EQT Production Company and ET Blue Grass Clearing, LLC v. Borough of Jefferson Hills

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

EQT Production Company and :

ET Blue Grass Clearing, LLC :

:

v. : No. 1184 C.D. 2016

: ARGUED: November 14, 2016

Borough of Jefferson Hills, :

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

SENIOR JUDGE LEADBETTER FILED: May 18, 2017

The Borough of Jefferson Hills appeals from an order of the Court of

Common Pleas of Allegheny County (common pleas) reversing the decision of the

Borough Council of the Borough of Jefferson Hills (Council) to deny the

conditional use application of EQT Production Company and ET Blue Grass

Clearing, LLC (the Applicants) to construct, operate, and maintain a natural gas

production facility on an area of their property known as the Bickerton Well Site.

In support of its denial of the application, Council primarily cited the Applicants’

alleged failure to satisfy Section 1003(a) of the Zoning Ordinance of the Borough

of Jefferson Hills (Zoning Ordinance), which provides: “The use shall not

endanger the public health, safety or welfare nor deteriorate the environment, as a

result of being located on the property where it is proposed.” Section 1003(a) of

the Zoning Ordinance; Reproduced Record (R.R.) at 1068a. On review, we

conclude that Council erred in concluding that the burden never shifted to the

objectors to establish with probative evidence that there is a high degree of

probability that the conditional use will constitute a detriment to the public health,

safety, and welfare exceeding that ordinarily to be expected from the proposed use.

In addition, we conclude that the objectors’ evidence does not constitute the

requisite substantial evidence to thwart the Applicants’ entitlement to a conditional

use as a matter of right. Accordingly, we affirm.1

Located off Ridge Road in Jefferson Hills, PA, the subject property

consists of Allegheny County Department of Real Estate Block and Lot Nos. 1003-

H-395-0-2 and 1003-M-250 and is situated in both the B-P Business Park Zoning

District (B-P District) and OG-U Oil and Gas Unconventional Development

Overlay District-Unconventional Wells (Overlay District). December 23, 2015,

Decision of Council, Finding of Fact (F.F.) Nos. A.1 and B.1. In the B-P District,

oil and gas drilling is permitted as a conditional use. Unconventional gas wells are

permitted as a conditional use in the B-P District as part of the Overlay District.

Id., F.F. No. B.2.

In September 2015, the Applicants filed their application for

conditional use approval for a proposed unconventional gas well site on the

“Bickerton Well Site.” “The proposed well site is approximately 126 acres and

will include unconventional wells both at the vertical and horizontal laterals and be

1

Where, as here, common pleas did not take additional evidence, we are limited to

reviewing whether the local governing body committed an error of law or made findings which

are not supported by substantial evidence. Whitehall Manor, Inc. v. Planning Comm’n of the

City of Allentown, 79 A.3d 720, 724 (Pa. Cmwlth. 2013); Gerryville Materials, Inc. v. Planning

Comm’n of Lower Milford Twp., Lehigh Cnty., 74 A.3d 322, 325 (Pa. Cmwlth. 2013), appeal

denied, 87 A.3d 817 (Pa. 2014). Substantial evidence is defined as such relevant evidence as a

reasonable mind might find adequate to support a conclusion. Valley View Civic Ass’n v. Zoning

Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983).

2

hydraulically fractured.” Id., F.F. No. C.1. The Applicants own both the surface

and the oil and gas rights. They have leases for all of the horizontal laterals

underground currently permitted and are working on acquiring leases for the non-

permitted wells. Id., F.F. No. C.4.

Regarding some of the specifics of their proposed use, the Applicants

stated that they would not use borough roads during well-site construction and

would use only state-owned roads. Id., F.F. No. C.6. Further, they testified that

water truck traffic to the proposed well site would be alleviated because the

Pennsylvania American Water Company had approved a meter vault for the site.

Id., F.F. No. C.2. In addition, they stated that the proposed project would not

impact streams or wetlands and that all of the lighting requirements set forth in the

Zoning Ordinance were met. Id., F.F. Nos. C.8 and C.9. They further indicated

that they would not be seeking any compressor station sites within the Borough,

that natural gas would flow from the proposed well site to a compressor station in a

neighboring community, and that they would explore the possibility of odorizing

that gas for leak-detection purposes and report back to the Borough. Id., F.F. Nos.

C.13-15. In addition, even absent a requirement, they also agreed to a sound

testing program and to use sound walls if required as part of a conditional use

approval. Id., F.F. Nos. C.18 and C.24. Further, acknowledging that safety issues

similar to any other industrial facility could occur at the site, i.e., minor injuries,

illnesses, and fires, they testified that the group putting together the safety and

environmental plan for the well locations consisted of two people. Id., F.F. Nos.

C.16 and C.17. As for air quality, they presented no evidence as to any monitoring

plans but indicated that any complaints would go to Allegheny County as the

agency tasked with enforcing those issues. Id., F.F. Nos. C.18 and C.19.

3

Regarding traffic, the Applicants indicated that they would post roads that were not

to receive truck traffic and place speed limit signs along the truck routes. Id., F.F.

No. C.20.

In October 2015, the Planning Commission unanimously

recommended approval of the application, conditioned upon the Applicants

providing updated information before the public hearing on the conditional use in

order to show compliance with numerous deficiencies outlined in the borough

planning consultant’s review letter. Id., F.F. No. A.3. In December 2015, the

Council denied the Applicants’ conditional use application by a zero to five vote.

Council’s written decision followed.

In its decision, Council determined that the Applicants complied with

all of the general requirements for conditional uses found in Section 1003 of the

Zoning Ordinance except subsection (a), pertaining to the public health, safety, and

welfare, and the environment. That subsection provides that, “The use shall not

endanger the public health, safety or welfare nor deteriorate the environment, as a

result of being located on the property where it is proposed.”

In addition, Council concluded that the Applicants satisfied Section

1004.35 of the Zoning Ordinance, providing additional standards for the specific

conditional use of oil and gas drilling. Further, it determined that they met

Sections 1503 and 1504 of Ordinance No. 833,2 pertaining to “oil and gas overlay

2

In June 2014, the Borough enacted Ordinance No. 833, which specifically provides for the

zoning of oil and gas drilling operations. In so doing, the Borough found as follows:

[T]he proposed new provisions . . . will promote the public health,

safety and welfare and practical community development in the

Borough . . . and will provide for gas and oil drilling to take place

in areas of the Borough in locations which will allow extraction of

gas and oil with the least detrimental impact on residentially zoned

(Footnote continued on next page…)

4

districts oil and gas development application requirements” and “oil and gas

development standards.” Id., Conclusion of Law No. F. Based on its

determination that they failed to satisfy Section 1003(a), however, Council

concluded that “the burden never shifted to the objectors to prove that the impact

of the proposed use is such that it would violate the other general requirements for

land use set forth in the Borough Zoning Ordinance.” Id., Conclusion of Law No.

H. Nonetheless, Council found the objectors’ testimony to be credible and

persuasive such that it gave significant weight to their testimony. 3 Id., Conclusion

of Law No. B.

Moreover, in addition to its analysis under the applicable conditional

use criteria, Council considered the Environmental Rights Amendment (ERA)4 in

rendering its decision. Citing the objectors’ testimony in support, Council

concluded, in relevant part, as follows:

_____________________________

(continued…)

property, historic or recreational resources, hospitals, nursing

homes, daycare centers and schools. As such, the proposed

provisions will further the goals of the Comprehensive Plan to

preserve the single family character of the Borough, to manage and

promote future growth and to protect natural sites.

Section 1(1)(A) of Ordinance No. 833; R.R. at 1144a.

3

As the fact finder, it is within the province of the municipal legislative body to render

credibility determinations and to assign weight to the evidence. Joseph v. N. Whitehall Twp. Bd.

of Supervisors, 16 A.3d 1209, 1218 (Pa. Cmwlth. 2011).

4

The ERA provides:

The people have a right to clean air, pure water, and to the

preservation of the natural, scenic, historic and esthetic values of

the environment. Pennsylvania’s public natural resources are the

common property of all the people, including generations yet to

come. As trustee of these resources, the Commonwealth shall

conserve and maintain them for the benefit of all people.

PA. CONST. art. I, § 27, cls. 1-3.

5

FF. Borough Council, not wishing to permit the

infringement of its residents’ rights under the [ERA],

based upon the above-referenced lack of evidence from

Applicants on protecting the public health, safety,

welfare and environment and the testimony of various

persons regarding the deleterious effects of the proposed

use, is unwilling to permit the proposed conditional use

due to its tendency of likely causing environmental

degradation, diminution and depletion and public health

issues such as adversely affected air and water quality

and the potential for cancer.

GG. Applicants’ succinct statement that it would comply

with [Section 1003(a) of the Zoning Ordinance] without

providing evidence of accomplishing the same, combined

with the evidence presented by those testifying in

opposition . . . does not satisfy the Borough’s obligations

under Article I of the Pennsylvania Constitution to

approve the proposed conditional use application.

...

II. Applicants’ consistent aversion to continuous air

quality monitoring places . . . Council in the position of

being unable in advance of proceeding to adequately

consider the environmental effect of the proposed

conditional use application.

...

KK. Borough Council’s balancing of the present desire

for gas development against the right of its residents to a

healthy environment result in more weight being given to

environmental concerns.

...

MM. Borough Council posits that in approving the

proposed conditional use application it would neither be

promoting the public health, safety and welfare, nor

protecting the environment from deterioration, when

there is an acknowledged risk that the activity the

proposed conditional use allows undermines each of

these values.

Id., Conclusion of Law Nos. FF., GG., II., KK., and MM (emphasis added).

6

Common pleas reversed without taking additional evidence and

without addressing the ERA, concluding that Council erred in determining that (1)

the Applicants did not meet their burden of proving entitlement to a conditional

use; and that (2) the burden never shifted to the objectors to present substantial

evidence of any adverse impact on the public health, safety, and welfare.

Regarding the nature of the objectors’ evidence, the court characterized it as

speculative regarding general oil and gas development and theoretical regarding air

pollution and odors. June 21, 2016, Opinion of Common Pleas at 4. In support of

its determination, the court cited Gorsline v. Board of Supervisors of Fairfield

Township, 123 A.3d 1142 (Pa. Cmwlth. 2015), appeal granted, 139 A.3d 178 (Pa.

2016).5 In Gorsline, mindful of the board of supervisors’ conclusion that the

neighbors’ “speculation of possible harms” was insufficient to demonstrate that the

proposed natural gas well would be detrimental to the health, safety, and welfare of

the neighborhood, we concluded that there was no probative evidence offered to

show that the proposed well would present such a detriment. Id. at 1153-54. The

Borough’s appeal to this Court followed.

It is well established that, “[a] conditional use is nothing more than a

special exception which falls within the jurisdiction of the municipal legislative

body rather than the zoning hearing board.” Williams Holding Group, LLC v. Bd.

of Supervisors of West Hanover Twp., 101 A.3d 1202, 1212 (Pa. Cmwlth. 2014)

[quoting In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006)]. A conditional

use, like a special exception, is not an exception to a municipality’s zoning

5

The Supreme Court’s grant review for consideration of four issues primarily relates to this

Court’s holdings regarding an industrial shale gas development being similar to and compatible

with a public service facility in an R-A District.

7

ordinance, but rather a use to which an applicant is entitled as a matter of right

unless the municipal legislative body determines “that the use does not satisfy the

specific, objective criteria in the zoning ordinance for that conditional use.” In re

Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009). It is the

applicant’s burden to establish that the proposed use satisfies the specific criteria in

the particular zoning ordinance.6 Williams, 101 A.3d at 1212. “An applicant who

satisfies this prima facie burden is entitled to approval, unless objectors in the

proceeding offer credible and sufficient evidence that the proposed use would have

a detrimental impact on public health, safety, and welfare.” Id.

Additionally, the ordinance must require that an applicant meet

reasonably definite conditions and not something in the nature of a policy

statement.7 Id. In that regard, the various burdens can be summarized as follows:

[A]s to specific requirements of the zoning ordinance, the

applicant has the persuasion burden, as well as the initial

evidence presentation burden. The objectors have the

initial evidence presentation duty with respect to the

general matter of detriment to health, safety and general

welfare, even if the ordinance has expressly placed the

persuasion burden upon the applicant, where it remains

if detriment is identified . . . . Where the ordinance

attempts to place upon the applicant a burden of proof

even more vague in its nature, we have refused to give it

effect.

Id. at 1213 (emphasis added) [quoting Bray v. Zoning Bd. of Adjustment, 410 A.2d

909, 912 (Pa. Cmwlth. 1980)]. As we summarized in Williams:

6

What the applicant must establish to obtain conditional use approval depends on what the

specific ordinance requires. See Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Twp.

Zoning Hearing Bd., 934 A.2d 759, 764 (Pa. Cmwlth. 2007).

7

As we stated in Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth.

1980): “Any other view would enable the [board] to assume the legislative role . . . .”

8

Thus, if a requirement is interpreted as one upon which

the burden is placed on an applicant, but the requirement

is nonobjective or too vague to afford the applicant

knowledge of the means by which to comply, the

requirement is either one that is not enforceable . . . , or,

if it relates to public detriment, the burden shifts to an

objector, who must demonstrate that the applicant’s

proposed use would constitute such a detriment.

101 A.3d at 1213.

In any case, it is well established that, “[t]he fact that a use is

permitted as a conditional use evidences a legislative decision that the particular

type of use is consistent with the zoning plan and presumptively consistent with the

health, safety and welfare of the community.” In re Cutler Group, Inc., 880 A.2d

39, 42 (Pa. Cmwlth. 2005) (citations omitted). In other words, once an applicant

establishes compliance with the specific requirements of the ordinance, the

proposed use enjoys a presumption that it is consistent with municipal planning

objectives and with the public health, safety, and welfare. Sheetz, Inc. v.

Phoenixville Borough Council, 804 A.2d 113, 115 (Pa. Cmwlth. 2002). Therefore,

“the degree of harm required to justify denial of the conditional use must be greater

than that which normally flows from the proposed use.” Cutler, 880 A.2d at 43.

This is so because the governing body in enacting the ordinance presumptively

took into account the impact of the use and considered it not to be a threat to

health, safety or welfare. Id. Opponents, therefore, must prove a high degree of

probability that permitting the conditional use will cause a substantial threat to the

community. Id. In that regard, the burden falls on them to establish with

specificity and with more than mere speculative anecdotal testimony that the

specific proposal will impose detrimental impacts exceeding those ordinarily to be

expected from the use at issue. See Kretschmann Farm, LLC v. Twp. of New

Sewickley, 131 A.3d 1044, 1055 (Pa. Cmwlth.), appeal denied, 145 A.3d 168 (Pa.

9

2016) (holding that objectors’ concerns did not constitute probative evidence that

the applicant’s compressor station would adversely affect the public health, safety

and welfare in a way not expected for a usual compressor station); Cutler, 880

A.2d at 43 (holding that, “[t]he evidence of the protestants cannot consist of mere

bald assertions or personal opinions and perceptions of the effect of the use on the

community.”)

Accordingly here, once the Applicants satisfied the specific, objective

criteria for the conditional use, the burden shifted to the objectors. See Williams,

101 A.3d at 1213. Therefore, we must consider whether objectors’ testimony

constitutes substantial evidence of a high degree of probability that Applicants’

proposal will impose detrimental impacts exceeding those ordinarily to be

expected from unconventional gas wells. Kretschmann Farm, 131 A.3d at 1055;

Cutler, 880 A.2d at 43.

Eight objectors credibly testified at the public hearing in opposition to

the conditional use application.8 Four witnesses testified as to issues relating to

EQT’s Trax Farm well site located in a nearby municipality (Misters Domman,

Baumgartner, Gniadek, and Tullai). Mr. Domman commented on the gag

agreements that EQT offered residents near the Trax Farm well site whereby

residents would grant an easement over and above their properties for noise, dust,

light, smoke, odors, fumes, soot or other air pollution, vibrations, and other adverse

impacts, conditions or nuisances which could arise from EQT’s operations. He

also discussed freshwater impoundments and the water testing required at that site.

In addition, based on Google Earth, Mr. Domman testified as to the proximity of

8

See November 10, 2015, Hearing, Notes of Testimony (N.T.) at 129-217; R.R. at 604-

692a.

10

neighborhoods to the proposed Bickerton Well Site and how many of them would

be located within the half mile safety radius that the Applicants had discussed. He

also commented on the evacuation in Greene County that had occurred due to an

explosion and its effect on those residents. December 23, 2015, Decision of

Council, F.F. No. 22(b).

Mr. Baumgartner testified as to his proximity to the Trax Farm well

site and commented on negative impacts there, such as noise, vibrations, and

odors. Stating that Southwestern Regional Health Association had advised him as

to the presence of airborne particulate matter restricting outdoor activities, he

alleged that air quality levels and diesel odors had required him and his wife to

evacuate their home several times and had forced his pregnant daughter to move

out on her doctor’s advice. In addition, he stated that he had a respiratory illness

requiring hospitalization due to the issues at the well site. Finally, alleging that he

and his wife were going to sell their house, he encouraged Council to investigate

EQT’s fines and violations. Id., F.F. No. 22(c).

Mr. Gniadek, a water truck driver who had worked in the oil and gas

industry, testified as to an incident near the Trax Farm well site where he witnessed

a malodorous, thick, white cloud which caused him to fall ill, return to his house,

and call an EQT contact. Gniadek relayed that the contact indicated that there had

been no other complaints and laughed at him. Thereafter, Gniadek stated that he

had red dots over his entire body and later was told that they were indicative of

asphyxiation. He also stated that EQT offered him $50,000 as part of an offer that

was being made to everyone on his street that they all had to accept, which was

later changed to permit each neighbor to decide individually. Finally, like Mr.

11

Baumgartner, he testified that, after noise complaints, EQT would change its

operations during an investigation period. Id., F.F. No. 22(d).

Mr. Tullai, who had recently moved to Jefferson Hills from near the

Trax Farm well site, testified as to issues that had occurred at the Trax Farm site

such as sleep-disrupting noise and annoying diesel fumes. He recommended

freshwater impoundment testing to ensure that hydraulic fracturing water is left in

the impoundments. Id., F.F. No. 22(e).

Ms. Caulkett testified that she lives approximately one thousand feet

from the proposed Bickerton Well Site and expressed concerns about noise, smell,

and the effect of the vibrations on underground mines. She was concerned about

mine subsidence and whether the drilling would exceed the two parcels at issue.

Id., F.F. No. 22(f). Raising the possibility of the drilling going underneath her

house, she asked whether EQT would enter into a deal and reimburse her for that

portion of the gas. November 10, 2015, Hearing, Notes of Testimony (N.T.) at

188-190; R.R. at 663-665a.

Ms. Morgan discussed the hearing notice and opined that there should

have been better notice to the residents. She also asked questions as to the

mechanics of how Council would proceed, what it would consider, and whether

there would be additional hearings. She noted that many of her questions had been

answered during the presentation and comment period. Id. at 200; R.R. at 675a.

Ms. Marcucci, who resides in Pleasant Hills, PA, but not in the

Borough, is employed as a community outreach coordinator for the Environmental

Integrity Project. She testified that EQT was fined as a result of her employer’s

research project on one of EQT’s sites in Tioga County due to switching

permanent freshwater impoundments into flowback ponds. In addition, she opined

12

that the Applicants’ practice of having only two persons applying for all of their

permits could result in details being missed. She also discussed air quality

permitting practices that the natural gas industry uses to avoid tighter regulation

and noted EQT’s flaring practices and their effect on the sound coming from a well

site into the community. December 23, 2015, Decision of Council, F.F. No. 22(a).

Ms. Kaufmann, a borough resident and family nurse practitioner with

a doctorate in public health,9 testified as to the health risks involved in hydraulic

fracturing and referenced some of the studies with which she was familiar such as

a recent one from the Johns Hopkins School of Public Health regarding fracking

and pregnancy. She also discussed a recent consensus statement from the

American Academy of Pediatrics and the fact that the state of New York banned

hydraulic fracturing based on certain research. In addition, she testified as to the

changes that she has seen in health conditions in Cecil Township such as an

increase in bad rashes, asthma exacerbations, unexplained coughs, and nose bleeds.

November 10, 2015, Hearing, N.T. at 209; R.R. at 684a. Finally, she encouraged

Council to consider the knowledge of health risks and the potential cancer lag time

between exposure and presentation before moving forward with a decision on the

Bickerton Well Site. December 23, 2015, Decision of Council, F.F. No. 22(h).

Having carefully reviewed the objectors’ testimony, we conclude that

it is insufficient to meet their burden of proof. Without a doubt, they testified

about serious problems at other well sites or the harms posed by drilling and

operation of unconventional wells generally. While such testimony might

persuade legislators to prohibit such drilling, it does not satisfy their burden to

9

There is no indication from the hearing transcript that Ms. Kaufmann was qualified as an

expert.

13

show that the development of the Bickerton Well Site would have an impact on

public health, safety, and welfare beyond that normally associated with any other

unconventional well site. Besides asking some questions, they failed to present

either lay or expert testimony specific to the Bickerton Well Site proposal. As

common pleas noted, their testimony was the kind of speculative evidence10

insufficient to constitute proof of detriment to health, safety, and welfare exceeding

those ordinarily to be expected from the proposed use. See Kretschmann Farm,

131 A.3d at 1055. Accordingly, given the fact that there has been a legislative

decision that the particular use is presumptively consistent with the health, safety,

and welfare of the community, the objectors’ testimony is insufficient to satisfy

their burden, and it is not the role of the Council in adjudicating a conditional use

application, let alone for the courts, to second guess the legislative decision

underlying the ordinance.

Finally, Council’s decision to augment the conditional use

requirements with criteria based on the ERA is tantamount to an attempt to, sub

silentio, abrogate the legislative determination that a conditional use for oil and gas

drilling is consistent with municipal planning objectives and with the public health,

safety and welfare, including protection of the environment.11 Therefore, once the

Applicants met the specific requirements of the ordinance, their proposed use

10

The Borough has raised a concern that the testimony of lay witnesses based on their own

personal experiences will never be sufficient to constitute the requisite probative evidence to

establish that a conditional use poses a detriment to public health, safety, and welfare. We do not

in any way suggest that the testimony of lay witnesses is insufficient, per se, but instead, that

probative evidence may not consist of speculation or testimony, even if concrete, which relates

generally to potential harmful effects of the use permitted by the ordinance.

11

See note 2 at 5, supra, quoting Section 1(1)(A) of Ordinance 833. No argument is being

made here that the conditional use allowance of unconventional gas wells, which is specifically

authorized by Pennsylvania statute, violates the ERA.

14

enjoyed a presumptive consistency with that legislative determination. See Sheetz,

804 A.2d at 115.

Accordingly we affirm the decision of common pleas which reversed

the Council’s denial of the conditional use application. Nonetheless, because of

Council’s outright denial, it did not consider attaching reasonable conditions to

Applicants’ project, to some of which Applicants had expressed their amenability,

such as water testing and noise reduction. Given the environmental sensitivity of

unconventional gas well drilling, we believe it is appropriate that we remand so

that reasonable conditions may be considered and, if found to be necessary,

attached to the grant of this conditional use. This consideration may be

accomplished by common pleas on remand,12 or that court may remand further for

consideration by Borough Council.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

12

Section 1006-A of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968,

P.L. 805, as amended, 53 P.S. § 11006-A. Section 1006-A was added by the Act of December

21, 1988, P.L. 1329.

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

EQT Production Company and :

ET Blue Grass Clearing, LLC :

:

v. : No. 1184 C.D. 2016

:

Borough of Jefferson Hills, :

Appellant :

ORDER

AND NOW, this 18th day of May, 2017, the order of the Court of

Common Pleas of Allegheny County is hereby AFFIRMED. However, the matter

is remanded to the Court of Common Pleas, in accordance with the foregoing

opinion, for consideration of whether the conditional use application should be

subject to reasonable conditions and, if so, imposing such conditions.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

EQT Production Company and :

ET Blue Grass Clearing, LLC :

: No. 1184 C.D. 2016

v. :

: Argued: November 14, 2016

Borough of Jefferson Hills, :

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: May 18, 2017

I respectfully dissent from the thoughtful Majority because I do not

agree that Objectors’ testimony and documentation “was the kind of speculative

evidence insufficient to constitute proof of detriment to health, safety, and welfare

exceeding those ordinarily to be expected from the proposed use.” (Maj. op. at

14.)1

1

Pursuant to the Ordinance of the Borough of Jefferson Hills (Borough), as implemented

and modified by our decision in Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911-12 (Pa.

Cmwlth. 1980), Objectors had the initial burden of adducing sufficient evidence establishing

that, in all likelihood, the use will “endanger the public health, safety or welfare [or] deteriorate

the environment, as a result of being located on the property where it is proposed.” (Ordinance,

§1003(a).) See Manor Healthcare v. Zoning Hearing Board, 590 A.2d 65, 71 (Pa. Cmwlth.

1991) (discussing the burden of proofs under Bray: “[T]he Zoning Ordinance may, as here,

place the ‘burden of proof’ on the applicant as to the matter of detriment to health, safety and

general welfare. Such a provision in the Zoning Ordinance, however, merely places the

persuasion burden on the applicant. The objectors still retain the initial presentation burden with

respect to the general matter of the detriment to health, safety and general welfare.”).

(Footnote continued on next page…)

Initially, I note that on a conceptual level, where, as here, an applicant

seeks a conditional use and proposes to install novel infrastructure within a

municipality’s borders, it is relatively difficult for the objectors to demonstrate that

the infrastructure will have a negative impact on the health, safety, welfare, or

environment of the community. Oftentimes, the objectors testify that they have a

generalized “fear” or “concern,” without any supporting factual basis, that the

proposed infrastructure will result in some type of harm. The primary reason for

this is that the new infrastructure is not yet in place and the objectors have not had

the opportunity to perceive or experience its effects first-hand, and, as a result, they

are reduced to testifying only as to the sheer possibility of a negative consequence.

This Court has consistently concluded that such testimony constitutes mere

speculation and is insufficient to satisfy the objectors’ burden of proof. See, e.g.,

JoJo Oil Company, Inc. v. Dingman Township Zoning Hearing Board, 77 A.3d

679, 689 (Pa. Cmwlth. 2013) (“Objectors’ witnesses testified generally about the

possibility of an explosion and their concerns about living in proximity of the

facility. There was no evidence of prior problems with such facilities.”).

But this case is clearly distinguishable from JoJo Oil Company, Inc.

Objectors’ evidence in this case is of a different pedigree altogether. Objectors are

(continued…)

Distilled to its essence, the only issue in this appeal is whether Objectors satisfied this

burden because the Borough Council of the Borough of Jefferson Hills (Council) determined that

EQT failed to persuasively demonstrate that operation of the Bickerton Well Site would not

result in a detrimental impact. Council’s Findings of Fact (F.F.) Nos. 25, 27; Conclusion of Law

(COL) at GG. Because the Council made the necessary findings of facts, any error that it

committed in applying the burden-shifting framework of Bray was a harmless one. See Appeal

of R.C. Maxwell Co., 548 A.2d 1300, 1303-05 (Pa. Cmwlth. 1988).

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not merely expressing “concerns” or “fears” of abstract possibilities in a realm of

conjecture. To the contrary, Objectors’ evidence is specific and concrete and they

have established, through comparative evidence, that a substantially similar natural

gas production facility owned and operated by EQT – the “Trax Farm Well Site” –

has had a detrimental effect on Union Township, a neighboring municipality. As

the Council found as fact:

1. The proposed [Bickerton Well Site] is

approximately 126 acres and will include unconventional

wells both at the vertical and horizontal laterals and be

hydraulically fractured. [EQT] testified that the proposed

wells would likely descend six thousand to seven

thousand (6,000-7,000) feet vertically before being

turned horizontal outward up to ten thousand (10,000)

feet.

* * *

7. Exhibit C evidences the presence of wetlands and

unnamed tributaries to Peters Creek very near the vicinity

of the 126 acre proposed well site.

* * *

22. The following persons, after being duly sworn,

testified at the November 10, 2015 public meeting:

* * *

b. Bob Dorman – Union Township: Commented on

“gag agreements” EQT offered residents near the

EQT Trax Farm well site wherein residents would

grant an easement/right-of-way over and above their

properties to EQT for noise, dust, light, smoke, odors,

fumes, soot or other pollution, vibrations, adverse

impacts or other conditions or nuisances which may

emanate from EQT's operations; provided [Council]

with copies of such agreements; [and] noted the

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proximity of neighborhoods to the proposed Bickerton

well site and how many of them would be within the half

mile safety radius [EQT] discussed . . . .

c. Gary Baumgartner – Union Township: Provided

[Council] with an exhibit demonstrating his home’s

geographic relationship to the EQT Trax Farm well

site[;] commented on the life-disrupting levels of

vibration coming from the Trax Farm well site which

he alleges cause sleep deprivation and visible shaking

of household items; discussed odors such as diesel

fumes and sulfur coming from the well site;

commented upon advice given to him by the

Southwestern Regional Health Association regarding

the presence of airborne particulate matter

emanating from the hydraulic fracturing operation

and settling on nearby properties restricting outdoor

activities such as lawn mowing, gardening, and playing

in grass; alleged air quality levels and diesel odors

requiring evacuation of his home; stated that issues

with noise, air quality, and odors forced his pregnant

daughter to move out [of the house] at the

recommendation of her doctor and that he and his wife

also had to move out countless times; [and] alleged a

respiratory illness requiring hospitalization was due

to issues from the Trax Farm well site . . . .

d. Mickey Gniadek – Union Township: [T]estified

about a December 4, 2013 incident where he went

outside of his house near the Trax Farm well site,

witnessed a thick white cloud about three-and-half

feet off the ground, [and] smelled an acidic and then

chlorine-like smell; stated that after this incident he

had red dots over his entire body and was later told

his symptoms were one of the signs of asphyxiation;

[and] recounted that after this incident an EQT

subcontractor arrived at his house to offer him

$50,000.00 as part of an offer that was being made to the

people in his neighborhood, which first required

everyone to sign on and was later changed to allow each

neighbor to decide individually . . . .

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e. Andy Tullai – Jefferson Hills, Pennsylvania: Recently

moved from near Trax Farm well site to Jefferson Hills;

testified about low frequency sounds that would come

from the Trax Farm well site and cause loss of sleep;

[and] commented on the annoyance of diesel fumes

....

* * *

h. Judith Kaufmann – Jefferson Hills, Pennsylvania:

Family nurse practitioner, holds a doctorate in public

health, wanted to testify based on her professional roles

and Borough resident status[;] stated that the American

Academy of Pediatrics had recently released a

consensus statement warning people and urging them

to not move forward with fracturing until health data

can be reviewed due to the apparent ability of

fracturing related toxins to cross the placenta during

pregnancy and contaminate cord blood, amniotic fluid,

and breast milk in addition to the placenta; [and] noted

that fracturing chemicals such as benzene, ethylene

and formaldehyde can cause cancer and in the case of

ethylene, it is also considered a neurotoxin . . . .

(Council’s F.F. Nos. 1, 7, 22b-e, h) (citation omitted).

In its brief, the Borough explains: “Because there is presently no

unconventional oil and gas development within the Borough, the focus of

[Objectors’] evidence was associated with EQT’s existing [Trax Farm]

unconventional well site in Union Township, Washington County, that was similar

to what was proposed in the [Borough].” (Borough’s brief at 18.)2

Previously, this Court reaffirmed that while an objector’s “bald

assertions, personal opinions and speculation will not” suffice to prove detrimental

impact on a community, “[t]estimony based on specific past experiences can

satisfy this burden . . . .” Servants Oasis v. Zoning Hearing Board of South

2

EQT admits that this statement is accurate. (EQT’s brief at 32 n.12.)

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Annville Township, 94 A.3d 457, 465 (Pa. Cmwlth. 2014) (citing Visionquest

National, Ltd. v. Board of Supervisors of Honey Brook Township, Chester County,

569 A.2d 915, 917-18 (Pa. 1990)).

Citing case law from this Court, our Supreme Court in Visionquest

stated that “testimony as to prior experiences with the specific proposed use, while

the use was conducted unapproved or unlawfully, should be given greater weight

in determining the detriment to the community as such testimony is clearly not

speculative.” Id. at 918 (citing Tuckfelt v. Zoning Board of Adjustment of the City

of Pittsburgh, 471 A.2d 1311 (Pa. Cmwlth. 1984); Atlantic Richfield Company v.

City of Franklin Zoning Hearing Board, 465 A.2d 98 (Pa. Cmwlth. 1983); Hannon

v. Zoning Board of Wilkes Barre, 379 A.2d 641 (Pa. Cmwlth. 1977)).3

3

In Tuckfelt, the applicants sought an occupancy permit or special exception to rent the

third floor of a building to two individuals. Based on the testimony of nearby landowners

concerning their past experiences with the individuals when residing in the building, the trial

court found as fact that “the additional roomers added more noise to the neighborhood by

playing their own stereo systems, created additional parking problems since there were no on site

parking spaces available, added to the trash and litter found on the property, and inhibited their

neighbor’s enjoyment of their surrounding properties by having loud parties that generated litter

which was on occasion cleaned up by neighboring residents.” 471 A.2d at 1314-15. Because

this finding was supported by substantial evidence, and the landowners’ testimony was not

speculative, this Court concluded that there was evidence sufficient to establish an adverse effect

on the health and safety of the community. See Hannon, 379 A.2d at 461-62 (concluding that the

neighbors’ testimony concerning adverse effects of a rooming house while it was operating

illegally and without proper licensure warranted the denial of the applicant’s request for special

exception to operate a rooming house and rejecting the applicant’s argument that the zoning

board “erred in considering past events at his rooming house”).

Similarly, in Atlantic Richfield, the applicant requested a special exception to convert an

existing gasoline station to a mini-market with self-service gasoline pumps. In opposition,

several residents who resided close to the gasoline station testified as to the adverse effects of the

unconverted gasoline station, including loud noise, littering, and loitering. This Court stated:

“[I]t is clear that this is not a case where the objectors offered unfounded presuppositions as

proof. It was on the basis of their prior experiences with the twenty-four hour operation of the

(Footnote continued on next page…)

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Although the Supreme Court in Visionquest pointed to incidents

occurring at another facility operated by the applicant to bolster the objectors’

testimony, it appears that neither the Supreme Court nor this Court has ever

determined whether the rule announced in Visionquest applies in the situation

where the objectors’ testimony is based solely upon the effects they experienced at

a substantially similar facility located in an adjoining municipality. Nevertheless,

logic and fundamental fairness dictate that such an extension should be made, at

least in the context of this case, where there is no unconventional gas well located

within the Borough upon which to compare generally or analyze when it is

operated unlawfully/unapproved and prior to an application for a special exception.

After all, “specific past experiences,” Visionquest, 569 A.2d at 918, are no less

meaningful simply because they occurred elsewhere and the inquiry should

naturally and predominately focus on what it is that caused those experiences.

This is especially true considering that within the rationale of Visionquest is the

unstated presupposition that what has happened (or more appropriately,

“experienced”) in the past is competent evidence of what will continue to happen

in the future.

Moreover, this extension of the Visionquest rule is an extremely

modest one that has a strong foundation in other areas of the law. In point of fact,

evidence of a substantially similar accident or harmful consequence is admissible

in civil law cases to prove that an instrumentality or condition is defective or

(continued…)

unconverted gas station that they attempted to prove the adverse effects of the proposed

conversion of the gasoline service station.” 465 A.2d at 100. Therefore, we concluded that the

zoning board did not err in determining that the proposed conversion would constitute a

detriment to the public health, safety, or welfare of the community.

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dangerous, see Blumer v. Ford Motor Co., 20 A.3d 1222, 1227-31 (Pa. Super.

2011),4 and evidence of a substantially similar property is admissible in tax

assessment cases to prove another property’s fair market value, see Aetna Life

Insurance Co. v. Montgomery County Board of Assessment Appeals, 111 A.3d 267,

278-81 (Pa. Cmwlth. 2015).5 The overriding and underlying thrust of these cases

is that when two objects are demonstrated to be like in kind, proof of how an object

performed, operated, and/or functioned in a certain circumstance tends to prove

how the object will perform, operate, and/or function in a remarkably similar

circumstance.

Notably, Objectors’ testimony is based on their first-hand

observations and experiences at the Trax Farm Well Site and is by no means

“speculative” in that sense of the legal term. See Gibson v. Workers'

Compensation Appeal Board (Armco Stainless & Alloy Products), 861 A.2d 938,

4

In Blumer, the plaintiff alleged that a defective design of a parking brake caused the

brake to disengage, resulting in a truck rolling down a hill and killing an individual, and asserted

a strict product liability claim under a malfunction theory. The Superior Court explained that

“[e]vidence of prior accidents involving the same instrumentality is generally relevant to show

that a defect or dangerous condition existed,” id. at 1228, and concluded that twenty-five reports

of prior, similar incidents from other consumers was admissible to prove that the truck’s parking

brake mechanism was defective.

5

In Aetna Life, this Court noted that the comparable sales approach is one of the methods

to determine a property’s fair market value for tax assessment purposes. We reiterated: “[I]n

determining market value, ‘comparables’ means properties of a similar nature which have been

recently sold. In order to be comparable . . . however, the properties need not be identical . . . .

Thus, comparisons based on sales may be made according to location, age and condition of

improvements, income and expense, use, size, type of construction and in numerous other ways.”

Id. at 279 (citation omitted). Ultimately, in Aetna Life, this Court concluded that the trial court

did not err in assessing a property’s fair market value based, in large part, on the values of the

other, comparable properties.

PAM – 8

944 (Pa. 2004) (stating that the Pennsylvania rule of evidence pertaining to lay

person testimony “contemplates admission of lay opinions rationally based on

personal knowledge that are helpful to the trier of fact. At common law, witnesses

not qualifying as experts were generally permitted to testify regarding those things

that they had seen, heard, felt, tasted, smelled, or done.”) (citation and internal

brackets and quotations omitted). Objectors’ testimony is also buttressed by

medical information that Objectors referenced and relayed at the hearing, and EQT

does not take issue with the admission of this information or the Council’s findings

of fact crediting it. This testimony, I believe, constitutes substantial evidence to

support the Council’s finding that the grant of the conditional use will have a

detrimental impact on the community

The Majority’s conclusion requiring Objectors “to present either lay

or expert testimony specific to the Bickerton Well Site,” (Maj. op. at 14), is unduly

restrictive and impracticable, has the effect of placing upon Objectors an almost

insurmountable burden of proving detrimental harm, and threatens “the ‘inherent

and indefeasible’ right of our citizens to possess and protect property.” PA

Northwestern Distributors, Inc. v. Zoning Hearing Board of Moon Township, 584

A.2d 1372, 1375 (Pa. 1991) (citing and quoting Article 1, Section 1 of the

Pennsylvania Constitution, Pa. Const. art. I, §1); see also Cleaver v. Board of

Adjustment of Tredyffrin Township, 200 A.2d 408, 413 (Pa. 1964). To be sure,

even if Objectors had hired an expert, the expert most likely would have had to

rely on comparative data from other well sites to support his/her opinion regarding

the Bickerton Well Site. See Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968)

(discussing foundational requirement for the admissibility of expert testimony).

Significantly, EQT had the opportunity to rebut Objectors’ testimony that the

PAM – 9

vibrations, “clouds,” and “fumes” from the Trax Farm Well Site caused illness and

sleep deprivation. EQT also had the chance to offer evidence that these incidents

never occurred or explain how they were the result of negligent mistakes that have

been later identified and corrected or mere events of unforeseeable circumstances.

EQT did not do so.

Contrary to the Majority, I would conclude that Objectors’ testimony

is not speculative or incompetent as a matter of law, but, instead, is admissible

evidence capable of being assessed for the worth that the fact-finder decides to

provide it. In its role as the ultimate fact-finder, see In re Thompson, 896 A.2d

659, 668-69 (Pa. Cmwlth. 2006), the Council in this case determined that

Objectors’ testimony was credible and persuasive, afforded significant weight to

the testimony, and found as fact that the grant of the conditional use would not

protect the health, safety, and welfare of Borough as required by the Ordinance.

(Council’s F.F. No. 22; COL at B, G.) In particularized detail, Objectors testified

how the Trax Farm Well Site released harmful chemicals that have had an adverse

effect on the residents (or then residents) of Union Township, most notably their

physical and mental health. From this evidence, it was within the exclusive

province of the Council, as the fact-finder, to draw the inference that it is likely

that the same effects will happen to the Borough’s residents with the Bickerton

Well Site. That is just what the Council sought to do here when it considered what

had happened at the Trax Farm Well Site and denied EQT a special exception in

the name of protecting “the public health, safety, [and] welfare” of the Borough.

(Ordinance, §1003(a).)

Accordingly, I would conclude that Objectors’ evidence was

sufficient to satisfy their burden of proof and that EQT failed to persuade the

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Council that the Bickerton Well Site would not have negative impact on the

Borough. Hence, I respectfully dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

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