Posted by: Patricia Salkin | August 5, 2018

PA Supreme Court Holds that Company’s Proposed Gas Wells Use was Not Similar to the Public Service Facility Uses Allowed Pursuant to Township Zoning Ordinance

This post was authored by Matthew Loeser, Esq.

Inflection Energy, LLC submitted to the Board a “Zoning and Development Permit Application” seeking permission for a “drilling, completion, production and operation of multiple gas wells” use on a 59.877–acre parcel of land located on Quaker State Road in Montoursville, Pennsylvania and owned by Donald and Eleanor Shaheen. The application proposed to improve the existing farm access road with a stone access drive from Quaker State Road/T–855 to the pad site, a level pad, well head, and a temporary water impoundment area with sediment and erosion controls. The objecting residents sought review of the decision of township board of supervisors to grant the energy company’s application for a conditional-use permit to locate gas wells on tract of land that was located in an area zoned residential–agricultural. The Court of Common Pleas reversed, and the energy company and tract’s owners appealed. The Commonwealth Court reversed, and objecting residents petitioned for allowance of an appeal.

On appeal, the court found that the Board’s decision contained no findings of fact whatsoever with respect to similarity of use. The record reflected that the Commonwealth Court did not carefully examine the language of the two definitions at issue. The court noted that by its definitional terms, a “public service facility” involves “public service structures by a utility … or by a municipality or other governmental agency.” Similarly, “essential services” are the facilities and related equipment of a “public utility.” Here, Inflection’s proposed gas wells use would provide no public or essential services to the residents of the R–A district, and would not provide any infrastructure to support and promote residential and agricultural development in Fairfield Township. Additionally, Inflection’s proposed use was intended solely for Inflection’s own commercial benefit, and not for the benefit of furthering the expressed goals of Fairfield Township’s R–A district. Moreover, since the Ordinance at issue did not expressly authorize a gas wells use in any of the Township’s three zoning districts, the proposed use could not enjoy any presumption of being “similar to” uses that are permitted in those districts, and section 12.18 of the Ordinance placed the burden of proof with respect to similarity of use on the applicant. Accordingly, the court reversed the decision of the Commonwealth Court.

Gorsline v Board of Supervisors of Fairfield Township, 186 A.3d 375 (PA 6/1/2018)

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