Mark West Liberty Midstream and Resources, LLC v. Cecil Township ZHB -- Appeal of: M. Warzinski, D. Warzinski, J. Adamski and M. Dawson ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
MarkWest Liberty Midstream :
and Resources, LLC :
:
v. :
:
Cecil Township :
Zoning Hearing Board :
:
Appeal of: Megan Warzinski, :
Doug Warzinski, Jessica Adamski, : No. 904 C.D. 2016
and Melanie Dawson : Argued: April 6, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 11, 2018
Megan Warzinski (Mrs. Warzinski), Doug Warzinski (Mr. Warzinski),
Jessica Adamski (Adamski) and Melanie Dawson (Dawson) (collectively,
Petitioners) appeal from the Washington County Common Pleas Court’s (trial court)
May 6, 2016 order denying their Petition to Intervene (Petition). There are three
issues before this Court: (1) whether the trial court’s order is appealable; (2) whether
the trial court erred by denying the Petition; and, (3) whether the trial court denied
Petitioners’ due process rights.1 Upon review, we affirm.
MarkWest Liberty Midstream & Resources, LLC (MarkWest) is a
limited liability corporation that owns and operates midstream facilities which
1
Petitioners raised an additional issue in their Statement of Questions Involved: Whether the
trial court erred by finding that Petitioners’ request was prejudicial to MarkWest Liberty Midstream
& Resources, LLC. However, because that issue is subsumed in the analysis of the second issue,
they have been combined herein.
transport, compress and process oil, gas and other substances extracted from oil and
gas wells. On November 29, 2010, MarkWest applied to the Cecil Township
(Township) Zoning Hearing Board (Board) for a special exception under Section
911.D.1 of the Township’s Unified Development Ordinance (UDO) 2 to construct and
operate a natural gas compressor station on an undeveloped parcel of land (Property)
located in the Township’s I-1 Light Industrial District.3 The proposed facility would
consist of up to 8 engines and surrounding sound structures, dehydration facilities,
tanks, a vapor recovery unit, a flare and associated piping (Proposed Facility). The
Property is adjacent to R-1 Low Density and R-2 Medium Density Residential
Districts, but no residence would be closer than 1,000 feet from the Proposed Facility.
Board hearings were held on January 17, January 31 and February 21, 2011. Mr.
2
No. 5-00, May 17, 2000 (as amended October 8, 2007).
3
MarkWest operates midstream between the product producer and the
end user. It does not drill or frac, but rather gathers, processes and
moves ‘rich gas’ (which has a higher hydrocarbon content than dry
gas) to market. At the Township property on which MarkWest
applied to operate a compressor station, the gas will be drawn in from
wells, water will be removed, and the compressed gas will be
transported through pipelines to MarkWest’s Houston processing
facility, where hydrocarbon liquids will be removed (thereby
producing propane and butane which have numerous industrial uses),
and processed gas will be supplied to consumers.
MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3d 549, 552
n.2 (Pa. Cmwlth. 2014) (MarkWest I) (Special Exception Reproduced Record citations omitted).
The applicant for the proposed use has both the duty to present
evidence and the burden of persuading the [B]oard that the proposed
use satisfies the objective requirements of the ordinance . . . . Once
the applicant meets these burdens, a presumption arises that the use is
consistent with the health, safety and general welfare of the
community. The burden then normally shifts to the objectors of the
application to present evidence and persuade the Board that the
proposed use will have a generally detrimental effect.
Greaton Props., Inc. v. Lower Merion Twp., 796 A.2d 1038, 1045-46 (Pa. Cmwlth. 2002).
2
Warzinski attended the January 17, 2011 Board hearing and testified in opposition to
MarkWest’s application.4
On March 31, 2011, the Board denied MarkWest’s special exception
application. On April 21, 2011, MarkWest appealed from the Board’s special
exception application denial and exclusionary zoning challenge which was deemed
denied to the trial court. On May 20, 2011, Range Resources intervened as the
Property’s owner or tenant on which the Proposed Facility would be constructed.
The Township intervened on June 13, 2011. On January 21, 2013, the trial court,
without taking additional evidence, affirmed the Board’s decision.
MarkWest appealed to this Court. On September 26, 2014, this Court
reversed the trial court’s order and remanded the matter directing the Board to grant
MarkWest’s special exception application.5 See MarkWest Liberty Midstream &
Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3d 549 (Pa. Cmwlth. 2014)
(MarkWest I). This Court further ruled:
Should the Board determine . . . within the confines of the
UDO’s objective standards and criteria that any terms or
conditions are needed to attach to the special exception
application in order to ensure compliance with the UDO, it
shall specify the applicable UDO provision and explain why
the term or condition is necessary.
Id. at 573-74.
4
Witnesses at the January 17, 2011 hearing were sworn en masse. See MarkWest I
Reproduced Record (MarkWest I R.R.) at 41a; see also Warzinski comments at MarkWest I R.R.
141a-143a.
5
This Court upheld the portion of the trial court’s order affirming the Board’s conclusions
that the UDO did not unlawfully exclude natural gas compressor stations, and that the UDO is not
preempted by state law. See MarkWest I, 102 A.3d at 573.
3
The trial court remanded the matter to the Board, which conducted a
May 18, 2015 meeting and heard public comments.6 Mr. Warzinski, Adamski and
Dawson attended that meeting, stated their addresses, posed questions and expressed
their concerns that the Board “ensure compliance with the UDO and thereby protect
the[ir] health, safety and welfare.”7 Petitioners’ Br. at 3. The Board continued the
proceeding to June 15, 2015, in order to consider conditions. See Reproduced Record
(R.R.) at 188a-196a. No public comments were heard at the Board’s June 15, 2015
meeting.8 Rather, the Board read and voted on the conditions to attach to the special
exceptions (Conditions).
On June 26, 2015, the Board granted MarkWest’s special exception
application subject to the Conditions. On July 20, 2015, MarkWest appealed from
the Board’s decision to the trial court. On July 27, 2015, Petitioners timely filed a
notice of intervention pursuant to Section 1004-A of the Pennsylvania Municipalities
Planning Code (MPC),9 53 P.S. § 11004-A.10 On October 26, 2015, MarkWest filed
6
When the meeting commenced, Board Chairman George Augustine and Board Solicitor
Jeffrey Ries (Ries) explained that this Court’s September 26, 2014 order required the Board to grant
the special exception, and the meeting was to discuss potential conditions. See R.R. at 106a-108a.
Ries clarified that the Board will accept public comment in accordance with the Sunshine Act, 65
Pa.C.S. §§ 701-716, but will “not take testimony into consideration in attaching [its] conditions,”
R.R. at 108a, since it “ha[s] to rely upon the 2011 testimony[.]” R.R. at 108a.
7
Petitioners’ counsel also submitted a memorandum to the Board containing suggested
conditions. See R.R. at 140a-156a.
8
“[N]o testimony or other evidence was received by the Board” on remand. MarkWest’s
Br. at 22.
9
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
10
Section 1004-A of the MPC, added by Section 101 of the Act of December 21, 1988, P.L.
1329, provides:
Within the 30 days first following the filing of a land use appeal, if
the appeal is from a board or agency of a municipality, the
municipality and any owner or tenant of property directly involved in
the action appealed from may intervene as of course by filing a notice
of intervention, accompanied by proof of service of the same, upon
each appellant or each appellant’s counsel of record. All other
4
a motion to strike Petitioners’ notice of intervention since adjacent property owners
must petition the court to intervene pursuant to Pennsylvania Rule of Civil Procedure
No. (Rule) 2327. See McLoughlin v. Zoning Hearing Bd. of Newtown Twp., 953
A.2d 855 (Pa. Cmwlth. 2008); see also Certified Record (C.R.) MarkWest Motion to
Strike Notice of Intervention. On October 29, 2015, the trial court struck the notice
of intervention. See C.R. Trial Ct. October 29, 2015 Order.
On October 28, 2015, Petitioners filed the Petition pursuant to Rule
2327, see Supplemental Reproduced Record (S.R.R.) at 94a-100a, to which
MarkWest filed its response. See S.R.R. at 101a-126a. The trial court held a hearing
on December 3, 2015, see R.R. at 59a-103a, and on May 6, 2016, denied the
Petition.11 See Petitioners’ Br. App. B. Thereafter, Petitioners appealed to this
Court.12
By July 5, 2016 order, this Court directed Petitioners to “address in their
principal briefs on the merits the appealability of the May 6, 2016 order.” 13 July 5,
2016 Order. Thus, before addressing the merits of this appeal, this Court must
intervention shall be governed by the Pennsylvania Rules of Civil
Procedure.
53 P.S. § 11004-A.
11
On remand, Jessie J. White, Eileen White, Atticus White, Augustus White and Jeffrey
White (collectively, the Whites) also sought to intervene. However, they failed to submit a brief
and did not appear for argument. The trial court likewise denied the Whites’ intervention request.
The Whites appealed to this Court from the trial court’s order (see Pa. Cmwlth. No. 934 C.D. 2016).
However, the Whites’ appeal was dismissed on January 20, 2016 because they failed to file their
briefs and reproduced record as ordered by this Court on October 25 and December 21, 2016.
12
“Our review of the denial of a petition to intervene is limited to determining whether the
trial court abused its discretion or committed an error of law.” Pendle Hill v. Zoning Hearing Bd. of
Nether Providence Twp., 134 A.3d 1187, 1193 n.5 (Pa. Cmwlth. 2016).
On October 5, 2016, the trial court affirmed the Board’s June 26, 2015 decision in the
underlying matter. MarkWest appealed to this Court (see Pa. Cmwlth. No. 1809 C.D. 2016), which
appeal was argued seriately herewith. Petitioners did not file an appeal or cross-appeal in that
matter.
13
Only MarkWest addressed the issue of the appealability of the trial court’s order in its
brief to this Court.
5
determine whether the trial court’s May 6, 2016 order denying the Petition is an
appealable order.
Initially,
[a]n order denying intervention does not dispose of all
parties and all claims. Thus, it is not a ‘final order’
appealable as of right under Pa.[]R.A.P. 341; rather, it is an
interlocutory order that only may be appealed by permission
under Pa.[]R.A.P. 312 or as a collateral order pursuant to
Pa.[]R.A.P. 313.
Atticks v. Lancaster Twp. Zoning Hearing Bd., 915 A.2d 713, 716 (Pa. Cmwlth.
2007). Here, Petitioners did not request permission under Pa.R.A.P. 312, therefore,
we will examine Pa.R.A.P. 313. Pa.R.A.P. 313 provides:
(a) General rule. An appeal may be taken as of right from
a collateral order of an administrative agency or lower
court.
(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313. This Court has held that the question of whether the right involved in
the denial of a petition to intervene is too important to be denied review is intertwined
with the merits of the petition to intervene. Cogan v. Cnty. of Beaver, 690 A.2d 763
(Pa. Cmwlth. 1997). The party appealing from the denial of such a petition “must at
a minimum show actual entitlement to intervene . . . in order to meet this test.” Id. at
765.
Here, Petitioners maintain that the close proximity of their homes to the
proposed compressor station and thus “the compressor station’s emission of air, odor,
noise, surface water and ground water pollution, S.R.R. at 95a (Petition to Intervene),
entitles them to intervene.
6
Every person has the right to the natural, proper, and
profitable use of his or her own land. Reinhart v. Lancaster
Area Refuse Auth., . . . 193 A.2d 670 ([Pa. Super.] 1963).
Implicit then is the right to protect one’s property from
harm, whether it be in the form of decreased valuation,
insufficient water supply, excessive dust, noise, pollution,
or some other cause. . . .
When the property at issue is someone’s home, the owner’s
right to protect the viability of his property is even more
personal. The purchase of a home is often considered to be
one of, if not the, most significant investments an individual
can make during his lifetime. To deny an individual the
right to protect his interest in the property he calls home
would violate public policy. Accordingly, based upon the
facts before us, we conclude that the trial court’s order
denying intervention is a collateral order subject to appeal
pursuant to Pa.[]R.A.P. 313.
Larock v. Sugarloaf Twp. Zoning Hearing Bd., 740 A.2d 308, 312 (Pa. Cmwlth.
1999). Because Petitioners’ right to protect their homes is present in this zoning
board appeal, the trial court’s order is appealable.
Petitioners argue that the trial court erred by denying their Petition
because it ruled that they had standing, but nevertheless refused to allow them to
intervene in the appeal. We disagree. Initially, Rule 2327 states, in pertinent part:
At any time during the pendency of an action, a person not
a party thereto shall be permitted to intervene therein,
subject to these rules if
....
(3) such person could have joined as an original party in the
action or could have been joined therein; or
(4) the determination of such action may affect any
legally[-]enforceable interest of such person whether or
not such person may be bound by a judgment in the action.
Pa.R.C.P. No. 2327 (emphasis added).
7
Notwithstanding, a party that falls within any of the
categories set forth in [Rule] 2327 may be refused
intervention should the trial court determine that one of the
circumstances set forth at [Rule] 2329 is present. Larock.
[Rule] 2329 provides that an application for intervention
may be refused when:
(1) the claim or defense of the petitioner is not in
subordination to and in recognition of the propriety
of the action; or
(2) the interest of the petitioner is already
adequately represented; or
(3) the petitioner has unduly delayed in making
application for intervention or the intervention
will unduly delay, embarrass or prejudice the
trial or the adjudication of the rights of the
parties.
A trial court’s determination of whether an application for
intervention may be denied pursuant to [Rule] 2329 is
discretionary. Larock.
Twp. of Radnor v. Radnor Recreational, LLC, 859 A.2d 1, 5 (Pa. Cmwlth. 2004)
(bold and underline emphasis added). This Court has explained:
Considering Rules 2327 and 2329 together, the effect of
Rule 2329 is that if the petitioner is a person within one
of the classes described in Rule 2327, the allowance of
intervention is mandatory, not discretionary, unless one
of the grounds for refusal under Rule 2329 is present.
Equally, if the petitioner does not show himself to be within
one of the four classes described in Rule 2327, intervention
must be denied, irrespective of whether any of the grounds
for refusal in Rule 2329 exist. See In re Pennsylvania
Crime Comm’n, . . . 309 A.2d 401, 408 n.11 ([Pa.] 1973); 7
Goodrich Amram 2d Intervention § 2329:3 (1992). Thus,
the court is given the discretion to allow or to refuse
intervention only where the petitioner falls within one of
the classes enumerated in Rule 2327 and only where one
of the grounds under Rule 2329 is present which
authorizes the refusal of intervention.
Larock, 740 A.2d at 313 (emphasis added).
8
In the Petition, Petitioners asserted that their properties are located “in
the immediate vicinity of the [Property]” and, thus, they have “a substantial and
legally[-]enforceable interest in the subject matter of this action” that is “not
adequately represented by any other party[.]” S.R.R. at 95a. Petitioners also averred
that their “intervention will not delay or prejudice the adjudication of the rights of the
original parties.” S.R.R. at 96a.
Although Petitioners pled nothing more than their addresses in the
Petition, they acknowledged at the hearing before the trial court that they live
approximately one mile from the Property. (See R.R. at 63a).14 In its response to the
Petition, MarkWest specifically pled that the Warzinski property is approximately
0.98 miles from the Property (see S.R.R. at 105a), the Adamski property is
approximately 0.94 miles away (see S.R.R. at 106a), and the Dawson property is
approximately 0.99 miles away (see S.R.R. at 106a). See S.R.R. at 120a (map).
However, MarkWest declared that since Petitioners’ properties are not located in the
immediate vicinity of the Property, as there are intervening parcels, and the Property
is not visible therefrom, Petitioners do not have a legally-enforceable interest in this
14
In their brief to this Court, Petitioners specify that: Mr. and Mrs. Warzinski’s property “is
0.82 miles (4329.6 feet) from the [Property]”; Dawson’s property “is 0.84 miles (4435.2 feet) from
the [Property]”; and, Adamski’s property “is 0.86 miles (4540.8 feet) from the [Property].”
Petitioners’ Br. at 3.
However, it is axiomatic that statements in briefs or legal memoranda
do not constitute evidence of record upon which decisions can be
based. See Erie Indem[.] Co[.] v. Coal Operators Cas[.] Co[.], . . .
272 A.2d 465, 467 ([Pa.] 1971) (‘[B]riefs are not part of the record,
and the court may not consider facts not established by the record.’);
Sanders v. Workers’ Comp[.] Appeal B[d.] (Marriott Corp[.]), 756
A.2d 129, 133 (Pa. Cmwlth. 2000) (‘[B]riefs filed in this [C]ourt are
not part of the evidentiary record and assertions of fact therein which
are not supported in the evidentiary record created below may not
form the basis of any action by this [C]ourt.’).
Lin v. Bd. of Revision of Taxes of the City of Phila., 137 A.3d 637, 645-46 (Pa. Cmwlth. 2016).
9
matter greater than those of the general public. See S.R.R. at 101a, 105a-106a, 108a-
111a. MarkWest further asserted that Petitioners’ purported interests are already
adequately represented, and that intervention five years into this process will unduly
delay and/or prejudice MarkWest. See S.R.R. at 111a-112a.
Neither party presented evidence at the December 3, 2015 trial court
hearing. Rather, their counsel presented oral argument to the trial court. Petitioners’
counsel advised the trial court that “[Petitioners] agreed with the [C]onditions that the
[Board] put in place,” (R.R. at 100a), and that “the only thing that [Petitioners] would
be looking to do as part of [their] intervention is to [file a] brief in support of the
[C]onditions that were [imposed] by the [Board].”15 R.R. at 62a; see also R.R. at 87a.
Further, Petitioners’ counsel informed the trial court that they had submitted a binder
at the May 18, 2015 Board meeting offering proposed conditions. See R.R. at 141a-
142a, 146a-156a.
MarkWest’s counsel argued that since it is not the Conditions but the
underlying special exception approval that Petitioners oppose, and since their
interests are already adequately protected by the Board’s Conditions, Petitioners have
no legally-enforceable interest. MarkWest’s counsel further maintained that,
notwithstanding, “[Petitioners] had every opportunity to participate along the way,
knowing full well the proceedings were going on[,]” yet waited five years to take any
action. R.R. at 77a. Ultimately, the trial court held that “[Petitioners] have the
requisite standing and interest to become intervenors under [Rule] 2327(4),” Trial Ct.
Op. at 6, but nevertheless denied intervention due to undue delay.
This Court has long recognized “that ‘[o]wners of property in the
immediate vicinity of property involved in zoning litigation have the requisite
15
Petitioners’ counsel acknowledged: “[Petitioners] understand the only thing in front of
th[e trial c]ourt is the propriety of the conditions . . . period. [Petitioners] understand that [their]
right . . . to litigate . . . the [Board’s] decision and the Commonwealth Court’s remand, all of that is
out the door.” R.R. at 71a; see also R.R. at 76a-77a, 82a-83a, 87a.
10
interest and status to become intervenors under [Rule] 2327(4).’” Larock, 740
A.2d at 313 (quoting Summit Twp. Taxpayers Ass’n v. Summit Twp. Bd. of
Supervisors, 411 A.2d 1263, 1265 (Pa. Cmwlth. 1980)); see also Esso Standard Oil
Co. v. Taylor, 159 A.2d 692 (Pa. 1960); Keener v. Zoning Hearing Bd. of Millcreek
Twp., 714 A.2d 1120 (Pa. Cmwlth. 1998); Schatz v. Upper Dublin Twp. Zoning
Hearing Bd., 343 A.2d 90 (Pa. Cmwlth. 1975). Although the term immediate vicinity
is not precisely defined, in Grant v. Zoning Hearing Board of the Township of Penn,
776 A.2d 356 (Pa. Cmwlth. 2001), this Court declared that intervenors who “live
within one mile of the proposed electric generating facility . . . have the requisite
interest and status to become intervenors under [Rule] 2327(4).” Id. at 359
(emphasis added). Such is the case even if they did not attend or speak at the
underlying zoning board hearing. See Grant. Based upon Grant, since Mr. and Mrs.
Warzinski, Adamski and Dawson own property located within a mile of the Proposed
Facility, they each had a legally-enforceable interest under which they would be
entitled to intervenor status pursuant to Rule 2327(4). Accordingly, the trial court
properly held that Petitioners must be permitted to intervene unless one of the Rule
2329 refusal grounds is present. Larock.
The trial court nevertheless denied the Petition, stating:
[Petitioners] in the instant case waited almost 5 years
from the filing of MarkWest’s special exception
application with the Board before they attempted to
intervene. [Petitioners] were aware of these proceedings
and one of them made public comments during the
hearing before the Board. Rather than seeking to
intervene in this case when MarkWest first appealed to
this [trial c]ourt in 2011, and subsequently to
Commonwealth Court in 2013, [Petitioners], fully aware
of the proceedings, instead sat idly by. Based on the
foregoing, this [trial c]ourt finds that permitting
intervention at such a late stage in this matter would
result in prejudice to the other parties by undue delay,
11
and is tantamount to a collateral attack on the prior
rulings 5 years into the litigation.
....
The Commonwealth Court [o]rder directed this [trial c]ourt
simply to order the [Board] to grant [] MarkWest’s special
exception, which it did with 26 additional [C]onditions.
([Petitioners’] Conclusions of Law ¶¶ 19-20). To request
entry almost 5 years into the proceedings, after the
remand with specific orders to implement the zoning
appeal, is prejudicial to MarkWest because it causes
undue delay in the proceedings under [Rule No.]
2329(3). Thus, this [trial c]ourt finds that [Petitioners] are
precluded from intervening at this late stage of the case.
Trial Ct. Op. at 7-9 (emphasis added). Pursuant to Rule 2329(3), the trial court had
the discretion to deny the Petition. Larock. “An abuse of discretion occurs where
substantial evidence does not support the [trial court’s] findings.” In re McGlynn,
974 A.2d 525, 530 n.4 (Pa. Cmwlth. 2009). Here, the record and the law support the
trial court’s conclusions.
This Court’s MarkWest I order was final as to MarkWest’s special
exception application. The MarkWest I Court ordered the Board to grant the
application as it should have in March 2011, subject only to such reasonable
conditions as the MPC and UDO allowed. Petitioners had ample notice and
opportunity to protect their interests (and provide their input regarding proposed
conditions) in 2011. If, as Petitioners contend, they do not oppose the Board’s
Conditions, their intervention is not now necessary to serve and/or further protect
their interests. Under the circumstances, allowing Petitioners’ intervention at this late
point in time would clearly unduly prejudice MarkWest and the Board in whose favor
this matter has been resolved.16 Finding no error in the trial court’s reasoning, we
16
MarkWest’s special exception application was granted. The trial court upheld nearly all
of the Board’s Conditions.
12
hold that the trial court did not abuse its discretion by denying the Petition pursuant to
Rule 2329(3).17
Petitioners also argue that by denying them intervenor status, the trial
court denied their due process rights under the Fourteenth Amendment to the United
States (U.S.) Constitution, and Article 1, Section 1 and Article 1, Section 27 of the
Pennsylvania Constitution. We disagree.
Section 1 of the Fourteenth Amendment to the United States
Constitution provides, in relevant part, that “[n]o State shall . . . deprive any person of
life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
“Due process under the Pennsylvania Constitution emanates from a number of
provisions, including Article I, Sections 1, 9, and 11.” Muscarella v. Commonwealth,
87 A.3d 966, 973 (Pa. Cmwlth. 2014). Article 1, Section 1 of the Pennsylvania
Constitution similarly protects life, liberty and property interests.18 “The fundamental
components of procedural due process are notice and opportunity to be heard.”
McGlynn, 974 A.2d at 531.
According to Petitioners, since the Board denied MarkWest’s application
because it failed to meet its burden for a special exception, the burden never shifted to
them to persuade the Board that the proposed use will have a generally detrimental
effect. Greaton Props., Inc. v. Lower Merion Twp., 796 A.2d 1038 (Pa. Cmwlth.
2002). Thus, “[w]hen this Court reversed the decision of the [Board] and the trial
court, and subsequently remanded the case [] to the [Board] for imposition of
17
On November 20, 2017, Petitioners filed an Application For Leave of Court to File a
Supplemental Brief (Supplemental Brief Application). On December 1, 2017, MarkWest opposed
the Supplemental Brief Application.
18
Article 1, Section 1 of the Pennsylvania Constitution provides: “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.” Pa. Const. art. I, § 1.
13
conditions consistent with the UDO . . . , [Petitioners’] . . . due process rights of
participation instantly became implicated.” Petitioners’ Br. at 16.
However, the record clearly reveals that the Board gave requisite notice
of the 2011 Board hearings, and that Mr. Warzinski attended and gave testimony in
opposition to MarkWest’s application, due to the Proposed Facility’s potential effect
on the community. Other community members did the same. Petitioners also
acknowledge that the Board “duly advertised and held” public meetings in May and
June 2015 regarding the Conditions to be imposed, at which the Board welcomed
public comment, and Petitioners (with the exception of Mrs. Warzinski) fully
participated.19 Petitioners’ Br. at 17. The Board further permitted Petitioners to offer
their proposed conditions. See R.R. at 141a-142a, 146a-156a.
Moreover, this Court in MarkWest I specifically acknowledged that
although the burden did not technically shift to the objectors before the special
exception was granted, “numerous objectors expressed their concerns regarding
emissions, noise, odor, light, traffic, property values and safety.” Id. at 570. The
MarkWest I Court also explained:
Notwithstanding, the law is clear that objectors to a special
exception application ‘cannot meet their burden by merely
speculating as to possible harm, but instead must show a
high degree of probability that it will substantially affect
the health and safety of the community.’ Rural Area
Concerned Citizens, Inc. v. Fayette Cnty. Zoning Hearing
Bd., . . . 646 A.2d 717, 722 ([Pa. Cmwlth.] 1994) (emphasis
added). More specifically, objectors’ evidence ‘must show
a high probability that the use will generate adverse impacts
not normally generated by this type of use. . . . .’
Freedom Healthcare Servs., Inc. [v. Zoning Hearing Bd. of
the City of New Castle,] 983 A.2d [1286,] 1291 [(Pa.
Cmwlth. 2009)] (emphasis added).
19
Petitioners’ claim that the May and June proceedings were hearings at which testimony
was given is belied by the fact that Ries expressly stated at the May meeting that was not the case.
14
The Board did not make any finding or reach a conclusion
that the objectors demonstrated to ‘a high degree of
probability that [the Proposed Facility] will substantially
affect the health and safety of the community.’ Rural Area
Concerned Citizens, Inc., 646 A.2d at 722. Nor would the
record support such a finding or conclusion. Rather,
the Board made numerous findings about the steps
MarkWest will take to make its potential impact on the
community as minor as possible[.]
Id. (emphasis added). Despite that at least Mr. Warzinski may have had standing to
appeal from this Court’s September 26, 2014 order, he did not do so. Under the
circumstances, the trial court’s order denying Petitioners’ intervenor status did not
violate Petitioners’ due process rights under either the U.S. or Pennsylvania
Constitutions.
Petitioners further claim that the trial court violated “their constitutional
rights as guaranteed by Article I, Section 27 of the Pennsylvania Constitution.”
Petitioners’ Br. at 18. Article 1, Section 27 of the Pennsylvania Constitution (also
known as the Environmental Rights Amendment) 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 the people.
Pa. Const. art. I, § 27.
Our Supreme Court has held that “when reviewing challenges to the
constitutionality of Commonwealth actions under [the Environmental Rights
Amendment], the proper standard of judicial review lies in the text . . . itself[,] as well
as the underlying principles of Pennsylvania trust law in effect at the time of its
enactment.” Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 930 (Pa. 2017)
(PEDF II). The PEDF II Court identified, based on the text of the Environmental
15
Rights Amendment and trust law, that all Commonweath citizens, including future
generations, have a right to clean air and pure water, and to the preservation of
natural, scenic, historic and esthetic values of the environment, and that the
Commonwealth has a corresponding duty, as trustee, to prohibit the degradation,
diminution and depletion of public natural resources and to act affirmatively through
legislation to protect the environment. See id.
Here, Petitioners failed to state whether or how the Commonwealth
failed in its duty to protect their rights or the environment. 20 Nor did they contend
that the UDO is unconstitutional or that the Board failed in some manner in keeping
any alleged environmental harm to a minimum. Moreover, in MarkWest I, this Court
ruled that the UDO expressly permits MarkWest’s proposed use, and MarkWest I
represents the law of the case.21 In addition, Petitioners did not argue that applicable
20
Our Supreme Court has ruled:
Where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived. It
is not the obligation of an appellate court to formulate [an] appellant’s
arguments for him.’ Wirth v. Commonwealth, . . . 95 A.3d 822, 837
([Pa.] 2014).
Banfield v. Cortes, 110 A.3d 155, 168 n.11 (Pa. 2015). Because Petitioners supplied no specific
argument with legal support relating to how the Commonwealth may have failed in its duty to
protect their rights under Article I, Section 27 of the Pennsylvania Constitution in this case, that
argument is waived.
21
The ‘law of the case’ doctrine is a judicial rule that prohibits a court
involved in a later phase of litigation from reopening questions
decided by another judge of the same court or a higher court in an
earlier phase of the litigation. Couriers–Susquehanna, Inc. v. C[ty.] of
Dauphin, 693 A.2d 626, 630 (Pa. Cmwlth. 1997). Specifically, the
doctrine applies in the following circumstances:
(1) upon remand for further proceedings, a trial court may
not alter the resolution of a legal question previously decided
by the appellate court in the matter; [and] (2) upon a second
appeal, an appellate court may not alter the resolution of a
legal question previously decided by the same appellate
court.
16
statutes and regulations were not respected. After a thorough review of Petitioners’
arguments and the applicable law, this Court concludes that the trial court’s order
denying Petitioners’ intervenor status did not violate Petitioners’ rights under Article
1, Section 27 of the Pennsylvania Constitution.
Based upon the foregoing, we affirm the trial court’s order.22
___________________________
ANNE E. COVEY, Judge
Id. (internal citation omitted).
City of Phila. v. F.A. Realty Inv’rs Corp., 146 A.3d 287, 297 (Pa. Cmwlth. 2016).
22
In light of this Court’s holding, Petitioners’ Application For Leave of Court to File a
Supplemental Brief is moot.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
MarkWest Liberty Midstream :
and Resources, LLC :
:
v. :
:
Cecil Township :
Zoning Hearing Board :
:
Appeal of: Megan Warzinski, :
Doug Warzinski, Jessica Adamski, : No. 904 C.D. 2016
and Melanie Dawson :
ORDER
AND NOW, this 11th day of January, 2018, the Washington County
Common Pleas Court’s May 6, 2016 order is affirmed.
Megan Warzinsk, Doug Warzinski, Jessica Adamski and Melanie
Dawson’s Application For Leave of Court to File a Supplemental Brief is dismissed
as moot.
___________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
MarkWest Liberty Midstream :
and Resources, LLC :
: No. 904 C.D. 2016
v. :
: Argued: April 6, 2017
Cecil Township Zoning :
Hearing Board :
:
Appeal of: Megan Warzinski, :
Doug Warzinski, Jessica Adamski, :
and Melanie Dawson :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
CONCURRING OPINION
BY JUDGE McCULLOUGH FILED: January 11, 2018
While I concur in the result reached by the Majority and would affirm
the trial court’s finding of undue delay, I write separately to note an important
argument raised by Petitioners.1
Petitioners argue that not only does the proposed compressor station
“diminish the value and viability the [sic] of surrounding landowners’ homes, but
there is also a known risk that noxious chemicals will enter the surrounding land,
including but not limited to, Class One Carcinogens, Benzene and Formaldehyde, as
well as multiple tons of toluene, ethyl, xylene, carbon dioxide and carbon
1
Petitioners include Megan Warzinski, Doug Warzinski, Jessica Adamski, and Melanie
Dawson.
monoxide.” (Petitioners’ brief at 10-11.) While I believe that Petitioners’ concerns
are significant, especially with respect to a potential detrimental impact to public
health, safety, and welfare, I recognize that the grant of the special exception was
previously ordered by this Court in MarkWest Liberty Midstream & Res., LLC v.
Cecil Twp. Zoning Hearing Bd., 102 A.3d 549 (Pa. Cmwlth. 2014), and, as such,
represents the law of the case.
________________________________
PATRICIA A. McCULLOUGH, Judge
PAM - 2