EQT Production v. Boro of Jefferson Hills, Aplt.

[J-70-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
EQT PRODUCTION COMPANY AND ET : No. 4 WAP 2018
BLUE GRASS CLEARING, LLC, :
: Appeal from the Order of the
Appellees : Commonwealth Court entered May 18,
: 2017 at No. 1184 CD 2016, affirming
: the Order of the Court of Common
v. : Pleas of Allegheny County, Civil
: Division, entered June 21, 2016 at No.
: SA 16-000025 and remanding.
BOROUGH OF JEFFERSON HILLS, :
: ARGUED: October 23, 2018
Appellant :
OPINION
JUSTICE TODD DECIDED: MAY 31, 2019
In this appeal, we consider the question of whether a municipality, in addressing a
natural gas extraction company’s conditional use application for the construction and
operation of a well site, may consider as evidence the testimony of residents of another
municipality regarding the impacts to their health, quality of life, and property which they
attribute to a similar facility constructed and operated by the same company in their
municipality. After careful review, we hold that such evidence may be received and
considered by a municipality in deciding whether to approve a conditional use application,
and, thus, we vacate the order of the Commonwealth Court and remand this matter to
that court, with instructions to remand this matter to the trial court for further consideration.
I. Factual and Procedural History
In 2015, Appellees EQT and ET Blue Grass Clearing LLC, an affiliate of EQT
(collectively, “EQT”), sought to construct, operate, and maintain a natural gas production
complex on a 126-acre tract of property within the Borough of Jefferson Hills, Allegheny
County (“Borough”), the Appellant in this matter. The proposed site for this facility, known
as the Bickerton Well Site (“Bickerton site”), was a 29.7-acre site projected to include up
to 16 “unconventional” gas wells, so described because they utilize the hydraulic
fracturing production process (“fracking”) to extract natural gas from a subjacent reservoir.
This was to be the first unconventional well site in the Borough. According to its
conditional use application filed with the Borough, the wells that EQT planned to drill
would penetrate the subsurface vertically to a distance of 6,000 to 7,000 feet, and then
extend horizontally for another 10,000 feet. Next to every well, impoundment ponds
would be constructed, each with the capacity to store 3.4 million gallons of freshwater.1
Additionally, all well sites were to have holding tanks for the wastewater that is returned
from the well during the drilling process. Said tanks, also called flowback impoundments,
which are open to the air, store the wastewater generated during the fracking process for
one week, during which time a large portion of the water contained therein would
evaporate into the atmosphere, after which any remaining water would be reused in the
fracking process.2 Jefferson Township Council Decision on EQT Conditional Use
Application, 12/23/15, at 19.
1 This freshwater, along with sand and other friction reducing additives, is pumped at
high pressure during the fracking process to fracture the rock formation holding the
natural gas enabling its removal. Robinson Township v. Commonwealth, 147 A.3d 536,
543 n.4 (Pa. 2016).
2 EQT’s plans called for the flowback impoundments to be covered once fracking was
completed at the site.
[J-70-2018] - 2
The site is located in a zoning district of the Borough designated a Business Park,
which is also an Oil and Gas Development Overlay District.3 In both districts,
unconventional oil and gas well drilling is permitted by the Borough’s zoning code as a
conditional use. In September 2015, EQT filed an application with the Borough for
conditional use approval so that it could commence construction of this facility. On
October 26, 2015, the Borough Planning Commission provisionally recommended that
the application be approved, contingent on EQT’s furnishing to it additional detailed
information regarding matters such as: notices of EQT’s past violations from the
Pennsylvania Department of Environmental Protection (“DEP”); the height of the
structures utilized in the drilling and operation of the wells; descriptions and maps of how
materials, equipment, and the water and other chemicals used in the fracking process
would be transported to the site; the route through the Borough which vehicles servicing
the site would take; and plans for the installation of fencing and warning signs. Id. at 1-
2.
On November 10, 2015, the Borough Council (“Council”) conducted a public
hearing on the application, as required by the Municipalities Planning Code (“MPC”).4 At
this hearing, eight individuals (“objectors”) testified in opposition to the conditional use
application. Four of the objectors were Borough residents, one of whom lived within 1,000
feet of the Bickerton site. However, three of the objectors were, at that time, residents of
Union Township, Washington County, which adjoins the Borough at its southern border,
3 Overlay districts, as their name implies, are zoning districts which are superimposed on
a zoning map over already existing zoning districts, and feature additional land use rules
beyond those governing the underlying zoning district. Jennie C. Nolon, John R. Nolon,
Zoning and Land Use Planning, 40 Real Est. L.J. 237, 250 (2011).
4 See 53 P.S. § 10913.2 (“Where the governing body, in the zoning ordinances, has
stated conditional uses to be granted or denied by the governing body pursuant to express
standards and criteria, the governing body shall hold hearings on and decide requests for
such conditional uses in accordance with such standards and criteria.”).
[J-70-2018] - 3
and were living near another unconventional natural gas well site known as “Trax Farm,”
which EQT had constructed and operated in Union Township since 2007 (“Trax Farm
site”). Council also heard testimony from an objector who had recently moved to the
Borough, but previously lived in Union Township in proximity to the Trax Farm site. As
pertinent to the issue presented by this appeal, the present and former Union Township
objectors gave evidence of their firsthand personal experiences with EQT’s drilling and
operational practices while living near its Trax Farm site, and they conveyed their
perceptions of how EQT’s activities at that site had negatively impacted their health and
quality of life, and, also, their community’s environment. Given its relevance herein, we
will recount their testimony in detail.
Union Township resident Bob Domman related that because “the Trax site was
probably the closest one to where I lived, we followed that pretty closely,” and he testified
that EQT had offered what he characterized as “gag agreements” to individuals who lived
next to the site, and he provided Council with copies thereof which were entered into the
evidentiary record. N.T. Jefferson Hills Council Public Hearing (“Hearing”), 11/10/15, at
138, 143. Because these individuals had apparently complained that EQT’s extraction
activities at the Trax Farm site constituted a nuisance which interfered with the use and
enjoyment of their property, the agreements provided that, in exchange for a $50,000
cash payment, the residents would grant EQT easements and rights-of-way over their
properties for “noise, dust, light, smoke, odors, fumes, soot or other pollution, [and]
vibrations . . . [and other] adverse impacts or other conditions or nuisances which may
emanate or be caused by [EQT’s] operations.” Id. at 139-40. These easements were for
varying lengths of time, ranging from one year to perpetuity. Id. at 140.
Domman additionally recounted that there were loud sounds associated with the
banging of large pipes as they were being loaded into the drilling rigs during the extraction
[J-70-2018] - 4
process, and, thus, he recommended that Jefferson Hills require the installation of sound
walls between the drilling rigs and the three residential neighborhoods which would be
nearest to the Bickerton site.5 Id. at 143-44. Domman also noted that one of the
pronounced features of the Trax Farm site was the storage impoundments holding the
substantial quantities of water used in the drilling process, and he recalled that Union
Township had sufficient concern about the quality of the water contained therein to require
that it be tested. Domman further related his observations that, whenever the wells were
in operation, there would be a continuous series of at least 16 or 17 heavy diesel trucks
traveling back and forth over township roads hauling water to the well site, generating
noticeable air pollution in the process. Id. at 145-46. Lastly, Domman observed that each
of the 12 well pads at the Trax Farm site had condensate tanks sitting on them, which he
found to be an additional source of air pollution, and cautioned that such tanks would
likely accompany the wells at the Bickerton site. Id. at 146.
Next, Union Township resident Gary Baumgartner, whose home was located less
than a tenth of a mile from one of the well pads on the Trax Farm site, testified. Id. at
148. He began by encouraging Council to look into local accidents in Washington County
that related to EQT’s drilling activities there, one of which he asserted was a blowback of
drilling mud from one of its wells. According to Baumgartner, this mud flowed into Mingo
Creek and the Monongahela River and encrusted the bottoms of both watercourses. Id.
at 149. Baumgartner then related, in detail, what he perceived as the deleterious effects
5 Domman estimated, based on the maps submitted with EQT’s application, and aerial
photographs of the area of the proposed Bickerton site and the three nearest Borough
residential neighborhoods, obtained through the use of “Google Earth,” that all three
groups of homes were situated less than a third of a mile from the Bickerton site. N.T.
Hearing, 11/10/15, at 140-41; Conditional Use Hearing Exhibits, R.R. 749-51. In its brief
to our Court, the Borough adopts this estimate as accurate, Borough Brief at 19, and EQT
does not dispute it.
[J-70-2018] - 5
of the fracking activities at the nearby well on both his and his family’s health and quality
of life during the 18-month period since it began operating. Id. at 150.
Baumgartner first described the intense vibrations that he and his family repeatedly
endured inside of their home, as well as those experienced by his neighbors, which
started once the well became operational. Baumgartner recalled that these vibrations
were so powerful that, even while sitting on a couch or lying on his bed, he could feel
them going through his entire body. He noted that these vibrations would routinely shake
glasses of water sitting on tables or counters, and he even observed the same vibrational
disturbances in the water of his neighbor’s toilet after his neighbor became disturbed by
the phenomenon, and, believing that the toilet was malfunctioning, requested that
Baumgartner examine it. He indicated that many of his neighbors had the same
experiences, and that they had shared videos and pictures with him of their household
items shaking because of the vibrations. Id. at 150-51.
Baumgartner also told Council of the very high levels of noise which he and his
family were repeatedly subjected to after the commencement of fracking activities, and
which both he and his wife found made living conditions in their home intolerable. Id. at
156. Baumgartner testified that the noise was so intense it made it impossible for his wife
to sleep in the master bedroom of their home, and that a sound monitor which was placed
in that bedroom at one point registered 82 decibels, which he observed was nearly
equivalent to the decibel level generated by a diesel locomotive at a distance of 100 feet.
Id. Baumgartner related that whenever sound studies were done to assess the noise
generated by the well site, drilling activities at the site were abruptly reduced, as well as
the accompanying noise, such that his home again became livable. This prompted he
and fellow residents to remark that they wished such studies were conducted all the time,
so they could “live in peace.” Id. at 163-64.
[J-70-2018] - 6
Baumgartner next chronicled the deterioration in air quality which he and his family
experienced after fracking activities began at the well. He asserted that they repeatedly
smelled strong odors of what he believed to be diesel fuel and sulfur emanating from the
well site. Baumgartner recalled that one evening, as he was outside with his dog, he
noticed a thick white fog enveloping the well pad and cloaking his backyard, and he
remembered that it stank of sulfur. Id. at 156. A nonprofit public health organization,
based in southwestern Pennsylvania, which became aware of the air quality concerns of
Baumgartner and others who lived near the Trax Farm site, held a meeting with all of
those residents and recommended that, while fracking was occurring at the well site, due
to the presence of dangerous particulate matter on blades of grass, their children should
not play outside, nor should residents mow their lawns without wearing a respirator. Id.
at 152-53. Likewise, Baumgartner and the other residents were cautioned not to plant
their gardens while fracking was going on. Id.
The nonprofit health organization also provided Baumgartner and the other
residents with air quality monitors and warned them that, if the monitors read 200 or above
for an hour or more, they should evacuate their homes. Baumgartner related that, at one
point, his monitor registered 260, and he and his wife were forced to quickly leave their
home. According to Baumgartner, this was not an isolated occurrence, as he detailed
another incident which occurred on a subzero February night when the smell of diesel
fuel inside his house became so strong he called the fire department. Once the fire
department arrived, they recommended that he and his family immediately remove
themselves from their home so they could bring in fans to blow the fumes out of their
house. Id. at 155.
Baumgartner testified that he and his wife were forced to leave “countless times”
in the middle of the night because of these type of incidents, and, at one point, he and his
[J-70-2018] - 7
wife had to stay in a hotel for two months. Id. at 157. Even despite taking these
measures, Baumgartner recounted that he developed a serious respiratory illness that he
attributed to his exposure to these fumes, and this illness necessitated his hospitalization
for a five-day period, during which he was placed on a ventilator and given oxygen. Id.
Baumgartner noted that, because of these worsened air quality levels and diesel odors,
his daughter, who was 7-months pregnant at the time and living in the house with her
husband, was forced to move out at her doctor’s recommendation. Id. at 154.
Baumgartner also elaborated on his efforts to seek relief from these conditions
from the DEP and the federal Environmental Protection Administration (“EPA”). He
recalled that both agencies informed him that they could offer no assistance due to
understaffing of their enforcement divisions and outdated laws which were ill-suited to
address such events. Id. at 158-59.
Because of these events, Baumgartner made the decision to attempt to sell his
property; however, he anticipated taking a loss on it because of all of these negative
impacts from the nearby well. Id. at 161. He further described how a realtor informed
him that, if he entered into one of the aforementioned easement agreements offered by
EQT, she would not even list his house for sale. Id. at 162.
Mickey Gniadek, a neighbor of Baumgartner who lived across the street from one
of the Trax Farm wells, testified that one night in early December 2013 he went out to get
the mail, and he witnessed a thick white cloud hovering about 3-1/2 feet off the ground
and surrounding the well pad. Id. at 167. Gniadek also encountered a strong aroma of
what he believed to be chlorine permeating the air. Gniadek, who formerly worked as a
truck driver hauling water to fracking sites, recalled that, while he was familiar with the
various smells associated with drilling sites from his former employment, he had never
experienced an odor of this nature before.
[J-70-2018] - 8
As Gniadek retrieved his mail from the mailbox, he suddenly began having intense
respiratory distress, which he characterized as a feeling of great pressure in his chest.
Id. at 168. Gniadek testified that he staggered with great difficulty back to his home, and,
once inside, collapsed against the wall, gasping for air. Id. at 169. Eventually, Gniadek
regained his breath and, because he was concerned that there had been a possible
accident at the pad resulting in a chemical discharge, as well as possible injury or loss of
life to workers at the site, he called one of EQT’s representatives, who ostensibly was
responsible for its supervision. Id. at 170.
Gniadek testified that the individual whom he talked to on the phone was
dismissive of his concerns and, at one point, laughed at him after he raised the prospect
of injured workers being present at the well pad. Id. at 171. After further exchanges, the
individual Gniadek spoke with eventually said he would call to the site to see if there were
any reports of problems, but Gniadek heard nothing further from him, or anyone else at
EQT, about the incident. Id. at 171-72. Once Gniadek ended the phone call, he became
very alarmed as he observed that his face, hands, and body were covered with red spots
that resembled measles. Id. at 172-73.
Gniadek recounted that, after the incident, a subcontractor of EQT appeared at his
house to offer him $50,000, which he was told he would receive only if he and all of his
neighbors signed an agreement that the subcontractor presented to him. Gniadek
recalled that the contract prohibited the signatory from asserting any past or present
claims against EQT, including health ones. Id. at 173. Gniadek, because of his concern
over his breathing difficulties and the unexplained red dots that appeared on his body
after inhaling the acrid fumes, declined to do so. He informed the subcontractor that he
was not signing any such agreement until he was given a satisfactory explanation as to
the cause of his skin outbreak. Id. at 179-80. The subcontractor left, but returned a week
[J-70-2018] - 9
later and told him that the agreement was now available to him on an individual basis. Id.
at 174.
Gniadek also testified that vapor recovery units which had been installed on the
well pad ran 24 hours a day and generated considerable noise, which was clearly audible
to him at his house, along with the sounds the workers at the well pad made during their
activities there. Id. at 176. Gniadek echoed Baumgartner’s observation that the general
noise level at the well site would abate considerably during the time periods in which
sound studies were being conducted. Id. at 176-77.
Lastly, former Union Township resident, and current Jefferson Hills resident, Andy
Tullai detailed his experiences living near the Trax Farm site. He too recalled how he
was disturbed in his home by sounds emanating from the well pads. Not only did he
experience the high decibel noises that Baumgartner related, but he recounted that his
home was subjected to constant, steady low frequency sounds emanating from the well
site which permeated his entire house and disturbed his sleep. Id. at 183. He also told
of being annoyed on certain nights by the intense banging of pipes and other equipment,
as well as sledgehammering, when drilling rigs were moved from well to well. Id.
Tullai additionally described how lights erected at the site at the beginning of the
drilling process, which EQT eventually moved at his request, were so bright he could read
a newspaper at night in his backyard. What Tullai remembered to be most upsetting to
him, annoying him to the point of tears as he put it, was the intense smell of diesel exhaust
fumes, which he said would frequently invade his house. Id. at 184. These experiences
motivated Tullai to move out of his home and relocate to the Borough. 6 EQT presented
no rebuttal or explanatory evidence in response to objectors’ testimony.
6 The four objectors who were Borough residents respectively testified to, inter alia: fines
assessed against EQT for its drilling practices in Tioga County, general fracking industry
practices, scientific research done about the hazards of the chemicals used in the fracking
[J-70-2018] - 10
On December 14, 2015, Council unanimously voted at a public meeting to deny
EQT’s application. In its written decision, Council credited all of the testimony it heard at
the public hearing during the public comment portion, and it found the persons testifying
to be “credible and persuasive.” Jefferson Township Council Decision on EQT
Conditional Use Application, 12/23/15, at 25. Accordingly, Council indicated that it gave
their testimony “significant weight.” Id.
In deciding whether EQT had met its requisite burden of proof to be granted a
conditional use, Council first recited what it perceived as the relevant law articulated by
the Commonwealth Court regarding the respective burdens of proof of an applicant for
such a use and those objecting to its approval:
An applicant is entitled to a conditional use as a matter of right,
unless the governing body determines that the use does not
satisfy the specific, objective criteria in the zoning ordinance
for that conditional use. The applicant bears the initial burden
of showing that the proposed conditional use satisfies the
objective standards set forth in the zoning ordinance, and a
proposed use that does so is presumptively deemed to be
consistent with the health, safety and welfare of the
community. Once the applicant satisfies these specific
standards, the burden shifts to the objectors to prove that the
impact of the proposed use is such that it would violate the
other general requirements for land use that are set forth in
the zoning ordinance, i.e., that the proposed use would be
injurious to the public health, safety and welfare.
Id. (citing In re Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009)).
Council found that EQT’s application met the general standards for the grant of a
conditional use enumerated in Section 1003(b)-(f) of the Borough’s Zoning Ordinance, as
well as the specific requirements set forth in the Borough’s Zoning Code for a natural gas
facility to operate as a conditional use in both a Business Park and Oil and Gas
process, and the health effects of fracking on those living near well sites. Jefferson
Township Council Decision on EQT Conditional Use Application, 12/23/15, at 20-23.
[J-70-2018] - 11
Development Overlay zoning district. However, Council found that there existed
“evidence in the record that permitting the proposed natural gas production facility as a
conditional use does not protect the health, safety and welfare of the Borough and its
residents as required by the objective standards of the Borough Zoning Ordinance
Section 1003(a).”7 Jefferson Township Council Decision on EQT Conditional Use
Application, 12/23/15, at 26. As a result, Council concluded that “pursuant to
Pennsylvania case law, [EQT] [has] not met [its] burden of proof for a conditional use
application and the burden never shifted to the objectors to prove that the impact of the
proposed use is such that it would violate the other general requirements for land use set
forth in the Borough Zoning Ordinance.” Id. Council further noted in its decision that the
fact that the burden of proof never shifted to the objectors did not preclude its
consideration of evidence received at the public hearing from the objectors, which
concerned how EQT did not meet its burden “related to the proposed use’s effects upon
the health, safety and welfare as well as the potential deterioration of the environment.”
Id.8
7This ordinance provides, in relevant part:
In addition to the specific standards and criteria listed for each
use in Section 1004 below, all applications for conditional
uses and uses by special exception listed in each Zoning
District shall demonstrate compliance with all of the following
general standards and criteria:
(a) The use shall not endanger the public health, safety
or welfare nor deteriorate the environment, as a result
of being located on the property where it is proposed.
Borough of Jefferson Hills Zoning Ordinance § 1003(a).
8 Additionally, Council went on to consider EQT’s application under the Environmental
Rights Amendment to the Pennsylvania Constitution. This alternative rationale for
denying EQT’s conditional use application is not before us in this appeal; hence, we will
not opine to it.
[J-70-2018] - 12
EQT thereafter appealed Council’s decision to the Court of Common Pleas of
Allegheny County. The trial court, Senior Judge Joseph M. James, reversed, without
taking additional evidence. The court noted that, under what it considered to be the
relevant legal standard for determining whether a developer is entitled to conditional use
approval, the developer has the initial burden of proving by a preponderance of the
evidence that its proposed use is the nature and type of conditional use described in the
zoning code, and, also, that the proposed use complies with the other specific
requirements of the zoning ordinance. The court opined that, once the developer makes
these showings, the burden then shifts to those objecting to the use to prove the proposed
land use will have an adverse effect on the general public, i.e., demonstrate with “a high
degree of probability” that the proposed use will pose a substantial threat to the health,
safety, and welfare of the public. Trial Court Opinion, 6/21/16, at 3 (quoting Bray v. Zoning
Bd. of Adjustment, 410 A.2d 909, 914 (Pa. Cmwlth. 1980)).
The trial court concluded that EQT complied with the specific requirements of the
zoning ordinance for this type of conditional use, inasmuch as Council found that EQT
met all the requirements of the Borough’s Zoning Ordinance which governed the grant of
conditional use approval for oil and gas drilling facilities; thus, in the court’s view, the
burden of proof shifted to objectors to show that this proposed use would have adverse
effects on the general public. The court found that objectors did not meet this burden,
characterizing their testimony as being “speculative regarding general oil and gas
development,” and raising only “theoretical concerns about air pollution and odors.” Trial
Court Opinion, 6/21/16, at 4. Consequently, the court reversed Council’s decision
denying the conditional use application. The Borough appealed this decision to the
Commonwealth Court.
[J-70-2018] - 13
A panel of the Commonwealth Court affirmed in a divided, published opinion
authored by President Judge Emeritus Bonnie Brigance Leadbetter. EQT v. Borough of
Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 2017). The majority began by observing that
a conditional use is not an exception to a municipality’s zoning ordinance, but, rather, is
a use to which an applicant is entitled as a matter of right, unless the municipal legislative
body determines “that the use does not satisfy the specific, objective criteria in the zoning
ordinance for that conditional use.” Id. at 560 (quoting In re Drumore Crossings, supra).
The majority stated that the applicant seeking conditional use approval has the burden of
persuasion to establish that its proposed use satisfies the objective requirements
enumerated by the relevant zoning ordinance governing conditional uses. Once an
applicant meets this prima facie burden, then it “is entitled to approval, unless objectors
in the proceeding offer credible and sufficient evidence that the proposed use would have
a detrimental impact on public health, safety, and welfare.” Id. (quoting Williams Holding
Group, LLC v. Board of Supervisors of West Hanover, 191 A.3d 1202, 1212 (Pa. Cmwlth.
2014) (internal quotation marks omitted)). The majority characterized the nature of
objectors’ burden in this regard as proving, with a high degree of probability, that allowing
the conditional use will create a substantial risk of harm to the community — i.e., that it
“will impose detrimental impacts exceeding those ordinarily to be expected from the use
at issue.” Id. at 561.
The majority found that, because EQT had met its initial burden of complying with
the requirements of the zoning ordinances governing conditional uses, the burden of proof
shifted to objectors to show with a high degree of probability that EQT’s proposed well
site would cause detrimental impacts that exceed those which would be ordinarily
expected from unconventional gas wells. Id.
[J-70-2018] - 14
Reviewing the testimony of the objectors at the public hearing, the majority
concluded it was insufficient to carry this burden. The majority deemed objectors’
testimony about problems at the Trax Farm site and the general harms posed by drilling
activities and operation of unconventional wells insufficient to prove that the development
of the Bickerton site would have a negative impact on the public health, safety, and
welfare which was greater than that normally associated with any other unconventional
well site. The majority agreed with the trial court’s characterization of objectors’ testimony
as “speculative.” Id. at 563.
Further, the majority declared that, “[w]hile such testimony might persuade
legislators to prohibit such drilling, it does not satisfy [objectors’] burden to show that the
development of the Bickerton Well Site would have an impact on public health, safety,
and welfare.” Id. The majority added that, “given the fact that there has been a legislative
decision that the particular use is presumptively consistent with the health, safety, and
welfare of the community, the objectors’ testimony is insufficient to satisfy their burden,
and it is not the role of the Council in adjudicating a conditional use application . . . to
second guess the legislative decision underlying the ordinance.” Id. The majority denied
that it was adopting a per se rule precluding the testimony of lay witnesses to establish
that a conditional use was a danger to the public health, safety, and welfare; rather, the
majority asserted that it was holding that such lay testimony cannot merely address the
general risks posed by the proposed use, or be speculative in nature. Id. at 563 n.10.
Judge Patricia A. McCullough dissented. She noted that, as a general proposition,
whenever an applicant seeks conditional approval for what is a novel use of land within
municipal boundaries, it is difficult for objectors to demonstrate that it will have a negative
impact on the health, safety, and welfare of the community, as they have not, heretofore,
had any firsthand experience with the particular use; thus, they are normally forced to
[J-70-2018] - 15
speculate as to the possible negative consequences which might ensue from approval of
the conditional use. However, Judge McCullough disagreed with the majority’s
conclusion that objectors’ testimony in this instance constituted such speculation. While
she acknowledged that the Commonwealth Court has consistently held that objectors’
testimony of a generalized fear that construction of a proposed facility will result in harm
is insufficient to satisfy their burden of proof, Judge McCullough found such caselaw
distinguishable because, in her view, objectors’ evidence was specific and concrete, and
established that EQT’s similar Trax Farm site had marked detrimental effects on adjoining
residents of a neighboring municipality.
Judge McCullough found support for the evidentiary relevance of individuals’
firsthand experiences with similar proposed uses from our Court’s decision in Visionquest
National Limited v. Board of Supervisors of Honey Brook Township, 569 A.2d 915 (Pa.
1990). In that decision, we held that, while an objector’s bald assertions, personal
opinions, and speculation will not suffice to prove detrimental impact on a community from
a proposed development project, testimony by individuals regarding specific past
experiences with the proposed use can be used to satisfy an objector’s burden of proof
that a proposed conditional use poses a significant risk of harm to the community. Id. at
917-18.
Judge McCullough opined that, although our holding in that case found only prior
incidents occurring at the same facility relevant for the purpose of bolstering the objectors’
challenge, neither this Court, nor the Commonwealth Court, has ever considered whether
Visionquest can be extended to cases where the objectors’ testimony is based solely
upon effects experienced at a different, albeit similar, facility located in an adjoining
municipality. Even so, Judge McCullough reasoned that logic and fairness dictate that
such an extension of our holding in Visionquest should apply in this case, particularly
[J-70-2018] - 16
where there is no similar unconventional gas well facility located within the Borough with
which to compare the proposed Bickerton site.
Additionally, she criticized the majority’s determination that objectors were limited
to presenting evidence specific to the Bickerton site as being unduly restrictive and
impracticable, resulting in the imposition of a nearly insurmountable burden on them of
proving detrimental harm. Adding that, had objectors hired an expert, that expert would
likely have had to rely on comparative data from other well sites to support his or her
opinion, in her view, an independent expert opinion was of little value in this matter.
Judge McCullough repudiated the majority’s view that the testimony provided by
the Union Township residents as to their own experiences living near the Trax Farm site
was incompetent or inadmissible as a matter of law. By contrast, she concluded that it
was within Council’s province, as fact-finder, to infer that the same negative effects
complained of by the residents who lived near the Trax Farm site would likely occur near
the Bickerton site if the conditional use was granted. EQT, 162 A.3d at 569 (McCullough,
J., dissenting).
The Borough filed a petition for allowance of appeal with our Court, which we
granted in order to consider the following issue, as framed by the Borough:
Whether the Commonwealth Court erred as a matter of law
by imposing a standard upon the admissibility of objectors’
evidence that effectively eliminates the ability to raise any
objection to a land use application based on firsthand
experience with a similar use when the proposed use does
not already appear within municipal borders?
EQT v. Borough of Jefferson Hills, 179 A.3d 454 (Pa. 2018) (order).
II. Arguments
The Borough argues that the effect of the Commonwealth Court decision is to
establish a “draconian” standard for the admissibility of testimony at a land use hearing
that excludes otherwise probative, relevant, and credible evidence furnished by witnesses
[J-70-2018] - 17
with firsthand knowledge of how an applicant has previously conducted the land use
activity. Borough Brief at 15. The Borough criticizes the Commonwealth Court for
summarily dismissing the testimony of the witnesses from Union Township who lived near
the Trax Farm site as “speculative” on the grounds that it was not specific to the Bickerton
site, particularly when, at the time of the application, no unconventional drilling activity
had ever taken place within the Borough. The Borough asserts that the testimony of the
Union Township residents regarding the operation of the Trax Farm site was highly
relevant to their burden to show that the proposed Bickerton site would adversely affect
the health, safety, and welfare of the residents of Jefferson Borough, given that the Trax
Farm site was “similar” to the proposed Bickerton site, and Union Township and Jefferson
Borough share a common municipal border. Id. at 16.
The Borough claims that the Commonwealth Court’s requirements for the
testimony of witnesses at a land use hearing — i.e., requiring them to connect such
testimony to the particular future proposed land use by the applicant within the
municipality, while prohibiting them from analogizing the proposed use to past similar
uses outside of the municipality — are both unjustified and unworkable in situations where
the land use is a novel one for the municipality.
The Borough asserts that such restrictions on witness testimony also intrude on
the province of a local governing body to function as a finder of fact when considering a
land use application, as it interferes with its duty to evaluate and assess the credibility of
all relevant evidence in order to guard against unwarranted approval of a land use that
will negatively affect the health, safety, and welfare of its citizens. According to the
Borough, the testimony of the Union Township residents as to their firsthand experiences
with the noise and pollution generated by the Trax Farm site was highly relevant to its
[J-70-2018] - 18
fact-finding process, as it described recent harmful impacts on residents of a bordering
municipality from the very same type of development which EQT was proposing.
The Borough emphasizes that EQT, which was represented by counsel at the
public hearing, did not cross-examine the Union Township residents, nor did it present
any evidence to counter their testimony. Consequently, the Borough points out, Council
was faced with a situation where it had heard uncontradicted evidence from witnesses,
who Council deemed credible, about the detrimental effects caused by EQT’s operation
of a facility similar to the one it sought to construct in the Borough, yet, under the
Commonwealth Court’s holding, they would be required to ignore this evidence. This, in
the Borough’s view, essentially eliminates an objector’s ability to challenge land uses by
utilizing evidence of an applicant’s past conduct, and undermines the ability of a local
governing body to examine past practices of an applicant in order to ensure the protection
of the health, safety, and welfare of its citizens. In essence, argues the Borough, an
evidentiary rule that excludes evidence of past similar practices in other municipalities
grants applicants a “free pass” simply because they are proposing a land use for the first
time in a community. Borough Brief at 28.
Further, the Borough notes, in considering an application for drilling an
unconventional well, the DEP is required to consider evidence of the driller’s past conduct
and to deny the application if the driller remains in violation of the law. The Borough
contends that this demonstrates the probative evidentiary value of past conduct by a
driller such as EQT. Moreover, the Commonwealth Court’s rejection of such firsthand
testimony, the Borough asserts, runs contrary to prior caselaw from that court which
favorably regards testimony from witnesses as to their personal experiences with the
current operations of an applicant for zoning approval for a planned use. Id. at 25 (quoting
Pennsy Supply v. Zoning Hearing Board of Dorrance Township, 987 A.2d 1243, 1250
[J-70-2018] - 19
(Pa. Cmwlth. 2009) (holding that testimony of residents who lived near a quarry about the
adverse effects they had suffered from its operation was not speculative since “it was
based upon the experiences they have had with [the quarry’s] current operations.”)).
Additionally, in the Borough’s view, the Commonwealth Court’s decision will have
far reaching implications beyond conditional use applications, as it will affect the ability of
local governing bodies to grant conditional approval for a proposed use based on the
applicant meeting certain conditions. The Borough maintains that the ability of such
bodies to consider evidence of an applicant’s past practices is crucial to their ability to
identify areas of concern that they wish an applicant to address, or to attach conditions
tailored to avoid practices that endanger the health, safety, and welfare of the community.
The Borough agrees with Judge McCullough’s dissent that our Court’s holding in
Visionquest should govern the outcome of the case at bar. The Borough argues that the
testimony at issue in that case — from residents of a municipality where an applicant
sought zoning approval to continue to run a facility housing troubled juveniles about their
personal experiences with how the facility actually functioned — was regarded by our
Court as not speculative, but, instead, entitled to considerable weight in assessing
whether the facility’s continued use would be a detriment to the community. The Borough
adopts Judge McCullough’s view that the rationale of that case rests on “the unstated
presupposition that what has happened (or more appropriately, ‘experienced’) in the past
is competent evidence of what will continue to happen in the future.” Borough Brief at 27
(quoting EQT, 162 A.3d at 566-67 (McCullough, J. dissenting) (internal quotation marks
omitted)).9
9 Amicus, the Pennsylvania State Association of Boroughs, has filed a brief in support of
the Borough which chiefly tracks its arguments. Additionally, however, Amicus avers that
the Commonwealth Court in this matter contravened its prior precedent by placing the
ultimate burden of proof on the objectors to show that the particular land use they are
challenging will cause a substantial threat to the health, safety, and welfare of the
[J-70-2018] - 20
In its response, EQT contends that the Borough mistakenly views the
Commonwealth Court’s ruling as addressing the admissibility of the objectors’ evidence.
EQT contends that the Commonwealth Court did not hold that the objectors’ evidence
was inadmissible; instead, it held that the evidence was legally insufficient for objectors
to meet their burden of production. EQT highlights that the Commonwealth Court was
tasked with determining whether Council’s decision to deny its conditional use application
was supported by substantial evidence. In EQT’s view, the court determined that, even
though Council accepted the witnesses’ testimony as credible, the evidence was, due to
its nature, insufficient as a matter of law to meet the objectors’ burden of production, and,
thus, Council’s decision was not supported by substantial evidence. EQT Brief at 18
(quoting EQT, 162 A.3d at 563 (“Having carefully reviewed the objectors’ testimony, we
conclude that it is insufficient to meet their burden of proof.”)).10
community. Amicus asserts that, under prior decisions of that court, Butler v. Derr
Flooring, 285 A.2d 538 (Pa. Cmwlth. 1971), and Bray v. Zoning Hearing Board of
Philadelphia, 410 A.2d 909 (Pa. Cmwlth. 1980), if an objector to a proposed use comes
forth with evidence that it would violate the health, safety, and general welfare of the
community, then the burden of proof remains with the applicant to show that the intended
use would not pose the danger to the community which the objector claims.
10 The concepts of burden of production and burden of proof do not mean the same thing
in the context of a hearing on a conditional use application. The Commonwealth Court
has previously explained that, if a Borough’s zoning ordinance explicitly places the burden
of proof on an applicant for a conditional use exception to demonstrate that the proposed
land use would not detrimentally affect the health, safety, and general welfare of the
community, the applicant has the initial burden to produce evidence, and also to prove,
that its proposed use meets all of the specifications and requirements provided by the
Borough’s zoning code for the grant of a conditional use. Butler, 285 A.2d at 542; Bray,
410 A.2d at 912. At that point, the objectors have a burden to produce evidence showing
that the proposed development would have a detrimental effect on the health, safety, and
welfare of the community. If the objectors produce such evidence, the applicant must
then prove “that the intended use would not violate the health, safety, and general welfare
of the community with relation to such objections.” Butler, 285 A.2d at 542; Bray, 410
A.2d at 912 (internal quotation marks omitted).
If, on the other hand, the zoning ordinance does not specifically assign the burden
of proof regarding the question of whether a conditional use will be a detriment to the
health, safety, and welfare of the community to the applicant, and the applicant has
[J-70-2018] - 21
EQT then turns to its main argument that “[t]he Commonwealth Court correctly
concluded that the objectors’ evidence was not sufficient to meet their burden of
production to challenge EQT’s conditional use application.” EQT Brief at 18. EQT
contends that, as the Commonwealth Court below found, the objectors were required to
demonstrate a high probability that the use in question will generate adverse impacts
exceeding that normally generated by this type of use and that these impacts pose a
substantial threat to the health, safety, and welfare of the community. Id. at 20 (citing In
re Cutler Group, 880 A.2d 39 (Pa. Cmwlth. 2005); Oasis v. Zoning Hearing Board of South
Annville Township, 94 A.3d 457 (Pa. Cmwlth. 2014)). Moreover, EQT maintains that,
under the Borough’s Ordinance, objectors were also required to present evidence that
the use would endanger the public’s health, safety, and welfare “as a result of being
located on the property where it is proposed.” Id. at 20 (quoting Borough of Jefferson
Hills Zoning Ordinance § 1003(a)). EQT argues that the Commonwealth Court correctly
found that objectors did not meet these burdens.
EQT notes that some of the objectors from the Borough gave testimony only
regarding the impact of oil and gas operations on public health, generally, and that the
two objectors who lived near the proposed Bickerton site offered no evidence at all, but
merely asked questions at the hearing. As for the testimony of the objectors from Union
Township, though they described their own experiences with the Trax Farm site, they
gave no testimony relating to the Bickerton site, nor did they assert that their experiences
with the noise, light, and odors emanating from Trax Farm were somehow abnormal in
proved that he or she has complied with all of the specific conditions and requirements of
the zoning ordinance, the burden of production and proof regarding detriment shifts to the
objectors. Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607, 611 (Pa. Cmwlth.
2010). Although we did not grant allowance of appeal to speak to this aspect of the case,
it is evident that the parties and the Commonwealth Court have differing views regarding
the proper allocation of the burdens of production and proof in this matter.
[J-70-2018] - 22
relation to other oil and gas operations. Therefore, according to EQT, the Commonwealth
Court properly found objectors’ evidence did not meet their burden, as it was merely
generalized and speculative in nature.
Regarding the Borough’s assertion that evidence of EQT’s past practices in
neighboring Union Township was necessary because there was no oil and gas
development in the Borough, EQT suggests that objectors could have offered expert
testimony. EQT points out that such testimony could have addressed the suitability of the
Bickerton site, highlighting unique characteristics of the site that would have made it
unsuitable for unconventional drilling, or expert testimony that showed that such drilling
would likely cause detrimental health and safety effects on nearby residents; instead,
objectors relied on the general speculative testimony of their witnesses.
EQT also suggests that such lay testimony is proper only when, as in Pennsy
Supply, supra, the testifying witnesses have personal experience with the use in question
because it occurred at the site of the proposed future land use. EQT proffers that, by
contrast, none of the witnesses who testified to their experiences with the Trax Farm site
were qualified to render an expert opinion regarding potential community impacts from
the Bickerton site, or whether EQT’s operations there would comport with the Borough
ordinance.
EQT finally contends that the Borough already considered potential environmental
impacts of oil and gas drilling when it approved such drilling as a conditional use. EQT
reasons that the Borough’s further purported reliance on potential adverse environmental
effects in denying EQT’s application was irrelevant, as those concerns had already been
addressed through the adoption of the standards contained in the ordinance. Thus, EQT
[J-70-2018] - 23
views the Board’s denial of its application as an improper effort to rewrite its ordinance
without following the mandatory procedures for doing so set forth in the MPC.11
III. Analysis.
We begin our discussion by noting our standard of review of a municipality’s denial
of a conditional use application. Our review is limited to determining whether the
municipality abused its discretion, or committed an error of law in denying the application.
Visionquest, 569 A.2d at 918. An abuse of discretion will be found whenever the findings
of the governing body are not supported by substantial evidence. Id. Substantial
evidence is defined by our Court as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Gorsline v. Board of Supervisors of Fairfield
Township, 186 A.3d 375, 385 (Pa. 2018). Our review of whether the governing body
committed an error of law is, as with all such determinations, conducted de novo and,
thus, we are not bound by the legal conclusions of the governing body or lower courts.
Id.
11 Amicus, the Pennsylvania Independent Oil and Gas Association (“PIOGA”), has filed
a brief in support of EQT. Amicus argues that this case implicates the fundamental right
of every individual to own and use his or her private property in the manner they see fit.
Inasmuch as zoning laws represent a restriction on that right, Amicus propounds that, if
a zoning code allows for a particular use if its specific criteria are met, then it is a legislative
determination that the use is one which will not interfere with the health, safety, or welfare
of the community. Hence, in the view of Amicus, a landowner has the unquestioned right
to use his or her property in the manner permitted by the zoning ordinance if he or she
has met all of its requirements. Amicus contends that, under such circumstances, “a
landowner must be granted a zoning approval if he satisfies the objective criteria of the
ordinance.” PIOGA Brief at 10 (emphasis original). According to PIOGA, it is only
whenever an objector to the proposed use can demonstrate a high degree of probability
that the use in question will cause a detrimental impact on the public health, safety, and
welfare that infringement of the landowner’s property right will be constitutionally
permissible.
While conceding that this issue is not before our Court, PIOGA also attacks the
Borough’s reliance on Article I, Section 27, contending that this provision is not self-
executing, and thus cannot be applied to applicants for a conditional use exception, as it
would effectively supersede the MPC, which it views as is the only source of legal
authority for a municipality to act in these matters.
[J-70-2018] - 24
The issue which we accepted for review is one of evidentiary admissibility — i.e.,
whether the testimony of the residents of a municipality regarding their firsthand
experiences with the manner in which a particular land use was conducted by the owner
of property in very near proximity to their own homes was admissible in a hearing held in
another municipality on a land use application to conduct a similar land use there.
Contrary to EQT’s assertion, we do not read the Commonwealth Court’s majority opinion
as being merely a sufficiency of the evidence analysis; rather, the panel majority endorsed
the trial court’s sweeping characterization of the nature of the testimonial evidence at
issue as “speculative.” EQT, 162 A.3d at 563. Such a dismissive pronouncement
regarding the general nature of this type of evidence gives credence to the Borough’s
concern that the panel decision in this matter will be interpreted as a categorical bar to
the admissibility of this type of firsthand experiential evidence in future conditional use
hearings.
Turning to the merits of the question that this Court granted allowance of appeal
to address, we note that local agencies are not bound by technical rules of evidence when
conducting hearings. 2 Pa.C.S. § 554. Instead, they are empowered to consider “all
relevant evidence of reasonably probative value.” Id. The need for such flexibility in
matters of evidentiary admissibility is heightened in conditional use hearings conducted
by local municipalities, which have the paramount duty to protect their residents from
harm to their persons and property, due to the fact that such land uses present the
possibility that the property rights of neighboring landowners will be affected. Luke v.
Cataldi, 932 A.2d 45, 54 (Pa. 2007).
In determining whether the evidence provided by the Union Township objectors
was relevant and of reasonably probative value in the Jefferson Borough conditional use
hearing, we are guided by the fundamental legal tenet that evidence will be deemed
[J-70-2018] - 25
relevant if it “logically tends to establish a material fact in the case, tends to make a fact
at issue more or less probable, or supports a reasonable inference or presumption
regarding the existence of a material fact.” Commonwealth v. Johnson, 160 A.3d 127,
146 (Pa. 2017); Commonwealth v. DeJesus, 880 A.2d 608, 615 (Pa. 2005). The probative
value of evidence is measured by the tendency of the evidence to establish the
proposition that it is offered to prove. 1 McCormick On Evidence. § 185 (7th ed. 2016).
As a general matter, our Court has recognized the relevancy and probative value
of an applicant’s past conduct in determining whether he meets the conditions of licensure
for conducting future business activities of the same nature as those in which he had
previously engaged. See Street Road Bar and Grille v. Pennsylvania Liquor Control
Board, 876 A.2d 346, 357-58 (Pa. 2005) (holding that prior instances of conduct of liquor
license applicant, including liquor code violations, was both relevant and “extremely
probative” in determining whether applicant met the statutory criteria for being reputable,
given that this history was an accurate gauge of whether the applicant had the requisite
degree of fitness required to operate a liquor selling establishment). Of greatest
pertinence to the issue we are considering, in the context of a hearing on an application
for conditional use approval, our Court has regarded evidence relating to past conduct
and practices of a facility’s owners, and specific impacts on the community from the
functioning of the facility, to be relevant and probative in determining whether, if
conditional use authorization were granted, the facility’s operation would pose a threat to
the welfare of the community.
In Visionquest, supra, the applicant sought conditional use approval from a
municipality to continue operation of a rehabilitative facility which housed youths with
behavioral difficulties. This facility had already been operating within the municipality prior
to this conditional use approval being sought. At the hearing on the application held by
[J-70-2018] - 26
the municipality’s governing body, residents of the municipality testified regarding
incidents occurring at the facility that disrupted their lives — namely, obscenities and loud
noises emanating from it every morning. Residents also detailed their apprehension
about the potential for escapes occurring from the facility, as well as their fears that
escapees would cause property damage. Evidence was presented to the governing body
that such escapes had already occurred when the facility was operating in an unlicensed
manner, and that, during the time searches were underway for the escapees, the facility’s
operators advised them of the necessity to take precautions. Additionally, the governing
body received evidence that a similar facility operated by the same owners in another
county had sustained property damage, and that the owners had expressly disclaimed
responsibility for any property damage caused by escapees. Based on this evidence, the
governing body denied the conditional use application on the grounds that it did not meet
the objective criteria of the zoning ordinance governing the grant of a conditional use
permit, and that, even assuming arguendo that it did, denial would have been justified
because the proposed use “would have a detrimental effect on the welfare of the
community.” Visionquest, 569 A.2d at 916-17.
In reviewing the denial, the trial court found that the applicant had met the criteria
established by the zoning ordinance for the grant of the conditional use exception.
However, the trial court, relying on the evidence relating to the facility’s operations inside
the township, and the incidents of property damage arising out of the operation of a similar
facility in another county, upheld the denial. The court found that this evidence supported
a finding that denial was warranted because of detriment to the community. Id. at 917.
The Commonwealth Court reversed on the basis that the evidence constituted only
“unsupported anxieties” and established only “the mere possibility of an adverse impact,”
which was insufficient to establish detriment. Id.
[J-70-2018] - 27
Our Court, in turn, reversed the Commonwealth Court ruling. We determined that
the evidence received by the governing body, detailed above, including that provided by
the residents of the community regarding how the facility impacted their day-to-day lives
while it was in operation, was sufficient to enable the objectors to demonstrate detriment.
We expressly rejected the Commonwealth Court’s conclusion that this testimony
constituted only “bald assertions,” or “unsupported anxieties,” because the residents’
testimony was based on their own firsthand experiences with the operation of the facility.
Although the facility at issue in Visionquest was located within the community in
which it sought to continue its operation, we discern no reason why that decision’s
underlying rationale — that firsthand experiences with a particular type of land use by
people living near it are relevant and probative evidence for a local government to
consider in evaluating whether a similar land use activity conducted by the same entity,
in a similar manner, and in a similar type of location will pose a detriment to its community
— should not be applicable to the case at bar. Although the Commonwealth Court and
EQT attach great significance to the fact that the Union Township residents did not
present evidence regarding how the Bickerton site would specifically impact the lives of
Borough residents, as the Borough and the dissent below have emphasized, the evidence
of record in this matter, which is not disputed by EQT, demonstrated that there is a
significant degree of similarity between the nature of the proposed land use at the
Bickerton site and the present use of the Trax Farm site.
The unrebutted evidence provided through the testimony of the Union Township
objectors, discussed above, considered in its entirety, established that EQT’s Trax Farm
site was of a similar nature to its proposed Bickerton site.12 Because EQT would be
12 As to the dissent’s contention that EQT had no burden to rebut Objectors’ evidence
given the dissent’s conclusion that such evidence lacked proper foundation, Dissenting
Opinion (Mundy, J.) at 5, we make the following observation. As discussed supra, the
[J-70-2018] - 28
conducting drilling activities at the Bickerton site in the same manner as the Trax Farm
site, once the Bickerton site is completed, and fracking begins there, both sites will feature
multiple unconventional well pads on which EQT will be drilling for natural gas and
conducting other operational activities associated with that process on a round-the-clock
basis, and both sites are located in similar close proximity to residences.
This similarity rendered the testimony of the Union Township residents, as to their
firsthand actual experiences with the effects of the construction and operational activities
at the Trax Farm site, relevant and probative as to the question of whether the grant of
conditional use approval to EQT for construction and operation of the Bickerton site would
adversely impact the health, safety, and general welfare of the residents of Jefferson
Borough. As Professor Wigmore has explained:
The general logical requirement is . . . that when a thing’s
capacity or tendency to produce an effect of a given sort is to
be evidenced by instances of the same effect found attending
the same thing elsewhere, these other instances have
probative value--i.e., are relevant--to show such a tendency
or capacity only if the conditions or circumstances in the other
instances are similar to those in the case at hand.
***
But this similarity need not be precise in every detail. It need
include only those circumstances or conditions which might
conceivably have some influence in affecting the result in
question. . . . The similarity that is required is, in short, a
similarity in essential circumstances, or, as it is usually
Borough’s zoning ordinance required that, in addition to demonstrating compliance with
the conditions for grant of a conditional use set forth in the Borough’s ordinance, an
applicant for a conditional use “shall demonstrate” that “[t]he use shall not endanger the
public health, safety or welfare nor deteriorate the environment, as a result of being
located on the property where it is proposed.” Borough of Jefferson Hills Zoning
Ordinance § 1003(a). Thus, under this ordinance, in order to be granted a conditional
use, EQT was required to establish these additional criteria. It was on the basis of
Objectors’ unrebutted testimony that the Borough Council found that EQT never carried
this burden of proof. Jefferson Township Council Decision on EQT Conditional Use
Application, 12/23/15, at 26. As a result, whatever the basis for EQT’s decision not to
rebut Objectors’ evidence, it ran the risk that the Borough, and ultimately this Court, would
conclude that such evidence was properly admitted.
[J-70-2018] - 29
expressed, a substantial similarity, i.e., a similarity in such
circumstances or conditions as might supposably affect the
result in question
David P. Leonard, The New Wigmore. A Treatise on Evidence: Evidence of Other
Misconduct and Similar Events. § 14.3 (2018) (footnotes, internal quotation marks and
original emphasis omitted).
Thus, the testimony of the Union Township objectors as to the foul stenches,
intense vibrations, loud and penetrating sounds, and increased levels of traffic and air
and light pollution they continuously endured, in and around their homes, was both
relevant and probative in establishing the potential adverse impacts which Jefferson
Borough residents living near the Bickerton site reasonably could expect. Likewise, the
numerous health effects, and the significantly diminished quality of day-to-day life
experienced by the Union Township objectors, which they perceived to be caused by their
exposure to these phenomena, was relevant and probative of how the health and overall
welfare of Jefferson Borough residents reasonably could be diminished by the operation
of the Bickerton site, if it were approved.
Similarly, testimony about EQT’s proffer of waiver agreements to residents living
near the Trax Farm site in response to the deleterious effects they perceived EQT’s
drilling activities to be causing to both the value of their property, and their ability to use
and enjoy it, was suggestive of a practice by EQT to not terminate activities which were
adversely affecting residents living near its well sites, but, instead, to pay them so that
EQT could continue those activities without alteration.13 This was both relevant and
13 In response to the dissent’s observation that, in the easement agreements, EQT
denied responsibility for causing the harms of which the residents complained, Dissenting
Opinion (Mundy, J.) at 4-5, we presume that Council, having received this evidence, was
aware of this denial. However, as finder of fact, it was free to assign whatever weight that
it deemed appropriate to this evidence. Moreover, it is not any putative assignment of
liability in the agreements themselves which gave them relevance; rather, the agreements
[J-70-2018] - 30
probative of how EQT reasonably could be expected to handle complaints from Jefferson
Borough residents living near the Bickerton site, and to respond to the concerns of
Borough residents who complained of similar negative impacts.
In sum, then, we conclude that the testimonial evidence of the Union Township
objectors was both relevant and probative as to the question of whether the grant of
conditional use authorization to EQT for construction and operation of the Bickerton site
would adversely impact the health, safety, and general welfare of the residents of
Jefferson Borough; therefore, it was properly received and considered by Council in
rendering its decision on EQT’s application. The Commonwealth Court panel improperly
characterized this firsthand experiential evidence as “speculative”; therefore, we are
constrained to vacate the order of the Commonwealth Court and remand to that tribunal,
with instructions to remand this matter to the trial court to reconsider its decision in light
of this opinion.
Order vacated and case remanded with instructions. Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Wecht join the
opinion.
Justice Mundy files a dissenting opinion.
were probative of the practice of EQT in responding to residents’ complaints about how
its drilling activities were affecting their health and property.
[J-70-2018] - 31