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IN THE SUPREME COURT OF PENNSYLVANIA
No. 67 MAP 2016
BRIAN GORSLINE, DAWN GORSLINE, PAUL BATKOWSKI, &MICHELEBATKOWSKIAppellants
v.
BOARD OF SUPERVISORS OF FAIRFIELD TOWNSHIPAppellees
INFLECTION ENERGY, LLC, &DONALD H. AND ELEANOR R. SHAHEENIntervenors
BRIEF OF AMICI CURIAE DELAWARE RIVERKEEPER NETWORK,CLEAN AIR COUNCIL, &ENVIRONMENTAL INTEGRITY PROJECT
IN SUPPORT OF APPELLANTS
Appeal of: Brian Gorsline, Dawn Gorsline, Paul Batkowski &Michele Batkowskifrom the Opin. &Order of the Commonwealth Court entered Sept. 14, 2015 at No.
1735 CD 2014
Jordan B. YeagerPA ID No. 72947Lauren M. WilliamsCurtin & Heefner LLP2005 S. Easton Rd., Ste. 100Doylestown, PA 18901Tel.: (267) 898-0570
Joseph Otis MinottPA ID No. 36463Exec. Dir. &Chief CounselAaron Jacobs-SmithClean Air Council135 youth 19th St., ate. 300Philadelphia, PA 19103Tel.: (215) 567-4004
COUNSEL FOR AMICI CURIAE
Adam KronD.C. ID. No. 992135Senior AttorneyEnvironmental IntegrityProjectl Ot~O Vermont ~~~e. I~V6', Ste.1100Washington, D.C. 20005Tel: (202) 263-4451
1675818.1/48436
Received 8/1/2016 4:08:10 PM Supreme Court Middle District
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................:....................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
I. STATEMENT OF INTEREST ......................................................................... 1
II. INTRODUCTION AND SUMMARY OF ARGUMENT ............................... 5
III. ARGUMENT ................................................................................................... 9
A. Allowing Unconventional Gas Development in Non-Industrial Zoning
Districts Is an Abuse of the Police Power, Violates Basic Constitutional
Protections, and Is Inconsistent with This Court's Prior Precedent ...................... 9
1. Land Use Decision Makers Must Balance Constitutionally-Protected
Rights and Interests ......................................................................................... 10
2. This Court and the Commonwealth Court Previously Found
Unconventional Gas Development To Be an Industrial Activity That Is
Incompatible with Non-industrial Uses Such that Putting LTNGD in Non-
Industrial Areas Violates Constitutional Rights ............................................. 12
3. l~~unicipal ~ctior~ that ~ll~vi~s Industrial Uses in Non-Industrial T~is~rict~
Despite the Incompatibility Makes Zoning Irrational ..................................... 15
1675807. 18/48436
4. Allowing Unconventional Gas Development In Non-Industrial Districts
Unconstitutionally Upsets Residents' Reasonable Expectations .................... 17
B. The Commonwealth Court's Decision Trangresses These Established
Principles, Threatening Citizens' Constitutional Rights ..................................... 20
1. The Pennsylvania Constitution, the MPC, and the Zoning Scheme Define
the Outer Bounds of What Can be "Similar and Compatible," which the
Commonwealth Court Contravened ............................................................... 21
2. Unconventional Gas Development Uses Are Private, For-Profit
Enterprises, Are Not for the Use or Benefit of the General Public, and Are
Not Like Public Services Facilities ................................................................. 29
3. The Commonwealth Court's Analogy to Ma~kWest Is In Error ............. 33
IV. CONCLUSION ..............................................................................................40
Certificate of Service
~~
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TABLE OF AUTHORITIES
Cases:
Appeal of Baird,537 A.2d 976 (Pa. Commw. Ct. 1988) .................................................................38
Baker v. Chartiers Twp. Zoning Hearing Bd.,677 A.2d 1274 (Pa. Commw. Ct. 1996) ...............................................................39
Boundary Drive Assocs. v. Shrewsbury Twp. Bd. of Supervisors,491 A.2d 86 (Pa. 1985) .........................................................................................10
Bray v. Zoning Bd. of Adjustment,410 A.2d 909 (Pa. Commw. Ct. 1980) .....................................................37, 38, 39
Butler v. Derr Flooring Co.,285 A.2d 538 (Pa. Commw. Ct. 1971) .................................................................39
Ed~mont Twp. v. Springton Lake Montessori Sch., Inc.,622 A.2d 418 (Pa. Commw. Ct. 1993) .................................................................38
Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Twp. Zoning Hearing Bd.,934 A.2d 759 (Pa. Commw. Ct. 2007) ...........................................................37, 38
Gorsline v. Bd. of Supervisors of Fairfield Twp.,123 A.3d 1142 (Pa. Commw. Ct. 2015) ........................................................passim
Gorsl ne, et a1. v. Bd. of Sup'rs of Fairfield Two., No. 14-000130(Lycoming Cty. Ct. of Cmmn. Pleas, Aug. 29, 2014) ..........................................36
Hock v. Bd. of Sup'rs of Mount Pleasant Twp.,622 A.2d 431 (Pa. Commw. Ct. 1993) .................................................................15
In re Realen Valley Forge Greenes Assocs.,838 A.2d 718 (Pa. 2003) .................................................................................11, 12
Keystone Chem. Co., Inc. v. Zoning Hearing Bd. of Butler Twp.,494 A.2d 1158 (Pa. Commw. Ct. 1985) ...............................................................38
iii
1 b7`JS~~.I g%4g4.ib
Main St. Dev. Gi-p., Inc. v. Tinicum Twp. Bd. of Supervisors ("Main Street"),
19 A.3d 21 (Pa. Commw. Ct. 2011) ....................................................15, 18, 28, 39
MarkWest Liberty Midstream &Res., LLC v. Cecil Twp. Zoning Hearing Bd.
("MarkWest"), 102 A.3d 549 (Pa. Commw. Ct. 2014) ................20, 29, 33, 34, 35
Pennsylvania Coal Co. v. Mahon,260 U.S. 393 (1922) ..............................................................................................11
Robinson Township, Delaware Riverkeeper Network, et al. v. Commonwealth
("Robinson II"~, 83 A.3d 901 (Pa. 2013) .......................................................passim
Robinson Twp. v. Com.~"Robinson I"~,52 A.3d 463 (Pa. Commw. Ct. 2012) .............................................................passim
Shamah v. Hellam Two. Zoning Hearing Bd.,648 A.2d 1299, (Pa. Commw. Ct. 1994) ..............................................................38
Suhy v. Zoning Bd. of Adjustment of City of Phila.,169 A.2d 62 (Pa. 1961) .........................................................................................16
Swade v. Zoning Board of Adj. of Springfield Twp.,140 A.2d 597 (Pa. 1958) .....................................................................14, 23, 26, 28
United Artists Theater Circuit, Inc. v. City of Phila.,595 A.2d 6 (Pa. 1991) ...........................................................................................11
Valley View Civic Assn v. Zoning Bd. of Adjustment,462 A.2d 637 (Pa. 1983) .......................................................................................37
Vill. of Belle Terre v. Boraas,416 U. S . 1 (1974) ..................................................................................................14
Village of Euclid, Ohio v. Ambler Realty Co.,272 U.S. 365 (1926) ..............................................................................................14
~v
1 ti7~8u7.1$l4843ti
Constitutional Provisions:
Pa. Const. art. I, § 1 .................................................................................7, 9, 14, 28
Pa. Const. art. I, § 27 .................................................................................2, 7, 9, 28
Other:
Robert S. Ryan, Pa. Zoning Law &Practice ("Ryan on Zoning") ....................... 27
v
1 ti7580718i4843o
I. STATEMENT OF INTEREST
Amici Delaware Riverkeeper Network ("DRN") and Clean Air Council (the
"Council") are Pennsylvania-based environmental non-profits with strong ties to
local Pennsylvania communities. These amid have active cases before the
Pennsylvania courts involving the same—or related issues as those in this matter.
Amicus Environmental Integrity Project ("EIP") is a national non-profit with
locations in Pennsylvania that has also worked on zoning issues similar to those in
this matter. Amici have long-standing interests in the health and wellbeing of
Pennsylvania residents, and are committed to preserving and protecting
Pennsylvania's natural resources. Amici have a specific interest in ensuring that
municipal-level land use and zoning ordinances regulate oil and gas development
in a manner that serves all residents in the community, and that they are carried out
in a manner that is consistent with existing restrictions that protect agricultural and
open space areas and provide for responsible, orderly development.
DRN is anon-profit organization established in 1988 to protect and restore
the Delaware River, its associated watershed, tributaries, and habitats. DRN also
works in communities outside the Delaware River watershed to support
organization members with shared interests in protecting water quality, quality of
life, public trust resources, and the constitutionally-protected environmental rights
in members' communities.
1675807.18id8~}3b
DRN was an integral party to the Pennsylvania Supreme Court's decision in
Robinson Township Delaware Riverkee~er Network, et al. v. Commonwealth, 83
A.3d 901 (Pa. 2013), which recognized the significant rights protected under
Article I, Section 27 of the Pennsylvania Constitution and reaffirmed that all
citizens have an inalienable right to a clean and healthy environment.
DRN established a new initiative, For The Generations, to: 1) ensure that the
Pennsylvania Environmental Rights Amendment is further strengthened in the
wake of the Robinson Township, Delaware Riverkeeper Network decision; 2)
pursue and secure constitutional protection of environmental rights in states across
the nation; 3) pursue and secure recognition of environmental rights at the federal
level through constitutional amendment; and 4) ensure governments at the local
level, state level, and federal level honor the rights of all people to pure water,
clean air and healthy environments in the laws they enact, the decisions they make,
and the actions they pursue.
As a result, DRN works with and supports local groups who are fighting to
protect their communities and their constitutional rights to a clean and healthy
place in which to live, work and recreate. For example, DRN has partnered with
Clean Air Council and members of the Mars Parent Group and in Middlesex
Township, Butler County to challenge zoning changes which would allow drilling
in over 90% of the Township, including near the Mars Area School District
2
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campus. The zoning changes also placed compressor stations in non-industrial
areas near farms and homes.
The Council is atax-exempt non-profit organization was established in 1967
under the laws of Pennsylvania, with a mission to protect everyone's right to
breathe clean air. The Council has members and supporters throughout the
Commonwealth. The Council fights to improve air quality across Pennsylvania
through public education, community organizing, and litigation.
The Council is a founding member of Protect Our Children, a coalition of
parents, concerned citizens, and advocacy organizations, dedicated to protecting
school children from the health risks of shale gas drilling and infrastructure.
EIP is a national nonprofit organization founded in 2002 with staff in
Washington, D.C., Austin (Texas), western Pennsylvania, and Philadelphia. EIP is
dedicated to advocating for more effective enforcement of environmental
protections. Since its founding, EIP has worked to help and protect Pennsylvania
communities from the effects of heavy industry and energy production, including
oil and gas development and production; natural gas processing plants, oil
refineries, and petrochemical facilities; coal-fired power plants; and coal ash
landfills. In response to the recent weakening of zoning ordinances in
municipalities across Pennsylvania, which would allow increased oil and gas
development and heavy industry in incompatible districts, EIP's attorneys and
1675307.18/48436
Pennsylvania organizer have worked to address this trend through a combination of
legal challenges and community organizing. In 2014, EIP filed a substantive
validity challenge on behalf of six residents of Robinson Township, Washington
County, Pennsylvania, with respect to a revised ordinance that allows oil and gas
development in every zoning district, whether industrial, agricultural, or
residential.
:!
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II. INTRODUCTION AND SUMMARY OF ARGUMENT
Amici urge this Honorable Court to reverse the decision of the
Commonwealth Court. The Commonwealth Court's decision, like Act 13 of 2012,
makes zoning irrational by allowing the injection of industrial oil and gas land uses
into non-industrial zoning districts. The Court below did so without any
substantial evidence in the record created at the Fairfield Township Board of
Supervisors' conditional use hearing. The Commonwealth Court's decision below
— finding that industrial shale gas development is similar to and compatible with
uses expressly permitted in a Residential Agricultural District —conflicts with the
prior decisions of this Court and the Commonwealth Court in Robinson Townshi
v. Commonwealth.
Allowing unconventional gas development in residential agricultural
districts is inconsistent with the purposes of such districts, existing development
patterns, residents' expectations, and the protection of our shared natural resources.
As a result, such actions —and ordinance provisions that provide for similar
expansions —are arbitrary and unreasonable, and bear no substantial relation to
protecting the public health, safety and welfare. Shale gas wellsite development
exposes residents, their children, pets, livestock, and property to air pollution and
industrial 1•isks such as blowouts, spills, water or soil contamination, and
explosions. New wellpads allow for industrial uses next door for many years to
5
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come, in contrast to expectations created by the existing zoning that such areas
would be for homes, farms, or schools.
The courts, when interpreting and applying zoning ordinances, must be
guided by Robinson Township v. Commonwealth and the long line of zoning cases
that recognize constitutional limitations on governmental action. These
constitutional limitations define the outer bounds of what is "similar and
compatible" with another activity in a given zoning district. The Commonwealth
Court's decision transgressed these bounds, as well as the bounds set by the zoning
scheme in Fairfield Township itself.
Indeed, as this Court and the Commonwealth Court understood when
striking down Act 13, what is "similar and compatible" cannot be analyzed or
pronounced in a vacuum. It must be understood and applied within the context of
local citizens' reciprocal rights to the use and enjoyment of their property. It must
be understood and applied consistent with residents' rights "to clean air, pure
water, and to the preservation of the natural, scenic, historic, and esthetic values of
the environment." It must be understood and applied consistent with residents'
rights to the enjoyment of the people's shared natural resources. The
Commonwealth Court's opinion laid aside these essential considerations and was
therefore in error.
The import of correcting these errors cannot be understated. There is a
i ei~soi.is~~~a3e
significant problem across the Commonwealth with municipalities enacting the
same types of ordinances at the local level that the Courts in Robinson Township
recognized as being unconstitutional. Despite the Act 13 decisions, many
municipalities have been enacting zoning provisions that are parallel to those that
had been contained in Act 13. There are also circumstances, such as this case, in
which municipalities must determine whether unconventional gas development is
similar to and compatible with uses in certain non-industrial districts. However,
municipalities are acting without considering whether the ordinance or approval in
question protects the health, safety, morals and public welfare of all local citizens,
resulting in the improper exercise of a municipality's police power in violation of
Article I, Section 1 of the Pennsylvania Constitution. Many of these ordinances
inject incompatible industrial uses into non-industrial districts, in violation of
municipalities' own comprehensive plans, and make the zoning schemes irrational,
in violation of Article I, Section 1 of the Pennsylvania Constitution. By placing
industrial uses next to homes, schools, and farms, they degrade the local
environment and public natural resources and infringe on rights protected by
Article I, Section 27 of the Pennsylvania Constitution.
Indeed, one of the problems with the Commonwealth Court's reliance on
past conditional use approvals to support a challenged approval is that it works a
de facto amendment to the zoning ordinance by injecting industrial uses into non-
7
1675807.18/48436
industrial districts without changing the zoning to reflect the different character
and uses. A municipality could, to avoid the level of public notice and opportunity
to be heard that comes with a zoning change, simply not update its ordinances to
address gas development, and instead, act as Fairfield Township has. The result is
the same —citizens' rights are unduly infringed upon in violation of the
Pennsylvania Constitution.
Aynici respectfully urge this Honorable Court to correct these errors so that
all citizens' constitutional rights are protected, not simply those who have a direct
economic interest in gas development.
167807.18/48436
III. ARGUMENT
A. Allowing Unconventional Gas Development in Non-IndustrialZoning Districts Is an Abuse of the Police Power, Violates BasicConstitutional Protections, and Is Inconsistent with This Court's PriorPrecedent
Municipal action that would allow unconventional natural gas development
("UNGD"), an industrial activity, in non-industrial zoning districts is inconsistent
with fundamental principles of zoning law and runs afoul of the rights of citizens
under Article I, Sections 1 and 27 of the Pennsylvania Constitution.' The due
process protections of Article, Section 1 place a restraint on local government
police powers when exercised to affect the property rights of residents through
land use and zoning decisions. Chief among those restraints is the mandate that
land use and zoning decisions promote the public health, safety and general
It is amici's understanding that the original land use appeal made claims relativeto Article I, Sections 1 and 27 of the Pennsylvania Constitution. The trial court didnot address those arguments, and the Commonwealth Court dismissed those claimssummarily. Gorsline v. Bd. of Supervisors of Fairfield Twp., 123 A.3d 1142, 1154n.l l (Pa. Commw. Ct. 2015).
However, as amici wi11 explain, one cannot so easily segregate constitutionalconsiderations when dealing with zoning ordinances because the standards used tojudge zoning ordinances —whether they unreasonably infringe on property rightsor individual environmental rights —flow fist from tl~e Pennsylvania Constitution.The Municipalities Planning Code ("MPC") adds "meat" to these standards, butthe basic standards we use in the substantive due process analysis flow fromjudicial decisions interpreting whether a governmental action infringes onprotected constitutional rights. In this case, Fairfield Township's approval must bejudged against the township's zoning ordinance standards, the MPC, and thePennsylvania Constitution.
9
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welfare of all residents.
1. Land Use Decision Makers Must Balance Constitutionally-
PYotected Rights and Interests
Municipalities must balance property rights with constitutionally-protected
rights to clean air and pure water, and with the rights of present and future
generations to healthy public natural resources. Robinson Twp., Delaware
Riverkeeper Network v. Com. ("Robinson II"), 83 Aid 901 (Pa. 2013). Likewise,
municipalities must balance the property rights of all those in a community, as all
community members —not just those with gas leases — have a right to the use and
enjoyment of their property. Fairfield Township granted conditional use approval
for an unconventional wellsite without due consideration to the impacts on
neighbors and the community at large. The decision unreasonably benefitted some
at the expense of others. In short, Fairfield Township got the balance wrong.
The constitutionality of a zoning scheme as a whole rests on whether the
ordinance promotes the public health, safety, and welfare, and the provision or
action in question is substantially related to the purpose the ordinance seeks to
serve. Boundary Drive Assocs. v. Shrewsbury Twp. Bd. of Supervisors, 491 A.2d
86, 90 (Pa. 1985). As noted by the Commonwealth Court in Robinson I, for
L,O111I1g l0 ~[j(: GO11S`l.1lU~lOi1~Ii~ ii "I17iU~i ~ic C~t1iECiECi ~O'vVaiu t~12 iv^riiiTi'ullit`y' aS a vViiv^~i~~
concerned with the public interest generally, and justified by a balancing of
10
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community costs and benefits." Robinson Twp. v. Com. ("Robinson I"), 52 A.3d
463, 483 (Pa. Commw. Ct. 2012)(quoting In re Realen Va11ey Fore Greenes
Assocs., 838 A.2d 718, 728 (Pa. 2003)(emphasis added); see also Main St. Dev.
Grp., Inc., 19 A.3d at 28 (finding that zoning requires a balancing of the needs of
varying uses).
As this Court has stated:
As regulations grounded in the delegated police power,zoning must accomplish `an average reciprocity of
advantage' so-termed by Mr. Justice Holmes in
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415
(1922), by which `all property owners in a designated
area are placed under the same restrictions, not only for
the benefit of the municipality as a whole but also for thecommon benefit of one another.'
In re Realen Valle~Forge Greenes Assocs., 838 A.2d at 729 (parallel citations
omitted) (quoting United Artists Theater Circuit, Inc. v. City of Phila., 595 A.2d 6,
13 (Pa. 1991)); see also Robinson I, 52 A.3d at 482.
These same considerations are at play when municipalities make conditional
use or other zoning permitting decisions. A municipality must be mindful of the
interests of all residents, not just the applicant and the property owner who might
financially benefit. When the municipality's focus narrows to just the interests of a
1V ~~ 1.~1V 1 V~~~L ~~11t+ l~l~L 1V1V ~il 1 UlllllJl~ 1 V ~Y~11J111~/~ V~ll ~~+ N.ii 'Ut1~+v13J~1ti.~u~iC~:r`~.~ ~r
illegal "spot use." As explained in Robinson I,
1 1
1675807.18/48436
While in spot zoning the land is classified in a way that is
incompatible with the classification of the surrounding
land, the same unconstitutional infirmity exists here.
What we have under Act 13 is a "spot use" where oil and
gas uses are singled out for different treatment that is
incompatible with other surrounding permitted uses.
What the dissent ignores is that the sanctioning of "bad
planning" renders the affected local zoning ordinances
unconstitutionally irrational.
52 A.3d at 485 n.23; see also id. at 484 n.21 ("Whether you classify oil and gas
operations as a pig in the parlor' or a rose bush in a wheat field,' it nonetheless
constitutes an unconstitutional spot use."'); In re Realen Valley Fore Greenes
Associates, 838 A.2d 718, 729 (Pa. 2003) ("Spot zoning is the antithesis of lawful
zoning in this sense [of a community-wide focus and balancing of costs and
benefits]. In spot zoning, the legislative focus narrows to a single property and the
costs and benefits to be balanced are those of particular property owners."). Thus
whether enacting an ordinance or approving a use not provided for under an
ordinance, municipalities must keep all rights in mind. When the focus narrows, as
it did in Act 13, courts must invalidate the action in question. The focus na1-rowed
here to just the interests of the one set of property owners in developing their land,
and thus the same result must follow.
2. This Court and the Commonwealth Court Previously Found
~~~econ~Ei~iior~c~l vns ~e~E~opm~~~t ~'~ ~'3E aY i:~~lu~t~it~d A~~ir~~:~ ''~~u~
I~ Incompatibde wath 1lroaa-indaastrial Uses Sucla that Putting UNGD
in Non Industrial Areas Violates Constitutional Rights
12
167807.1 x/4x436
The Commonwealth Court's decision below —finding that industrial shale
gas development is similar to and compatible with uses expressly permitted in a
Residential Agricultural District —conflicts with the prior decisions of this Court
and the Commonwealth Court in Robinson Township v. Commonwealth.
This Court and the Commonwealth Court both understood that injecting
industrial uses —gas development —into non-industrial districts violated basic
constitutional standards, like those just described above. Fairfield Township
contravened these same constitutional protections when it permitted Inflection's
unconventional gas wellsite in a residential agricultural district.
A majority of the justices on this Court understood that UNGD is an
industrial use and is incompatible with non-industrial uses. Three justices
described Act 13 as "a new regulatory regime permitting industrial uses as cc
mc~tte~ of right in every type ofpre-existing zoning district" and found that the
statute "is incapable of conserving or maintaining the constitutionally-protected
aspects of the public environment and of a certain quality of life." Robinson II, 83
A.3d at 979 (plurality)(emphasis added). Justice Baer, in his concurrence with the
three justice plurality opinion striking down Act 13, wrote that Act 13
expands private property rights by mandating thatiil~iViu~u2i 1ii'ut211C1~c"~ii~1~S ~~~'iiii~i, ~'21"L'~1'2j"~y' ~3y322Y~ ~~
residentially o~ ~rg~icultur~lly zoned a~e~s to bring oaland gas operations onto them land. As Challengers dulynote, these industrial-like operations include blasting of
13
I67~807.18/48436
rock and other material, noise from the running of diesel
engines, sometimes nonstop for days, traffic from
construction vehicles, tankers, and other heavy-dutymachinery, the storage of hazardous materials, constant
bright lighting at night, and the potential for life- and
property-threatening explosions and gas well blowouts.
Id. at 1005(Baer, J., concurring). Justice Baer joined in the result, adopting the
rationale of the Commonwealth Court, finding that the legislation failed on
substantive due process grounds under Article I, Section 1 of the Pennsylvania
Constitution. Id. at 1001 (Baer, J., concurring).
In the Act 13 litigation, the Commonwealth Court likewise found that the
zoning provisions of Act 13 made the local zoning schemes unconstitutionally
irrational by injecting industrial and therefore incompatible uses into non-industrial
districts not slated for such uses; allowing industrial uses in non-industrial districts
makes the very designation of districts —the cornerstone of zoning —irrational.
Robinson I, 52 A.3d at 484-85; see also Swade v. Zoning Board of Adj. of
Springfield Twp., 140 A.2d 597, 598 (Pa. 1958)("The very essence of Zoning is
the designation of certain areas for different use purposes."); Vill. of Belle Terre v.
Boraas, 416 U.S. 1, 9 (1974); Village of Euclid, Ohio v. Ambler Realt~o., 272
U.S. 365 (1926). Act 13 also applied standards appropriate only in heavy
i31~liStiia~i Zv12~S iii i1luuStilui'~1S~S Y~~~~L~i iii i~Si`ua~iiti2ii c^iri~ c`3~ii~ult'u'rc`i~ ZvnP~ n~vt
to homes and schools, only exacerbating the incompatibility. Robinson I, 52 A.3d
14
167807.18/48436
~ ~ ~~
Unconventional natural gas development is simply not "compatible" with
residential and agricultural development, and placing such development in non-
industrial areas upsets the fabric of the zoning scheme. See Robinson I, 52 A.3d at
485 n.23 ("What we have under Act 13 is a spot use' where oil and gas uses are
singled out for different treatment that is incompatible with other surrounding
permitted uses.")
3. Municipal Action that Allows Industrial Uses in Non-Indust~ial Districts Despite the Incompatibility Makes ZoningIrrational
When local governments grant conditional use approvals or approve
ordinances that inject industrial uses into non-industrial districts, the same
constitutional infirmities arise as those that caused the downfall of Act 13.
Allowing industrial development in a residential or agricultural district that is not
compatible with the other uses in the district makes the zoning unconstitutionally
irrational. See Robinson I, 52 A.3d at 484-85 aff d in dart, rev'd in part by 83 A.3d
901 (Pa. 2013); Main St. Dev. Grp., Inc. v. Tinicum Twp. Bd. of Supervisors, 19
A.3d 21, 29 (Pa. Commw. Ct. 2011) (finding unconstitutional an ordinance
provision that "create[d] agricultural districts out of districts with non-agricultural
stated purposes ...completely changing the expectations created by the Ordinance
in the non-agricultural districts")(emph. added); Hock v. Bd. of Su~'rs of Mount
15
167807.18/48436
Pleasant Twp., 622 A.2d 431, 434 (Pa. Commw. Ct. 1993) (similar); com are Suhy
v. Zonin~Bd. of Adjustment of City of Phila., 169 A.2d 62 (Pa. 1961) (finding gas
station owner not entitled to sell cars, trucks, and trailers on property zoned
commercial but bordered on three sides by residential uses due to potential
disruption of character of the area). Indeed, as the Commonwealth Court
succinctly noted in Robinson I, "If a municipality cannot constitutionally include
allowing oil and gas operations, it is no more constitutional just because the
Commonwealth requires that it be done." 52 A.3d at 485.
Shale gas wellsite development exposes residents, their children, pets,
livestock, and property to air pollution and industrial risks such as blowouts, spills,
water or soil contamination, and explosions. New wellpads allow for industrial
uses next door for many years to come as companies drill and frack wells, re-frack
old wells, and dri11 existing we11s deeper. Further, proliferation of gas wellpads
means proliferation of compressor stations, pipelines, and processing facilities used
to transport and transform the gas into a marketable product. All these operations
threaten to disrupt open space preservation; degrade air quality; disrupt the
community's character; remove agricultural soils from future use by developing
over them; and contaminate agricultural soils and the water supplies relied on by
rural residents, farmers, and other businesses. In addition, wellsite activity
frequently occurs 24 hours a day, seven days a week during the drilling and
16
1675807.18/48436
fracking phases, exposing neighbors to loud noise, vibrations, and bright lights all
night in a district where no other such operations are allowed. This can disrupt
sleep, children attempting to do homework, and enjoying a quiet evening at home
after a long day's work.
By allowing industrial shale gas development in non-industrial districts, and
where it may also conflict with the municipality's community development
objectives and/or comprehensive plan, a municipality's actions are arbitrary and
unconstitutional, as they establish an irrational zoning framework. See Robinson I,
52 A.3d at 484-85.
4. Allowing Unconventional Gas Development In Non-
Inclustrial Districts Unconstitutionally Upsets Residents' Reasonable
Expectations
Municipalities that allow heavy industrial uses into zoning districts not
designed for any industrial uses at all also do so at the substantial risk of unduly
upsetting the expectations of local citizens who purchased homes there in reliance
on the existing non-industrial districts, i.e. the existing zoning scheme. Allowing
industrial activity in non-industrial areas set aside for farming, schools, open space
preservation, and homes frequently conflicts with the very purposes of the districts
and unduly disrupts the expectations of residents who looked to the local zoning
scheme and made decisions based ~n it, believing that they and their families
would be protected from the dangers of industrial development in a residential
17
167807.18/48436
agricultural area.
This concept—that a certain level of disruption to expectations can be
unconstitutional—was addressed in both Robinson I and Robinson II. Robinson I,
52 A.3d at 484 (discussing reliance on zoning scheme and investment decisions);
Robinson II, 83 A.3d 901 at 974 ("The displacement of prior planning, and
derivative expectations, regarding land use, zoning, and enjoyment of property is
unprecedented."); 978 ("The police power, broad as it may be, does not encompass
such authority to so fundamentally disrupt these expectations respecting the
environment."); 979-80 (plurality).
Likewise, in Main St. Dev. Grp., Inc. v. Tinicum Twp. Bd. of Supervisors,
19 A.3d 21, 29 (Pa. Commw. Ct. 2011), the Commonwealth Court determined that
an overlay district designed to protect agricultural soils "effectively created]
agricultural districts out of districts with non-agricultural stated purposes .. .
completely changing the expectations created by the Ordinance in the non-
agricultural districts." Main Street, 19 A.3d at 29. The overlay "unreasonably
disturbed] expectations created by the existing zoning ordinance" and as a result,
this Court struck it down as invalid. Id. at 28-29.
In Robinson I, the Commonwealth Court determined that Section 3304 of
Act 13 did not promote the public interest because
[t]he public interest in zoning is in the development and
1675807. 18/48436
use of land in a manner consistent with local
demographic and environmental concerns. 58 Pa.C.S. §
3304 requires zoning amendments that must be normally
justified on the basis that they are in accord with the
comprehensive plan, not to promote oil and gas
opeYations that are incompatible with the uses by people
who have made investment decisions regarding
businesses and homes on the assurance that the zoning
district would be developed in accordance with
comprehensive plan and would only allow compatible
uses.
Robinson I, 52 A.3d at 484 (emphasis added).
An industrial unconventional gas wellsite next door to a person's home
abruptly upsets the expectations that accompany buying a home in a quiet,
residential or agricultural area. Instead, residents face industrial operations for
years to come; diminishing the value of their property; injecting a source of
industrial air pollution in an area in which there was no expectation of such
activity. The incursion of industrial gas development subjects families to round-
the-clock lighting, flaring, truck traffic, dust, and noise, particularly during active
drilling and fracturing. With such activities comes a risk of industrial accidents that
will force residents to evacuate due to their proximity to the proposed site.
A municipality cannot, consistent with the Pennsylvania Constitution's
restraints on its authority, allow industrial gas development in non-industrial zones,
whether by way of an ordinance or other municipal action, like a conditional use
approval.
19
1 671807.18/48436
B. The Commonwealth Court's Decision Trangresses These
Established Principles, Threatening Citizens' Constitutional Rights
In reaching their respective decisions, the Fairfield Township Board of
Supervisors and the Commonwealth Cou1-t appear to have ignored the basic zoning
standards described above. The Commonwealth Court's reasoning is inconsistent
with these constitutional standards, including those applied in Robinson I and II.
The decision is also flawed because it fails to base its conclusions on the record
presented to the Board. By contrast, the trial court exercised appropriate appellate
review, having carefully reviewed the facts developed below to assess whether
there was substantial evidence to support the Board's decision.
The Commonwealth Court, however, appears to have bypassed this crucial
task, and instead, relied on its decision in MarkWest Liberty Midstream &Res.,
LLC v. Cecil Two. Zoning Hearing Bd. ("MarkWest"), 102 A.3d 549 (Pa.
Commw. Ct. 2014) reargument denied (Nov. 12, 2014), appeal denied, 113 A.3d
281 (Pa. 2015). However, that case and the present matter differ in material
respects. MarkWest involved an industrial district and a compressor station; here,
there is a residential agricultural district and an unconventional gas wellsite. These
problems and their conflict with constitutional standards (and the ordinance itsel f
w~ii'~~ discussct~ ui~li~i b~ic,w.
20
167807.18/48436
1. The Pennsylvania Constitution, the MPC, and the Zoning
Scheme Define the Outer Bounds of What Can be "Similar and
Compatible," which the Co~zmonwealth Gout Contravened
There are two primary sections of the Fairfield Township Zoning Ordinance
("Zoning Ordinance") that pertain to the conditional use standards for the approval
in question. The first is Section 14.2, which governs all conditional use approvals.
The second is Section 12.18, regarding "uses not provided for" under the Zoning
Ordinance. Section 12.18 requires conditional use approval for "a use [that] is
neither specifically permitted or denied."
In full, Section 12.18 of the Zoning Ordinance states:
Whenever, under this Ordinance, a use is neither
specifically permitted or denied, and an application is
made by an applicant to the Zoning Officer for such a
use, the Zoning Officer shall refer the application to the
Board of Supervisors to hear and decide such request as a
conditional use. The Board of Supervisors shall have the
authority to permit the use or deny the use in accordance
with the standards governing conditional use applications
set forth in Section 14.2 of this Ordinance. In addition,
the use may only be permitted if:
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.
21
167807.18/48436
The burden of proof shall be upon the applicant to
demonstrate that the proposed use meets the foregoing
criteria and would not be detrimental to the public health,
safety and welfare of the neighborhood where it is to be
located.
As discussed at length above, LJNGD is an industrial use and is not similar to
or compatible with residential and agricultural use, as this Court and the
Commonwealth Court recognized in Robinson I & II. See, ~, Robinson I, 52
A.3d at 484 ("If the Commonwealth-proffered reasons are sufficient, then the
Legislature could make similar findings requiring coal portals, tipples, washing
plants, limestone and coal strip mines, steel mills, industrial chicken farms,
rendering plants and fireworks plants in residential zones for a variety of police
power reasons advancing those interests in their development. It would allow the
proverbial pig in the parlor instead of the barnyard. "')
However, despite all this, the Commonwealth Court reached the opposite
result. The Commonwealth Court relied heavily on the argument that Inflection's
proposed use need not be exactly like the use it was being compared to because the
ordinance requires, in part, that the use in question be "simzla~ to and compatible
with the other uses permitted in the zone." Section 12.18.1; Gorsline v. Board of
Sup'rs of Fairfield Tp., 123 A.3d 1142, 1152 (Pa. Commw. Ct. 2015) ("It was not
necessary that the proposed use be the same' as a permitted use but only that it be
`similar. "').
22
1675307. 18/48436
The Commonwealth Court's ultimate conclusion does not withstand
scrutiny. Just because gas extraction can be argued to be similar to a public
service facility in the abstract, it does not follow that the result is correct under
constitutional standards and the zoning scheme. Whether something is "similar to
and compatible with" uses in a given district cannot be examined in the abstract, as
the Court did, but rather must be looked at within the confines of constitutional
standards designed to protect citizen's rights (e.g. Robinson I and II), the
ordinance, and the zoning scheme as a whole. Robinson I and II, and other case
law that has been discussed, are clear that inserting industrial uses like gas
development into non-industrial areas undermines the rationality of entire zoning
schemes because, among other reasons, "[t]he very essence of Zoning is the
designation of certain areas for different use purposes." Swade v. Zoning Bd. Of
Adjustment of Springfield Twp., 140 A.2d 597, 598 (Pa. 1958).
Stated differently, the comparison process is an exercise in "which one of
these things is most like the other," to put a different spin on the old Sesame Street
song. And, in a way, this is what zoning is all about —determining which land uses
definitely do not belong with each other, and which ones best belong with one
another (and in what parts of the municipality), and doing so to protect public
health, safety, and welfare, environmental rights, and public natural resources.
In this case, the Zoning Ordinance already determined that surface mining
23
167307.18/48436
which is mope similar to gas extraction than a sewage pumping station2 — is not
'- Amici disagree with the trial court that gas extraction is not "surface mining"
under the Zoning Ordinance. It is not clear whether this matter is before this Court
because part of determining whether the Township properly granted the
conditional use approval is to consider whether the proposed use (unconventional
gas wellsite) is already allowed in another district.
To the extent this is before this Court, it is clear that "surface mining"
includes the surface activities associated with unconventional natural gas
extraction (as opposed to, e.g., deviated or horizontal wellbores, which can extend
for miles underground).
The Zoning Ordinance defines "surface mining" as, in relevant part:
the extraction of minerals from the earth . . . or fiom
pits or bands by removing the stYata or mateYial which
overlies o~ 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. "Surface mining" shall not include (i) the
extraction of minerals (other than anthracite and
bituminous coal) by a landowner for his own non -
commercial use from land owned or leased by him ... .
Section 2.2 (emphasis added). The ordinance is saying it does not regulate the part
of extractive activity that happens underground, but merely the surface activities
(e.g. drilling rig and fracking equipment location). Indeed, "minerals" under the
ordinance is defined to include "natural gas." Thus, gas extraction involves
"extraction of minerals from the earth" by removing rock from the ground to get to
the gas underneath ("removing the strata or material which overlies ...them").
Similarly, a coal tipple or prep plant would be included in this definition, but the
underground tunnels (which could extend for miles) would not be. Any
ambiguities are to be interpreted in the landowner's favor, which would mean that24
167807.18/48436
compatible with the uses in the RA District because surface mining is only allowed
in the Industrial District. Even wind energy facilities —another type of energy
genet~ation —are permitted only in the Industrial Distf~ict. Further, part of the
purpose of the Industrial District in Fairfield Township is to "protect commercial
and industrial development against intrusive uses which are incompatible with it."
Notably, most residential development is not allowed in the Industrial Dist~~ict, and
single family detached homes are conditional uses (not permitted by-right). While
agricultural development is allowed by-right, according to the purpose statement, it
is intended that such development be located in "floodplain areas and as an
accessory use to a commercial or industrial facility to maintain undeveloped or
buffer areas. A determination shall be made that the proposed agricultural use shall
have minimal impacts upon the existing development within close proximity to the
proposed use." Section 6.1 of the Zoning Ordinance.
The Court below appears to have completely skipped over the compatibility
requirement. The question is not what might be similar or compatible in theory.
The question is what is similar and compatible in the confines of the zoning
ordinance, the zoning scheme, the uses in question, the limits of logic, and case
law like Robinson I & II that define the bounds of compatibility in an effort to
gas wells are allowed in the Industrial District. In turn, this means that they could
not be allowed to use Section 12.18 of the Zoning Ordinance.25
1671807.18/48436
protect citizens' constitutional rights. Indeed, this Court's decision in Swade rings
true as to the danger of the Commonwealth Court's decision in this matter:
If the appellant's first contention is the law, then the
whole plan and scheme of Zoning must be case asidebecause business and industry could invade crny zonejust so long as it could be shown that the proposed usewould not adversely affect to any reasonable extent thepublic health, s~cfety or morals. The statutory law of
zoning would be replaced by the law of nuisance... .
`The general scheme or plan of zoning has been held tobe constitutional by our highest courts because it has adefinite relation to the public health, safety, morals andwelfare. It is in the interest of public welfare that land ina community be used and developed in an orderlymanner in accordance with a comprehensive plan.
`By its very nature zoning impinges upon the right of aland owner to use his land in any way that he desire solong as he does not unduly interfere with his neighbor'sright to use and enjoy his land. To this extent, zoningimposes a hardship on every land owner subject to theprovisions of a zoning ordinance. It is a hardship,however, made necessary by considerations of the publicwelfare and is imposed by virtue of the police power.
. . If we were to hold that the Zoning Ordinance of
Springfield Township was unconstitutional as applied tothe appellant's property, then we would throw every zoneopen to prohibited uses if it could be shown that theprohibited use did not offend against the public health,safety or morals, and we would in effect put an end toall zoning.
Swade, 140 A.2d at 598 (emphasis added); see also Robinson I, 53 A.3d at 485
n.23 ("What we have under Act 13 is a "spot use" where oil and gas uses are
26
167807.18/48436
singled out for different treatment that is incompatible with other surrounding
permitted uses. What the dissent ignores is that the sanctioning of bad planning'
renders the affected local zoning ordinances unconstitutionally irrational.").
Provisions related to "comparable uses" and "uses-not-provided for," like
the one in question, are not designed to allow uses to go anywhere a person wants
to put them, just like variances are not allowed to disrupt the zoning scheme as a
whole.3 They are not a means to allow industrial uses in districts not set aside for
3 There are two types of variances —use variances and other (usually dimensional)
variances. Use variances are usually significantly more difficult to obtain than
dimensional variances because use variances deal with the integrity of the zoning
scheme as a whole, and a rezoning or other zoning change may be necessary.
Robert S. Ryan, Pa. Zoning Law &Practice ("Ryan on Zoning"), § § 6.1.10, 6.4.1
("[F]ew such variance applications can succeed short of a showing that the
property has no reasonable value as zoned."); see also 53 P.S. § 10916.1(a)(setting
forth curative amendment and validity challenge procedures for landowners whose
land is restricted).However, in either situation, one requirement is that, if granted, the variance
will not disrupt the zoning scheme as a whole. Robinson I, 52 A.3d at 481 n.20;
see also Ryan on Zoning, §§ 6.1.1 and 6.1.3 (discussing inter alia that "too
specific" an action may result in the action being invalid as spot zoning); 53 P.S. §
10910.2(a)(4)("That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is located, nor
substantially or permanently impair the appropriate use or development of adjacent
property, nor be detrimental to the public welfare."). An applicant also must show
unique hardships that result due to the application of the ordinance to her property.
Variances. like the nonconforming use doctrine, are a sort of "escape valve"
to ensure that the zoning scheme achieves a general reciprocity of advantage across
all property owners subject to the zoning scheme, and does not unduly infringe on
constitutional rights. See also Ryan on Zoning, § 6.1.1; Robinson I, 52 A.3d at 481
n.20.27
167807.18/48436
industrial activity, or as a way around potentially controversial zoning changes or
rezonings.4 These provisions are designed to account for uses that a municipality
did not originally contemplate, and to ensure that there is a process for fitting those
uses in (when they arise) into the spot where they make the most sense under the
zoning scheme as a whole and accounting for the rights of all property owners
under Article I, Sections 1 and 27 of the Pennsylvania Constitution. To take any
other approach "would in effect put an end to all zoning." Swade, 140 A.2d at 598.
Consequently, Inflection's unconventional gas wellsite cannot be permitted on the
Shaheen property.
4 This is partly why relying on past approvals as a basis for allowing new approvals
is problematic. Just because something was approved in the past does not mean it
was legal or constitutional. The Commonwealth Court cites no evidence to
determine whether those past approvals were challenged. The trial court
references these past approvals, and notes that they were apparently further from
homes. In either case, simply because a municipality allows an incompatible use
in district illegally and no one challenges it does not mean future approvals must
be approved, which only further exacerbate the initial unconstitutional action.
Indeed, the RA District in Fairfield Township covers the largest land area in the
Township —thus, approving more and more industrial uses in the RA District
makes well over half (if not well over 75%) of the Township a de facto industrial
area without notice or opportunity to be heard for citizens. (Zoning Map). It also
belies any attempt to balance land uses and citizens' rights. Compare Main Street,
19 A:3~1 ~ 1; ("there must be an appropriate balance in the zoning ordinance
between agricultural uses and development.... [A] zoning ordinance that requires
between 95%and 97% of the land in the Township to be used for agricultural
purposes simply does not balance the need for development and agricultural
uses.").28
167580718/48436
2. Unconventional Gas Development Uses Are Private, For-
Profit Enterprises, Are Not for the Use or Benefit of the General
Public, anc~ Are Not Like Public SeYvices Facilities
In addition to the issues just discussed, unconventional gas development
cannot be treated like public service facilities in zoning and land use decisions,
especially in residential and agricultural areas. Gas extraction (and transmission)
differs from public service facilities in many material respects. Analogizing gas
extraction to a public service facility like a power line, a sewage pumping station,
or a water treatment plant fundamentally disguises extractive activity as something
it is not. As noted already, under Fairfield Township's ordinance, "surface
mining" (the most analogous activity) is not permitted in the Residential
Agricultural ("RA") District at all. Further, such a determination poses substantial
risks for municipalities seeking to cant' out their constitutional obligations and
protect the rights of all citizens in their communities.
The court below, in analogizing a gas wellsite to a public service facility,
cited no facts in the record for its conclusion.' No facts were developed given
Inflection's contradictory statements. This creates the appearance that the Court
found as a mattes of law that gas development —industrial activity — is compatible
Indeed, the Commonwealth Court oddly took issue with the trial court's thorough
review of whether the Board's decision was supported by substantial evidence,
which is a part of appellate review and which the Court itself did in MarkWest, and
then came to a conclusion that was not supported at all by the record at the hoard.29
1675807.18/48436
with a RA District. Not only is this conclusion in direct conflict with Robinson
Twp. (which found the exact opposite) and the industrial nature of shale gas
development (both discussed above), the legal implications for municipal
ordinances are extremely problematic.
If gas development is deemed compatible with residential development as a
matter of law, it will be precisely contrary to this Court and the Commonwealth
Court's decisions in Robinson I & II. Further, there are ongoing battles in the
lower courts over municipal ordinances that attempt to place gas development in
residential agricultural and agricultural areas. Industry will rely on the
Commonwealth Court's Gorsline decision to defend these ordinances, despite the
contrary authority of Robinson I and II. Indeed, there are even those who argue
that these cases were only about who could zone (the state or local govermnents)
and not about constitutional limitations on zoning no matter who the decision
maker is. Such arguments are contrary to the express language of both Robinson I
and Robinson II and the fact that the judicial branch makes decisions based on law,
not on policy.
Also, if Gorsline stands, those municipalities that have appropriately zoned
UNGD and associated uses in industrial areas away from homes, schools, and
faz7ns and to balance all citizens' rights will risk challenges by industry similar to
what would have arisen under Act 13. This would be despite these municipalities
30
167 807.18/48436
focusing on the facts on the ground in the local community, including the zoning
scheme developed to protect and balance all citizens' rights. Ruling that
unconventional gas development is compatible with residential and agricultural
uses presents a threat to zoning ordinances that do not specifically address gas
development, as well as to ordinances that do limit gas development to certain
zones. If a gas wellsite is compatible with residential and agricultural activity as a
mattes of law in all circumstances, then once again, as under Act 13, zoning is
meaningless because any operator can either: 1) seek to insert a use in a non-
industrial district as a "comparable" or "compatible" use; or 2) challenge an
ordinance for being too restrictive because the ordinance allows gas development
only in industrial areas, away from homes, schools, and farms. If the
Commonwealth Court's decision stands, industry is highly likely to challenge
ordinances for not allowing gas wellsites or other industrial gas development
where "public service facilities" are also located.
In addition, there is nothing "public" about the wellsite proposed in Fairfield
Township. It is a private project, carried out by a private entity, for private
enrichment. The court below looked to the Township Zoning Ordinance definition
of "public service facility" to find that Inflection's wellsite constitutes a similar
use. The definition of "public service facility" is as follows:
Public Service Facility: The erection, construction,
J I
167807.18/48436
alteration, operation or maintenance of buildings, powerplants or substations, water treatment plants or pumping
stations; sewage disposal or pumping plants and other
similar public service structures by a utility, whether
publicly or privately owned, or by a municipal or other
governmental agency, including the furnishing of
electrical, gas, communication, water supply and sewagedisposal services
Section 2.2 of the Township Z.O.
But the Commonwealth Court failed to look to all applicable definitions.
The Township's Ordinance defines the "public" in "public service facility" as
"Something owned, operated, and supported by the community or the people for
the use o~ benefit of the geneYc~l public." ZONING ORDINANCE § 2.2 (emphasis
added). There is nothing to indicate that Inflection's wellsite is for the use or
benefit of the general public.
It is asserted that the wellsite "will serve the general public by producing
natural gas for its use and consumption." Gorsline, 123 A.3d at 1150. But there is
no evidence in the record to support this. The gas produced may very well be sent
out-of-state, or even overseas, especially given the large number of interstate
pipeline projects currently proposed, some of which will facilitate shipment of
natural gas overseas.6 Even assuming the gas produced was for the Pennsylvania
6 See Transcontinental Gas Pipeline Co. Appl. (Pt. 1) for proposed Atlantic Sunrise
Pipeline, at p.10 (noting: Cabot Oil &Gas as largest customer, Inflection Energy32
1675807. l 8/48436
public's consumption, if such a statement were sufficient to satisfy the "public
benefit" requirement, a local McDonalds or Wal-Mart would similarly be deemed
a public entity. Such an absurd result must be avoided.
Indeed, even the Pennsylvania Public Utility Code expressly excludes from
the definition of "public utility" the following: "Any producer of natural gas not
engaged in distributing such gas directly to the public for compensation." 66
Pa.C.S. § 102(2)(iii)(emph. added).
3. The Commonwealth Court's Analogy to MarkWest Is In
Er~o~
The decision below relied improperly on an analogy to its decision in
MarkWest Liberty Midstream &Resources, LLC v. Cecil Township Zoning
Hearing Board, 102 A.3d 549 (Pa. Commw. Ct. 2014), petition for allowance of
appeal denied, 113 A.3d 281 (Pa. 2015). This matter, and the MarkWest decision
are wholly different. First, the ordinances themselves are different. Second, the
activities are different. Here, the activity is unconventional gas wellsite
development. In MarkWest, it was a compressor station that was to be built.
(Intervenor) having bought capacity, and transport of gas to Dominion
Transmission (which runs Cove Point export facility)), ht~p://elibrary-backup.ferc.Gov/~dmws/common/Openl~Tat.as~:'fi1eI~=13 20971 (downloads
PDF); htt~://pac~ficsummiten~r~y.coin/special-~ro'e~ cts/ (describing Cabot's
contract to sell 350,000 NIBTU/day of gas, for conversion to liquefied natural gas
at Cove Point export facility, and distribution to two Japanese coinpaniesj~~~~
I67~807.18/48436
Wellsites and compressor stations are different in nature in that a wellsite involves
mineral extraction, whereas the purpose of a compressor station is to facilitate the
transport and in some cases low-level processing of those minerals. As noted,
other extractive and energy generation activities in Fairfield Township (e.g. surface
mining, wind energy) are limited to the Industrial District.
Third, and equally crucial, the districts are different. MarkWest involved a
Light Industrial District whereas Gorsline involves a Residential Agricultural
District. The expectations created by each are markedly different as far as what
intensity and type of activity a person could reasonably expect to locate in a district
with a light industrial character versus a residential agricultural character.
The Commonwealth Court's opinion in MarkWest relied heavily on an
analysis of the testimony and the ordinance provisions in Cecil Township, all of
which centered around a Light Industrial District, including considering whether
the proposed use (a compressor station) would be of the wine general character of
other uses in that District, and was consistent with the purpose of that District also.
In contrast, the Court in Gorsline did not take this same approach. In
Gorsline, the Court took almost the exact opposite approach, brushing over much
of the record and failing to carefully examine the language of the Fairfield
Township ordinance, which the trial court had done. Oddly, the Court chastised
the trial court judge for taking the same approach the Court itself took in
34
167j807.18/48436
MarkWest, that is, reviewing the ordinance language in some cases word-by-word
and closely reviewing the evidence at the local zoning body. For instance, the
Commonwealth Court found that the proposed unconventional wellsite satisfies the
requirement to not conflict with the general purpose, but does not actually examine
the Zoning Ordinance purposes, enumerated in Section 1.4 of the Ordinance.
Gorsline v. Board of Su~'rs of Fairfield Tp., 123 A.3d 1142, 1152-53 (Pa.
Commw. Ct. 2015). Instead, the Commonwealth Court pivots, noting that the
Ordinance directly authorizes mineral extraction, quotes the definition of "rural
resource area." Id. However, there is no evidence in the record that Inflection's
wellsite is in a "rural resource area."~
In contrast, the trial court reviewed both the purpose statement of the RA
District, and the uses allowed:
According to the clear language of Article 3 of the
ordinance, the RA district is generally intended for
application to rural development areas. The purpose of
the regulations for this district is to foster a quiet,medium density residential environment while
encouraging the continuation of agricultural activities
and the preservation of prime farmland. Industrial uses
are discouraged in this district. Compatible public and
semipublic uses such as schools, churches andrecreational facilities are provided for. As well, a higher
Among other things, this is an area that must be designated as such in a
"municipal or multimunicipal plan." Section 2.2 of the Zoning Ordinance. The
comprehensive plan was not introduced as part of the record at the hearings below.35
167~ 80718/48436
density residential development may be permitted undercertain circumstances. Ordinance, § 3.1.
As set forth in Article 4 of the ordinance, the purpose ofthe RA district is to encourage the continued use of areasof the Township for rural living including open space,agricultural and residential uses. Such uses typically donot require public utilities or community services. Useswhich specify the provision of community or publicutilities may be feasible in certain locations in theTownship provided that the developer is able to furnishthe necessary utility infrastructure. Ordinance, § 4.1.
Gorsline, et al. v. Bd. of Sup'rs of Fairfield Twp., No. 14-000130, at pp.13-14
(Lycoming Cty. Ct. of Cmmn. Pleas, Aug. 29, 2014)(emph. added).$ It also
focused on the language of the Ordinance that requires there be "in no way" a
conflict between the allowance of a use and the general purposes of the Ordinance.
Id. at p.17.
The trial court also reviewed the body of testimony from the hearings,
including Inflection's largely conclusory and/or conflicting statements that
Inflection offered to support the nature of its proposed activity. This is a necessary
discussion not simply to determine whether the Township's decision was
8 It also appears that the Ordinance only contemplated "public service facilities" in
the RA District to the extent that new, larger residential development was entering
the area (as opposed to places that rely on private water and sewer).
1675807.18/48436
supported by substantial evidence.9 An applicant for a special exception or
conditional use permit also bears the initial burden to "show[] compliance with all
the objective requirements of the zoning ordinance." Elizabethtown/Mt. Joy
Associates, L.P. v. Mount Joy Twp. Zoning Hearing Bd•, 934 A.2d 759, 764 (Pa.
Commw. Ct. 2007). "The standard to be observed by the [Board] is whether the
plan as submitted complies with specific ordinance requirements at tl~e time the
plan comes before it." Id. at 765. Among these requirements, the applicant must
show that it meets "[t]he kind of use ... i.e., the threshold definition of what is
authorized as a special exception" or conditional use.10 Bray v. Zoning Bd. of
Adjustment, 410 A.2d 909, 911 (Pa. Commw. Ct. 1980)(emphasis added). The
9 In other words, it is difficult to determine whether substantial evidence exists bysimply zeroing in on one or two statements by an applicant, as the rest of what anapplicant (or protestants) has said may actually show that those two statements arewrong. Indeed, this Court has stated, "By substantial evidence' we mean suchrelevant evidence as a reasonable mind might accept as adequate to support aconclusion." Valley View Civic Assn v. Zoning Bd. of Adjustment, 462 A.2d 637,640 (Pa. 1983). It is difficult to see how a reasonable mind could accept asadequate internally-inconsistent testimony by an applicant, much less merestatements that the applicant "believes" its use to be compatible with the ordinance,as the trial court noted here. In an effort to reach the conclusion that it did, theCommonwealth Court conflated normal appellate review with credibilitydeterminations.
to A conditional use and special exception differ only in that the governing bodydecides conditional use applications and a zoning hearing board decides specialexception applications. The standards for such decisions, including burdens ofproof, are the same.
J7
1675807.18/48436
applicant must show "not only that the proposed use was of a type permitted by
special exception but also that the proposed use complied with the otheY
applicable requirements of the ordinance which expressly govern such a grant."
Shamah v. Hellam Twp. Zoning Hearing Bd., 648 A.2d 1299, 1303 (Pa. Commw.
Ct. 1994) (emphasis added). Importantly, "[o]ur cases have repeatedly made clear
that the applicant has both the persuasion burden and the initial evidence
presentation duty to show that the proposal complies with the terms of the
ordinance' which expressly govern such a grant." Bray, 410 A.2d at 910 (emphasis
added). Where an applicant does not demonstrate with evidence (rather than
promises or beliefs) that it meets the requirements of the ordinance, the application
should be denied. See Elizabethtown/Mt. Joy Associates, L.P., 934 A.2d 759;
Keystone Chem. Co., Inc. v. Zoning Hearing Bd. of Butler Twp., 494 A.2d 1158
(Pa. Commw. Ct. 1985), Appeal of Baird, 537 A.2d 976 (Pa. Cornrow. Ct. 1988).
"Evidence is not a promise' that the applicant will comply because that is a legal
conclusion the Board makes once it hears what the applicant intends to do and then
determines whether it matches the requirements set forth in the ordinance."
Edgmont Twp. v. Springyton Lake Montessori Sch., Inc., 622 A.2d 418, 419 (Pa.
Commw. Ct. 1993). Furthermore, "[a] self-serving declaration of a future intent to
comply [with a zoning ordinance] is not sufficient to establish compliance with the
criteria contained in the ordinance." Id. at 420.
38
1 67~2iU7. I /4x436
If appellate review is to be meaningful, an inquiry into the record by the
reviewing court — as the trial court did — is necessary to determine whether
substantial evidence actually exists to support the factual conclusions of a zoning
hearing board or governing body. This includes whether the applicant met its
initial burden for demonstrating its activity falls within the definition of something
allowed by conditional use, and meets the criteria set forth in the ordinance." The
Courts of this Commonwealth have never shied away from their responsibility to
tell a municipality that it got it wrong in its decision. See, ~, Main Street, 19
A.3d 21; Baker v. Chartiers Twp. Zoning Hearing Bd•, 677 A.2d 1274 (Pa.
Commw. Ct. 1996)(both ordinance challenges). The Court's solution to
compatibility was to focus on the conditions the Board imposed on the operation,
which while relevant to whether a conditional use should issue (rather than be
denied), avoids the actual question of whether an industrial use should be going
1' To the extent an applicant meets its burden, the burden then shifts to objectors"to raise specific issues concerning health, safety and general welfare." Butler v.Derr Flooring Co., 285 A.2d 538, 542 (Pa. Commw. Ct. 1971). In situations likeFairfield Township, the ordinance in Section 12.18 appears to place the burden onthe applicant to prove that the proposed use not provided for "would not bedetrimental to the public health, safety and welfare of the neighborhood where it isto be located." Thus, after objectors raise specific issues, "then the burden wouldrnntini~P to hP Sz~ith the ar»,~lirant" ~x~hn "~x~n~ilr~ 1JP t'P(~1711Y'PC~ t(1 C`(lYY1P f(11'W?YC~ t(1
meet the objections so as to show that the intended use would not violate thehealth, safety and general welfare of the community with relation to suchobjections." Butler, 285 A.2d at 542; see also Bray, 410 A.2d at 912.
39
167807.18/48436
into a residential district in the first place. This again creates the same problems
that Act 13 created —putting industrial uses in non-industrial areas so that there's a
pig in the parlor that everyone has to be concerned about managing, when the idea
was that no one would have to think about the management because of the nature
of the zoning district. See Robinson I, 52 A.3d at 484 n.22.
IV. CONCLUSION
For the foregoing reasons, Amici respectfully request that the Court reverse
the decision of the Commonwealth Court.
40
I67i807.13/48436
Respectfully submitted,
Date: August 1, 2016
/s/ Jordan B. YeagerJordan B. YeagerPA ID No. 72947Lauren M. WilliamsPA ID No. 311369Curtin & Heefner LLP2005 S. Easton Rd., Ste.Doylestown, PA 18901Tel.: (267) 898-0570Fax: (215) [email protected]@curtinheefner.com
Joseph Otis MinottPA ID No. 36463Exec. Dir. &ChiefCounselAaron Jacobs-Smith
100 PA ID No. 319760Clean Air Council135 S. 19th St., Ste. 300Philadelphia, PA 19103Tel.: (215) 567-4004Fax: (215) [email protected]@cleanair.org
Counsel fog Amicus Cuf~iae Counsel fog AmicusDelaware Riverkeepe~ Curiae Clean AirNetwork Council
41
Adam KronD.C. ID No. 992135Senior AttorneyEnvironmental Integrity Project1000 Vermont Ave. NW, Ste.1100Washington, D.C. 20005Tel: (202) 263-4451Fax: (202) 296-8822akron@environmentalintegrity. org
Counsel fog^ Amicus CuriaeEnvironmental Integf~ityPNoject
167~807.I 8/48436
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of theforegoing was served on this date to the following:
Via Electronic Service
Susan J. Smith, Esq.The Law Office of Susan J. Smith2807 Market StreetCamp Hill, PA 17011
Timothy A. Schoonover, Esq.Blaine A. Lucas, Esq.Krista-Ann M. Staley, Esq.Babst, Calland, Clements & Zomnir, P.C.Two Gateway Center, 6th FloorPittsburgh, PA 15222
George Jugovic, Jr., Chief CounselCitizens for Pennsylvania's Future200 First Avenue, Suite 200Pittsburgh, PA 15222
James Michael Wiley, Esq.McCormick Law Firm835 W. 4t'' Street, PO Box 577Williamsport, PA 17701
Michael Helbing, Staff AttorneyCitizens for Pennsylvania's FutureWest Market Street, Suite 901Wilkes-Barre, PA 18701
Via Fist Class Mail
Joshua Joseph Cochran, Esq.Schemery Zicolello, P.C.
333 Market StreetWilliamsport, PA 17701-6329
Date: 8/1/2016/s/Jo~~dan B. Yea~e~Jordan B. Yeager, EsquirePa. I.D. No. 72947Curtin & Heefner LLP2005 S. Easton Road, Suite 100Doylestown, PA 18901(267) 898-0570JBY@curtinheefner. com
167862.1/48436
Counsel fog Amicus Curiae DelawareRivef~keepe~ Network
167 ~ 862. I /48436
