kretschmann-farm-llc-v-twp-of-new-sewickley-and-board-of-supervisors-of ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kretschmann Farm, LLC, and :
Donald Kretschmann and :
Rebecca Kretschmann, husband :
and wife, :
Appellants :
:
v. : No. 360 C.D. 2015
: Argued: November 17, 2015
Township of New Sewickley and :
Board of Supervisors of New :
Sewickley Township, Beaver :
County, Pennsylvania :
:
v. :
:
Cardinal PA Midstream, LLC and :
PennEnergy Resources, LLC :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION
BY JUDGE LEAVITT FILED: January 7, 2016
Kretschmann Farm, LLC and Donald and Rebecca Kretschmann,
husband and wife (collectively, Landowners), appeal the order of the Court of
Common Pleas of Beaver County (trial court) that affirmed the decision of the
Board of Supervisors of New Sewickley Township (Township) to allow the
construction of a gas compressor station on land adjacent to their organic farm.
Landowners contend the Township erred because its written decision and order did
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
not address Landowners’ evidence that the proposed compressor station will
adversely affect the public health and welfare. They also assert that the trial court
erred by denying them the opportunity to present additional evidence in their land
use appeal. We affirm.
Background
On May 1, 2014, Cardinal PA Midstream, LLC (Cardinal) filed a
conditional use application with the Township to build a gas compressor station on
property located in the Township’s “A-1 Agricultural District.” Section 6.2 of the
Zoning Ordinance2 lists conditional uses authorized in the A-1 Agricultural
District, and one such use is a compressor station, subject to “standards and criteria
specified in Subsection 16 herein.” ZONING ORDINANCE, art. VI, §6.2; Reproduced
Record at 899a (R.R. ___).3 The Zoning Ordinance defines a “compressor station”
as:
One or more enclosed insulated building, housing compressor
units, that are to be designed compatible with other structures in
the area and designed and constructed to compress natural gas
and/or oil that originates from a gas and/or oil well, or
collection of such wells, operating as a midstream facility for
delivery of gas and/or to a transmission pipeline, distribution
pipeline, processing plant or underground storage field
including one or more natural gas and/or oil compressors
associated buildings, pipes, valves, tanks and other equipment.
2
ZONING ORDINANCE OF THE TOWNSHIP OF NEW SEWICKLEY, BEAVER COUNTY,
PENNSYLVANIA (Zoning Ordinance), as amended by Ordinance No. 194, December 27, 2012.
3
Ordinance No. 194 was enacted in 2012 and amended the Zoning Ordinance to regulate natural
gas drilling and activities. R.R. 897a-910a. Ordinance No. 194 identifies the amendments to the
Zoning Ordinance by article and section.
2
ZONING ORDINANCE, art. II, §301; R.R. 897a-98a. Cardinal’s compressor station
will consist of two buildings and four compressors on an 11.2-acre pad, which is
part of a 46.64-acre parcel about to be acquired by Cardinal.4 Cardinal’s
compressor station will prepare natural gas produced by PennEnergy Resources,
LLC for market.5
On July 2, 2014, the Township scheduled a public hearing on
Cardinal’s conditional use application. At that hearing, Cardinal presented
testimony from Greg Muse of PennEnergy as well as testimony from Cardinal’s
employees and consultants: Thomas Baskin, Lauren Parker, Reggie Keith, and
Brian Hoffheins.
Muse provided a history of PennEnergy operations, which included
slides depicting its existing oil and gas sites, from the construction phase to
completion.6 PennEnergy plans to connect four of its natural gas wells to
Cardinal’s proposed compressor station, which will “gather the gas,” i.e., separate
the condensate, a type of ultralight oil, from the gas. Cardinal will then transport
the condensate to market.
Thomas Baskin, Cardinal’s vice-president of construction, testified
about Cardinal’s operations. He explained that under the joint venture, Cardinal
will process PennEnergy’s gas at multiple compressor stations in Beaver and
Butler Counties, some of which are already operational. Baskin introduced
Cardinal’s management team and detailed its experience in the natural gas
4
Cardinal has a sales agreement with Cecil Ellen Properties, which owns the 46.64-acre parcel.
5
PennEnergy was granted permission to intervene by the trial court. Cardinal and PennEnergy
have filed a joint brief to this Court.
6
The PowerPoint slides were photocopied and submitted into evidence.
3
industry. He testified that the compressor station will incorporate pollution
prevention and control measures that will be reviewed and approved by the
Pennsylvania Department of Environmental Protection (DEP).
Lauren Parker, a licensed professional engineer, testified that
Cardinal’s erosion and sediment control plan had been submitted to DEP. In
response to the recommendations of the Township’s Planning Commission,
Cardinal made site plan adjustments. For example, it will undertake landscaping to
block the visibility of the compressor station from neighboring landowners and the
road.
Reggie Keith, Cardinal’s noise consultant, testified that the
compressor station will conform to the noise standards in the Township. A muffler
will be installed on each compressor, and each compressor building will be
insulated. Keith testified that Cardinal is committed to mitigating noise from the
compressors.
Brian Hoffheins, Cardinal’s traffic consultant, testified about the
driveway and traffic. He identified the driveway’s proposed location off Teets
Road and explained that Cardinal is still reviewing comments from the Township’s
engineer. He stated that once the compressor station is built, truck traffic will
average six trucks per day.
The Township permitted residents in attendance to ask questions.
Donald Kretschmann stated that he has operated an organic farm for 40 years and
complained that the area has become more industrial over time. Rebecca
Kretschmann noted that the stated speed limit of 45 mph on Teets Road is often
violated. Further, the road curves close to Cardinal’s proposed driveway, which
may present a danger. Others in attendance asked questions, principally about
4
traffic and noise. Mr. Kretschmann complained that the focus should not be on
noise emitted by the compressors, but upon gas emissions. After posing questions
on noise and traffic, the Township scheduled the next hearing date for July 23,
2014.
At the second hearing, Cardinal presented responses to the questions
of residents and Township officials. Hoffheins testified that after the first hearing,
he met with Township officials to address traffic, and this prompted the submission
of updated reports. He also addressed the driveway construction.
Mark Ward, Cardinal’s chief operating officer, testified that the
compressor station will be state-of-the-art, with equipment installed to control gas
emissions. He noted that Cardinal has placed its compressor stations next to farms
in the past and without incident. Ward then went through a PowerPoint
presentation demonstrating the compressor station’s compliance with the Zoning
Ordinance.
Christie Wilson, Cardinal’s air quality compliance consultant,
explained the DEP permitting process. First, DEP will issue a construction permit
to allow Cardinal to construct one of its four planned compressor stations. DEP
then inspects the constructed station. If it is satisfied that Cardinal has complied
with the terms of the construction permit, DEP will issue an operating permit.
Thereafter, DEP will do periodic inspections to ensure compliance with the
operating permit. In addition, Cardinal must meet or exceed federal air quality
standards enforced by the Environmental Protection Agency (EPA).
Richard Weber, the Chairman of PennEnergy, testified that
PennEnergy is committed to safety and excellence in its operations. He stated that
PennEnergy has signed oil and gas leases with 678 landowners in the Township,
5
representing approximately 71% of the Township’s property. Weber opined that
the Township stood on the verge of developing its natural gas reserves in an
environmentally sound way that will generate significant royalties to the residents
for decades.
Township officials then opened the hearing to comments, which both
supported and opposed Cardinal’s conditional use application.7 One resident
expressed concern about a pipeline PennEnergy wants to place on her land.
Another asked about the flares from the wells, asserting that they would cause light
pollution. Another commented that a compressor station does not belong in a
residential area. Another citizen, a chemical engineer, cited an EPA study showing
that a compressor station can generate nitrogen oxide, which can cause lung
damage and cancer. She was also concerned about how emissions would impact
the adjacent organic farm.
Bob Schmetzer, on behalf of Beaver County Marcellus Awareness
Group, testified that the gas industry is bamboozling the public. He claimed that
methane released during gas drilling and the diesel fuel fumes produced by trucks
in the industry are harmful and cause brain lesions. Schmetzer asserted that the
risk can be confirmed by reports on the internet and in books.
Reverend James Hamilton testified that in his travels he has seen the
destruction that coal mining caused to western Pennsylvania. He opined that gas
drilling will make it worse. He stated that Beaver County’s air quality received an
7
At both hearings, the Township swore in, as a group, the persons that wished to comment or
ask questions. Some of the witnesses were in favor of Cardinal’s conditional use applications.
Because the appeal to this Court involves the purported failure of the Township to address the
evidence in Landowners’ favor, this summary of the evidence omits the comments supportive of
Cardinal.
6
“F” rating by the EPA, and more and more children are developing respiratory
problems. Hamilton believes that state government is not doing its job to protect
the public health.
Brian Snyder, the Executive Director of the Pennsylvania Association
for Sustainable Agriculture, stated that he was attending the hearing on behalf of
farmers that might be affected by Cardinal’s compressor station. He asked the
Township to consider the long-term consequences, explaining that the loss of
farmland to the gas industry will adversely impact agricultural production and,
ultimately, this nation’s ability to feed itself. Snyder noted that consumers are
willing to pay a higher price to get the fresh, organic food offered by Landowners,
and this is a better use of the land.
Counsel for Landowners requested the Township grant Landowners
aggrieved party status, and the Township granted the request. Counsel then called
Donald Kretschmann to the stand.
Kretschmann testified that he has been farming in the Township since
1978 and makes a living as a certified organic farmer. His customers tend to eat
his produce raw. Kretschmann stated that further study was necessary to ascertain
the risk of contaminants getting into his produce through emissions from
Cardinal’s proposed compressor station.
Maria Kretschmann, Landowners’ daughter, also testified. She stated
that agriculture is not compatible with gas drilling and that the Township has a
duty to promote public health, safety, morals and the general welfare of its citizens.
Farms are vital to Pennsylvania’s economy and culture. Maria Kretschmann
testified that since 2007, DEP has reported 200 cases of water contamination
caused by oil and gas development. She explained:
7
I’m not here to prove to you that there is negative direct cause
and effect of oil and gas development on human health.… I’m
here to ask you to prove to us that it is safe and that it will not
harm our health, our quality of life or our environment.
Notes of Testimony (N.T.) 7/23/14, at 174-75; R.R. 819a-20a. Maria Kretschmann
asked the Township to deny the permit.
Counsel for Landowners then offered approximately 200 letters
written by Landowners’ customers expressing concern about the proximity of the
proposed compressor station to Landowners’ farm.8 The letters referred to various
studies and newspaper articles. Counsel offered the written submissions into
evidence, along with “a large number of the documents that have been referred to
me by those individuals.” Id. at 179; R.R. 824a. Cardinal objected to the letters
and documents as hearsay. Counsel argued that they were not being offered to
prove that a gas compressor station will have a direct impact on the health of
Landowners’ customers, but rather
to establish the reasonable grounds upon which the suspicions
of [Landowners’] customers are based [which] can threaten the
continuing commercial viability of their farm, regardless of
what the underlying science currently can or cannot prove.
Id. Cardinal argued that in the absence of expert testimony laying a foundation for
harm, the documents were irrelevant and inadmissible. When Counsel for
Landowners requested a continuance in order to present expert testimony on harm,
the Township’s legal counsel suggested that the documents be submitted and, after
he reviewed the law, he would advise the Township on whether Landowners’
8
These letters appear to be in response to an e-mail Landowners sent to their customers asking
them to contact the Township and express dismay at the prospect of a compressor station being
built in close proximity to the farm. R.R. 420a-21a.
8
proffered documents were admissible. Landowners’ Counsel agreed with this
suggestion and rested.
Cardinal recalled air quality compliance consultant Christie Wilson to
respond to Landowners’ evidence.9 She stated that there will not be an open flame
flare at the compressor station. Benzene, toluene, ethylbenzene and xylene are
compounds that will be condensed from the gas stream and converted to liquid.
Only in liquid form will these compounds be transported to a gas plant for
processing. Wilson also explained that the compressor engines are equipped with
catalytic converters to remove 93% of the formaldehyde emissions, which is a
common emission also generated by motor vehicles. She noted that testing and
monitoring of the site will be ongoing and that both DEP and the EPA have the
authority to enter the property at any time to do an inspection of the compressor
station.
Landowners cross-examined Wilson, who agreed that it is
technologically impossible to prevent all emissions from leaving the compressor
station. It will be fitted with exhaust stacks, and their efficacy has been guaranteed
by the equipment manufacturers. Wilson acknowledged that compressor stations
have been known to violate air quality standards in the past. When asked whether
Marcellus Shale gas contains traces of radon, Wilson replied that she was not
familiar with this claim.
9
Cardinal also recalled several other witnesses to reiterate that the project would meet state and
federal air quality standards.
9
Board of Supervisors’ Decision
Ordinance No. 194, which amended the Zoning Ordinance in 2012,
was enacted to authorize and regulate oil and gas operations in the Township.
Generally, these operations are permitted by right in the A-1 District; however,
compressor stations and processing plants are excluded from the list of uses
permitted by right. ZONING ORDINANCE, art. VI, §6.1; R.R. 898a. Rather,
compressor stations are allowed as a conditional use in the A-1 District. ZONING
ORDINANCE, art. VI, §6.2; R.R. 898a. The Zoning Ordinance sets the following
standards and criteria for a compressor station:
a. Minimum lot area shall be twenty (20) acres.
b. Maximum noise level at full operation shall be 60 dba
measured at the property boundary line.
c. A minimum three (3) linear mile separation distance
between compressor stations measured from the building pad
shall be applicable to this category of use. Multiple compressor
station buildings may be located on the same compressor
station site.
d. Access roads to the facility shall be designed at a
maximum ten percent (10%) grade and maintained in a stable,
mud-free condition.
e. The operator shall comply with all applicable provisions of
Section 14.18 of this Ordinance.
ZONING ORDINANCE art. VI, §6.2; R.R. 899a. The Zoning Ordinance imposes a
building height limit of 45 feet and a maximum lot coverage of 50% on
compressor stations. ZONING ORDINANCE art. VI, §6.4; R.R. 900a. The Zoning
Ordinance sets forth a detailed application that must be submitted to the Planning
Commission, the Zoning Officer and the Board of Supervisors. ZONING
10
ORDINANCE, art. XIV, §14.18; R.R. 905a-07a. It also sets forth detailed safety
standards that must be satisfied before and after approval of a conditional use. Id.
The Township found that Cardinal complied with all of the
requirements of the Zoning Ordinance. In its decision approving Cardinal’s
application, the Township noted that where a proposed conditional use complies
with the Zoning Ordinance, a presumption arises that the proposed use is consistent
with the general welfare. The burden then shifts to “objectors to rebut the
presumption by proving, to a high degree of probability, the proposed use will
adversely affect the public welfare in a way not normally expected from the type of
use.” Township Decision at 7. The Township noted the objectors must “present
sufficient evidence that the use will present a substantial threat to the community.”
Township Decision at 8. The Township granted the conditional use, subject to 33
specified conditions.10
Trial Court Appeal
Landowners filed a land use appeal. They requested the trial court to
take additional evidence to amend the record of the proceeding before the
Township. The trial court denied this request. Landowners presented two issues in
their land use appeal. First, they argued that the Township’s written decision did
10
The conditions require Cardinal to comply with the general standards of the Zoning
Ordinance; reconstruct Teets Road pursuant to the recommendations in the management plan;
erect weight restriction signs on two area roads; meet with the affected residents to explain the
project; secure a $1,000,000 bond in favor of the Township; use escort vehicles on Lowboy type
trailers; prohibit overweight vehicles during school bus hours of operation and after sunset;
install snow fencing; submit a safety plan; provide all necessary permits; provide the Township
with evidence of compliance with the maximum noise level; provide required landscaping;
minimize nighttime lighting; and house the compressors in green colored buildings in the style of
agricultural buildings in the Township. Township Decision at 8-12.
11
not address their evidence, in violation of due process. Second, they argued that
Ordinance No. 194 was unconstitutional.
The trial court rejected Landowners’ appeal. First, the trial court held
that the Township is not required to address each item of evidence offered in a
hearing. In any case, Landowners presented “concerns,” which “do not equate to
evidence.” Trial Court op. at 4. Second, the trial court held that Landowners did
not preserve their challenge to the constitutionality of Ordinance No. 194.
Concluding that the record established that the health, safety and well-being of the
Township’s residents would be protected, the trial court affirmed the Township.
Commonwealth Court Appeal
On appeal,11 Landowners raise three issues. First, they claim that the
Township abused its discretion because it did not consider their evidence, which
prevents meaningful appellate review and denies them due process of law.
Second, they claim that Ordinance No. 194 violates their constitutional rights by
permitting the construction of a gas compressor station in the A-1 District. Third,
they claim the trial court erred by denying their motion to present additional
evidence.
11
Where, as here, the trial court did not take additional evidence, our review determines whether
the board committed an error of law or abuse of discretion. Weiser v. Latimore Township, 960
A.2d 924, 929 n.9 (Pa. Cmwlth. 2008). The question of whether the trial court should have
permitted additional evidence is a matter within its sound discretion, subject to the abuse of
discretion standard. Caln Nether Co., L.P. v. Board of Supervisors of Thornbury Township, 840
A.2d 484, 498 (Pa. Cmwlth. 2004).
12
Applicable Law
The law on conditional uses is well established. “A conditional use is
nothing more than a special exception which falls within the jurisdiction of the
municipal governing body rather than the zoning hearing board.” In re Thompson,
896 A.2d 659, 670 (Pa. Cmwlth. 2006). A conditional use involves the use of the
land, as opposed to the particular design details of the development. Joseph v.
North Whitehall Township Board of Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth.
2011). An applicant is entitled to a conditional use as a matter of right, unless it is
determined “that the use does not satisfy the specific, objective criteria in the
zoning ordinance for that conditional use.” In re Drumore Crossings, L.P., 984
A.2d 589, 595 (Pa. Cmwlth. 2009).
The applicant bears the burden of establishing that the proposed
conditional use satisfies the criteria in the zoning ordinance. Id. The board is the
fact-finder, with the responsibility for credibility determinations and the weight to
assign the evidence. Joseph, 16 A.3d at 1218. If the board is persuaded that the
application complies with the zoning ordinance, a presumption arises that “the
proposed use is consistent with the general welfare of the community.” H.E.
Rohrer, Inc. v. Zoning Hearing Board of Jackson Township, 808 A.2d 1014, 1018
(Pa. Cmwlth. 2002).
The burden then “shifts to objectors to rebut the presumption by
proving that there is a high degree of probability the proposed use will adversely
affect the welfare of the community in a way not normally expected from the type
of use.” Id. “Mere speculation” of possible harm is not sufficient. Id. Pointedly,
a “conditional use application must be granted unless objectors present sufficient
evidence that the proposed use has a detrimental effect on the public health, safety
13
and welfare.” In re McGlynn, 974 A.2d 525, 537 (Pa. Cmwlth. 2009) (emphasis
added).
Landowners’ Evidence
In their first issue, Landowners claim that the Township abused its
discretion because its findings of fact do not contain any reference to Landowners’
evidence. Accordingly, it cannot be discerned whether the Township properly
considered their evidence. This deprived Landowners of due process. In addition,
it makes meaningful appellate review impossible. They request a remand.
Cardinal counters that the Pennsylvania Municipalities Planning Code
(MPC)12 does not require the Township to discuss all evidence. Further, the
Township’s determination contains the findings of fact and conclusions of law
necessary to meaningful appellate review. Cardinal argues that Landowners’ so-
called evidence consisted of no more than open-ended questions and speculation.
For its part, the Township explains that the Township’s silence on
testimony offered by the Kretschmanns does not mean that it did not consider it.
Rather, it means that the Township was not persuaded by their evidence.
Section 908(9) of the MPC sets forth the following requirements for
the content of a municipality’s written decision in a land use application:
The board or the hearing officer, as the case may be, shall
render a written decision or, when no decision is called for,
make written findings on the application within 45 days after
the last hearing before the board or hearing officer. Where the
application is contested or denied, each decision shall be
accompanied by findings of fact and conclusions based thereon
together with the reasons therefor. Conclusions based on any
12
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
14
provisions of this act or of any ordinance, rule or regulation
shall contain a reference to the provision relied on and the
reasons why the conclusion is deemed appropriate in the light
of the facts found.
53 P.S. §10908(9). Landowners contend that the Township’s written decision does
not meet this standard.
Landowners point out that this Court will vacate and remand where a
decision does not contain enough information to “conduct meaningful appellate
review.” See, e.g., Greene Township Board of Supervisors v. Pennsylvania Public
Utility Commission, 642 A.2d 541, 544 (Pa. Cmwlth. 1994) (case remanded where
commission’s factual findings and analysis were insufficient to allow this Court to
review its decision); Stana v. Unemployment Compensation Board of Review, 791
A.2d 1269, 1271 (Pa. Cmwlth 2002) (failure to make a credibility determination
about a claimant’s untimely filing required a remand).
The Township’s decision does not list the witnesses presented either
by Cardinal or by Landowners. Instead, the Township listed the Zoning
Ordinance’s requirements for a compressor station and then made numerous
factual findings to detail Cardinal’s compliance with these requests. The
Township held that the facility is a permitted use and “[i]f constructed and
operated as designed and represented by [Cardinal] the [f]acility does not pose a
threat to the general health, safety or welfare of the Township.” Township
Decision at 7. The Township then considered the “shifting burden of persuasion.”
Township Decision at 7. Specifically, the Township noted that the objectors had to
present evidence sufficient to prove that the compressor station will present a
substantial threat to the community in a way that is not normal for this type of use.
It is true that the Township’s written decision does not refer to
Landowners’ testimony or documents, including the hundreds of e-mails
15
expressing concern about the environmental and health impact of Cardinal’s
compressor station. However, expressions of concern do not constitute probative
evidence of harm. At the hearing, Landowners’ counsel stated that the e-mails
were not being introduced to prove a direct impact on health but to establish the
risk of loss of Landowners’ customers. Further, Landowners presented no expert
reports or testimony to support their challenge to Cardinal’s conditional use
application.
Landowners point to statements in the record that they believe to
prove a high probability that Cardinal’s compressor station will adversely affect
the public welfare in a way not expected for this type of use. Rebecca
Kretschmann expressed concern for her organic farm and referred the Township to
studies conducted by Dr. Lenore Resick on the potential impacts of “similar sites”
in western Pennsylvania as part of the “Western Pennsylvania Environmental
Health Project.” N.T. 7/2/14, at 128-129; R.R. 207a-08a. Darlene Parisi-Dunne,
who has a Ph.D, stated that a family in Texas had recently been awarded $3 million
in damages against Aruba Petroleum for health related issues including, chronic
nosebleeds, irregular heartbeats, sores, and breathing difficulties. N.T. 7/23/14, at
90-91; R.R. 735a-36a. Elaine Stiger expressed concern that the increased traffic
will adversely impact the rural lifestyle of the community. Id. at 95-98; R.R. 740a-
43a. Michael Dunne, M.S.W., testified that the location of the facility was
inconsistent with the nature of the community and Landowners’ organic farm. He
opined that the facility will produce dangerous levels of pollution; the long-term
health consequences of living near the facility are unknown; and the Township
should have required Cardinal to run the compressor station on electric power and
not diesel. Id. at 100-07; R.R. 745a-52a. Holly Wilson-Jene, a chemical engineer,
16
stated that the typical pollutants from a compressor station include nitrogen oxide,
which can impair respiratory health, and benzene, which causes cancer. She was
concerned about the proximity of these emissions to an organic farm. She also
cited a website listing the health issues afflicting people living in the Marcellus
Shale area. Id. at 111-17; R.R. 756a-62a. Donald Kretschmann testified that a
compressor station should not be located near a farm because emissions will
contaminate the produce and the contaminants cannot be washed off. Id. at 168-
73; R.R. 813a-18a.
The trial court concluded that Landowners’ proffered testimony and
that of the other objectors did not constitute substantial evidence on which a
finding of harm could be based.13 It explained as follows:
It is clear to this Court that the Board’s failure to discuss [the
testimony of Landowners and other objectors] in its written
decision does not, in and of itself, equate to a failure of the
Board to consider the testimony and arguments presented by the
objectors. A detailed reading of 53 P.S. Section 10908(9)
reveals no requirement that the Board must address each
individual objector, his/her arguments or his/her testimony.
The Board has the authority to judge the weight and credibility
of presented testimony, and if they find that testimony lacking
credibility or weight to meet their shifting burden of proof,
there is, simply stated, no requirement for the Board to discuss
it in its Findings of Fact, Conclusions of Law and Decision.
The fact that the [Board] does not mention offered testimony
and alleged evidence of the objectors can reasonably be
interpreted as the [Board’s] conclusion that evidence presented
was not compelling and, therefore, did not warrant discussion.
13
On appeal, this Court determines whether the Township committed an error of law or an abuse
of discretion. Zajdel v. Board of Supervisors of Peters Township, 925 A.2d 215, 218 n.6 (Pa.
Cmwlth. 2007). An abuse of discretion is established when findings of fact are not supported by
substantial evidence. Id. “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.
17
Once Cardinal satisfies the requirements for a conditional use
approval, the burden shifts to [the objectors] to demonstrate to
the Board that there is a high degree of certainty that the
proposed use would result in an adverse impact to the health,
safety and welfare of the residents of [the Township]. In this
instance, the [objectors] did, in fact, raise numerous concerns
about the impact of the proposed compressor station. Concerns,
however, do not equate to evidence, and there is nothing in this
record that would lead this Court to determine that the Board
abused its discretion when it found the presented testimony and
arguments not to be persuasive.
Trial Court op. at 3-4 (internal citation omitted) (emphasis added). We agree with
the trial court.
Landowners voiced concerns but did not present probative evidence.
Accordingly, they did not meet their burden of showing that Cardinal’s compressor
station would adversely affect the public health, safety and welfare in a way not
expected for a usual compressor station. In Gorsline v. Board of Supervisors of
Fairfield Township, 123 A.3d 1142 (Pa. Cmwlth. 2015), landowners expressed
concerns that a proposed natural gas well in a residential zoning district would be
detrimental to the health, safety and welfare of their neighborhood. This Court
explained that the questions landowners asked at the Board hearing, and their
concerns that the well would be harmful, did not constitute probative evidence that
the well would be harmful to the health, welfare and safety of the neighborhood.
See also Rural Area Concerned Citizens, Inc. v. Fayette County Zoning Hearing
Board, 646 A.2d 717, 723 (Pa. Cmwlth. 1994) (objectors’ arguments that proposed
quarry would have detrimental effect on community did not constitute substantial
evidence that quarry use would affect health and safety of community).
Additionally, the conditions imposed by the Township establish that
the concerns raised by Landowners and other objectors were considered. In
18
response to the concern expressed at the hearing about whether construction on
Teets Road would include removing a large tree, Condition D.1 requires Cardinal
to “use its best efforts to save the large tree.” Township Decision at 12. In
response to stated concerns about traffic, the Township imposed conditions
requiring Cardinal to install traffic signs, use escort vehicles for lowboy type
trailers, limit overweight vehicle traffic during school bus hours of operation and at
night, and employ traffic control personnel when moving heavy equipment to and
from the site. Township Decision at 10-11. In response to concerns about noise,
the Township imposed conditions compelling Cardinal to install noise control
equipment and demonstrate compliance with the Township’s noise standards.
Township Decision at 11. In response to stated concerns about emissions, the
Township required Cardinal to provide proof of ongoing compliance with
applicable air quality laws. Township Decision at 11.14
Cardinal’s burden was to meet the specific, objective criteria in the
Zoning Ordinance. Doing so established a presumption that the use is consistent
with the general welfare of the community. Landowners do not contest the
14
In this regard, Landowners note that Christie Wilson, Cardinal’s air quality compliance
consultant, acknowledged that the compressor station will emit some pollutants and that
modeling had not been done to determine where the emissions will migrate. However, the law
does not require emission-free activity.
Landowners contend that Wilson agreed that EPA and DEP regulations are not health-based.
The Township states that this is not only a mischaracterization of Wilson’s testimony, it is a
mischaracterization of the missions of the EPA and the DEP. Notably, the EPA’s mission
statement “is to protect human health and the environment.” http://www.epa.gov/aboutepa/our-
mission-and-what-we-do. The DEP’s mission statement is to “protect Pennsylvania’s air, land
and water from pollution and to provide for the health and safety of its citizens through a cleaner
environment.” http://www.dep.pa.gov/Pages/default.aspx.
19
Board’s conclusion that Cardinal met the requirements of the Zoning Ordinance for
a compressor station.
We reject Landowners’ first claim of error. Their evidence lacked
probative value and, thus, did not persuade the Township. In any case, the
Township did not ignore the comments of Landowners and other objectors. It
responded with the imposition of 33 conditions, many of which relate to specific
concerns raised by the objectors. Because Cardinal proved compliance with the
Zoning Ordinance, it established that its proposed use was presumptively
consistent with the public welfare.
Violation of U.S. and Pennsylvania Constitutions
In their second issue, Landowners claim that the Township’s approval
of Cardinal’s conditional use infringed upon their rights guaranteed by the
Pennsylvania and United States Constitutions. They claim the Township violated
Sections 1, 25 and 27 of the Declaration of Rights in the Pennsylvania
Constitution, which state:
All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring,
possessing and protecting property and reputation, and of
pursuing their own happiness.
***
To guard against transgressions of the high powers which we
have delegated, we declare that everything in this article is
excepted out of the general powers of government and shall
forever remain inviolate.
***
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values
20
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 the
people.
PA. CONST. art. I, §§ 1, 25, 27. Landowners also claim a violation of their due
process rights under the Fifth Amendment to the United States Constitution.15
Finally, they claim a violation of their right to equal protection under the
Fourteenth Amendment to the United States Constitution, which provides: “No
State shall ... deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend XIV, § 1.16
15
It provides:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.
U.S. Const. amend. V (emphasis added).
“Due process principles require an opportunity … to hear evidence adduced by an
opposing party, cross-examine witnesses, introduce evidence on one’s own behalf, and present
argument.” Panzone v. Fayette County Zoning Hearing Board, 944 A.2d 817, 821 (Pa. Cmwlth.
2008). Landowners do not claim they were prevented in any way from presenting evidence or
addressing Cardinal’s evidence. Instead, they claim the hearings before the Board were shown to
be a “mere formality” based on the Board’s failure to acknowledge that Landowners had
presented evidence and were not merely airing grievances. We reject Landowners conclusory
statement that the hearings were a mere formality and that this somehow equaled a due process
violation.
16
The equal protection clauses of the Pennsylvania Constitution, i.e, Article 1, Sections 1 and 26,
are analyzed under the same criteria as established for claims brought under the Fourteenth
Amendment to the U.S. Constitution. Commonwealth v. Albert, 758 A.2d 1149, 1151 (Pa.
2000).
21
In adopting Ordinance No. 194, which amended the Zoning
Ordinance with respect to oil and gas activities, the Township made a number of
findings, which follow:
WHEREAS, the extraction of minerals, specifically oil and
natural gas, is a land use which exhibits certain characteristics,
which if not monitored could potentially have a negative impact
on residents and properties in close proximity; and
WHEREAS, the Commonwealth of Pennsylvania through
amendments to the Pennsylvania Oil and Gas Act and
Floodplain Management Act, known as Act 13 of February
2012, has attempted to regulate activities related to oil and gas
extraction; and
WHEREAS, the Pennsylvania Commonwealth Court has ruled
portions of Commonwealth Act 13 of February 2012 which
provided for the preemption of certain local zoning ordinance
standards, unconstitutional; and
WHEREAS, property owners in New Sewickley Township
have been approached by extractive industry representatives to
enter into agreements for the development of oil and gas
resources; and
WHEREAS, the Board of Supervisors through authority
granted by the Pennsylvania Municipalities Planning Code have
referred the local zoning issues to the Planning Commission for
preparation of regulations which will permit the reasonable
development of such natural resources while protecting the
health, safety and welfare of Township residents[.]
Ordinance No. 194, Introduction; R.R. 897a.17 In short, the Township was fully
aware that the preemption of local zoning had been declared unconstitutional when
it adopted the Zoning Ordinance amendments set forth in Ordinance No. 194. Its
17
“Act 13” is a reference to Act No. 13 of February 14, 2012, P.L. 87, amending the
Pennsylvania Oil and Gas Act, 58 Pa. C.S. §§2301-3504.
22
legislative determinations were not based on the belief that its legislative choices
were circumscribed by Act 13.18
Landowners contend that Ordinance No. 194 was unconstitutional
because it was not tailored to the local conditions within their community. They
claim that a compressor station in the A-1 District violates their right to clean air
and pure water, noting that Cardinal did not present any empirical evidence
assessing the impact of the emissions from the compressor station on the
community. Landowners also argue that Ordinance No. 194 contains the same
setback distance of 750 feet that was found unconstitutional in Robinson Township,
83 A.3d 901.19
Cardinal and PennEnergy respond that the Township made a
legislative determination that a compressor station is compatible with uses in the
A-1 District, subject to setback and acreage requirements, and that Landowners
have not raised a proper challenge to Ordinance No. 194. Further, no court has
ever held that a compressor station cannot be compatible with other uses in an
agricultural district. Cardinal had no obligation to present evidence that the
compressor station emissions will satisfy Article I, §27; it was enough to show that
the compressor station will satisfy applicable state and federal environmental
protection laws. In any case, Robinson Township did not invalidate the use of a
750-foot setback where, as here, the Township in its legislative wisdom concluded
that it was appropriate.
18
In its brief, the Township notes that in spite of the Pennsylvania Supreme Court’s ruling in
Robinson Township v. Commonwealth, 83 A.3d 901, 915 (Pa. 2013), it chose to retain the
standards in Ordinance No. 194 because it believed they were suitable for the community.
Township Brief at 24.
19
Here, the compressor station is set back 2,000 feet from Landowners’ property.
23
The Township argues that there is no evidence in the record that
natural gas development is antithetical to agricultural use. Notably, compressor
stations are compatible with agricultural use and, in fact, are located in rural
counties. Likewise, Landowners presented no evidence that the compressor station
will cause a substantial threat to the public health, safety and welfare, which was
their burden.
In Robinson Township, 83 A.3d 901, the Pennsylvania Supreme Court
held that a single, statewide zoning standard for oil and gas operations in every
zoning district in the Commonwealth, as specified in Section 3304 of Act 13, 58
Pa. C.S. §3304, violated Article I, Section 27 of the Pennsylvania Constitution (the
Environmental Rights Amendment). The Supreme Court concluded that statewide
land use standards altered “existing expectations of communities and property
owners and substantially diminish[] natural and esthetic values of the local
environment[.]” Id. at 979. This holding came in Part III of the opinion.
Regarding Section 3304’s establishment of a uniform setback for a
natural gas facility of 750 feet from the nearest existing building, the Supreme
Court held this requirement was incompatible with the express command of the
Environmental Rights Amendment because it afforded “minimal statewide
protections while disabling local government from mitigating the impact of oil and
gas development at a local level.” Id. at 980. This holding in Part III of Robinson
Township was joined by a plurality of the justices. Leaving aside the question of
the significance of a plurality opinion,20 Robinson Township did not reach, or
20
A plurality opinion “is binding on the parties in that particular case,” but it “is not binding
precedent.” Pitt Ohio Express v. Workers’ Compensation Appeal Board (Wolff), 912 A.2d 206,
208 (Pa. 2006).
24
indeed even discuss, whether a municipality could choose to adopt a 750-foot
setback, as the Township did here. In short, Robinson Township did not nullify
that provision of Ordinance No. 194.
Further, Landowners’ constitutional challenge to Ordinance No. 194
did not follow the procedures for such a challenge set forth in the MPC, which
requires that it be submitted to the zoning hearing board or, alternatively, to the
governing body along with a request for a curative amendment. Specifically,
Section 916.1(a)-(c) of the MPC states:
(a) A landowner who, on substantive grounds, desires to
challenge the validity of an ordinance or map or any provision
thereof which prohibits or restricts the use or development of
land in which he has an interest shall submit the challenge
either:
(1) to the zoning hearing board under section
909.1(a); or
(2) to the governing body under section
909.1(b)(4), together with a request for a curative
amendment under section 609.1.
(b) Persons aggrieved by a use or development permitted on
the land of another by an ordinance or map, or any provision
thereof, who desires to challenge its validity on substantive
grounds shall first submit their challenge to the zoning hearing
board for a decision thereon under section 909.1(a)(1).
(c) The submissions referred to in subsections (a) and (b) shall
be governed by the following:
(1) In challenges before the zoning hearing board,
the challenging party shall make a written request
to the board that it hold a hearing on its challenge.
The request shall contain the reasons for the
challenge. Where the landowner desires to
challenge the validity of such ordinance and elects
to proceed by curative amendment under section
609.1, his application to the governing body shall
25
contain, in addition to the requirements of the
written request hereof, the plans and explanatory
materials describing the use or development
proposed by the landowner in lieu of the use or
development permitted by the challenged
ordinance or map. Such plans or other materials
shall not be required to meet the standards
prescribed for preliminary, tentative or final
approval or for the issuance of a permit, so long as
they provide reasonable notice of the proposed use
or development and a sufficient basis for
evaluating the challenged ordinance or map in
light thereof. Nothing herein contained shall
preclude the landowner from first seeking a final
approval before submitting his challenge.
(2) If the submission is made by the landowner to
the governing body under subsection (a)(2), the
request also shall be accompanied by an
amendment or amendments to the ordinance
proposed by the landowner to cure the alleged
defects therein.
53 P.S. §10916(a)-(c) (emphasis added).21
Here, Landowners did not file a curative amendment in the
proceeding before the Township. Counsel for Landowners did advise the
Township that Landowners intended to file a substantive validity challenge to
Ordinance No. 194 with the Zoning Hearing Board. N.T. 7/23/14, at 147; R.R.
792a. As explained by the trial court, Landowners did in fact file an appeal
“challeng[ing] the constitutionality of [Ordinance No. 194] before the Township
Zoning Hearing Board but subsequently withdrew that challenge.” Trial Court PA.
R.A.P. 1925(a) op. at 2. The instant land use appeal concerns the Township’s
21
Section 916.1 was added by the Act of December 21, 1988, P.L. 1329.
26
decision to grant a conditional use application, not a decision of the Zoning
Hearing Board on a substantive validity challenge.22
Landowners’ challenge to the constitutionality of Ordinance No.
194’s amendments to the Zoning Ordinance was not pursued in accordance with
the procedures established in the MPC. We reject Landowners’ contentions on this
assignment of error.
Motion to Present Additional Evidence
Landowners sought to expand the record to include transcripts of two
public hearings that took place on Ordinance No. 194. Landowners assert that this
legislative history will show that the Township did not consider the health, safety
and welfare of the community and did not tailor the ordinance to ensure residents’
rights to clean air and pure water when considering Ordinance No. 194. Instead,
the transcripts reveal that the concern of the Township was payment of oil and gas
lease signing bonuses.
The Township counters that Landowners made a substantive validity
challenge to Ordinance No. 194 and then withdrew it mid-hearing. Landowners
then raised the constitutional challenge in the instant land use appeal. To that end,
they sought to introduce legislative history that they could have offered in the
hearing on Cardinal’s conditional use application but did not. In any case, the
22
Cardinal established that it complied with all of the requirements set forth in the Zoning
Ordinance. As explained above, this created a presumption that “the proposed use is consistent
with the general welfare of the community.” H.E. Rohrer, 808 A.2d at 1018. A “conditional use
application must be granted unless objectors present sufficient evidence that the proposed use has
a detrimental effect on the public health, safety and welfare.” In re McGlynn, 974 A.2d 525, 537
(Pa. Cmwlth. 2009) (emphasis added).
27
legislative history of Ordinance No. 194 involved much more than the two hearing
transcripts Landowners sought to introduce. The Township conducted 13 hearings.
In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, the
trial court addressed the denial of Landowners’ motion to expand the record. The
trial court explained that Landowners are not entitled to supplement the record
unless they were refused the opportunity at the Township hearing. Landowners did
not meet this threshold requirement. Landowners acknowledged that they
withdrew their substantive validity challenge to the constitutionality of Ordinance
No. 194. Thus, the trial court rejected their attempt to resurrect this claim.
Section 1005–A of the MPC provides in relevant part:
If, upon motion, it is shown that proper consideration of the
land use appeal requires the presentation of additional evidence,
a judge of the court may hold a hearing to receive additional
evidence, may remand the case to the body, agency or officer
whose decision or order has been brought up for review, or may
refer the case to a referee to receive additional evidence,
provided that appeals brought before the court pursuant to
section 916.1 shall not be remanded for further hearings before
any body, agency or officer of the municipality.
53 P.S. § 11005–A.23 In applying Section 1005-A, this Court has held:
A court of common pleas faces compulsion to hear additional
evidence in a zoning case only where the party seeking the
hearing demonstrates that the record is incomplete because the
party was denied an opportunity to be heard fully, or because
relevant testimony was offered and excluded.
Eastern Consolidation and Distribution Services, Inc. v. Board of Commissioners
of Hampden Township, 701 A.2d 621, 624 (Pa. Cmwlth. 1997) (quoting In re
23
Section 1005–A was added by the Act of December 21, 1988, P.L. 1329.
28
Appeal of Little Britain Township, 651 A.2d 606, 613 (Pa. Cmwlth. 1994)
(emphasis in original)).
Landowners have not complied with Sections 1005 and 916.1 of the
MPC. At the hearing before the Township, Landowners’ counsel stated that the
validity of Ordinance No. 194 was not properly before the Township; rather a
substantive validity appeal needed to be heard by the Zoning Hearing Board. N.T.
7/23/14, at 147; R.R. 792a. Counsel stated that he was putting the Township on
notice that Landowners would be filing a substantive validity appeal with the
Zoning Hearing Board. Id.
As explained by the trial court, Landowners filed an appeal
“challeng[ing] the constitutionality of [Ordinance No. 194] before the Township
Zoning Hearing Board but subsequently withdrew that challenge.” Trial Court PA.
R.A.P. 1925(a) op. at 2. They decided not to pursue their claim and “[t]hey cannot
now resurrect those foregone remedies.” Id.
The trial court did not abuse its discretion by refusing to expand the
record. The party seeking to introduce new evidence must show it was denied the
opportunity to be fully heard below or that it offered relevant evidence that was
excluded. Landowners make no such claim. In sum, they have failed to establish
that the trial court abused its discretion by refusing to consider their challenge to
the constitutionality of Ordinance No. 194 or denying their motion to expand the
record.
Conclusion
Landowners have failed to establish that the Township erred in its
decision to grant a conditional use permit or that the trial court abused its
29
discretion by refusing to permit expansion of the record. Accordingly, we affirm
the trial court.
______________________________
MARY HANNAH LEAVITT, Judge
30
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kretschmann Farm, LLC, and :
Donald Kretschmann and :
Rebecca Kretschmann, husband :
and wife, :
Appellants :
:
v. : No. 360 C.D. 2015
:
Township of New Sewickley and :
Board of Supervisors of New :
Sewickley Township, Beaver :
County, Pennsylvania :
:
v. :
:
Cardinal PA Midstream, LLC and :
PennEnergy Resources, LLC :
ORDER
AND NOW, this 7th day of January, 2016, the Order of the Court of
Common Pleas of Beaver County, dated February 11, 2015, in the above-captioned
matter is AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge