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Received 03/16/2015 Commonwealth Court of Pennsylvania
Filed 03/16/2015 Commonwealth Court of Pennsylvania
1735 CD 2014
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
No. 1735 CD 2014
BRIAN GORSLINE,DAWN GORSLINE,PAUL BATKOWSKI,AND MICHELE
BATKOWSKI
Appellees
v.
BOARD OF SUPERVISORS OF FAIRFIELD TOWNSHIP
Appellee
v.
INFLECTION ENERGY,LLC,DONALD H. SHAHEEN, AND ELEANOR R. SHAHEEN
Appellants
BRIEF OF AMICUS CURIAE DELAWARE RIVERKEEPER NETWORK
IN SUPPORT OF APPELLEES GORSLINE AND BATKOWSKI
Appeal of Inflection Energy, LLC,Donald H. Shaheen, and Eleanor R. Shaheen from the
Opinion and Order of the Court of Common Pleas of Lycoming County entered August 29,2014
at No.1400130
John M. Smith, Esquire
Pa. I.D. No. 75663
Jennifer Schiavoni, Esquire
Smith Butz, LLC
125 Technology Drive
Suite 202
Bailey Center I, Southpointe
Canonsburg,PA 15317
Jonathan M.Kamin,Esquire
Pa. I.D. No. 81958
Jason T. Zollett, Esquire
Goldberg, Kamin & Garvin
LLP
1806 Frick Building
Pittsburgh, PA 15219
Jordan B. Yeager, Esquire
Pa. I.D. No. 72947
Lauren M. Williams, Esquire
Curtin & Heefner LLP
Doylestown Commerce Center
2005 S. Easton Rd, Suite 100
Doylestown,PA 18901
COUNSEL FOR AMICUS CURIAE DELAWARE RIVERKEEPER NETWORK
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TABLE OF CONTENTS
TABLE OF AUTHORITIES
ii
STATEMENT OF INTEREST
1
ARGLJMENT
3
CONCLUSION
9
CERTIFICATE OF SERVICE
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1
TABLE OF AUTHORITIES
Cases
Gorsline, et al. v. Bd. of Supervisors of Fairfield Twp., et al., Docket No.
3
14-000130(Lycoming Cnty. Ct. Common Pleas, Aug. 29, 2014)
Hock v. Bd. of Sup'rs of Mount Pleasant Twp.,622 A.2d 431, 434
(Pa. Commw. Ct. 1993).
7
Main St. Dev. Grp., Inc. v. Tinicum Twp. Bd. of Supervisors, 19 A.3d
21, 29(Pa. Commw. Ct. 2011)
7
Robinson Township, Delaware Riverkeeper Network, et al.v. Commonwealth,83
1,3
A.3d 901 (Pa. 2013)
Robinson Twp., Delaware Riverkeeper Network, et al. v. Com., 52 A.3d
463,483 (Pa. Commw. Ct. 2012) affd in part, rev'd in part by 83 A.3d
1,5,6,7,8,9
901 (Pa. 2013)
Suhy v. Zoning Bd. of Adjustment of City ofPhiladelphia, 169 A 2d
62(Pa. 1961)
7
Swade v. Zoning Board of Adj. of Springfield Twp., 140 A.2d 597,
598 (Pa. 1958)
6
Vill. of Belle Terre v. Boraas, 416 U.S. 1,9(1974)
6
Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926)
6
Statutes
Pa. Const. Art. I, Section 1
3,4
Pa. Const. Art. I, Section 27
1,3
5
58 Pa.C.S. § 3304
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STATEMENT OF INTEREST
Delaware Riverkeeper Network("DRN”)is a non-profit organization
established in 1988 to protect and restore the Delaware River, its associated
watershed, tributaries, and habitats. DRN also works in communities outside the
Delaware River watershed to support organization members with shared interests
in protecting water quality, quality of life, public trust resources, and the
constitutionally-protected environmental rights in members communities.
DRN was an integral party to the Pennsylvania Supreme Court's decision in
Robinson Township, Delaware Riverkeeper Network, et al. v. Commonwealth,
which recognized the significant rights protected under Article I, Section 27 ofthe
Pennsylvania Constitution and reaffirmed that all citizens have an inalienable right
to a clean and healthy environment.
DRN established a new initiative, For the Generations, to: 1) ensure that the
Pennsylvania Environmental Rights Amendment is further strengthened in the
wake ofthe Robinson Township, Delaware Riverkeeper Network decision; 2)
pursue and secure constitutional protection of environmental rights in states across
the nation; 3) pursue and secure recognition of environmental rights at the federal
level through constitutional amendment; and 4)ensure governments at the local
level, state level, and federal level honor the rights of all people to pure water,
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clean air and healthy environments in the laws they enact, the decisions they make,
and the actions they pursue.
As a result, DRN works with and supports local groups who are fighting to
protect their communities and their constitutional rights to a clean and healthy
place in which to live. For example,DRN has partnered with members of the Mars
Parent Group in Middlesex Township, Butler County to challenge zoning changes
which would allow drilling in over 90% ofthe Township, including near the Mars
Area School District campus. The zoning changes also placed compressor stations
in non-industrial areas near fainis and homes.
DRN files this amicus curiae brief in support of Appellees Gorsline and
Batkowski.
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2
ARGUMENT
Amicus curiae DRN respectfully encourages this Honorable Court to affirm
the decision ofthe Lycoming County Court of Common Pleas. Municipal action
that would allow industrial gas development activity in non-industrial zoning
districts is inconsistent with fundamental principles ofzoning law and runs afoul of
the rights of citizens under Article I, Section 1 and Article I, Section 27 ofthe
Pennsylvania Constitution.
Municipalities must balance property rights with constitutionally-protected
rights to clean air and pure water, and with the rights of present and future
generations to healthy public natural resources. Robinson Township, Delaware
Riverkeeper Network, et al.v. Commonwealth, 83 A.3d 901 (Pa. 2013). Likewise,
municipalities must balance the property rights of all those in a community, as all
community members — not just those with gas leases — have a right to the use and
enjoyment oftheir property.
To comply with these constitutional mandates, a municipality simply cannot
allow industrial gas development in non-industrial areas — whether via ordinance
enactments, or via conditional use approvals, such as here in Gorsline, that insert
industrial uses into non-industrial areas.
There is a significant problem across the state with municipalities enacting
the same types of ordinances at the local level that both this Court and the
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3
Pennsylvania Supreme Court in Robinson Township recognized as being
unconstitutional. Despite this Court's decision on Act 13, many municipalities are
enacting zoning provisions that are parallel to those that had been contained in Act
13. Municipalities are doing this without considering whether the ordinance
provisions protect the health, safety, morals and public welfare of local citizens,
creating doubt over whether the zoning is an improper exercise of the Township's
police power in violation of Article I, Section 1 of the Pennsylvania Constitution.
Many ofthese ordinances inject incompatible industrial uses into a non-industrial
district, in violation of the Township's own comprehensive plan, making the
ordinance irrational, in violation of Article I, Section 1 ofthe Pennsylvania
Constitution.
Municipalities that allow heavy industrial uses into zoning districts not
designed for any industrial uses at all do so at the substantial risk of upsetting the
expectations of local citizens who purchased homes there in reliance on the
existing non-industrial districts. Allowing industrial activity in non-industrial areas
set aside for farming, schools, open space preservation, and homes frequently
conflicts with the very purposes ofthe districts, and at times, the municipality's
own comprehensive plan.
These types of actions do not provide proper consideration of where such
activity would be most appropriate in the municipality based on existing
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4
development patterns, expectations, and natural resources. As a result, such
actions and ordinance provisions are therefore arbitrary and unreasonable, and bear
no substantial relation to protecting the public health, safety, and welfare.
As noted by the Commonwealth Court in Robinson Township, Delaware
Riverkeeper Network, et al v. Commonwealth, for zoning to be constitutional, it
"must be directed toward the community as a whole, concerned with the public
interest generally, and justified by a balancing of community costs and benefits.
These considerations have been summarized as requiring that zoning be in
conformance with a comprehensive plan for growth and development ofthe
community." Robinson Twp., Delaware Riverkeeper Network, et al. v. Com., 52
A.3d 463,483 (Pa. Commw. Ct. 2012)affd in part, rey'd in part by 83 A.3d 901
(Pa. 2013)(emphasis added). In Robinson Township, Delaware Riverkeeper
Network, et al. v. Commonwealth,the Commonwealth Court struck down
provisions of Act 13 of 2012 that would have required municipalities to allow gas
development in non-industrial districts. The Court, in analyzing the provisions,
determined that Section 3304 did not promote the public interest because
[t]he public interest in zoning is in the development and
use of land in a manner consistent with local
demographic and environmental concerns. 58 Pa.C.S. §
3304 requires zoning arnendrnents that must be normally
justified on the basis that they are in accord with the
comprehensive plan, not to promote oil and gas
operations that are incompatible with the uses by people
who have made investment decisions regarding
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5
businesses and homes on the assurance that the zoning
district would be developed in accordance with
comprehensive plan and would only allow compatible
uses.
Robinson Twp., Delaware Riverkeeper Network, et al. v. Com., 52 A.3d at 484
(emphasis added).
The Court further found that the zoning provisions of Act 13 made the local
zoning schemes irrational by injecting industrial and therefore incompatible uses
into non-industrial districts not slated for such uses; allowing industrial uses in
non-industrial districts makes the very designation of districts — the cornerstone of
zoning — irrational. Robinson Twp., Delaware Riverkeeper Network, et al. v. Com.,
52 A.3d at 484-85; see also Swade v. Zoning Board of Adj. of Springfield Twp.,
140 A.2d 597, 598 (Pa. 1958)("The very essence ofZoning is the designation of
certain areas for different use purposes."); Vill. of Belle Terre v. Boraas, 416 U.S.
1,9(1974); Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926).
Act 13 also applied standards appropriate only in heavy industrial zones to
industrial uses placed in residential and agricultural zones next to homes and
schools, only exacerbating the incompatibility. Robinson Twp., Delaware
Riverkeeper Network, et al., 52 A.3d at 484.
Local government action such as granting conditional use approvals that
cause such results also suffer these same faults. Municipalities establish particular
expectations via the purpose statement ofthe district and the uses allowed.
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6
Allowing industrial development in a residential or agricultural district that is not
compatible with the other uses in the district unreasonably disturbs residents'
expectations established by the zoning ordinance, and makes the ordinance
irrational. See Robinson Twp., Delaware Riverkeeper Network, et al., 52 A.3d at
484-85 aff d in part, rev'd in part by 83 A.3d 901 (Pa. 2013); Main St. Dev. Grp.,
Inc. v. Tinicum Twp. Bd. of Supervisors, 19 A.3d 21, 29(Pa. Commw. Ct. 2011)
(finding unconstitutional an ordinance provision that "create[d] agricultural
districts out of districts with non-agricultural stated purposes . . . completely
changing the expectations created by the Ordinance in the non-agricultural
districts"); Hock v. Bd. of Sup'rs of Mount Pleasant Twp.,622 A.2d 431,434(Pa.
Commw. Ct. 1993)(similar); compare Suhy v. Zoning Bd. of Adjustment of City
of Philadelphia, 169 A.2d 62(Pa. 1961)(finding gas station owner not entitled to
sell cars, trucks, and trailers on property zoned commercial but bordered on three
sides by residential uses due to potential disruption of character ofthe area).
Shale gas wellsite development exposes residents, their children, pets,
livestock, and property to air pollution and industrial risks such as blowouts, spills,
and explosions. New wellpads allow for industrial use next door for many years to
come as companies drill and frack more wells, re-frack old wells, and drill existing
wells deeper. Further, proliferation of gas wellpads means proliferation of
compressor stations, pipelines, and processing facilities used to transport and
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7
transform the gas into a marketable product. These operations threaten to disrupt
open space preservation, and contaminate agricultural soils and the water supplies
relied on by residents, farmers and other businesses. In addition, wellsite
development frequently occurs twenty-four(24)hours a day, seven(7) days a
week during drilling and fracking, exposing neighbors to loud noise, vibrations,
and bright light at 3 A.M. in a district where no other such operations are allowed.
An industrial unconventional gas well site next door to a person's home
abruptly upsets the expectations that accompany buying a home in a quiet,
residential or agricultural area. Instead, residents face industrial operations for
years to corne; diminishing the value of their property; injecting a source of
industrial air pollution in an area in which there was no expectation of such
activity. The incursion of industrial gas development subjects families to roundthe-clock lighting, flaring, truck traffic, dust, and noise, particularly during active
drilling and fracturing. With such activities comes a risk of industrial accidents that
will force residents to evacuate due to their proximity to the proposed site.
Unconventional natural gas development is simply not "compatible" with
residential and agricultural development. See Robinson Twp., Delaware
Riverkeeper Network, et al.v. Com.,52 A.3d 463,485 n. 23 (Pa. Commw. Ct.
2012) aff d in part, rev'd in part by 83 A.3d 901 (Pa. 2013)("What we have under
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8
Act 13 is a 'spot use where oil and gas uses are singled out for different treatment
that is incompatible with other surrounding permitted uses.").
This industrial development degrades the rural atmosphere ofthe area,
removes agricultural soils(such as prime agricultural soils) from future use by
developing over them, and will deteriorate residential and institutional growth, and
endangers the water supplies that rural residents rely upon. By allowing industrial
shale gas development in non-industrial districts, and where it may also conflict
with the municipality's community development objectives and/or comprehensive
plan, a municipality's actions are arbitrary and unconstitutional, as they establish
an irrational zoning framework. See Robinson Twp., Delaware Riverkeeper
Network, et al. v. Com., 52 A.3d at 484-85.
CONCLUSION
For the foregoing reasons, Amicus Curiae DRN respectfully encourages that
the Court affirm the decision ofthe Lycoming County Court of Common Pleas.
Respectfully Submitted,
Date: 3/16/2015
BY:/s/Jordan B. Yeager
John M. Smith, Esquire
Pa. I.D. No. 75663
Jennifer Schiavoni, Esquire
Smith Butz, LLC
125 Technology Drive
Suite 202
Bailey Center I, Southpointe
Canonsburg,PA 15317
[email protected]
Jonathan M. Kamin, Esquire
Pa. I.D. No. 81958
Jason T. Zollett, Esquire
Goldberg, Kamin & Garvin
LLP
1806 Frick Building
Pittsburgh,PA 15219
[email protected]
Jordan B. Yeager, Esquire
Pa. I.D. No. 72947
Lauren M. Williams, Esquire
Curtin & Heefner LLP
Doylestown Commerce Center
2005 S. Easton Rd, Suite 100
Doylestown,PA 18901
[email protected]
Counselfor Amicus Curiae Delaware Riverkeeper Network
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9
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy ofthe
foregoing was served on this date to the following:
Via Electronic Service
Susan J. Smith, Esq.
The Law Office of Susan J. Smith
2807 Market Street
Camp Hill, PA 17011
Via First Class Mail
Joshua Joseph Cochran, Esq.
Schemery Zicolello, P.C.
333 Market Street
Williamsport,PA 17701-6329
Date: 3/16/2015
James Michael Wiley, Esq.
McCormick Law Firm
835 W.4th Street
PO Box 577
Williamsport, PA 17701
Timothy A. Schoonover, Esq.
Blaine A. Lucas, Esq.
Krista-Ann M. Staley, Esq.
Babst, Calland, Clements and
Zomnir, P.C.
Two Gateway Center
6th Floor
Pittsburgh, PA 15222
/s/Jordan B. Yeager
Jordan B. Yeager, Esquire
Pa. I.D. No. 72947
Curtin & Heefner LLP
2005 S. Easton Road, Suite 100
Doylestown,PA 18901
(267) 898-0570
[email protected]
Counselfor Amicus Curiae Delaware
Riverkeeper Network
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