Council made the necessary findings of facts, any error that it committed in applying the burden-shifting framework of Bray was a harmless one. See Appeal of R.C. Maxwell Co.,
. EQT admits that this statement is accurate. (EQT's brief at 32 n.12.)
. In Tuckfelt, the applicants sought an occupancy permit or special exception to rent the third floor of a building to two individuals. Based on the testimony of nearby landowners concerning their past experiences with the individuals when residing in the building, the trial court found as fact that "the additional roomers added more noise to the neighborhood by playing their own stereo systems, created additional parking problems since there were no on site parking spaces available, added to the trash and litter found on the property, and inhibited their neighbor’s enjoyment of their surrounding properties by having loud parties that generated litter which was on occasion cleaned up by neighboring residents.”
Similarly, in Atlantic Richfield, the applicant requested a special exception to convert an existing gasoline station to a mini-market with self-service gasoline pumps. In opposition, several residents who resided close to the gasoline station testified as to the adverse effects of the unconverted gasoline station, including loud noise, littering, and loitering. This Court stated: ”[I]t is clear that this is not a case where the objectors offered unfounded presuppositions as proof. It was on the basis of their prior experiences with the twenty-four hour operation of the unconverted gas station that they attempted to prove the adverse effects of the proposed conversion of the gasoline service station.”
. In Blumer, the plaintiff alleged that a defective design of a parking brake caused the brake to disengage, resulting in a truck rolling down a hill and killing an individual, and asserted a strict product liability claim under a malfunction theory. The Superior’ Court explained that “[e]vidence of prior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous ' condition existed,” id. at 1228, and concluded that twenty-five reports of prior, similar incidents from other consumers was admissible to prove that the truck's parking brake mechanism was defective.
. In Aetna Life, this Court noted that the comparable sales approach is one of the methods to determine a property’s fair market value for tax assessment purposes. We reiterated: "[I]n determining market value, 'com-parables’ means properties of a similar nature which have been recently sold. In order to be comparable ... however, the properties need not be identical .... Thus, comparisons based on sales may be made according to location, age and condition of improvements, income and expense, use, size, type of construction and in numerous other ways.” Id. at 279 (citation omitted). Ultimately, in Aetna Life, this Court concluded that the trial court did not err in assessing a property’s fair market value based, in large part, on the values of the other, comparable properties.