1. law, govt and politics

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
BRIAN GORSLINE,
DAWN GORSLINE,
PAUL BATKOWSKI, AND
MICHELE BATKOWSKI,
Appellees
v.
BOARD OF SUPERVISORS OF
FAIRFIELD TOWNSHIP,
Appellee
and
INFLECTION ENERGY, LLC,
DONALD H. SHAHEEN AND
ELEANOR R. SHAHEEN
Appellants
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NO. 1735 CD 2014
BRIEF OF APPELLEES BRIAN GORSLINE, DAWN GORSLINE,
PAUL BATKOWSKI, AND MICHELE BATKOWSKI
Appeal from the Opinion and Order of the Court of Common Pleas of Lycoming
County entered August 29, 2014 at No.1400130
George Jugovic, Jr., Esquire
PA Attorney No. 39586
Mark C. Szybist, Esquire
PA Attorney No. 94112
Citizens for Pennsylvania’s Future
200 First Avenue, Suite 200
Pittsburgh, PA 15222
Attorneys for Citizen Appellees
TABLE OF CONTENTS
Page
Table of Authorities .......................................................................................... iv
I.
SCOPE AND STANDARD OF REVIEW............................................. . 1
II.
COUNTER-STATEMENT OF QUESTIONS INVOLVED ................. . 2
III.
COUNTER-STATEMENT OF CASE ................................................... . 3
IV.
SUMMARY OF ARGUMENT .............................................................. 13
V.
ARGUMENT…………………………………….................................. 16
A. The Court of Common Pleas Should Have Vacated the Township’s
Decision Because the Ordinance Authorizes Gas Extraction as a
Conditional Use in the Township’s Industrial District ..................... 16
B. The Court of Common Pleas properly concluded that the record
lacked substantial evidence to support the Township’s approval of
Inflection’s proposed well pad .......................................................... 24
1. Inflection had the burden of showing that its proposed use
complied with sections 12.18.1 and 12.18.3 of the
Ordinance ..................................................................................... 25
a. Inflection had the burden of showing that its proposed use
was similar to and compatible with permitted uses in the
Residential Agricultural District. ............................................ 25
b. Inflection had the burden of showing that its proposed use in
no way conflicted with the general purposes of the
Ordinance ................................................................................ 29
2. Inflection failed to introduce substantial evidence to show that
its proposed use complied with the criteria in Section 12.18 ...... 32
ii
a. Inflection failed to introduce substantial evidence to
show that its proposed use was similar to and
compatible with permitted uses in the R-A District,
and that it in no way conflicted with the general
purposes of the Ordinance…...............................................32
b. The fourteen conditions imposed by the Township in
Inflection’s conditional use permit did not relieve
Inflection of its duty to demonstrate compliance with
Section 12.18……………………………………………..38
C. By approving the location of Inflection’s proposed natural gas
development in a neighborhood zoned Residential Agricultural,
the Township violated the Residents constitutional rights under
Article I, Sections 1 and 27 of the Pennsylvania Constitution….41
1. By allowing an incompatible use that would fundamentally
alter the character of the neighborhood the Township violated
the Residents’ substantive due process rights………………..41
2. By failing to account for the environmental and public health
effects of allowing an industrial use in a residential
neighborhood, the Township violated the Residents’
rights under Article I, Section 27 of the Pennsylvania
Constitution…………………………………………………43
D. The Issues Raised in this Appeal Were Not Waived or, in the
Alternative, Should Be Deemed to Have Not Been Waived for
“Due Cause……………………………………………………..48
VI. CONCLUSION………………………………………………………57
iii
TABLE OF AUTHORITIES
Cases
Apgar v. State Employees' Retirement System, 655 A.2d 185 (Pa. Cmwlth. 1994)…
..............................................................................................................................57
Appeal of Bartkowski Investment Group, Inc., 106 A.3d 230 (Pa. Cmwlth. 2014) ..1
Atlantic Richfield Co. v. Della Vecchia, 450 A.2d 792 (Pa. Cmwlth. 1982) ..........24
Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh, 907 A.2d 494 (Pa.
2006) .....................................................................................................................20
Cellco Partnership v. North Annville Twp. Zoning Hearing Board, 939 A.2d 430
(Pa. Cmwlth. 2007)........................................................................................ 29, 36
Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd. of Supervisors, 923
A.2d 1099 (Pa. 2007)............................................................................................18
Cheney v. Village 2 at New Hope, Inc., 241 A.2d 81 (Pa. 1968) ............................18
City of Edmonds v. Oxford House, Inc., 514 US 725, 115 S.Ct. 1776, (1995)…. 21,
32, 42, 53
Clinton County Solid Waste Authority v. Wayne Twp., 643 A.2d 1162 (Pa. Cmwlth.
1994) .....................................................................................................................39
Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Board, 944 A.2d 832
(Pa. Cmwlth. 2008)...............................................................................................39
Crary Home v. DeFrees, 329 A.2d 874 (Pa. Cmwlth. 1974) ..................................17
Eichlin v. Zoning Hearing Bd. of New Hope Borough, 671 A.2d 1173 (Pa. Cmwlth.
1996) .......................................................................................................................1
Franklin Township v. Commonwealth, 452 A.2d 718v(Pa. 1982) .........................54
Hitz v. Zoning Hearing Board of South Annville Township, 734 A.2d 60v(Pa.
Cmwlth. 1999) ........................................................................................................1
Huntley and Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009).. …13,
20, 21, 22, 24, 37
iv
In re Appeal of Ethken Corp., 493 A.2d 787 (Pa. Cmwlth. 1985) ..........................17
JoJo Oil Company, Inc. v. Dingman Township, 77 A.3d 679 (Pa. Cmwlth. 2013)
........................................................................................................... 26, 27, 29, 31
Levin v. Board of Supervisors, 669 A.2d 1063 (Pa. Cmwlth. 1995) .......................39
Marchionni v. SEPTA, 715 A.2d 559 (Pa. Cmwlth. 1998) ......................................53
Neill v. Bedminster Township Zoning Hearing Bd., 592 A.2d 1385 (Pa. Cmwlth.
1991) .....................................................................................................................17
Newcomer v. Civil Service Commission of Fairchance Borough, 515 A.2d 108 (Pa.
Cmwlth. 1986) ......................................................................................................53
Pennsylvania Envt’l Defense Foundation v. Com., No. 228 M.D. 2012, 2015
(Cmwlth. Ct. Jan. 7, 2015) ...................................................................................45
Pocono Manor Investors, LP v. Pennsylvania Gaming Control Board, 927 A.2d
209 (2007).............................................................................................................16
Polay v. Zoning Board of Supervisors of W. Vincent Twp., 752 A.2d 434 (Pa.
Cmwlth. 2000) ......................................................................................................33
Robinson Township v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) .... 32, 33,
37, 38, 41, 53, 54, 56
Robinson Township v. Commonwealth., 83 A.3d 901 (Pa. 2013) .. 44, 45, 46, 56, 57
Roomet v. Bd. of License & Inspection Review, Dep't of Licenses, 928 A.2d 1162
(Pa. Cmwlth. 2007)...............................................................................................49
Society Created to Reduce Urban Blight v. Zoning Board of Adjustment, 804 A.2d
116 (Pa. Cmwlth. 2002)........................................................................................55
Street Road Bar & Grille, Inc. v. Pa. Liquor Control Bd, 876 A.2d 346 (Pa. 2005)
..............................................................................................................................20
v
Transportation Services v. Underground Storage Tank Indemnification Bd., 67
A.3d 142 (Pa. Cmwlth. 2013). ................................................................. 49, 50, 54
Twp. of Exeter v. Zoning Hearing Bd., 962 A.2d 653 (Pa. 2009) ...........................41
United States Steel Corp. v. Hoge, 503 Pa. 140, 146, 468 A.2d 1380 (1983) .........23
Vito v. Zoning Hearing Board of the Borough of Whitehall, 458 A.2d 620 (Pa.
Cmwlth. 1983) ......................................................................................................28
Walker v. Eleby, 842 A.2d 389 (Pa. 2004) .............................................................19
Zoning Hearing Board of Northampton Township, 969 A.2d 24 (Pa. Cmwlth.
2009) .......................................................................................................................1
Pennsylvania Constitution
Article I, Section 1 …………………………………………………………1, 14, 41
Article I, Section 27…………………………...14, 36, 41, 42, 43, 44, 45, 46, 47, 48
Statutes
Pennsylvania Municipalities Code
53 P.S. § 10107……………………………………….…………….…………23, 37
53 P.S. § 10603………………………………………………………..36, 37, 39, 40
Pennsylvania Oil and Gas Act of 2012 (Act 13)
58 P.S. § 3304…………………………………………………………………38, 41
Pennsylvania Local Agency Law
2 Pa.C.S. § 753………………………………………………………..14, 48, 50, 55
Fairfield Township Zoning Ordinance
Zoning Ordinance § 1.4…………………………..…………………………...20, 21
Zoning Ordinance § 2.1 ...………………………………………………………...17
Zoning Ordinance § 2.2 ..…………...…………………………….…..17, 18, 36, 45
Zoning Ordinance § 3.1 …………………………………………....………4, 29, 31
Zoning Ordinance § 4.1 …………………………………………………………..29
Zoning Ordinance § 4.2 ……………………………….…………………….4, 5, 35
vi
Zoning Ordinance § 6.1 ……………………………………………………………4
Zoning Ordinance § 6.2 ……………………………………………………………5
Zoning Ordinance § 12.18 …... 5, 6, 8, 13, 16, 24, 25, 27, 28, 30, 32, 34, 38, 39, 54
Zoning Ordinance § 14.2 …………………………………………..6, 26, 45, 46, 52
Other
Restatement (Third) of Trusts § 82 (2007) ……………………………………….47
Uniform Trust Code § 813 (amended 2005) ……………………………………..4
vii
I.
SCOPE AND STANDARD OF REVIEW
In an appeal from a trial court’s review of a land use decision by a Board of
Supervisors, where the trial court takes no additional evidence, this Court’s review
is limited to considering whether the Board of Supervisors abused its discretion or
committed an error of law. Appeal of Bartkowski Investment Group, Inc., 106 A.3d
230 (Pa. Cmwlth. 2014). The Board’s findings must be supported by substantial
evidence. Hitz v. Zoning Hearing Board of South Annville Township, 734 A.2d 60,
65 n. 9 (Pa. Cmwlth. 1999). Substantial evidence is that which a reasonable mind
would accept as adequate to support the finding. Eichlin v. Zoning Hearing Bd. of
New Hope Borough, 671 A.2d 1173, 1175 (Pa. Cmwlth. 1996). Where the Board’s
findings are not supported by substantial evidence, its decision is properly
reversed. Zoning Hearing Board of Northampton Township, 969 A.2d 24 (Pa.
Cmwlth. 2009).
1
II.
COUNTER-STATEMENT OF QUESTIONS INVOLVED
A. Should the Court of Common Pleas have vacated the township’s decision
because the ordinance authorizes gas extraction as a conditional use in
the township’s Industrial District?
Suggested Answer: Yes
B. Did the Court of Common Pleas correctly conclude that the record lacked
substantial evidence to support the Township’s approval of Inflection’s
proposed natural gas development?
Suggested Answer: Yes
C. Did the Township violate Appellees constitutional rights under Article I,
Section 1 and Article I, Section 27 of the Pennsylvania Constitution by
allowing Inflection’s proposed natural gas development to be located in a
neighborhood zoned Residential Agricultural?
Suggested Answer: Yes
D. Did the Court of Common Pleas correctly conclude that Appellee did not
waive the issues raised in this Appeal or, in the alternative, properly
address the issues for “due cause”?
Suggested Answer: Yes
2
III.
COUNTER-STATEMENT OF THE CASE
Appellees, Brian and Dawn Gorsline and Paul and Michele Batkowski
(Residents) submit this Counter-Statement of Facts to correct several inaccuracies
in Inflection’s recitation.1
Inflection submitted a “Zoning/Development Permit Application” to use
undeveloped property owned by Donald and Eleanor Shaheen (“the Shaheen
property”) located along Quaker State Road in Fairfield Township, Lycoming
County for what Inflection described as “oil and gas development.” R. 10a, 146a,
147a, 152a.
The Shaheen property is currently used for farming. R. 9a. No one, including
the owners, reside on the property. R. 12a. There are, however, 128 single-family
homes located within 3,000 feet of the proposed development, and more than 125
individual drinking water wells. R. 25, R. 264a–269a. There are no other industrial
or mineral extraction operations that operate near this residential neighborhood. R.
264a-269a.
The Application describes the “Construction Stage” of the operation as that
period of time when “actual earth disturbance activities” will occur; that is, when
the road, well pad and storage impoundment are being “actively constructed.” R.
1
As a prime example, the initial sentence in Appellees “Statement of Facts” reads “A natural gas
well site is not a use specifically provided for under the Fairfield Township Zoning Ordinance.”
As explained later in this brief, that, in fact, is not a fact at all, but a conclusion of law based on
an interpretation of the Township’s Ordinance.
3
153a, 157a, 163a. The Application states that drilling and completion or fracking
of multiple wells on the well pad would occur over the course of “two to three
years.” R.153a. The Application refers to this “protracted” period as the “PostConstruction” stage of the operation. R. 153a, 165a.
The Zoning Ordinance divides Fairfield Township into three zoned districts:
Residential-Agricultural, Commercial and Industrial. R. 408a. The purpose of the
R-A District is to “foster a quiet, medium-density residential environment while
encouraging the continuation of agricultural activities and the preservation of
prime farmland. Ordinance § 3.1, R. 408a. The purpose of the Industrial District,
on the other hand, is intended to establish areas “for general industrial,
manufacturing, and/or warehousing purposes.” Ordinance, § 6.1, R. 408a. The
Industrial district contains specific standards to minimize air pollution, noise, glare,
heat, fire and safety hazards associated with industrial operations. Ordinance, §
6.1, R. 409a.
Permitted uses in the R-A District include agriculture, single-family
dwellings, essential services, family group homes, family day care homes, forestry
activities, hunting and seasonal camps and no-impact home based businesses.
Ordinance § 4.2.1, R. 410a. Conditional uses include agricultural business, bed and
breakfast, cluster subdivisions, day care centers, various dwelling units, funeral
home, group care facilities, hospital, nursing or retirement facilities, parking,
4
professional office space, public service facilities, and public recreational facilities.
Ordinance § 4.2.2, R. 411a.
Permitted uses in the Industrial District include agricultural business and
operations, family day care homes, forestry activities, light and standard
manufacturing, warehousing, motor truck and equipment maintenance facilities,
and trucking terminals. Ordinance § 6.2.1, R. 420a-421a. Conditional uses include,
among other things, waste storage, disposal and processing facilities and “surface
mining.” Ordinance § 6.2.3, R. 421a.
Section 12.18 of the Ordinance provides that whenever a use is neither
specifically permitted or denied under the Ordinance, the Board of Supervisors
may only permit the use if the application demonstrates compliance with three
threshold criteria:.
12.18.1
It is similar to and compatible with the 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 purposes of this
Ordinance.
The Ordinance places the burden of proof on the applicant to demonstrate
compliance with these criteria. Ordinance § 12.18, R. 472a, 493a.
Inflection’s Application consisted of a Project Narrative, an Erosion and
Sedimentation Control Plan, an Erosion and Sedimentation Control Permit
5
Approval issued by the state Department of Environmental Protection, a Pollution
Prevention and Control Plan, Drilling Permits issued by the state Department of
Environmental Protection, and miscellaneous maps and other documents. R. 111a281a. In the entire 170-page Application, Inflection devoted a single page to
demonstrating compliance with criteria in Section 14.2 of the Ordinance, which are
criteria to be considered by the Board when deciding upon a conditional use
applications. R. 147a. The Application contained not a single reference to or
written demonstration of compliance with the three threshold criteria in Section
12.18 of the Ordinance. R. 111a-281a.
The Application was decidedly vague on a number of issues bearing directly
on whether the proposed use was similar and compatible with other permitted uses
in the R-A District. For example, Inflection did not state with certainty how many
wells would be drilled, other than that they would begin with drilling two wells. R.
14a, 28a, 153a, 165a. Drilling and fracking of wells would likely extend for a
period of “two to three years.” R. 153a, 156a. Depending on productivity of the
wells, the company would return to the site to drill additional wells, thereby
creating “a more drawn out process.” R. 28a. Inflection could not say whether it
would access gas contained in horizons other than the Marcellus, but if it did that
would further extend activity at the site. R. 28a.
6
The Application proposed construction of a 280,000-cubic foot aboveground impoundment to store water to be used during fracking operations. The
Applicant could not estimate the total amount of water that would be needed to
fully develop the wells. R 15a, 146a, 152a. The amount of water used depends on
the number of wells and number of fracks per well, as well as the length of the
horizontal portion of the well. R. 44a – 46a. To compound the uncertainty, the
Applicant did not know how it would get water to the impoundment - by pipeline
or truck. R. 42. As a result, Inflection could not accurately approximate the
number of truck-trips that would be needed to service the well pad, at one point
estimating hundreds and at another point estimating thousands. R. 46a, r. 342a.
The Application indicated that during drilling operations, hazardous and
other materials would be stored at the well pad, including diesel fuel, antifreeze,
motor oil, hydraulic fluid, drilling soap, waste oil, synthetic oils, emulsifiers,
wetting agents and rig wash. R. 200a. Dry materials such as barite, calcium
chloride, lime, oil absorbent and vicosifiers would also be stored. R. 200a. During
drilling and operation of the wells, wastewaters such as flowback and brine would
also be stored at the site. R. 214a. As a result, Inflection’s Application contained a
Pollution Prevention and Control Plan to address environmental and public safety
issues for large and small spills of these polluting substances. R. R. 198a – 235a.
7
Inflection offered testimony from two witnesses at the conditional use
hearing held by the Board, Mr. Thomas Erwin2 and Mr. Thomas Gillespie. R.
006a, 286a.
Mr. Erwin testified that he was a Senior Field Operations Manager for
Inflection. R. 006a. He held a Bachelor’s and Master’s Degree in Engineering and
worked in the oil and gas industry for thirty-five years. R. 006a. Mr. Erwin did not
testify that he had any experience in land use planning, and was not offered as an
expert in land use planning. R. 007a. Mr. Erwin misidentified the zoning district in
which the proposed well was to be located as “Rural agriculture” instead of
“Residential Agricultural.” R. 012a.
The only testimony offered by Mr. Erwin on the criteria in Section 12.18
consisted of a one-word answer in response to a single leading question. R. 21a22a.
Q:
And given the location of the well, do you believe it to be
compatible with the surrounding properties?
A:
Yes.
R. 0023a.
Mr. Erwin was asked similarly leading questions about whether the proposed
use would conflict with or have an adverse impact on the neighborhood. R. 22a23a. The Application and Mr. Erwin made bald assertions that the proposed land
2
Mr. Erwin’s name is misspelled in the transcript and opinion below as “Irwin.”
8
use would have no adverse effects on neighboring properties, without explanation
or substantiation. R. 22a-23a, 147a. With respect to truck traffic, Mr. Erwin based
his statement of no adverse effects on the fact that he was referring only to that
period of time after drilling and fracking was completed, not during active
operations. R. 083a-084a. When asked why the well was located so near a
residential development, Mr. Erwin indicated that it was the largest parcel of land
in the area that the company could find. R. 49a, 50a.
Mr. Gillespie testified that he was the Director of Regulatory Affairs and
Environmental and Health and Safety for Inflection. R. 006a. Mr. Gillespie did not
testify to his educational background, but he worked as a professional geologist in
the oil and gas industry for 30 years. R. 286a. The Board accepted Mr. Gillespie as
an expert in geology. R. 287a. Mr. Gillespie did not testify that he had any
experience in land use planning, was not offered as an expert in land use planning,
and offered no testimony on whether the proposed use was similar and compatible
with other uses permitted in the Residential-Agricultural District, or whether the
proposed use conflicted with the purposes of the Ordinance. R. 286a-292a.
Residents elicited testimony from Inflection’s witnesses about noise impacts
from the drilling operation, which the company described at one point as a “little
noise,” and at another point as something that would be “loud” and the impacts of
which on adjacent properties would be difficult to mitigate. R. 23a, 41a.
9
Residents testified to safety concerns because persons traveling from the
nearby housing development past the Shaheen property must navigate a blind hill
in the road at the proposed entrance to the property. R. 041a.
Inflection testified that during fracking operations its trucks would run 22
and-a-half hours per day, nonstop. R. 46a. Inflection offered no assessment of the
impact of traffic, and indeed, would have had difficulty doing so considering the
uncertainty surrounding the total number of trucks and truck-trips that would be
needed at the facility. Inflection testified only that the trucks used could be “a very
large number.” R. 42, 44a–46a, 342a. When asked directly how having 2,0003,000 large trucks traveling up and down the road is not at least a commercial
operation, compared to residential or agricultural, Mr. Erwin testified “I don’t
have an answer for that.” R. 48a.
Based on personal experience, Residents testified to the traffic and odor
impacts from existing wells in the area. R. 60a-61a, 327a. Residents also testified
based on personal experience to disturbances caused by the high levels of noise
associated with the development, and the way in which the sound from this
particular well will impact area residents because of its location in a topographic
hollow. R. 327s-328a. One Township resident who had worked on shale gas well
pads testified that for the people living around the Shaheen property “life is just
going to absolutely suck for the next two years” because “that well pad is going to
10
be down in that hole… you’re going to hear people talking down in there, because
that sound is going to echo up out. Not to mention the lights…. The lights, nobody
is ever going to be able to feel like you’re having a nice dark evening after they
start drilling there because they’re going to bring that rig in and it’s just going to be
a glow down in that hole.” R. 327a-328a.
Residents testified to the number of well casing failures that had been
documented in the county and nearby townships, leading to methane contamination
of private drinking water supplies, and expressed concern about the risk associated
with wells being located so close to their residences, being that they rely on private
water wells. R. 53a-54a.
Residents testified to concerns about decreasing property values because the
well operation would be located in a residential neighborhood and change its
character. R. 52a, 314a, 323a, 326a.
Dawn Gorsline testified that they purchased their home near the Shaheen
property because the neighborhood’s Residential Agricultural zoning led them to
believe that they could raise a family in a quiet residential development. R. 60a61a, 325a. They also testified that the increasing number of unconventional shale
gas wells and the heavy truck traffic associated with the industry was changing the
character of the Residential Agricultural zoned district. R. 314a, 323a, 326a.
11
When asked why the well was being located so near a residential
development, Mr. Erwin only indicated that it was the largest parcel of land in the
area that the company could find. R. 49a, 50a.
12
IV.
SUMMARY OF ARGUMENT
Fairfield Township approved Inflection’s proposed natural gas development
under Section 12.18 of its Ordinance, which allows for the issuance of conditional
use permits whenever, under the Ordinance, a use is “neither specifically permitted
or denied.” Because Fairfield Township’s Ordinance, as well as the Municipalities
Planning Code (MPC), defines “minerals” to include natural gas, and because
mineral extraction is authorized as a conditional use in the township’s Industrial
District, the Court of Common Pleas should have vacated Inflection’s conditional
use permit as improperly authorizing gas development in the Residential
Agricultural District. A contrary interpretation would violate the Statutory
Construction Act and the Supreme Court’s decision in Huntley and Huntley, Inc. v.
Borough of Oakmont, 964 A.2d 855 (Pa. 2009).
If the Court determines that natural gas development is not a permitted use
in the Industrial District, then it must address whether the Township properly
authorized Inflection’s shale gas development in the R-A District under Section
12.18 of the Ordinance. Inflection had the burden of introducing substantial
evidence to demonstrate compliance with the criteria in Section 12.18. The Court
of Common Pleas correctly concluded that Inflection did not introduce substantial
evidence in the record to demonstrate compliance with the criteria of Section
12.18. Further, no amount of conditions in the permit can alter Inflection’s failure
13
to carry its threshold burden of showing its use was similar to and compatible with
the permitted uses in the R-A District, and that the proposed use did not conflict
with the purposes of the Ordinance.
By authorizing Inflection’s proposed natural gas development in a
neighborhood zoned Residential Agricultural, the Township violated the Residents
constitutional rights under Article I, Sections 1 and 27 of the Pennsylvania
Constitution.
Article I, Section 1 of the Pennsylvania Constitution protects life, liberty,
and property and prohibits government interference with private property rights
except in accordance with substantive due process By allowing an incompatible
use that would fundamentally alter the character of the neighborhood the Township
violated the Residents’ substantive due process rights.
Article I, Section 27 of the Pennsylvania Constitution requires local
municipalities to gather sufficient information to ensure that its actions do not
violate its citizens’ constitutional rights. By failing to account for the
environmental and public health effects of allowing an industrial use in a
residential neighborhood, the Township violated the Residents’ rights under
Article I, Section 27 of the Pennsylvania Constitution.
Finally, the question of waiver is governed by Section 753 of the
Pennsylvania Local Agency Law, which provides that persons may not raise
14
“questions” on appeal that were not raised before the local agency unless allowed
by the court upon due cause shown. The issue of preservation of questions for
appeal differs from the ability to make legal arguments in support a position.
Appellees did not waive the right to challenge whether the Township improperly
authorized Inflection’s industrial gas development adjacent to their residential
neighborhood in an area zoned Residential Agricultural.
15
V.
ARGUMENT
A. The Court of Common Pleas Should Have Vacated the Township’s
Decision Because the Ordinance Authorizes Gas Extraction as a
Conditional Use in the Township’s Industrial District.
Fairfield Township approved Inflection’s proposed natural gas development
under Section 12.18 of its Ordinance, which allows for the issuance of conditional
use permits whenever, under the Ordinance, a use is “neither specifically permitted
or denied.” Because Fairfield Township’s Ordinance, as well as the Municipalities
Planning Code (MPC), defines “minerals” to include natural gas, and because
mineral extraction is authorized as a conditional use in the township’s Industrial
District, the Court of Common Pleas should have vacated Inflection’s conditional
use permit as improperly authorizing gas development in the Residential
Agricultural District.
Where an appellant claims that a Board of Supervisors commits an error of
law in exercising its zoning powers, the reviewing Court’s standard of review is de
novo and the scope of review is plenary. Pocono Manor Investors, LP v.
Pennsylvania Gaming Control Board, 927 A.2d 209, 216 (2007); Smith v. Hanover
Zoning Hearing Bd., 78 A.3d 1212, 1218 (Pa. Cmwlth. 2013). This Court has held
on multiple occasions that it is a question of law, and not fact as claimed by
Inflection, whether a proposed use, as described in an application or testimony,
falls within a particular category or district described in a zoning ordinance. Neill
16
v. Bedminster Township Zoning Hearing Bd., 592 A.2d 1385, 1387 (Pa. Cmwlth.
1991) (whether retrofit of buildings on old children’s camp constitutes “residential
conversion” use); In re Appeal of Ethken Corp., 493 A.2d 787, (Pa. Cmwlth.
1985) (whether a 75-bed geriatric care facility was a “nursing home” authorized as
a special exception in Low Density Residential District); Crary Home v. DeFrees,
329 A.2d 874, 876 (Pa. Cmwlth. 1974) (whether a home with eight units to house
older indigents constituted a public or semi-public use allowed as a special
exception in an R-1 District).
Section 2.1 of the Ordinance provides that “[e]xcept where specified in the
following definitions, all words used in this Ordinance shall carry their customary
meanings.” Ordinance § 2.1, R. 379a. Section 2.2 defines two terms of import to
this case: “surface mining” and “minerals.” The Ordinance defines “surface
mining” to mean:
[T]he extraction of minerals from the earth or from waste or
stock piles or from pits or bands by removing the strata or
material which overlies or is above or between them or
otherwise exposing and retrieving them from the surface,
including but not limited to strip, drift, and auger mining,
dredging, quarrying, leaching and activities related thereto, but
not including those mining operations carried out beneath the
surface by means of shafts, tunnels, or other underground mine
openings.
Ordinance § 2.2, R 402a (emphasis added).
The term “minerals” is defined as:
17
Any aggregate or mass of mineral matter, whether or not coherent.
The term includes, but is not limited to, limestone and dolomite, sand
and gravel, rock and stone, earth, fill, slag, iron ore, zinc ore,
vermiculite and clay, anthracite and bituminous coal, coal refuse, peat
and crude oil and natural gas.
Ordinance § 2.2, R. 393a (emphasis added).
While the term “surface mining” in Pennsylvania is commonly associated
with coal, the special definitions in the township’s Ordinance makes clear that
“surface mining” includes the process of extracting gas by surface methods.
In the proceedings before the Court below, the Township urged the Court to
ignore that the definition of “minerals” included natural gas. This, however, would
render the definition of “minerals” and the phrase “oil and natural gas”
meaningless, in violation of the Statutory Construction Act.
The Pennsylvania Supreme Court has held that the Rules of Statutory
Construction are applicable to interpretation of local ordinances, including zoning
ordinances. Cheney v. Village 2 at New Hope, Inc., 241 A.2d 81, 85 (Pa. 1968).
The Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., directs that the object of
all interpretation and construction of statutes is to ascertain and effectuate the
legislature’s intent. 1 Pa.C.S. § 1921(a); Chanceford Aviation Properties, LLP v.
Chanceford Twp. Bd. of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007). The statute
must “be construed, if possible, to give effect to all its provisions” so that no
18
provision is reduced to mere surplusage. 1 Pa.C.S. § 1921(a); Walker v. Eleby, 842
A.2d 389, 400 (Pa. 2004).
Throughout the 161-plus pages that comprise the Township’s Ordinance, the
term “minerals” appears twice, both times in the definitional section of the
Ordinance. The term “oil and natural gas” appears once – in the definition of
“minerals.” R. 393a, 402a. Plainly, the Township defined the term “minerals” for
no other reason than to delimit the meaning and scope of the term “surface
mining.” If the Court were to ignore that the surface mining of “minerals”
included natural gas extraction, then it would render the inclusion of “natural gas”
in the definition of “minerals” mere surplusage, in violation of the Statutory
Construction Act’s command that legislation be interpreted as giving effect to all
its terms.
The Township argued below that where unconventional shale gas wells are
concerned, the Court should ignore the phrase “oil and natural gas” in the
definition of “minerals” because unconventional shale gas drilling was not
practiced when the Ordinance was adopted. Not only is this interpretation contrary
to the plain language of the Ordinance that does not distinguish the method of
drilling used to extract natural gas, the Township’s logic leads to an absurd result:
a zoning scheme in which shallow drilling is restricted to the Industrial District of
the township, while the much more intensive shale gas development is allowed as a
19
conditional use across all zoned districts. For this reason, the Court should reject
the Township’s interpretation of its Ordinance.1 Pa.C.S. § 1922(1); Street Road
Bar & Grille, Inc. v. Pa. Liquor Control Bd, 876 A.2d 346, 353 (Pa. 2005) (in
ascertaining legislative intent, the Statutory Construction Act requires a
presumption that the General Assembly did not intend a result that is absurd or
unreasonable); Huntley and Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855
(Pa. 2009) (municipality not entitled to deference in interpretation of term
“mineral” where term is defined in MPC and used in zoning ordinance without a
different definition); Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh,
907 A.2d 494, 500 (Pa. 2006) (deference owed when meaning of contested
provision is unclear, not when language of provision is clear and explicit).
That the Ordinance uses a single phrase, “surface mining”, to group together
a series of extractive industrial activities is reasonable and not surprising. The
Ordinance regulates land use activities for the purpose of encouraging compatible
development within zoned districts, and discourages uses of land that have
nuisance-like effects on neighboring properties. See Ordinance § 1.4. The
Ordinance recognizes that coal surface mining, iron ore extraction, rock and stone
mining, and oil and gas extraction all involve heavy industrial activities on the
surface of the land, and in order to promote the public health and welfare and
20
encourage the orderly development of land it grouped those activities together and
authorized those uses in the township’s Industrial District. See Ordinance §1.4.
Before the Court below, Inflection and the Township also argued that natural
gas extraction did not fall within the definition of “surface mining” because gas
extraction involved drilling into the ground to extract the gas. This argument
misses the point. The definition of “surface mining” distinguishes materials that
can be extracted from the surface of the ground and those activities that occur
beneath the ground. The distinction makes sense because zoning ordinances
concern themselves with the compatibility of land uses that occur on the surface of
the land, and whether uses on one property are similar and compatible with uses on
an adjacent property. See City of Edmonds v. Oxford House, Inc., 514 US 725,
732-33, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995) (land-use restrictions aim to
prevent problems caused by the “pig in the parlor instead of the barnyard”). While
underground mining may have environmental effects that warrant regulation by the
government, those effects are generally not the focus of municipal zoning laws.
See Ordinance § 1.4.1 (this ordinance is adopted in consideration of the
municipality and its suitability for different uses and structures).
Finally, the MPC and the Pennsylvania Supreme Court’s decision in Huntley
and Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009) command that
21
the Court interpret “surface mining” and “minerals” to include natural gas
development.
In Huntley, the company sought to install two shallow natural gas wells on
parcels of land in the Borough of Oakmont. Id. at 857. The zoning ordinance
permitted the “extraction of minerals” as a conditional use in the R-1 District, and
defined the term to mean “any use consisting of the mining or extraction of coal or
other minerals.” Id. at 858 n. 1. The Ordinance did not further define “minerals.”
Id. at 858. Therefore, the case turned on whether “minerals” included natural gas
absent statutory guidance.
Although Huntley recognized that gas drilling was typically not a use
authorized in residential districts, the company asserted that the use should be
allowed because natural gas was a mineral. Id. at 858. Two citizen groups
opposed the conditional use permit, arguing that only solid crystalline substances
should be considered minerals. Id. at 858.
The Township adopted the opponents’ rationale and the Common Pleas
Court affirmed. Id. at 858, 859. The Commonwealth Court, however, reversed
Huntley & Huntley v. Borough Council of Borough of Oakmont, 929 A.2d 1252
(Pa. Cmwlth. 2007) (en banc), relying on the definition of “minerals” in the MPC
to decide that it includes natural gas extraction.
22
The MPC defines “minerals” in a manner identical to that of Fairfield
Township:
[A]ny aggregate or mass of mineral matter, whether or not coherent.
The term includes, but is not limited to, limestone and dolomite, sand
and gravel, rock and stone, earth, fill, slag, iron ore, zinc ore,
vermiculite and clay, anthracite and bituminous coal, coal refuse, peat
and crude oil and natural gas.
See 53 P.S. §10107 (emphasis added).
After deciding the issue for which the case is more well-known, that the Oil
and Gas Act partially preempts local regulation of oil and gas drilling, the Supreme
Court addressed whether gas drilling was authorized. The residents argued that the
Commonwealth Court improperly superimposed the MPC’s definition of
“minerals” on the Borough’s zoning ordinance. Id. at 867-868. The Supreme
Court concluded that the Commonwealth Court properly applied the MPC’s
definition of “minerals” in the absence of a definition in the Borough’s Code, and
properly interpreted the term “mineral” to include natural gas. Id. at 868. The
Supreme Court noted that such usage “accords with this Court's understanding of
the term,” relying on, United States Steel Corp. v. Hoge, 503 Pa. 140, 146, 468
A.2d 1380, 1383 (1983) ("Gas is a mineral, though not commonly spoken of as
such[.]").
The Fairfield Township Zoning Ordinance expressly defines the term
“minerals” to include natural gas. Fairfield’s definition mimics the definition of
23
“minerals” found in the MPC. The Supreme Court interpreted the MPC definition
of “minerals” to include natural gas extraction. Furthermore, this Court has held
that "the terms of the MPC take precedence over and invalidate, to the extent of
their inconsistency, all local zoning enactments.” Atlantic Richfield Co. v. Della
Vecchia, 450 A.2d 792, 794 (Pa. Cmwlth. 1982). Consequently, under the
Supreme Court’s decision in Huntley, this Court must conclude that the Fairfield
Ordinance defines surface mining to include gas extraction.
Section 12.18 of the Ordinance applies only when a use is not otherwise
expressly permitted or denied. Ordinance § 12.18.2. The plain language of the
Zoning Ordinance authorizes gas extraction as a Conditional Use in the Industrial
District. Consequently, the Township improperly authorized Inflection’s proposed
natural gas development as a Conditional Use under Section 12.18. The decision
of the Court of Common Pleas vacating the Township’s approval should be
affirmed on other grounds.
B. The Court of Common Pleas properly concluded that the record
lacked substantial evidence to support the Township’s approval of
Inflection’s proposed well pad.
Inflection completely mischaracterizes the Court of Common Pleas’ holding
regarding Section 12.18 of the Township’s Ordinance. The Court below did not
“openly disregard the determination made by the Board of Supervisors that the
proposed natural gas well site use is a ‘use not provided for’” under section 12.18.
24
Inflection Brief, at 24. To the contrary, the Court below rejected the argument that
the Township improperly reviewed the Application under Section 12.18.3 Instead,
the Court’s decision was based on Inflection having failed to present substantial
evidence in the record to demonstrate compliance with the criteria in Section 12.18
of the Ordinance. Opinion, at 8-18.
1. Inflection had the burden of showing that its proposed use
complied with sections 12.18.1 and 12.18.3 of the Ordinance.
Section 12.18 of the Ordinance establishes three threshold criteria for
issuance of a conditional use permit. PennFuture has already addressed the second
criteria, that the use was not provided for elsewhere in the Ordinance. Ordinance §
12.18.2. The remaining criteria require that the use may be permitted only if “[i]t
is similar to and compatible with other uses permitted in the zone where the subject
property is located,” and that “[i]t in no way is in conflict with the general purpose
of this Ordinance.” Ordinance §§ 12.18.1 and 12.18.3.
a. Inflection had the burden of showing that its proposed
use was similar to and compatible with permitted uses in
the Residential Agricultural District.
As this Court has held and as Inflection and the Township agree,4 satisfying
the “similarity” and “compatibility” requirements of section 12.18.1 is a “threshold
3
As PennFuture explains in section A, supra, the Lower Court erred in concluding that
Inflection’s well pad use was not “surface mining.”
4
See Inflection Brief at 18 (“A savings clause operates as a threshold test for the allowance of
the use, before application of other requirements in the zoning ordinance.”)
25
burden” that Inflection must carry before meeting the additional conditional use
criteria in sections 12.1 and 14.2.5 of the Ordinance. JoJo Oil Company, Inc. v.
Dingman Township, 77 A.3d 679, 686 (Pa. Cmwlth. 2013).
In JoJo Oil, this Court considered whether a proposed bulk fuel transfer
station satisfied its “similarity and compatibility” burden to obtain a special
exception for “uses not provided for” under the Ordinance. Judge McGinley’s
discussion of the savings clause and burden of proof bears citing at length:
In Dingman Township, where a use is not legislatively provided for
(e.g., it is not listed anywhere in the Zoning Ordinance as a special
exception, or a conditional use, or a permitted use) Section 105 of the
Zoning Ordinance provides that an applicant who seeks to establish
such a use in a particular district, must first demonstrate that the
proposed use is “similar to and compatible with” permitted uses in
that district and that it does not “conflict” with the general intent and
purpose of the Zoning Ordinance. If an application involves a “use not
provided for” the threshold test under Section 105 is in addition to the
requirements for all other special exceptions.
If this threshold burden is met and the ZHB is satisfied that the use is
indeed suitable for that zoning district (based on its similarity to other
articulated special exception, conditional and permitted uses) then the
use may be permitted if the applicant satisfies the special requirements
for a Special Exception under Section 404.2. The determination of
appropriateness under Section 105 is akin to a determination that the
use should be treated as one of the other listed special exception uses
in the ordinance. In other words, had the municipality anticipated the
use when it drafted the ordinance, it would have included it as a
special exception.
With regard to a “Use Not Provided For,” until the threshold burden is
met, and the proposed use is demonstrated by the applicant to be
appropriate in the zoning district (as similar to or compatible with
other uses in the zoning district) it is premature to engage in a Section
26
404.2 Special Exception analysis. The proposed use must be similar to
and compatible with the other allowable uses in the zoning district to
be entitled to treatment and consideration as a special exception. This
makes perfect sense because there can be no presumption of the
suitability of a Special Exception use in a particular zoning district if
the use was never even acknowledged by the legislating body in the
first instance.
By contrast, in the case of a use permitted by Special Exception, there is a
“presumption” that the use is a “conditionally permitted use, legislatively
allowed if the standards are met.” Bray v. Zoning Board of Adjustment of
Philadelphia, 48 Pa. Commw. 523, 410 A.2d 909, 911 (Pa. Cmwlth. 1980).
Unlike a “Use Not Provided For,” a Special Exception use has already been
designated to be “appropriate” for the zoning district. That is, it is
presumptively consistent with the public health, safety, and welfare.”
JoJo Oil, at 686 (emphases added).
The Court below properly determined that it was Inflection’s burden to show
that its natural gas development was similar to and compatible with other uses
permitted in the R-A district, and that the phrase “other uses permitted in the zone
where the subject property is located” means those uses permitted legislatively as
permitted or conditional uses under the Ordinance. Opinion, 8-12.
Inflection and the Township argue that the phrase “other uses permitted in
the zone where the subject property is located” should be construed to include four
gas developments that the Township previously authorized under section 12.18.
Inflection Brief, 26-28, 29-30.
There are at least three problems with Inflection’s argument. First, it
contradicts this Court’s holding in JoJo Oil, which held that the use not provided
27
for must be similar and compatible with other permitted uses. Second, it would
imbue every conditional use or special exception decision by a municipal body
with precedential qualities, in that the exception would eventually be transformed
into the rule by which similarity and compatibility are forever measured. Such an
outcome is contrary to this Court’s decisions holding that prior variance decisions
do not compel the municipality to make the same decision moving forward. Vito v.
Zoning Hearing Board of the Borough of Whitehall, 458 A.2d 620, 621 (Pa.
Cmwlth. 1983). Third, the argument is incoherent because its premise is that gas
well pads are both a permitted use and a use not provided for.
Essentially, Inflection and the Township contend that by previously
approving four well pads as “uses not provided for,” the Township took what
amounts to legislative action concerning the status of well pads in Fairfield
Township. Brief at 16 (“In its legislative and administrative capacity and informed
by its approval of the four prior applications, the Board of Supervisors determined
that the proposed gas well site met the threshold criteria of Section 12.18.”). The
Township confuses individual adjudicatory actions with legislative actions. The
Court below was correct in concluding that Inflection’s burden under section 12.18
was to show that its proposed natural gas development was similar to and
compatible with other uses that were legislatively authorized in the R-A District.
28
b. Inflection had the burden of showing that its proposed
use in no way conflicted with the general purposes of the
Ordinance.
The purpose of the R-A District is set forth in sections 3.1, and 4.1 of the
Ordinance. Section 3.1 describes the purpose of the R-A district as “to foster a
quiet, medium-density residential environment while encouraging the continuation
of agricultural activities and the preservation of prime farmland.” Section 3.1
expressly states that “Industrial uses are discouraged in this district.” R. 408a.
Section 4.1 elaborates on the purpose of the R-A district: ”the purpose of the
Residential Agricultural District is to encourage the continued use of areas of the
Township for rural living including open space, agricultural, and residential uses.”
R. 410a.
Again in accordance with the this Court’s decision in JoJo Oil, the Court
below correctly determined that Inflection had both the burden of presentation and
the burden of persuasion to show that its proposed natural gas development “in no
way is in conflict” with the purposes of the R-A District. Opinion, at 12-18.5
5
As noted above, in interpreting a savings clause similar to Fairfield Township’s in JoJo Oil,
this Court held that “an applicant who seeks to establish such a use in a particular district, must
first demonstrate that the proposed use … does not ‘conflict’ with the general intent and purpose
of the Zoning Ordinance. JoJo Oil, 77 A.2d at 686. See also Cellco Partnership v. North
Annville Twp. Zoning Hearing Board, 939 A.2d 430, 436 (Pa. Cmwlth. 2007) (where savings
clause provided that similarity and compatibility of a proposed use must be based “on the overall
intent stipulated for the district,” applicant proposing a cell phone tower had burden of
demonstrating conformance with ordinance’s stated intent).
29
Inflection contends that the lower Court erred because section 12.18.3 “lacks
the specificity required by law for the placement of the burden of proof and
persuasion on an applicant” and “is a ‘general policy concern’ that requires an
objector – not the applicant – to raise an issue with specificity and supported by
evidence.” Inflection Brief, at 34. In support of this claim, Inflection cites Bray v.
Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980) for the proposition
that “this Court placed the burden on the objectors to challenge whether the
proposed use was ‘in harmony with the general purpose(s) and intent of the zoning
district because this was a ‘general policy’ concern.” Inflection Brief at 34, fn. 8.
In Bray, the Philadelphia Zoning Board of Adjustment (ZBA) denied an
application for a “board certificate” (Philadelphia’s version of a special exception)
for a roller-skating rink in an Area Shopping Center District on the grounds that
the applicant had not met its burden of proof. Id., at 910, 914. The Court of
Common Pleas reversed and on appeal this Court was called upon to decide,
among other things, which party had the burden of presentation on a criterion
requiring “harmony with spirit and purpose of the zoning code.” Id., at 910. While
this Court ruled that the City had the burden of proof the premise of the ruling
distinguishes from this case, as all parties agreed that skating rinks were of the
same general character as other permitted uses in the Area Shopping Center
District zone.
30
The City of Philadelphia has brought this zoning appeal from a decision of
the Court of Common Pleas of Philadelphia County which reversed the
Philadelphia Zoning Board of Adjustment's denial of an application to
establish a roller-skating rink in an Area Shopping Center District under
Section 14-309(2)(j) of the Philadelphia Zoning Code (code). That section
allows, by board certificate, a “use of the same general character” as the uses
absolutely permitted in that district. There is no dispute that a roller rink, as
a kind of use, falls properly within that threshold definition.
Bray, at 910 (emphasis added).
By contrast, in the instant matter the central dispute is whether Inflection
presented sufficient evidence to show that, had the Township been aware of
unconventional gas development activities when the Ordinance was drafted, they
would reasonably have included those developments in the R-A District.See JoJo
Oil, at 686-687 (discussing Bray).
Inflection’s duty to show that its proposed gas well pad use “in no way is in
conflict” with the stated purposes of the Ordinance is consistent with its duty to
show that its use is similar to and compatible with other permitted uses in the R-A
district. Inflection’s Application makes plain that its proposed use is industrial in
nature. Given that it applied to put this development in a R-A District, it is
rationale for the Ordinance to impose on Inflection the burden to show that its
activities would not conflict with the goals of “a quiet, medium-density residential
environment,” “the continuation of agricultural activities and the preservation of
prime farmland,” and the imperative that “[i]ndustrial uses are discouraged in this
district.” Ordinance, at 3.1.
31
In practical terms, Inflection had a duty to present evidence concerning all
the impacts of its various activities. As discussed below, Inflection failed to make
such a showing.
2. Inflection failed to introduce substantial evidence to show that its
proposed use complied with the criteria in Section 12.18.
“Curiously,” the Court below noted, “other than a general finding by
Fairfield that the criteria in 12.8 have been satisfied, there are not specific findings
regarding the required factors set forth in 12.18.1, 12.18.2 or 12.18.3.” Opinion at
8. In fact, the lack of specific findings by the Township is not surprising, for
Inflection presented almost no evidence that would have supported specific
findings.
a. Inflection failed to introduce substantial evidence to
show that its proposed use was similar to and compatible
with permitted uses in the R-A District, and that it in no
way conflicted with the general purposes of the
Ordinance.
As this Court recently observed, “[z]oning is an extension of the concept of a
public nuisance which protects property owners from activities that interfere with
the use and enjoyment of their property,” Robinson Township v. Commonwealth,
52 A.3d 463, 481 (Pa. Cmwlth. 2012), and the primary means to this end is the
designation of zoning districts “in which only compatible uses are allowed and
incompatible uses are excluded.” Id. at 485 (citing City of Edmonds v. Oxford
House, Inc., 514 U.S. 725 at 732 (1995)). Thus, for a proposed use to be similar to
32
and compatible with other permitted uses in a zoning district means for it to be,
categorically, a use with little or no potential to interfere with the use and
enjoyment of property by citizens who are engaged in other lawful and appropriate
uses there. Id. See also Polay v. Zoning Board of Supervisors of W. Vincent Twp.,
752 A.2d 434 (Pa. Cmwlth. 2000) (similarity of proposed use depends on nature of
the use, not identity of the user). Where oil and gas operations are concerned, the
question is not whether there is gas to drill for, but what will be “the effects of oil
and gas operations on other landowners’ quiet use and enjoyment of their
property.” Robinson Township, 52 A.2d at 484. In short, like all land uses, oil and
gas land uses must be measured by their effects on other landowners.
After this Court’s decision in Robinson Township and the Pennsylvania
Supreme Court’s affirmation of that decision (discussed below, in section C), an
operator proposing an unconventional gas well development in a residentially
zoned district has a heavy burden with respect to similarity and compatibility.
Inflection clearly failed to carry its burden in this case.
First, as detailed in the above Counter-Statement of Facts, much of the
evidence that Inflection presented concerning the impacts of its proposed use was
vague, indefinite, and lacking in specifics. As the Court below stated, “[t]he actual
proposed use is fraught with significant uncertainties.” Opinion, at 8. For example,
Inflection could not state how many wells it would ultimately drill and
33
hydraulically fracture, whether it would transport water to the well pad by truck or
pipeline, how long the operations would impact local residents, and how many
truck trips its operations would require. Inflection could not say whether, after
drilling in the Marcellus Shale formation, it would target additional formations.
Inflection failed to present any evidence at all concerning the noise, fumes,
emissions, and public health and safety risks of hydraulic fracturing activities.
Given the absence of specific and definite information about Inflection’s proposed
use – and therefore the effects of that use – the Township could not reasonably
conclude that the use was similar to and compatible with, and not in conflict with,
the non-industrial uses currently permitted in the R-A District.
Second, to the extent that Inflection addressed the issues of similarity,
compatibility, and conflict in its Application and before the Board, what it
presented was for the most part not evidence at all, but only conclusory statements.
Inflection’s Application contained not a single reference to or written
demonstration of compliance with sections 12.18.1 and 12.18.3 of the Ordinance.
At the hearing before the Board of Supervisors, the only testimony offered by
Inflection on the section 12.18 criteria was testimony by Mr. Erwin, who, when
asked whether he believed Inflection’s proposed land use was compatible with “the
surrounding properties,” answered “Yes” without explanation. Inflection presented
no testimony from a professional land use planner or other person competent to
34
testify as an expert on land use compatibility issues. Inflection also did not present
testimony from any individual who has lived in the vicinity of an active
unconventional well pad, who could speak from experience as to the effects of gas
well development on residential uses.
Third, while Inflection’s evidence may have been short on specifics, what
evidence Inflection did present tended to show that Inflection’s proposed gas
development was dissimilar from and incompatible with those uses currently
permitted in the R-A District, and would be in conflict with the purposes of the
Ordinance. For example, Inflection acknowledged that it would store hazardous
materials on the site and transport such materials to and from the site during
drilling and hydraulic fracturing operations, that whatever the total number of truck
trips to and from the well pad “there will be a lot of trucks,” and that its operations
will be loud and the sound will be difficult to mitigate. Opinion, at 14-15. Based
on the evidence presented by Inflection in its application, and in its testimony on
direct and cross-examination, the Court below properly concluded that Inflection’s
proposed use “is not an open space, agricultural or residential use, and it does not
foster a quiet, medium density residential environment while encouraging the
continuation of agricultural activities and prime farm land.” Opinion, at 18-19.6
6
Inflection argues that its proposed well pad use is similar to the “Essential Service,” “Public or
Quasi-Public Use,” and “Public Service Facility” uses permitted in the R-A district under
sections 4.2.1 and 4.2.2 of the Ordinance. Inflection Brief, at 28. Not only would such a finding
35
Although Inflection now styles its proposed use as a static, tranquil, and
drilling-and-fracking-free “natural gas well site,” and its drilling, hydraulic
fracturing, and other gas development operations as “construction activities” that
are beyond the purview of land use regulation under the MPC, there is no question
that the Township has both the authority and, under Article I, Section 27 of the
Pennsylvania Constitution, the duty to consider operational activities and their
effects in determining whether Inflection’s proposed development is appropriate
in the R-A district.
First, under section 603(b) of the MPC, zoning ordinances may “permit,
prohibit, regulate, restrict, and determine” both “uses of land” and the
“construction… of structures.” 53 P.S. 10603(b)(1)-(2). Second, the definition of
“use” in the Fairfield Township Zoning Ordinance is similarly broad, including the
“occupation” of land: a use is “[t]he specific purpose for which land or a structure
or building is designed, arranged, intended, or for which it is or may be occupied
or maintained.” Ordinance, 2.2. Third, the MPC explicitly recognizes oil and gas
operations as a “use of land” by requiring that zoning ordinances “provide for the
require tone to ignore Inflection’s drilling and hydraulic fracturing activities (as Inflection
recommends); it would require the Commonwealth Court to ignore its ruling in Cellco
Partnership v. N. Annville Twp, 939 A.2d 430 (Cmwlth. Ct. 2007). In Cellco, the Court rejected
the argument that a proposed cell phone tower was similar to a “public utility operating facility”
use because it lacked the “element of public benefit.” Id., at 436. “Verizon’s cellphone tower will
advance Verizon’s interest to compete in a marketplace, but these are commercial interests.
There is a benefit conferred on the public by a cellphone tower because people desire cellphone
coverage. However, there is an important difference between public and commercial benefits.”
Id.
36
reasonable development of minerals” and by defining the term “minerals” to
include natural gas. 53 P.S. §§ 10603(i), 10107. Finally, both the Commonwealth
Court and the Pennsylvania Supreme Court have repeatedly recognized that oil and
gas operations are uses of land. See, e.g., Huntley & Huntley, Inc. v. Borough
Council, 964 A.2d 855, 863 (Pa., 2009) (the purposes of zoning controls are
broader than the purposes of Oil and Gas Act because zoning controls deal with all
land uses, while the Oil and Gas Act deals only with oil and gas land uses);
Robinson Township, id., (statewide zoning prescriptions that require oil and gas
land uses be authorized across all zoned districts are unconstitutional).7
It is also not accurate that, as Inflection and the Township contend, the Court
below made its own determinations concerning the weight of evidence and
credibility of witnesses. See Inflection Brief, at 36. The Lower Court fully credited
Inflection’s representations; it merely concluded while that they did not constitute
substantial evidence that Inflection’s proposed well pad use was similar to and
compatible with other permitted uses in the R-A district, and was not in conflict
with the purposes of the Ordinance. Inflection’s factually unsupported and
7
Inflection also contends that the Lower Court erred by considering the effects of oil and gas
operations that municipalities are pre-empted from regulating operationally. Inflection Brief, at
40-41. Not only is this contrary to Huntley & Huntley, where the Supreme Court held that
municipalities under the MPC have the power to regulate the location of oil and gas operations,
even though they cannot regulate the technical features of those operations; if municipalities
could never consider the environmental effects of activities they could not regulate operationally,
the zoning of industrial activities would be eviscerated because all industrial activities require
environmental permits from under state and federal laws like the federal Clean Air Act and the
Pennsylvania Clean Streams Law that pre-empt local regulation to some extent.
37
conclusory statements to the contrary are, like the legislative findings in Act 13
that this Court rejected in finding section 3304 of that statute unconstitutional,
hollow – only a chute to allow passage of the proverbial pig from the barnyard to
the parlor. See Robinson Township, 52 A.3d at 484.
b. The fourteen conditions imposed by the Township in
Inflection’s conditional use permit did not relieve
Inflection of its duty to demonstrate compliance with
Section 12.18.
The Township asserts that, in approving Inflection’s proposed gas well
development, it imposed fourteen special conditions “to assure compliance with
the general purposes of the Ordinance, the specific requirements of conditional use
approval and the need to demonstrate compatibility with other uses permitted in
the R-A District.” Township Opinion and Order, Conclusion of Law No. 19. In its
brief, the Township characterizes these conditions as a sort of security interest in
compatibility, stating that the Board of Supervisors “determined Inflection’s
proposed use as compatible with the other uses permitted within the district while
imposing fourteen (14) separate conditions to ensure compatibility.” Township
Brief, at 22-23 (emphasis added). Inflection and the Township complain that the
Lower Court never acknowledged or analyzed these conditions, and the Township
offers that the Board “was not at all unsympathetic to the generalized concerns” of
the residents. Township Brief at 25-26, Inflection Brief at 51-52.
38
The Court below correctly did not address the Township’s fourteen
conditions because Inflection failed to carry its threshold burden of putting
evidence in the record to prove similarity, compatibility and no conflict.
As Inflection observes, the authority to impose special conditions in a
conditional use approval arises from section 10603(c)(2) of the MPC, which
provides that a governing body “may attach such reasonable conditions and
safeguards, other than those related to offsite transportation or road improvements,
in addition to those expressed in the ordinance, as it may deem necessary to
implement the purposes of this act and the zoning ordinance.” 53 P.S. §
10603(c)(2). See, e.g., Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing
Board, 944 A.2d 832, 839 (Pa. Cmwlth. 2008). The purpose of special conditions
is to address individual aspects of a particular use, when that use is of a kind that
has already been determined to be fundamentally compatible in a particular
district, whether that determination is legislative or through the satisfaction of an
applicant’s threshold burden under a savings clause like section 12.18. See,
generally, Levin v. Board of Supervisors, 669 A.2d 1063, 1078-1079 (Pa. Cmwlth.
1995), Clinton County Solid Waste Authority v. Wayne Twp., 643 A.2d 1162, 1169
(Pa. Cmwlth. 1994), Coal Gas Recovery, 944 A.2d at 839.
The flaw in the Township’s argument is that it puts the bunny in the hat. No
Pennsylvania appellate court has held – and there is no logical basis for holding –
39
that special conditions imposed under section 10603 can transform a use that is
fundamentally incompatible into a use that is fundamentally compatible, nor can
they relieve an applicant of its obligation to demonstrate the same on the record.
Special conditions do not possess alchemical properties; they cannot make a use
into something that it is not, or make it appropriate when it is not.
That is particularly true of the fourteen conditions that the Township
imposed here, including condition (m), that Inflection “use best efforts to
reasonably visually screen the well pad and well pad construction, drilling, and
fracking operations from all adjoining properties and in particular the adjoining
single family residential properties.” The best-effort-screening of an industrial use
in a residential district does not deindustrialize the use; it only attempts to put a figleafs over the scar.
Essentially, the contention of Inflection and the Township is that is that the
Township should get an “A” for its efforts to minimize the impacts of Inflection’s
proposed gas development. What is at issue is not the Board’s efforts, it is whether
Inflection demonstrated with substantial evidence that its use was similar and
compatible with other permitted uses, and did not conflict with the purposes of the
Ordinance. The Township’s fourteen conditions do not, and cannot carry those
burdens for Inflection.
40
C. By Approving the Location of Inflection’s Proposed Natural Gas
Development in a Neighborhood Zoned Residential Agricultural, the
Township Violated the Residents Constitutional Rights under Article I,
Sections 1 and 27 of the Pennsylvania Constitution.
1. By allowing an incompatible use that would fundamentally alter
the character of the neighborhood the Township violated the
Residents’ substantive due process rights.
Article I, Section 1 of the Pennsylvania Constitution protects life, liberty,
and property and prohibits government interference with private property rights
except in accordance with substantive due process. See, e.g., Twp. of Exeter v.
Zoning Hearing Bd., 962 A.2d 653, 659 (Pa. 2009). An exercise of zoning powers
satisfies substantive due process requirements when it is “directed toward the
community as a whole, concerned with the public interest generally, and justified
by a balancing of community costs and benefits.” Robinson Township v.
Commonwealth of Pennsylvania, 52 A.3d 463, 482 (Pa. Cmwlth. 2012).
Conversely, a zoning action violates substantive due process when it fails to
protect the interests of neighboring property owners from harm, allows
incompatible uses in a zoning district, makes irrational zoning classifications, or
alters the character of neighborhoods. Id. at 485.
In Robinson Township, this Court held unconstitutional, as offensive to
substantive due process, section 3304 of Act 13, Pennsylvania’s 2012 Oil and Gas
Act. This Court based its decision on the grounds that Act 13 required
municipalities to modify existing zoning ordinances to allow incompatible oil and
41
gas operations in residential districts – indeed all zoning districts – and thereby
struck an unconstitutional balance between the promotion of oil and gas
development and individual property rights, on the one hand, and the public
interest on the other. Id. at 481. The Pennsylvania Supreme Court subsequently
affirmed, with a plurality of the Court holding the zoning provisions of Act 13
unconstitutional under Article I, Section 27, with Justice Baer concurring on
substantive due process grounds.
As noted above, this Court’s decision rested on the basic precept that
“[l]and-use restrictions designate districts in which only compatible uses are
allowed and incompatible uses are excluded.” Id., at 485. Substantive due process
considerations bar municipalities from allowing incompatible uses in a zoning
district or neighborhood where citizens have made investment-backed decisions
regarding their homes in reliance on that zoning ordinance. The record shows that
is precisely what Brian and Dawn Gorsline did in this instance. As Ms. Gorsline
stated to the Board of Supervisors: “When we purchased this property, it was
zoned agriculture and residential. That’s why we put our home here. That’s why
we raised our family here.” Oct. Tr., pp. 58-59.
According to the Township, the analysis required under the Ordinance’s
savings clause “does not focus on a particular ‘neighborhood’ and rather requires
consideration of the compatibility of the proposed use within the entire zoning
42
district.” Township Brief, at 27. The Township’s argument is superfluous because
the applicant did not put on evidence of compatibility regarding either the
neighborhood or district. Nonetheless, the Township’s argument also misses the
point that zoning is a planning tool that is intended to promote the organized
development of a municipality by dividing it into districts where similar and
compatible land uses will occur now and into the future. Zoning is not only about
existing uses, it is prospective. For that reason, the Ordinance requires a
comparison of the proposed use with those legislatively determined to be similar
and compatible district-wide, and not, as the Township would have it, a
comparison of the proposed use with existing uses in particular neighborhoods.
2. By failing to account for the environmental and public health
effects of allowing an industrial use in a residential neighborhood,
the Township violated the Residents’ rights under Article I,
Section. 27 of the Pennsylvania Constitution.
Article I, Section 27, the Pennsylvania’s Constitution’s “Environmental
Rights Amendment,” states that “[t]he people have a right to clean air, pure water,
and to the preservation of the natural, scenic, historic and esthetic values of the
environment. Pennsylvania's public natural resources are the common property of
all the people, including generations yet to come. As trustee of those resources, the
Commonwealth shall conserve and maintain them for the benefit of all the people.”
The environmental rights of the people are the same before local government
agencies as they are before state agencies, and the constitutional obligations of
43
Article I, Section 27 likewise bind state and local governments equally. Robinson
Township v. Commonwealth., 83 A.3d 901, 952 (Pa. 2013). A government’s use of
its zoning power violates Article I, Section 27 when it violates the people’s
environmental rights or violates a government agency’s fiduciary obligations to
conserve and maintain Pennsylvania’s public natural resources for current and
future generations. Robinson Township v. Commonwealth, 83 A.3d 901, 953-957.
At its most basic level, the Environmental Rights Amendment requires a
government agency to consider, before taking an action, the potential
environmental effects of that action on its citizens’ rights to clean air, pure water,
and the preservation of environmental values. Id. at 952. To be valid, the action
“must, on balance, reasonably account for the environmental features of the
affected locale.” Id. at 953. Accordingly, when reviewing a government action for
conformance with Article I, Section 27, a court must conduct a “principled
analysis” focusing on the effect of the exercise of police power in question. “To
determine the merits of [an Article I, Section 27] claim, we inquire into more than
the intent of the legislative body and focus upon the effect of the law on the right
allegedly violated.” Robinson Township, 83 A.3d at 951. (emphasis added).
In this matter, the Township’s issuance of a conditional use permit for
Inflection’s natural gas development violated both the Residents’ right to a clean
and healthy environment in their residential neighborhood, and the Township’s
44
trustee obligations. The Ordinance itself respects the Residents’ rights – first by
restricting gas development activities to the Township’s Industrial District, and
second by requiring, in sections 12.1 and 14.2.5, that conditional use decisions take
into account the environmental and other effects of a proposed use on the area
where it will be located. However, through application of the Ordinance in this
case, the Township violated Article I, Section 27 by disregarding both aspects of
its own zoning scheme. Article I, Section 27 “circumscribes the conduct of state
and local government entities and officials in their formulation, interpretation, and
enforcement of statutes, regulations, and ordinances….” Robinson Township, 83
A.3d at 952 (citing Hartford Accident & Indem. Co v. Ins. Comm’r, 482 A.2d 542,
549).
As to the Township’s determination that unconventional gas development
did not constitute “surface mining” under section 2.2 of the Ordinance, the
Township’s duty to respect the Residents’ environmental rights should have been a
“thumb on the scale” that resolved any perceived ambiguity in favor of the more
protective interpretation – that Inflection’s proposed natural gas development was
surface mining for purposes of the Ordinance. See Pennsylvania Envt’l Defense
Foundation v. Com., No. 228 M.D. 2012, 2015 (Cmwlth. Ct. Jan. 7, 2015), slip op.
at [*74] (“when environmental concerns of development are juxtaposed with
economic benefits of development, the Environmental Rights Amendment is a
45
thumb on the scale, giving greater weight to the environmental concerns in the
decision-making process”).
With respect to sections 12.1 and 14.2.5 of the Ordinance, the Township
violated Article I, Section 27 by failing to obtain sufficient information about the
potential effects of Inflection’s proposed well pad use on the Residents, and by
ignoring evidence that the use would in fact have adverse effects on the Residents.
At the very least, the Environmental Rights Amendment stands for the
proposition that local governments must, in applying zoning standards, obtain
enough information about the environmental effects of a proposed land use to
perform a reasonable and principled balancing of those effects against competing
concerns – here, the effects of the proposed use against the desire of landowners to
develop mineral rights. Where a government agency is not provided with sufficient
information, Article I, Section 27 imposes an independent duty on the agency, as
trustee of public natural resources, to seek and obtain that information. (“The
failure to obtain information regarding environmental effects does not excuse the
constitutional obligation because the obligation exists a priori to any statute
purporting to create a cause of action.”) Robinson Township, 83 A.3d at 952.
Similarly, under the general principles governing trustee behavior, trustees
have a well-recognized duty to provide certain information to beneficiaries. See,
e.g., Restatement (Third) of Trusts, § 82 (2007), Uniform Trust Code, § 813
46
(amended 2005). Under Article I, Section 27, government agencies have a duty to
inform themselves of the potential environmental effects of land use approvals – to
seek relevant information from a permit applicant and, if the information is not
forthcoming, to deny that person’s application. The Township did not perform that
duty here.
For example, although the Township knew that Inflection planned to
conduct hydraulic fracturing operations on its proposed well pad, it failed to
request or obtain meaningful information from Inflection about the impacts that
Inflection’s use, storage, and transportation of chemicals and wastewater, and its
industrial operations may have on the environmental features of the adjacent
residential neighborhood. These failures constitute a breach of the Township’s
trustee duties under Article I, Section 27, and the Township’s issuance of a
conditional use permit to Inflection without adequate consideration of this
information violated the Appellants’ environmental rights. Moreover, to the extent
that the record does contain evidence of the environmental effects of Inflection’s
proposed well pad use, that evidence shows that Inflection’s activities will
constitute a nuisance and have a noxious effect on the surrounding area due to
noise, light, and traffic impacts.
The Township’s approval of Inflection’s proposed development does exactly
what a plurality of the Pennsylvania Supreme Court found offensive about Act 13:
47
it “displaces development guidelines … which offer strict limitations on industrial
uses” in a sensitive area and exposes “otherwise protected areas to environmental
and habitability costs associated with this particular industrial use: air, water, and
soil pollution; persistent noise, lighting, and heavy vehicle traffic; and the building
of facilities incongruous with the surrounding landscape.” 83 A.3d at 979-980.
Consequently, the Township’s approval violated its duties under Article I, Section
27.
D. The Issues Raised in this Appeal Were Not Waived or, in the
Alternative, Should Be Deemed to Have Not Been Waived for
“Due Cause.”
Inflection and the Township contend that the Residents waived
various issues, including whether the Township properly determined that the
application for a gas well development satisfied the conditional use criteria
in the Township’s Ordinance, whether the gas well development could be
lawfully located in the R-A District, and whether the approved land use
violated substantive due process and Article I, Section 27 of the
Pennsylvania Constitution.
The question of waiver is governed by Section 753 of the Pennsylvania
Local Agency Law, which provides that “if a full and complete record of the
proceedings before the agency was made such party may not raise upon appeal any
other question not raised before the agency (notwithstanding the fact that the
48
agency may not be competent to resolve such question) unless allowed by the court
upon due cause shown.” 2 Pa.C.S. 753(a). See Roomet v. Bd. of License &
Inspection Review, Dep't of Licenses, 928 A.2d 1162 (Pa. Cmwlth. 2007), Lamar
Advantage GP Co. v. Zoning Hearing Bd. of Adjustment, 997 A.2d 423 (Pa.
Cmwlth. 2010).
Preservation of a question for appeal does not require that an appellant raise,
before the agency, every legal argument concerning the issue. Transportation
Services v. Underground Storage Tank Indemnification Bd., 67 A.3d 142, 150 (Pa.
Cmwlth. 2013). This Court explained the rationale for the rule: when an appellant
claims on appeal that an agency has applied an incorrect statute, ordinance or
regulation, the agency should not be permitted to “reap the benefit of its own error
by invoking the doctrine of waiver.” Transportation Services 67 A.3d at 150.
In Transportation Services, the owner of a storage tank sought review of a
decision, by the Board of the Pennsylvania Underground Storage Tank
Indemnification Fund (“Fund”), that it could not recover the expense of
remediating a spill from its storage tank because they had not paid fees due under
the law. The tank owner argued before Commonwealth Court that the Fund
applied the wrong regulation when deciding that fees were not paid. The agency
countered that the tank owner had waived the argument “because it did not point
out at the administrative hearing that [the regulation] was not in effect in 1998.” 67
49
A.3d at 150. Construing Section 703(a) of the Local Agency Law – which
encompasses the same legal standard as Section 753 – this Court rejected the
argument, stating:
We reject the Fund's contention that this Court cannot address
the Board's error in applying the wrong regulation in its
adjudication. The Pennsylvania Rules of Appellate Procedure
direct that "[n]o question shall be heard or considered by the
court which was not raised before the government unit." PA.
R.A.P. 1551(a) (emphasis added). Similarly, Section 703 of the
Administrative Agency Law states that a “party may not raise
upon appeal any other question not raised before the agency ...
[except on] due cause shown.” 2 Pa. C.S. §703(a). The
“question” before this Court is whether Transportation Services
owed a capacity fee for the second half of 1998 after its tanks
were emptied of heating oil product and diesel fuel product. A
“question” is not synonymous with a legal argument. If this
were true, then appellate courts would not have the ability to
affirm a lower court's order on other grounds…. Indeed, until
the Board presented its legal analysis in its adjudication,
Transportation Services could not know what error it might
contain. In any case, the mutual mistake of the parties
constitutes “due cause shown” under the Administrative
Agency Law for reviewing the Board's citation of the wrong
regulation.
Transportation Services, 67 A.3d at 150-151.
The “question” in this appeal is whether the Township properly authorized
property in an R-A District to be used for installation of a natural gas development.
As detailed by the Court below, the Residents testified to numerous objections
concerning the location of the proposed gas well pad – among them that the high
levels of noise associated with the development would impact them, particularly
50
because of where the well pad sets in relation to the surrounding homes, that truck
traffic and a blind hill near the entrance to the property would pose a hazard, that
the gas well would be visible from their homes and have aesthetic impacts, R.
023a, 041a, 044a-046a, 049a, 050a, 057a, 327a-328a, and 342a. The testimony on
traffic and odor impacts was based on personal experiences with existing wells and
truck traffic caused by those developments. R. 60a-61a, 327a. Residents testified
that the increasing number of unconventional shale gas wells and the heavy truck
traffic associated with the industry was changing the character of the Residential
Agricultural zoned district. R. 314a, 323a, 326a. Residents also testified to
decreased property values because the well operation would be located in a
residential neighborhood and change its character. R. 52a, 314a, 323a, 326a.
Residents also testified to the number of well casing failures that had been
documented in the county and nearby townships, which lead to methane
contamination of private drinking water supplies, and expressed concern about the
risk associated with wells being located so close to their residences and private
drinking water wells. R. 53a-54a. The Residents repeatedly asked questions of
Inflection’s witnesses that directly put at issue the appropriateness of putting a gas
well pad development in the middle of a residential neighborhood.
Inflection only put two witnesses on the stand, neither of which was
qualified as an expert to address land use issues. When asked how having 2,00051
3,000 large trucks traveling up and down a residential road was not at least a
commercial operation, as compared to residential or agricultural, Inflection’s
witness testified “I don’t have an answer for that.” R. 48a.
Inflection did nothing to explain the rationale for locating its well pad in an
area zoned Residential Agricultural. Asked directly why the well was being
located so near a residential development, Inflection’s witness could only say that
it was the largest parcel of land in the area that the company could find. R. 49a,
50a.
Contrary to Inflection’s assertions, the Residents specifically raised
questions about whether the Application complied with the Township’s conditional
use permit criteria. One Township resident, Harvey Katz, specifically addressed
several parts of Section 14.2.5 of the Ordinance by number, directly questioning
whether Inflection had provided substantial evidence to support its claims of “no
adverse impact.” R. 26-34 (“So what I am suggesting is you need something with
a little meat into it to show why there won’t be any adverse impact, rather than
saying there won’t be any adverse impact”).
As for the constitutional questions, this Court has held that a constitutional
challenge need not be raised at the administrative level in order to be raised before
the court on appeal. Marchionni v. SEPTA, 715 A.2d 559 (Pa. Cmwlth. 1998);
Newcomer v. Civil Service Commission of Fairchance Borough, 515 A.2d 108, 110
52
(Pa. Cmwlth. 1986), alloc. denied, Newcomer v. Civil Service Comm., 522 A.2d 51
(1987) (constitutional challenge need not be raised at administrative level).
Marchionni involved an appeal (first to the Court of Common Pleas, and
then to the Commonwealth Court) of an order of the Southeastern Pennsylvania
Transportation Authority (“SEPTA”) terminating Marchionni’s employment. The
lower court allowed Marchionni to raise a due process argument that had not been
raised before SEPTA. SEPTA argued before this Court that the argument had been
waived. This Court disagreed, holding that “a violation of constitutional
dimensions need not necessarily be raised at the administrative level under pain of
waiver.” Marchionni, 715 A.2d 559, 561.
Further, it is plain from the record that, even though the Residents may not
have articulated their grievances as matters of “substantive due process” or “a
violation of Environmental Rights Amendment,” their testimony spoke exactly to
those issues. As explained in the Robinson decisions, substantive due process
speaks to the investment backed expectations of property owners, and their right to
be free from government decisions that would unreasonably interfere with the use
and enjoyment of their property. Robinson Township, 52 A.3d at 481 (citing City
of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33, 115 S. Ct. 1776, 131 L.
Ed. 2d 801 (1995)) (land-use restrictions aim to prevent problems caused by the
“pig in the parlor instead of the barnyard”). Similarly, the Environmental Rights
53
Amendment speaks to the right of citizens to not be unreasonably harmed by
government decisions, and the right to rely on rational zoning schemes to protect
those expectations. Robinson Township v. Commonwealth, 83 A.3d 901, 952 (Pa.
2013) (“the constitutional obligation binds all government, state or local,
concurrently”) (citing Franklin Township v. Commonwealth, 452 A.2d 718, 722
(Pa. 1982)). The testimony of the Residents regarding the location of the natural
gas development, changes to the character of their neighborhood, impacts on
property values, and impacts on the use and enjoyment of their property from
noise, odor, lights and traffic, properly addressed the core issues protected by the
constitutional rights that they seek to have vindicated by this Court. The record
testimony put Inflection on notice that it should have taken further steps, if it had
so chosen, to introduce evidence that demonstrated that the proposed land use did
not violate the constitutional rights of the Residents. That Inflection chose not to
do so does not now form a claim that the Residents waived their rights to pursue
those matters on appeal.
Second, concerning the Residents’ claim that the Township should not have
made its conditional use decision under Section 12.18 because the use is provided
for in the Industrial District, the Transportation Services case is dispositive of
Appellant’s argument. On appeal of an administrative agency decision, this Court
rejected the same argument being made by Appellants, stating, “a ‘question’ [under
54
Section 702 of the Local Agency Law] is not synonymous with a legal argument.”
Transportation Services, 67 A.3d at 151. The record testimony preserved for this
appeal the question of whether the Township properly issued a conditional use
permit to allow an industrial development in a residential neighborhood. As in
Transportation Services, it is proper for the Residents to raise any legal challenges
before this Court that were properly raised before the Court of Common Pleas,
which had jurisdiction to determine whether the Township had committed an error
of law or abuse of discretion. Society Created to Reduce Urban Blight v. Zoning
Board of Adjustment, 804 A.2d 116 (Pa. Cmwlth. 2002); Rushford v. Zoning Board
of Adjustment of Pittsburgh, 473 A.2d 719, 722 (Pa. Cmwlth. 1984).
Furthermore, if Appellants argument were to be accepted, it would harshly
prejudice the Residents because until the Township issued its decision, they were
not put on notice that the Township intended to approve Inflection’s application
under the wrong provision of the Ordinance. Prior to accepting testimony, Mr.
Wiley, the Township Solicitor, made a single brief statement about the nature of
the hearing:
[E]ssentially the purpose of the proceedings this evening is to address
a conditional use request by Inflection Energy to develop a gas well
site on the property of Donald and Ruth Shaheen, tax parcel
12.332152, located south of Quaker State Road, Montoursville here in
the Township. We are going through the process as we do with our
hearings putting everything on the record. Our general procedure is to
allow the Applicant to present the case that it wants to present to the
Board. We will then open it up to questions or statements that each of
55
you might want to make either for or against the proposal or questions
you might have of the Applicant to get more information about the
proposal itself. With that said, we will turn it over to Counsel for
Inflection Energy.
R. 004s-005a. Nowhere in the record did anyone from the Township, including its
Solicitor, explain the standards or criteria that the Township intended to apply in
making its decision, until the Board of Supervisors issued their decision on
December 18, 2003. Indeed, it would appear that Inflection also did not know that
the Township intended to authorize its proposed use under Section 12.8 as there
was no mention of those criteria in its Application. R. 146-147a. It would
supremely ironic if the Court declared that the Residents waived their right to
contest what criteria the Township should have used in making its decision when
the applicant itself appears to have not known what criteria applied.
Third, and finally, even if the Court should conclude that the Residents did
not adequately preserve one or more of the issues raised by Appellants, the Court
should find, as did the Court below, that the issues should be addressed now
because of their social and legal importance, and in light of this Court and the
Supreme Court’s decisions in Robinson Township. As the plurality observed in
Robinson Township, while Pennsylvania has “a notable history of what appears
retrospectively to have been a shortsighted exploitation of its bounteous
environment,” the legal issues raised by unconventional gas development are
“unprecedented,” especially in relation to local land regulation, Robinson
56
Township, 83 A.3d at 976. Both Fairfield Township and Lycoming County,
generally, are likely to see unconventional gas development within their borders
for years to come, if not decades, and development of the statutory, constitutional,
and other legal issues raised in this Appeal is critical to the health, safety, and
welfare of the citizens of the Township and the County alike. See Apgar v. State
Employees' Retirement System, 655 A.2d 185, 188 (Pa. Cmwlth. 1994) (although
appellant waived the issue by not raising it below, it was proper for the
Commonwealth Court to address the issue because of its future importance).
For the foregoing reasons, the Court should reject Inflection and the
Township’s assertions that the Residents waived any arguments being made in this
appeal.
VI.
CONCLUSION
The Court below rejected the Residents’ argument that the Ordinance
authorizes gas extraction activities in its Industrial District. This Court should
correct that error and affirm the Court’s decision on other grounds, holding that the
Township applied the wrong criteria in its Ordinance in an attempt to authorize
Inflection’s industrial use in a R-A District.
If the Court concludes that the Common Pleas Court properly concluded that
the Township compared the Application against the correct criteria, this Court
57
should affirm the Common Pleas Court decision on the basis that the record does
not contain substantial evidence to show that the proposed use is similar to and
compatible with other permitted uses in the R-A District, and that the use does not
conflict with the purposes of the Ordinance.
The Court below did not reach the constitutional issues raised by the
Residents. The record shows that by approving Inflection’s proposed use, the
Township violated the Residents’ constitutional rights under Article I, Sections 1
and 27 of the Pennsylvania Constitution.
Accordingly, the Court should affirm the decision of the Court of Common
Pleas to vacate the decision of the Township Board of Supervisors.
Respectfully submitted,
DATE:
March 16 , 2015
/s/ George Jugovic Jr.
George Jugovic, Jr., Esquire
PA Attorney No. 39586
Mark C. Szybist, Esquire
PA Attorney No. 94112
58
CERTIFICATION OF WORD COUNT
I hereby certify that the word count of Appellee’s Brief, excluding the cover
page, and table of contents and citations, does not exceed 14,000 words, as
required by Rule 2135.
/s/ George Jugovic, Jr.
George Jugovic, Jr.
PROOF OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Brief for Appellees has been served on this 16th day of March 2015 upon
the persons and in the manner indicated below:
Service by US First Class Mail
Joshua Joseph Cochran, Esq.
Schemery Zicolello, P.C.
333 Market Street
Williamsport, PA 17701-6329
Counsel for Fairfield Township
James Michael Wiley, Esq.
McCormick Law Firm
835 W. 4th Street
PO Box 577
Williamsport, PA 17701
Counsel for Fairfield Township
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
Counsel for Appellants
Service by PACFile
Susan J. Smith, Esq.
The Law Office of Susan J. Smith
2807 Market Street
Camp Hill, PA 17011
Counsel for Appellants
/s/ George Jugovic Jr.
George Jugovic, Jr.