Posted by: Patricia Salkin | January 24, 2016

PA Appeals Court Upholds Conditional Use to Permit the Construction of a Gas Compressor Station on Land Adjacent to an Organic Farm

Cardinal PA Midstream, LLC filed a conditional use application with the Township to build a gas compressor station on property located in the Township’s “A–1 Agricultural District.” In this case, Kretschmann Farm, LLC and Donald and Rebecca Kretschmann, husband and wife (collectively, Landowners), appealed the order of the Court of Common Pleas of Beaver County that affirmed the decision of the Board of Supervisors of New Sewickley Township to allow the construction of a gas compressor station on land adjacent to their organic farm. Landowners contended the Township erred because its written decision and order did not address Landowners’ evidence that the proposed compressor station would adversely affect the public health and welfare. They also asserted that the trial court erred by denying them the opportunity to present additional evidence in their land use appeal.

Landowners first claimed that the Township abused its discretion because its findings of fact did not contain any reference to Landowners’ evidence. Here, the Township’s written decision did not refer to Landowners’ testimony or documents, including the hundreds of e-mails expressing concern about the environmental and health impact of Cardinal’s compressor station. However, the court found that these expressions of concern did not constitute probative evidence of harm, since Landowners’ counsel stated that the e-mails were not being introduced to prove a direct impact on health but to establish the risk of loss of Landowners’ customers. Additionally, Landowners presented no expert reports or testimony to support their challenge to Cardinal’s conditional use application. The Township did not ignore the comments of Landowners and other objectors, but instead responded with the imposition of 33 conditions, many of which related to specific concerns raised by the objectors. Thus, even though the Township did not contain any reference to the Landowner’s evidence, it properly considered their evidence.

Landowners also sought to expand the record to include transcripts of two public hearings that took place on Ordinance No. 194. Landowners asserted that this legislative history will show that the Township did not consider the health, safety and welfare of the community and did not tailor the ordinance to ensure residents’ rights to clean air and pure water when considering Ordinance No. 194. However, Landowners filed an appeal challenging the constitutionality of Ordinance No. 194 before the Township Zoning Hearing Board but subsequently withdrew that challenge. Because they decided not to pursue their claim, the court found that they could not now resurrect those contentions on appeal. Accordingly, the court held that the trial court did not abuse its discretion by refusing to expand the record.

Kretschmann Farm, LLC v Township of New Sewickley, 2016 WL 72779 (PA Commwlth 1/7/2016)

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