Posted by: Patricia Salkin | June 5, 2017

PA Appeals Court Finds Objectors’ Evidence Did Not Constitute the Requisite Substantial Evidence to Thwart Applicants’ Entitlement to a Conditional Use as a Matter of Right

In September 2015, Applicants EQT Production Company and ET Blue Grass Clearing, LLC filed their application for conditional use approval for a proposed unconventional gas well site on the “Bickerton Well Site.” The proposed well site was approximately 126 acres and included “unconventional wells both at the vertical and horizontal laterals and be hydraulically fractured.” The Applicants owned both the surface and the oil and gas rights, and had leases for all of the horizontal laterals underground currently permitted and were working on acquiring leases for the non-permitted wells. In this case, the Borough of Jefferson Hills appeals from an order of the Court of Common Pleas of Allegheny County reversing the decision of the Borough Council of the Borough of Jefferson Hills to deny the conditional use application of 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, 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.”
In its decision, the court first noted that a conditional use, like a special exception, is not an exception to a municipality’s zoning ordinance, but is 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.” Here, once the Applicants satisfied the specific, objective criteria for the conditional use, the burden shifted to the objectors. The court therefore considered whether objectors’ testimony constituted substantial evidence of a high degree of probability that Applicants’ proposal would impose detrimental impacts exceeding those ordinarily to be expected from unconventional gas wells. While these objectors testified about serious problems at other well sites or the harms posed by drilling and operation of unconventional wells generally, their testimony did not satisfy their burden. Specifically, the objectors failed to present either lay or expert testimony pertaining to the Bickerton Well Site proposal. Accordingly, the court affirmed the decision of common pleas, which reversed the Council’s denial of the conditional use application.
EQT Production Company v Borough of Jefferson Hills, 2017 WL 2180678 (PA Commwlth 5/18/2017)


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