B. Gorsline v. Board of Supervisors of Fairfield Twp. v. Inflection Energy, LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian Gorsline, Dawn Gorsline, :
Paul Batkowski and Michele :
Batkowski :
:
v. : No. 1735 C.D. 2014
: Argued: June 15, 2015
Board of Supervisors of Fairfield :
Township :
:
v. :
:
Inflection Energy, LLC and :
Donald Shaheen and :
Eleanor Shaheen, his wife, :
Appellants :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION
BY JUDGE LEAVITT FILED: September 14, 2015
Inflection Energy, LLC and Donald and Eleanor Shaheen appeal an
order of the Court of Common Pleas of Lycoming County (trial court) that denied
Inflection’s application to construct and operate a natural gas well on land it has
leased from the Shaheens.1 In so doing, the trial court set aside the order of the
Board of Supervisors of Fairfield Township granting a conditional use permit for
the well. We reverse the trial court.
1
The Marcellus Shale Coalition has filed an amicus curiae brief on behalf of Inflection, one of
its members.
Background
Inflection proposes to locate a natural gas well on land in Fairfield
Township’s Residential Agriculture (RA) District. The Township has three zoning
districts: the RA District, the General Commercial District and the Industrial
District. Most of the land in the Township has been assigned to the RA District.
Because the Fairfield Township Zoning Ordinance (October 16, 2007), as
amended (Zoning Ordinance), does not specifically authorize natural gas wells,
Inflection applied for a conditional use permit under the “savings clause,” which
authorizes the Board of Supervisors to grant a conditional use where a proposed
use is not specifically authorized anywhere in the Township. In that case, the
applicant must show that the proposed use is consistent with the uses that are
permitted in the zoning district and with the public health and safety. ZONING
ORDINANCE, §12.18.2 The Township’s Board of Supervisors had previously
granted conditional use approval for four other natural gas wells in the RA District.
The Board of Supervisors scheduled a public hearing on Inflection’s
application, which was opposed by Appellees Brian and Dawn Gorsline and Paul
and Michele Batkowski and other neighbors (collectively, Neighboring
Landowners). They expressed concern that the project would adversely affect their
well water, as well as the stream located on the Shaheen property. They were also
concerned about truck traffic, noise, light pollution from nighttime operations, the
criminal record of employees that Inflection may hire to work at its well and how
the well could affect their property values.3
2
The text of Section 12.18 of the Zoning Ordinance is set forth infra. See also Reproduced
Record at 493a (R.R. ___).
3
The Delaware Riverkeeper Network filed an amicus curiae brief in support of Neighboring
Landowners.
2
At the first hearing, Thomas M. Erwin,4 Inflection’s senior field
operations manager, testified. Erwin, who holds a M.A. in Engineering and has 35
years of experience in the oil and gas industry, was accepted as an expert in the
design, permitting, and development of gas wells.
Erwin began by noting that the Shaheen property consists of 59.88
acres, has no buildings and is currently used for farming. The only improvement is
the farm access road. Inflection’s well pad will measure 300 feet by 350 feet
during construction and 150 feet by 150 feet after construction. The natural gas
well operation will include a level pad, a well head, a water impoundment for
2,000,000 gallons of water, and sediment and erosion controls. The well pad will
be located at the lowest visible point on the property. Erwin explained that
Inflection will
probably drill two wells off the pad initially, and then it
depends upon the results. You could drill more wells off of that
pad.
Reproduced Record at 15a (R.R. __). The farm access road will be improved to
connect the well pad to Quaker State Road and will be constructed to meet
applicable safety standards. The remainder of the Shaheen property will continue
to be farmed.
During the 90-day construction period, an average of 35 trucks will
visit the site per day. Many more will be required when the road is graveled. A
total of 120 trucks will enter the property during the drilling phase and 225 during
the completion phase. Once each well becomes operational, it is unmanned; one
pick-up truck a day will visit the well. Inflection plans to provide water by
4
His name was spelled “Irwin” in the transcript, which was not correct. Inflection Brief at 7.
3
pipeline, but if that does not work, water will have to be brought in by truck. The
amount of water needed depends on the number of “fracs” done. R.R. 46a.
Erwin estimated that the well, which will run for 24 hours a day,
would be used for nine months. He acknowledged that Inflection had been at a
well site in Eldred, Pennsylvania for over a year and continues to drill on the
property.5
Erwin testified that there is one home within 1,000 feet of the well pad
and a large residential development within 3,000 feet of the well pad. There are
more than 125 water wells within a 3,000-foot radius of the proposed well pad;
water samples will be taken from these wells before drilling begins. Erwin stated
that the well operation would not create noise, nighttime lighting or odors. The
drilling phase will produce noise, but it will be abated with bales of hay. Further,
Erwin stated that Inflection will work with neighbors should they develop concerns
about noise.
Neighboring Landowners questioned Erwin about the potential for
contaminating water wells, the noise, the increase in truck traffic and the potential
for employees at the well pad posing a risk to the safety of the community. The
Board continued the proceeding so that Inflection could provide additional
evidence regarding these concerns of Neighboring Landowners.
At the second hearing, Inflection produced its plan for Quaker State
Road. It also provided its Master Service Agreement, which requires all
employees to pass a criminal background check. Inflection also presented Thomas
D. Gillespie, P.G., who is Inflection’s director of regulatory and environmental
5
Inflection’s erosion and sediment control plan states that Inflection will be drilling and
completing numerous wells on a rotating basis and will be in the well drilling and well
completion stage at the Shaheen well site for two to three years.
4
affairs and a licensed geologist for over 30 years. He testified in response to the
health and safety concerns raised by Neighboring Landowners.
Gillespie testified about the stream and wetlands on the Shaheen
property. He explained that Inflection’s erosion and sediment control plan for the
stream was approved by the Pennsylvania Department of Environmental Protection
(DEP). The plan evaluated the entire site for storm water runoff, erosion, and
sediment transport. It also accounts for the water to be used at the site for fracking
and ensures that there will be no increase in erosion. Gillespie explained that the
well pad will not involve that part of the Shaheen property that is a wetland.
Further, the approved plan obligates Inflection not to flood the wetland or,
alternatively, starve it of water.
Neighboring Landowners questioned Gillespie. He reiterated that the
plan was designed to prevent any environmental insults. Nevertheless, in the
unlikely event a neighbor’s well or land was affected, Inflection would “set it right
until you and every regulator involved is satisfied.” R.R. 298a. Gillespie
explained that a well is drilled close to a mile below the surface, which is far below
the water that serves Neighboring Landowners’ wells.
Gillespie was asked about the expected truck count per day, as
opposed to the aggregate truck count for the project. He responded that in addition
to the average of 35 trucks per day during the 90-day construction phase, there
would be 150 trucks per day during the drilling phase, which lasts about a week for
each well. Thereafter, truck traffic would be minimal.
Neighboring Landowners did not present any evidence in opposition
to that presented by Inflection. They did, at the Board’s invitation, make
statements. One of them, Gorsline, used his statement to provide a report from
DEP that listed citations that had been issued to Inflection at other gas drilling
operations.
5
Board of Supervisors’ Decision
The Board of Supervisors found, first, that Inflection’s proposed use
was neither permitted nor denied anywhere in the Township. It then concluded:
3. As Applicant’s request is governed by Section 12.18 of the
[Zoning] Ordinance, the [Board] must follow the procedure set
forth in Section 14.2 of the [Zoning] Ordinance and consider
the factors set forth in Section 12.1 of the [Zoning] Ordinance.
Board Decision, Conclusion of Law No. 3. The Board focused its 23-page
decision to the question of whether Inflection satisfied the standards for a
conditional use under Section 14.2.5 of the Zoning Ordinance.6 In general,
Section 14.2.5 requires the conditional use not to: adversely affect the
neighborhood; create an undue nuisance or serious hazard; adversely impact the
area economically; or create excessive noise, glare or odor. Further, the
conditional use must satisfy standards for traffic, parking, and waste disposal. The
Board concluded that Inflection met its burden on each of these factors.
6
Section 14.2.5 states, in relevant part, as follows:
The Supervisors shall, in making decisions on each application for a Conditional
Use, consider the following general criteria, in addition to the special criteria
established elsewhere in this Ordinance.
14.2.5.1 the purpose .. and compatibility of the requested conditional use…;
14.2.5.2 whether the specific site is an appropriate location for the use…;
14.2.5.3 whether the use developed will adversely affect the neighborhood;
14.2.5.4
whether the use will create undue nuisance or serious hazard…;
14.2.5.5
whether [the use will be properly operated];
14.2.5.6
the economic, noise, glare, or odor effect of the conditional use…;
14.2.5.7
whether satisfactory provision [has been made regarding traffic flow,
parking, waste management, utilities and open spaces].
ZONING ORDINANCE, §14.2.5; R.R. 514a.
6
This conclusion created a presumption that Inflection’s proposed use
was consistent with the general welfare and safety of the public. Accordingly, the
burden shifted to Neighboring Landowners to rebut that presumption. The Board
held that Neighboring Landowners did not meet their burden. Neighboring
Landowners expressed concerns about their property values, their drinking water
quality, increased truck traffic and noise, but their concerns were based on
speculation. Neighboring Landowners did not present any evidence to substantiate
their concerns.
The Board approved Inflection’s conditional use application, subject
to 14 conditions. The conditions placed restrictions on over-weight vehicles;
required the posting of the weekly schedule of over-weight vehicles; prohibited
Inflection from parking vehicles on the Township’s right-of-ways; required
Inflection to install and maintain warning signs along Township roads to warn
motorists; required Inflection to comply with Township standards for light, noise
and odor; required Inflection to screen the well operations from residential
properties; and required Inflection to comply with all federal, state and local
permits.
Trial Court Decision
Neighboring Landowners appealed to the trial court, which did not
take additional evidence. The trial court agreed that the proposed use was neither
permitted nor denied in any zoning district in the Township and therefore was
governed by the “savings clause” set forth in Section 12.18 of the Zoning
Ordinance. It states:
Whenever, under this Ordinance, a use is neither specifically
permitted or denied, and an application is made by an applicant
to the Zoning Officer for such a use, the Zoning Officer shall
refer the application to the Board of Supervisors to hear and
decide such request as a conditional use. The Board of
7
Supervisors shall have the authority to permit the use or deny
the use in accordance with the standards governing conditional
use applications set forth in Section 14.2 of the Ordinance. In
addition, the use may only be permitted if:
12.18.1 It is similar to and compatible with other uses
permitted in the zone where the subject property is located;
12.18.2 It is not permitted in any other zone under the terms
of this Ordinance; and
12.18.3 It in no way is in conflict with the general purpose
of this Ordinance.
The burden of proof shall be upon the applicant to demonstrate
that the proposed use meets the foregoing criteria and would
not be detrimental to the public health, safety and welfare of the
neighborhood where it is to be located.
ZONING ORDINANCE, §12.18; R.R. 493a (emphasis added). Noting that it was
Inflection’s burden to satisfy each factor in Section 12.18, the trial court held that it
did not do so. Accordingly, it reversed the Board’s grant of the conditional use
permit to Inflection.
In its reversal decision, the trial court first considered whether
Inflection’s proposed well was similar to other uses expressly permitted in the RA
District. The trial court criticized Inflection’s application as too imprecise to do
this comparison. For example, Inflection was uncertain how many wells would be
drilled; how much water would be used; how long it would be at the site; or
whether the horizontal drilling would reach land adjacent to the Shaheens. The
trial court rejected Erwin’s testimony that Inflection’s proposed well was similar to
a public service facility. The trial court also found that Inflection’s operation of
four other well pads in the Township’s RA District was irrelevant because
Inflection did not present specific information about those other wells.
8
The trial court then considered whether Inflection’s proposed well
was compatible with other uses permitted in the RA District. Section 4.1 of the
Zoning Ordinance states as follows:
The purpose of the Residential Agriculture District is to
encourage the continued use of the areas of the Township for
rural living including open space, agricultural, and residential
uses. Such uses typically do not require public utilities or
community services. Uses which specify the provision of
community or public utilities may be feasible in certain
locations in Fairfield Township provided that the developer is
able to furnish the necessary utility infrastructure.
ZONING ORDINANCE, §4.1; R.R. 410a. In addition, Section 3.1 of the Zoning
Ordinance describes the RA District as follows:
This District is generally intended for application to rural
development areas where public and sewer facilities are not
presently available and may not be available in the near or
immediate future. The purpose of the regulations for this
district is to foster a quiet, medium-density residential
environment while encouraging the continuation of agricultural
activities and the preservation of prime farmland. To this end,
lot sizes are based upon the need to safeguard the health of the
citizens by requiring ample space for the placement of on-lot
sewage and water facilities, but yet providing for reduction of
these minimum requirements where public sewer and/or water
systems are developed. Industrial uses are discouraged in this
district; compatible public and semi-public uses such as
schools, churches, and recreational facilities are provided for;
and higher density residential development may be permitted
under certain conditions.
ZONING ORDINANCE, §3.1; R.R. 408a (emphasis added).
Noting that the RA District is intended for homes and farming, which
are quiet uses, the trial court concluded that Inflection’s proposed well was not a
9
compatible use. The trial court cited the number of truck deliveries that would be
needed during the construction phase to deliver the gravel, the drilling rigs and
installation of the water pipeline. If a pipeline was not authorized, thousands of
truck deliveries would be needed to deliver water to the site. The truck traffic was
expected to run 24 hours a day.
The trial court found Erwin’s testimony regarding noise inconsistent.
Although he stated that there would not be “much” noise, he also stated that
Inflection would attempt to reduce noise. When asked whether fracking caused
loud noises, Erwin stated, “It’s loud, and like I have said, we will try and take care
of the neighbors.” R.R. 67a.
Finally, the trial court held that Inflection did not prove that its
proposed use would not be detrimental to the public health, safety and welfare of
the neighborhood. Neighboring Landowners flagged numerous concerns about the
noise and lights generated by an operation that would run all night long and seven
days a week. Gorsline’s report from DEP showed that Inflection had been cited in
2013 for failing to properly control or dispose of industrial waste to prevent water
pollution. Over a period of five years DEP found 600 violations at the 180 wells it
inspected in Lycoming County.
The trial court granted Neighboring Landowners’ appeal, nullifying
the decision of the Board of Supervisors to grant Inflection a conditional use
permit. Inflection appealed to this Court.
10
Appeal
On appeal,7 Inflection raises four issues. First it contends that the
trial court erred in holding that Inflection did not prove that its well would be
similar to and compatible with uses permitted in the RA District and in no way
contrary to the general purpose of the Zoning Ordinance. Second, it contends that
the trial court erred in holding that Inflection did not meet its burden of proving
that its proposed use would not be detrimental to the health, safety and welfare of
the neighborhood. Third, it contends that the trial court erred because it gave no
consideration to the 14 conditions imposed by the Board. Fourth, the trial court
erred by considering issues that Neighboring Landowners did not raise in the
proceeding conducted by the Board.
Conditional Use
A conditional use involves the use of the land, as opposed to the
particular design details of the development. Joseph v. North Whitehall Township
Board of Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth. 2011). An applicant is
entitled to a conditional use as a matter of right, unless it is determined “that the
use does not satisfy the specific, objective criteria in the zoning ordinance for that
conditional use.” In re Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth.
2009). The applicant bears the burden of establishing that the proposed conditional
use satisfies the criteria in the zoning ordinance. Id. The zoning board is the fact-
finder, with the responsibility for credibility determinations and the weight to
assign the evidence. Joseph, 16 A.3d at 1218. Further, the zoning board’s
7
Where, as here, the trial court did not take additional evidence, our review is limited to
determining whether the zoning board committed an error of law or abuse of discretion. Weiser
v. Latimore Township, 960 A.2d 924, 929 n.9 (Pa. Cmwlth. 2008).
11
“interpretation of its own ordinance is entitled to great deference and weight.” Id.
at 1215.
In some circumstances, the trial court may make its own findings of
fact. Section 1005-A of the Municipalities Planning Code (MPC) states as follows:
If, upon motion, it is shown that proper consideration of the
land use appeal requires the presentation of additional evidence,
a judge of the court may hold a hearing to receive additional
evidence, may remand the case to the body, agency or officer
whose decision or order has been brought up for review, or may
refer the case to a referee to receive additional evidence,
provided that appeals brought before the court pursuant to
section 916.1 shall not be remanded for further hearings before
any body, agency or officer of the municipality. If the record
below includes findings of fact made by the governing body,
board or agency whose decision or action is brought up for
review and the court does not take additional evidence or
appoint a referee to take additional evidence, the findings of the
governing body, board or agency shall not be disturbed by the
court if supported by substantial evidence. If the record does
not include findings of fact or if additional evidence is taken by
the court or by a referee, the court shall make its own findings
of fact based on the record below as supplemented by the
additional evidence, if any.
53 P.S. §11005-A (emphasis added).8 In short, the trial court may make its own
findings where it takes additional evidence or where the municipality or zoning
hearing board did not make findings of fact. Where the record contains findings
of fact, the trial court may reject those findings not supported by substantial
evidence. 53 P.S. §11005-A.
8
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.
§11005-A.
12
Analysis
The gravamen of Inflection’s appeal is that its proposed use is similar
to and compatible with uses allowed in the RA District either as a matter of right or
as a conditional use. These uses range from essential services and hunting camps
to parking garages, offices, funeral homes, and public service facilities. ZONING
ORDINANCE, §4.2.9 Inflection claims that its proposed well is similar to a “public
service facility,” which is defined as follows:
The erection, construction, alteration, operation or maintenance
of buildings, power plants or substation, water treatment plants
or pumping stations, sewage disposal or pumping plants and
other similar public service structures by a utility, whether
publicly or privately owned, or by a municipal or other
governmental agency, including the furnishing of electrical,
gas, communication, water supply and sewage disposal
services.
ZONING ORDINANCE, §2.2; R.R. 398a (emphasis added). Inflection asserts that
its well will serve the general public by producing natural gas for its use and
consumption. Further, the Board has already permitted four other gas well pads
within the RA District, which shows that Inflection’s proposed use is compatible
with other uses in the RA District.
9
Section 4.2.1 states that “Agriculture,” “Dwelling-Single Family Detached,” “Family Based
Group Home,” “Family Day Care Home,” “Essential Service,” “Forestry Activities,” “Home
Occupation,” and “Hunting Camp or Seasonal Dwelling” are permitted uses. ZONING
ORDINANCE, §4.2.1; R.R. 410a.
Section 4.2.2 permits “Agricultural Business,” “Bed and Breakfast Inn,” “Day Care
Center,” “Multiple Family Housing Development,” “Funeral Home,” “Group Care Facility,”
“Hospital, Hospital Administration & Support Uses,” “Mobile Home Park,” “Nursing or
Retirement, Assisted Living Facility,” “Parking Lot/Parking Garage,” “Professional Office,”
“Public or Quasi-Public Use,” “Public Service Facility,” “Recreation, Commercial,” and
“Recreation, Public” as conditional uses. ZONING ORDINANCE, §4.2.2; R.R. 410a-411a
(emphasis added).
13
Inflection also argues that the proposed use does not conflict with the
“general purposes of this [Zoning] Ordinance.” ZONING ORDINANCE, §12.18.3;
R.R. 493a. Indeed, Section 603(i) of the MPC requires a municipality’s regulation
of land use to provide for “reasonable development of minerals.” 53 P.S.
§10603(i). The Zoning Ordinance defines a “rural resource area” as “including …
mining, quarrying and other extractive industries….” ZONING ORDINANCE, §2.2;
R.R. 400a.
Neighboring Landowners counter that it was Inflection’s burden to
show that its natural gas development was similar to and compatible with other
uses permitted in the RA District, and it did not do so. Simply establishing that
other gas well pads were permitted in the RA District is not enough. Inflection had
the duty to show that its gas well pad “in no way is in conflict with the general
purposes of this [Zoning] Ordinance.” ZONING ORDINANCE, §12.18.3; R.R. 493a.
Landowners contend that Inflection did not do so.
The Township adopts the arguments of Inflection. It explains that
when it enacted the Zoning Ordinance, the “Marcellus Shale and oil and gas land
use was not in play.” Township Brief at 17. Therefore, “the [Zoning] Ordinance is
silent on oil and gas land uses.” Id. at 18. However, the savings clause in Section
12.18 authorizes uses not expressly identified where they are similar to and
compatible with other uses expressly permitted in the zoning district chosen by the
applicant. The Township contends the trial court improperly substituted its
judgment for that of the Board of Supervisors, which is empowered to make the
relevant factual findings and to apply the Zoning Ordinance standards to the
evidence. If the trial court believed that the Board was not sufficiently detailed in
its analysis, the appropriate remedy was to order a remand.
Section 1005-A of the MPC permits the trial court to make its own
findings where (1) it takes additional evidence or (2) “the record does not include
14
findings of fact.” 53 P.S. §11005-A. In Koutrakos v. Zoning Hearing Board of
Newtown Township, Delaware County, 685 A.2d 639 (Pa. Cmwlth. 1996), we
considered what is meant by a record without findings of fact. We explained that it
refers to instances where there is an order, but no decision, or where there has been
a deemed approval, “which normally implies an absence of board findings.” Id. at
641-42. Otherwise, the trial court is “precluded from making its own findings.”
Id. at 642.
In the case sub judice, the record contained detailed findings of fact.
The trial court did not take additional evidence or confront a record absent of
findings of fact. Indeed, the trial court itself claimed to be conducting appellate
review. Consistent with that form of review, the trial court held that the record
evidence did not support the Board’s conclusion that the proposed well was similar
to and compatible with uses authorized in the RA District. However, this did not
give the trial court authority to act as factfinder and substitute its credibility
determinations for those of the Board. Nor do we agree with the trial court’s
conclusion.
The principal problem with the trial court’s rejection of the Board’s
legal conclusion is that it was based upon a narrow view of what uses are
appropriate for the RA District. The Zoning Ordinance permits a wide range of
conditional uses in the RA District, including forestry operations, hunting camps,
hospitals, retirement homes, and commercial recreation. ZONING ORDINANCE,
§4.2.2; R.R. 410a-411a. Inflection notes that in contrast to the size of a hospital,
for example, a natural gas well will present a low physical profile and involve a
small footprint on the land. More to the point, its proposed well is similar to a
public service facility, which is expressly allowed in the RA District. Inflection
notes that the Board’s interpretation of its Zoning Ordinance is entitled to
deference.
15
In MarkWest Liberty Midstream & Resources, LLC v. Cecil Township
Zoning Hearing Board, 102 A.3d 549 (Pa. Cmwlth. 2014), petition for allowance
of appeal denied, 113 A.3d 281 (Pa. 2015), the zoning board denied MarkWest’s
application for a special exception to operate a natural gas compressor station in
the township’s light industrial zoning district. Its proposed facility involved up to
eight engines, surrounding sound structures, dehydration facilities, tanks, a vapor
recovery unit, a flare and associated piping. The closest residence was 1,000 feet
from the proposed facility. The zoning board denied the application for the stated
reason that MarkWest failed to establish that its facility would be similar to other
uses permitted in the zoning district or that its impact would be equal to or less
than that of other permitted uses. The trial court affirmed the board.
On appeal to this Court, MarkWest argued that its compressor station
had the same general character as an “essential service,” which was a use permitted
in the light industrial district. The zoning ordinance defined “essential service” as
follows:
The erection, construction, alteration, or maintenance, of gas,
electrical, and communication facilities; steam, fuel, or water
transmission or distribution systems; and collection, supply, or
disposal systems. Such systems may include poles, wires,
mains, drains, sewers, pipes, sewage treatment plants, conduits,
cables, fire alarm and police call boxes, traffic signals,
hydrants, and similar accessories. This definition is not
intended to include private commercial enterprises such as
cellular communications facilities, but only those public
facilities necessary for the health, safety, and general welfare of
the community.
MarkWest, 102 A.3d at 556 (emphasis added). The zoning board concluded that
the MarkWest compressor was different from an “essential service” because it
would not transmit natural gas to an “end user.” Id. at 557. This Court rejected
16
that conclusion because the zoning ordinance did not contain such a requirement.
Rather, an “essential service” was defined as “public facilities necessary for the
health, safety, and general welfare of the community.” Id. at 557. Further, the
zoning ordinance defined a “public service facility” as
[b]uildings, power plants or substations, water treatment plants
or pumping stations, sewage disposal or pumping plants, and
other similar public service structures used by a public utility ...,
whether publicly or privately owned, or by a municipal or other
government agency, including the furnishing of ... gas ...
services.
Id. at 558-59 (emphasis in original). We concluded that MarkWest’s compressor
had the “same general character” as an “essential service.” It was not necessary
that the proposed use be the “same” as a permitted use but only that it be “similar.”
MarkWest is directly on point. The Township’s Zoning Ordinance
defines a “public service facility” as follows:
The erection, construction, alteration, operation or maintenance
of buildings, power plants or substations, water treatment plants
or pumping station; sewage disposal or pumping plants and
other similar public service structures by a utility, whether
publicly or privately owned, or by a municipal or other
governmental agency, including the furnishing of electrical,
gas, communication, water supply and sewage disposal
services.
ZONING ORDINANCE, §2.2; R.R. 398a. Further, Section 4.2 of the Zoning
Ordinance defines “essential services” as follows:
Public utility facilities that do not require enclosure in a
building, including gas, electrical, steam, telephone, or water
distribution systems; and including related equipment such as
poles, towers, wires, mains, sewers, pipes, conduits, cables, fire
alarm boxes, police call boxes, traffic signals, hydrants and
other similar equipment.
17
ZONING ORDINANCE, §2.2; R.R. 387a.
Precisely as in MarkWest, Inflection’s proposed use satisfies the
requirement set forth in 12.18.1 of the Zoning Ordinance that it “is similar to and
compatible with other uses permitted in the zone where the subject property is
located.” ZONING ORDINANCE, §12.18.1; R.R. 493a. The evidence about
Inflection’s well was in no way rebutted, and the Board has already authorized
Inflection’s other wells in the RA District.
Proving that its proposed use is similar to and compatible with uses
expressly permitted in the RA District is not dispositive. Inflection also had the
burden to show that its proposed use does not “conflict with the general purposes
of this [Zoning] Ordinance.” ZONING ORDINANCE, §12.18.3; R.R. 493a. Again,
its evidence was uncontradicted. Inflection argues that its well will not conflict
with the general purpose of the Zoning Ordinance, which expressly authorizes the
extraction of minerals.10 ZONING ORDINANCE, §§12.18.1, 12.18.3; R.R. 493a.
In holding otherwise, the trial court conflated the general purpose of
the Zoning Ordinance with the requirement that the proposed use be similar to and
compatible with other uses allowed in the RA District. The trial court also erred in
focusing on the truck deliveries during the construction phase of the project
because “[z]oning regulates the use of land and not the particulars of development
and construction.” In re Thompson, 896 A.2d 659, 671 (Pa. Cmwlth. 2006).
We hold that Inflection’s proposed use met the threshold requirements
set forth in Sections 12.18.1 and 12.18.3 of the Zoning Ordinance. It is similar to
and compatible with the uses permitted in the RA District and does not conflict
with the general purpose of the Zoning Ordinance.
10
See ZONING ORDINANCE, §2.2; R.R. 400a (defining a “rural resource area” as “including ...
mining, quarrying and other extractive industries ....”).
18
In its second issue, Inflection argues that the trial court erred in
concluding that it did not prove that its natural gas well would “not be detrimental
to the public health, safety and welfare of the neighborhood where it is to be
located.” ZONING ORDINANCE, §12.18; R.R. 493a. Inflection presented expert
testimony on that issue, which the Board accepted. Neighboring Landowners
presented no evidence to the contrary.
Neighboring Landowners claim that the Township did not do its job.
They claim that the Township failed to obtain meaningful information from
Inflection about the storage and transportation of chemicals and wastewater and the
impact the well would have on the environment. They assert that “the record”
contains evidence that Inflection’s activities will constitute a nuisance and have a
noxious effect on the surrounding area due to noise, light, and traffic impacts.
Neighboring Landowners’ Brief at 47. However, they do not cite where in the
record this evidence is to be found.
Inflection’s oil and gas engineering expert, Thomas Erwin, testified
that once the gas well is constructed and drilling completed, its operation will not
create noise, light glare or odors noticeable to Township residents. Inflection’s
director of regulatory and environmental affairs, Thomas Gillespie, testified that
Inflection’s erosion and control plan had been approved by DEP. The plan
addressed storm water runoff, erosion, sediment transport and the water to be used
for fracking. He testified that the gas well would be drilled far below the
subsurface water that serves Neighboring Landowners’ wells.
The Board accepted this testimony. The Board acknowledged that
Neighboring Landowners expressed concerns but concluded that their “speculation
of possible harms” was insufficient to show that the proposed natural gas well will
be detrimental to the health, safety and welfare of the neighborhood. Sunnyside Up
Corporation v. City of Lancaster Zoning Hearing Board, 739 A.2d 644, 650 (Pa.
19
Cmwlth. 1999). See also Rural Area Concerned Citizens, Inc. v. Fayette County
Zoning Hearing Board, 646 A.2d 717, 723 (Pa. Cmwlth. 1994) (objectors’
arguments that proposed quarry would have detrimental effect on community did
not constitute substantial evidence that quarry use would affect health and safety of
community).
Nevertheless, the Board responded to the concerns of Neighboring
Landowners by imposing numerous conditions related to roadway maintenance,
traffic and parking. It also required Inflection to provide emergency contact
information upon request, visually screen the well from the neighborhood and
comply with all federal state and local permits and approvals. Specifically, the
Board stated:
Contingent upon the protections afforded by the conditions
attached to the approval of [Inflection’s] conditional use
request, the [Board] finds that the criteria for review set forth in
Sections 12.18, 14.2.5 and 12.1 have been sufficient[ly]
satisfied in that the application as submitted by [Inflection] with
the imposed conditions meets the requirements of the
Ordinance for conditional use approval, the site selected is
generally appropriate for the proposed uses, and no evidence
was offered that there would be any adverse impacts to the
surrounding neighborhoods or negative impacts to adjoining
properties that are not appropriately mitigated by the attached
conditions.
Board Decision, Conclusion of Law No. 20.
The questions asked by Neighboring Landowners did not constitute
probative evidence that Inflection’s natural gas well would be harmful to the
health, welfare and safety of the neighborhood. No evidence rebutted the evidence
presented by Inflection. Accordingly, the trial court erred in holding that
20
Inflection’s proposed well would present a detriment to the health and safety of the
neighborhood.
Conclusion
The trial court erred in holding that Inflection’s proposed use was not
similar to a public service facility, which is expressly permitted in the RA District
and compatible with other uses permitted in the RA District. The trial court also
erred in holding that Inflection’s proposed use conflicted with the general purpose
of the Zoning Ordinance, which specifically authorizes extraction of minerals.
Finally, there was no probative evidence offered to show that Inflection’s proposed
well will present a detriment to the health and safety of the neighborhood.
Inflection satisfied the requirements of Section 12.18 of the Zoning Ordinance.
For these reasons we reverse the order of the trial court.11
______________________________
MARY HANNAH LEAVITT, Judge
11
Inflection asserted that the trial court erred by stating it could consider additional claims raised
by Neighboring Landowners that were not raised before the Board. Those issues concerned
whether a gas well was permitted in the commercial zoning district and whether the gas well pad
impacted on Neighboring Landowners’ constitutional rights. The trial court found in favor of
Inflection on the first issue and reached no decision on the second. The constitutional claim was
that the proposed use violated Neighboring Landowners’ right of “enjoying and defending life
and liberty, [and] of acquiring, possessing and protecting property,” as expressed in Article I,
Section 1 of the Pennsylvania Constitution, and their right to “clean air, pure water and ... the
preservation of the … environment,” as guaranteed to all citizens in Article I, Section 27 of the
Pennsylvania Constitution. PA. CONST. Art. I, §§1, 27. This claim presumed that the proposed
use was not compatible with permitted uses in the RA District and would cause environmental
harm. Because the record supports the Board’s determination that Inflection’s proposed use is
compatible with the permitted uses in the RA District and no evidence of harm was presented,
Neighboring Landowners’ claims are unsupported by the accepted evidence of record.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brian Gorsline, Dawn Gorsline, :
Paul Batkowski and Michele :
Batkowski :
:
v. : No. 1735 C.D. 2014
:
Board of Supervisors of Fairfield :
Township :
:
v. :
Inflection Energy, LLC and :
Donald Shaheen and :
Eleanor Shaheen, his wife, :
Appellants :
ORDER
AND NOW, this 14th day of September, 2015, the order of the Court
of Common Pleas of Lycoming County, dated August 29, 2014, is REVERSED.
______________________________
MARY HANNAH LEAVITT, Judge