BRIAN GORSLINE, DAWN GORSLINE, PAUL BATKOWSKI AND MICHELE BATKOWSKI v. BOARD OF SUPERVISORS OF FAIRFIELD TOWNSHIP v. INFLECTION ENERGY, LLC AND DONALD SHAHEEN AND ELEANOR SHAHEEN, HIS WIFE
No. 67 MAP 2016
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: June 1, 2018
[J-13-2017]
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Appeal from the Order of the Commonwealth Court dated September 14, 2015 at No. 1735 CD 2014 Reversing the Order of the Lycoming County Court of Common Pleas, Civil Division, dated August 29, 2014 at No. 2014-0130. ARGUED: March 8,
OPINION
JUSTICE DONOHUE
In this discretionary appeal, we consider whether the Commonwealth Court erred in reversing the decision of the Lycoming County Court of Common Pleas, which, in turn, had reversed the decision of the Fairfield Township Board of Supervisors (the “Board“) to allow for the drilling,
Section 3.1 of the Ordinance defines an R-A district as follows:
This District is generally intended for application to rural development areas where public and sewer facilities are not presently available and may not be available in the near or immediate future. The purpose of the regulations for this district is to foster a quiet, medium-density residential environment while encouraging the continuation of agricultural activities and the preservation of prime farmland. To this end, lot sizes are based upon the need to safeguard the health of the citizens by requiring ample space for the placement of on-lot sewage and water facilities, but yet providing for reduction of these minimum requirements where public sewer and/or water systems are developed. Industrial uses are discouraged in this district; compatible public and semi-public uses such as schools, churches, and recreational facilities are provided for; and higher density residential development may be permitted under certain conditions.
Id.
Inflection Energy, LLC (“Inflection“) submitted to the Board a “Zoning and Development Permit Application” (the “Application“) seeking permission for a “drilling, completion, production and operation of multiple gas wells” use on a 59.877-acre parcel of land located on Quaker State Road in Montoursville, Pennsylvania and owned by Donald and Eleanor Shaheen (the “Shaheen Pad“). Application, ¶ 4. The Shaheen Pad is located in Fairfield Township‘s R-A district. The Application proposed to improve the existing farm access road with a stone access drive from Quaker State Road/T-855 to the pad site, a level pad, well head, and a temporary water impoundment area with sediment and erosion controls.
Because the Ordinance does not identify “drilling, completion, production and operation of multiple gas wells” as a permitted or conditional use3 in the R-A district, the township zoning officer referred Inflection‘s Application to the Board for further consideration pursuant to section 12.18 of the Ordinance, sometimes referred to as its “savings clause.” Section 12.18 provides in full as follows:
Whenever, under this Ordinance, a use is neither specifically permitted [n]or denied, and an application is made by an applicant to the Zoning Officer for such a use, the Zoning Officer shall refer the application to the Board of Supervisors
to hear and decide such request as a conditional use. The Board of Supervisors shall have the authority to permit the use or deny the use in accordance with the standards governing conditional use applications set forth in Section 14.2 of this Ordinance. In addition, the use may only be permitted if: 12.18.1 It is similar to and compatible with the other uses permitted in the zone where the subject property is located;
12.18.2 It is not permitted in any other zone under the terms of this Ordinance; and
12.18.3 It in no way is in conflict with the general purposes of this Ordinance.
The burden of proof shall be upon the applicant to demonstrate that the proposed use meets the foregoing criteria and would not be detrimental to the public health, safety and welfare of the neighborhood where it is to be located.
Ordinance, § 12.18.
The central issue in this appeal is whether the Board erred in finding, and the Commonwealth Court erred in affirming, that Inflection satisfied the requirement in subsection 12.18.1 that the proposed use was “similar to” other uses allowed in the R-A district. In its Application, Inflection did not identify any use allowed in the R-A district that it considered to be “similar to” the drilling and operation of industrial shale gas wells.
At the first of two public hearings on Inflection‘s Application, Inflection presented Thomas Erwin (“Mr. Erwin“), its senior field operations manager, as an expert in the design, permitting and development of natural gas wells. Mr. Erwin testified that the Shaheen Pad would be 300 by 350 feet in size during drilling and completion of the gas wells, and after drilling and completion it would be reduced to approximately 150 by 150 feet. N.T., 10/7/2013, at 12. He described the property as being used to farm corn, unimproved by houses, and including a stream and wetlands. Id. at 10-11. There was one residence within 1000 feet of the Shaheen Pad and over 125 residential drinking water wells and a large residential development within 3000 feet of the pad. Id. at 23-24. Mr. Erwin was uncertain as to how many gas wells would ultimately be drilled on the Shaheen Pad. He believed it likely that two wells would be drilled initially, and depending on the results, Inflection could subsequently drill more. Id. at 12-13. He testified that Inflection would also construct a two-million-gallon water impoundment area and an eight- by twelve- by twenty-foot building to house a separator. Id. at 13, 15.
Mr. Erwin testified that Inflection had received approval for four other gas wells in the R-A district in Fairfield Township, but provided no other information about these wells or the approval process related thereto. Id. at 20. A neighboring resident, however, testified to her knowledge that the other wells were “much further from residential areas” than the proposed Shaheen Pad – testimony the Board found to be credible. N.T., 11/4/2013, at 67; see Board Op., Findings of Fact, ¶ 42.
With respect to the issue of similarity of use in connection with subsection 12.18.1 of the Ordinance, counsel for Inflection asked Mr. Erwin two questions regarding whether Inflection‘s proposed use may constitute a “Public Service Facility” use. The Ordinance, which permits “Public Service Facility” uses (as conditional uses) in all three of Fairfield‘s zoning districts, defines the term as follows:
The erection, construction, alteration, operation or maintenance of buildings, power plants or substations, water treatment plants or pumping stations; sewage
disposal or pumping plants and other similar public service structures by a utility, whether publicly or privately owned, or by a municipal or other governmental agency, including the furnishing of electrical, gas, communication, water supply and sewage disposal services.
Ordinance, § 2.2. In response to counsel‘s questions, Mr. Erwin offered the following contradictory responses:
[Counsel for Inflection]: And what is the proposed use in that district? What do you plan on --
[Mr. Erwin]: Oil and gas development.
[Counsel for Inflection]: And is that proposed use classified as a public service facility under the [O]rdinance?
[Mr. Erwin]: No.
[Counsel for Inflection]: It fits the definition as a public service facility under the Fairfield Township Zoning Ordinance, is that correct?
[Mr. Erwin]: Yes.
N.T., 10/7/2013, at 8. Mr. Erwin was not asked to explain his inconsistent answers, including how the proposed use could not be classified as a “public service facility,” yet simultaneously met the Ordinance‘s definition of that term. Mr. Erwin offered no other testimony relevant to the similarity of use issue.
At the second hearing, in response to questions posed by members of the public that were beyond the scope of Mr. Erwin‘s expertise and knowledge, Inflection presented geologist Thomas Gillespie, its director of regulatory affairs and environmental and health safety, as an expert in water resources and gas development. N.T., 11/4/2013, at 6. Mr. Gillespie offered no testimony or evidence relevant to the similarity of use issue.
At both evidentiary hearings, neighboring residents, many of whom were knowledgeable about oil and gas development activities (either from working in the industry or from their familiarity with other wells), cross-examined Inflection‘s two witnesses (Mr. Erwin and Mr. Gillespie) and also testified in opposition to Inflection‘s Application. The residents offered testimony regarding the negative impact the proposed use would have on those who lived near the Shaheen Pad; the absence of criminal background checks for nearly all of the individuals working on the Shaheen Pad; sediment control; the potential for a “controlled kick;”4 the lack of protections for the neighboring residents’ drinking water and wetlands; prior DEP citations received by Inflection and other companies conducting fracking activities in the area; the potential for earthquakes; and a study by researchers from Duke University concluding that Pennsylvania‘s waterways contain excess levels of radioactivity because of fracking activities. See id. at 45-46, 78-79; N.T., 11/4/2013, at 14, 32, 36, 38, 42, 45-48, 57; see also Gorsline Exhibit-1.
The Board approved the Application by a two-to-one vote, granting Inflection a conditional use permit for its proposed gas wells use, contingent upon Inflection‘s compliance with certain conditions designed to minimize the harmful effects of the drilling. The Board found that Inflection‘s proposed use was not an allowed use in any of the township‘s three zoning districts and was thus governed by the savings clause in section 12.18. The Board broadly found, without explication or explanation,
Brian Gorsline, Dawn Gorsline, Paul Batkowski and Michele Batkowski (collectively, “Objectors“), local residents of the Pines Development in Fairfield Township, appealed the Board‘s decision to the Lycoming County Court of Common Pleas. See
Inflection and the Shaheens (collectively referred to as “Inflection“) appealed to the Commonwealth Court.6 Referencing the Board‘s “detailed findings of fact,” but citing to none, the Commonwealth Court found that the common pleas court erred in concluding that Inflection had not met its burden of proof on the question of whether the proposed use was similar to permitted uses in an R-A district under section 12.18.1. Gorsline v. Bd. of Supervisors of Fairfield Twp., 123 A.3d 1142, 1151 (Pa. Commw. 2015). Instead, the intermediate appellate court found that Inflection‘s proposed use was similar to and compatible with a “public service facility” use and/or an “essential service” use based on its prior decision in MarkWest Liberty Midstream & Resources, LLC v. Cecil Twp. Zoning Hrg. Bd., 102 A.3d 549 (Pa. Commw. 2014) (”MarkWest“), which it found to be “directly on point.” Gorsline, 123 A.3d at 1151-52.
In MarkWest, the applicant filed an application for a special exception to operate a natural gas compressor station in Cecil Township‘s (Washington County) light industrial district. MarkWest, 102 A.3d at 553. The local zoning ordinance provided that in order for MarkWest to obtain the
In the case sub judice, the Commonwealth Court found that the Ordinance‘s definitions of “public service facility” and “essential services”7 were similar to the definitions of the same terms in the ordinance at issue in MarkWest. Gorsline, 123 A.3d at 1152. It thus concluded, without elaboration or reference to any evidence of record, that “[p]recisely as in MarkWest, Inflection‘s proposed use satisfies the requirement set forth in 12.18.1 of the Zoning Ordinance that it ‘is similar to and compatible with other
uses permitted in the zone where the subject property is located.‘”8 Id. The Commonwealth Court further held, again without discussion or citation to the record, that Inflection‘s evidence “was in no way rebutted, and the
Objectors filed a petition for allowance of appeal to this Court, which we granted to address the following:
(1) Does the Commonwealth Court‘s decision below, that an industrial shale gas development is similar to and compatible with uses expressly permitted in a[n] R-A District, conflict with this Court‘s decision in Robinson [I]?
(2) Did the Commonwealth Court commit an error of law in deciding that an industrial shale gas development is similar to and compatible with a “public service facility” in an R-A District when the Township made no factual finding or legal conclusion to that effect, the record contains no substantial evidence to support that determination and the company‘s own witness testified that shale gas development was not similar to a “public service facility” in an R–A District?
(3) Did the Commonwealth Court improperly decide that MarkWest [], wherein it held that a compressor station is similar to and compatible with a “public service facility” in a Light Industrial District, also compels the conclusion that an industrial shale gas development is similar to and compatible with a “public service facility” in an R-A District designed for quiet, residential development and not industrial land uses?
(4) Did the Commonwealth Court commit an error of law by relying on prior conditional use approvals that the Township issued for uses not expressly permitted in the R-A District, in order to support its decision that an industrial shale gas development is similar to and compatible with uses expressly permitted in the R-A District?
Gorsline v. Bd. of Supervisors of Fairfield Twp., 139 A.3d 178 (Pa. 2016) (per curiam) (emphasis original).
We address the final three issues raised by Objectors, which are interrelated and, we conclude, dispositive of this case. Because we may decide this case on non-constitutional grounds, we decline to decide Objectors’ first issue, relating to this Court‘s decision in Robinson I based on a claimed violation of substantive due process rights and the Environmental Rights Amendment of the Pennsylvania Constitution (
In their brief filed with this Court, Objectors assert that the Board made no findings of fact with respect to the requirements of subsection 12.8.1, and instead reached the bald conclusion that Inflection somehow satisfied its burden of proof without identifying any similar permitted use in the R-A district. Objectors’ Brief at 23, 28. Objectors contend that the record does not support the Commonwealth Court‘s conclusion that the propose use is similar to a “public service facility” use, and note that this was a legal conclusion made in the first instance by the Commonwealth Court, not the Board. Id. at 24. Inflection did not identify any similar use in its 170-page Application, and the only evidence presented to the Board regarding a potentially similar use (“public service facility“) was Mr. Erwin‘s response to a leading question, which directly contradicted his prior response to essentially the same question. Id. at 24-26.
Objectors state that the Commonwealth Court‘s conclusion that MarkWest was controlling in this matter was error because it addressed a proposed use in a different zoning district that had a very
Inflection and the Board, conversely, both assert that the Commonwealth Court‘s decision is fully supported by the record and applicable law.10 Inflection asserts that the Commonwealth Court‘s reliance on MarkWest was proper because of the similarity between the cases: both involved an application for a permit under the respective ordinance‘s savings clause; both ordinances required a consideration of similarity between the proposed use and the uses permitted in the zone; and the
Whether a proposed use falls within a given category specified in a zoning ordinance is a question of law. Southco, Inc. v. Concord Twp., 713 A.2d 607, 609 (Pa. 1998). Thus, appellate review is limited to determining whether the lower court committed an error of law. Id. As with all questions of law, our standard of review is de novo and our scope of review is plenary. See Buckwalter v. Borough of Phoenixville, 985 A.2d 728, 730 (Pa. 2009). We may only disturb the Board‘s factual determinations if they are not supported by substantial evidence, and by “substantial evidence” we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Ass‘n v. Zoning Bd. of Adjustment, 462 A.2d 637, 642 (Pa. 1983).
Based upon our review of the record in this case, we must conclude that the trial court correctly applied its standard of review in finding that the Board‘s decision to grant Inflection‘s Application was not supported by substantial evidence. With respect to similarity of use, the trial court held that Inflection‘s limited testimony on this issue (from Mr. Erwin) was “conclusory and not supported by any factual evidence whatsoever.” Gorsline, 40 Pa. D. & C.5th at 488.
[Mr. Erwin] testified that Inflection‘s proposed use was not classified as a public service facility under the Ordinance. Transcript, 10/7/13, at 8. Apparently dissatisfied with that answer, Inflection‘s counsel then asked the following leading question, “It fits the definition as a public service facility under the Fairfield Township Zoning Ordinance, is that correct?” After this prompting, [Mr. Erwin] said, “Yes.” There was absolutely no explanation for [Mr. Erwin‘s] arguably inconsistent answers. The definition of a public service facility was not discussed or alluded to and no testimony was provided to show how Inflection‘s proposed use fits the definition. There was just a bald, conclusion statement that the use fit the definition of a public service facility.
Id. at 489 (emphasis in original). As a result, and in the absence of any findings of fact by the Board regarding similarity of use, the trial court concluded, and properly so, that Inflection had not met its burden of proof (substantial evidence) with respect to subsection 12.18.1 of the Ordinance.
In reversing the trial court‘s decision, the Commonwealth Court, without explanation or citation, insisted that the record contained “detailed findings of fact.” Gorsline, 123 A.3d at 1151. As noted, however, the Board‘s decision contained no findings of fact whatsoever with respect to similarity of use. The Commonwealth Court further maintained that the trial court, in
The Commonwealth Court‘s reliance upon its decision in MarkWest was error. We take no issue with the distinction in MarkWest, based upon the language of the local ordinance at issue in that case, between substantially identical uses and uses that are of the “same general character.” MarkWest, 102 A.3d at 558-59. As explained herein, however, Inflection‘s proposed gas wells use is not, in any material respect, of the “same general character” as any allowed use in the R-A zoning district, including the “public service facility” and “essential services” uses referenced by the Commonwealth Court. Gorsline, 123 A.3d at 1152.
In summarily concluding to the contrary, the Commonwealth Court did not carefully examine the language of the two definitions. By its definitional terms, a “public service facility” involves “public service structures by a utility … or by a municipality or other governmental agency.” Ordinance, § 2.2 (emphasis added). Likewise, “essential services” are the facilities and related equipment of a ”public utility.” Id. (emphasis added). Inflection is clearly not a municipality or a government agency, but rather is a private, for-profit commercial business. It is also not a public utility. In Crown Communications, this Court held that when a zoning ordinance (like the Ordinance at issue here) does not define “public utility,” the term “shall be understood to mean any business activity regulated by a government
Moreover, while Inflection now states that its proposed use will “serve the general public producing and piping natural gas to the public for their use and consumption,” Inflection‘s Brief at 39, Inflection‘s use “for the general public” is materially different from the “public service facility” and “essential services” uses defined in the Ordinance. The word “public” in ”public service facility” unquestionably refers to the local residents of Fairfield Township, as the definition of the term refers to, inter alia, power plants, water treatment plants, sewage disposal plants, and other similar public service structures, to furnish the public with “electrical, gas, communication, water supply and sewage disposal services.” Ordinance, § 2.2. Likewise, the definition of “essential services” references gas, electrical communications, steam, fuel, or water transmission or distribution systems as are “necessary for the health, safety, and general welfare of the community.” Id. As such, the public nature of “public service facility” and “essential services” uses is inherently local in nature – namely, to provide services for the benefit of residents in Fairfield Township‘s R-A district in connection with residential and agricultural uses in that district.12 Inflection, conversely, while representing that it “serves the general public,” offered no evidence, and the Board made no findings of fact, that its extraction of natural gas is in any respect for the benefit of the residents of the R-A district, Fairfield Township, or even Lycoming County.
Fundamentally, the Ordinance was adopted “in consideration of the character of the municipality, its various parts and the suitability of the various parts for particular uses and structures,” and its general purpose is to, inter alia, “encourage the most appropriate use of land, conserve and stabilize the value of property; provide adequate open spaces for light and air[.]” Ordinance, §§ 1.4.1; 1.4.2. This statement of purpose is echoed in the R-A zone definition, which reflects that such zones are meant to be quiet, of medium density, and supportive of residential and agricultural activities – while discouraging industrial uses. See id., § 3.1. The Ordinance permits “public service facility” and “essential service” uses in the R-A district to promote residential and agricultural development in that part of the township. Ordinance, § 4.2.2.16. In other words, “public service facility” and “essential service” uses are allowed because they provide the
Seen in this light, Inflection‘s proposed use is plainly not of the “same general character as, or “similar to,” “public service facility” or “essential services” uses. Inflection‘s proposed gas wells use provides no public or essential services to the residents of the R-A district, and provides no infrastructure that supports and promotes residential and agricultural development in Fairfield Township. Inflection‘s proposed use is intended solely for Inflection‘s own commercial benefit, and not in any respect for the benefit of furthering the expressed goals of Fairfield Township‘s R-A district. It is not similar to a “public service facility” because it provides no public service to R-A residents, and it is not similar to “essential services” because it provides no services that are essential to residential and agricultural development in Fairfield Township.13 Instead, it is a purely industrial use of the type the Ordinance expressly discourages in the R-A district.
Finally, the Commonwealth Court‘s reliance on the Board‘s prior grants of conditional use permits for other gas wells in an R-A district to satisfy subsection 12.18.1‘s requirement of similarity of use was also error. Gorsline, 123 A.3d at 1152 (“the Board has already authorized Inflection‘s other wells in the R-A District“). In this regard, we first note that the record in this case contains very little information about the previously permitted wells. Inflection‘s evidence regarding these other gas wells was limited to the following exchange between counsel for Inflection and Mr. Erwin:
[Counsel for Inflection]: And you have received approval for other wells in that same zoning district in this Township?
[Mr. Erwin]: Yes.
[Counsel for Inflection]: Prior to this hearing?
[Mr. Erwin]: Yes.
[Counsel for Inflection]: And on how many occasions?
[Mr. Erwin]: I believe it‘s at four wells now. The Greg Harris well, Mussina, and the two Eck wells.
N.T., 10/7/2013, at 19-20. There was no evidence presented about the proposed uses claimed for these wells; the permitted use(s) the Board found to be similar to those proposed uses; whether public hearings were held regarding these other wells; if there were public hearings, what evidence was presented, if any, in opposition to the proposed uses (and by whom); or any details about the wells themselves, e.g., their location, their proximity to residences, etc. A neighboring resident testified that the other wells were not similarly situated to the Shaheen Pad, as they were located a greater distance from residential areas. N.T., 11/4/2013, at 67. In summarily concluding that Inflection had satisfied its burden of proof with respect to subsection 12.18.1, the Board did not mention its prior grants of other conditional use permits for gas wells uses. To the contrary, its only reference to these permits in its opinion
We must agree with the arguments of the Objectors on this issue. Because the Ordinance does not expressly authorize a gas wells use in any of the Township‘s three zoning districts, such a use cannot enjoy any presumption of being “similar to” uses that are permitted in those districts, and section 12.18 clearly places the burden of proof with respect to similarity of use on the applicant. The statutory language of section 12.18 neither states nor suggests that the issuance of prior site-specific conditional use permits under that section of the Ordinance relieves an applicant of its obligation to satisfy its burden of proof with respect to section 12.18 in its entirety. A contrary decision would effectively raise a prior ruling to the status of a zone-wide amendment of the language of section 12.18, and would deprive local residents and property owners in the district of any meaningful opportunity to oppose the issuance of a new conditional use permit. Inflection may not bootstrap its prior granted conditional use permits into a presumption of validity of every subsequent application that it files.
Applying our standard of review, we hold that the Board‘s conclusion that Inflection satisfied its burden of proving that its proposed use was similar to a permitted use in an R-A district is not supported by the record. In so ruling, this decision should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses. As the Dissent fairly acknowledges, in Robinson I a plurality of this Court recognized that the protection of environmental values is a “quintessential local issue that must be tailored to local conditions.” Dissenting Op. at 10 n.6 (quoting Robinson I, 83 A.3d at 979). To this end, the Municipalities Planning Code permits the governing body of a municipality to amend its zoning ordinances to permit oil and gas development in any or all of its zoning districts.
Chief Justice Saylor and Justices Todd and Wecht join the opinion.
Justice Dougherty files a dissenting opinion in which Justices Baer and Mundy join.