PA Supreme Court Holds Testimony from Residents of Another Municipality Could Be Considered in Addressing a Natural Gas Extraction Company’s Conditional Use Application

This post was authored by Matthew Loeser, Esq.

Appellees EQT and ET Blue Grass Clearing LLC, an affiliate of EQT, sought to construct, operate, and maintain a natural gas production complex on a 126-acre tract of property within the Borough of Jefferson Hills, Allegheny County. The proposed site for this facility, known as the Bickerton Well Site, was a 29.7-acre site projected to include up to 16 “unconventional” gas wells, that would utilize the hydraulic fracturing production process (“fracking”) to extract natural gas from a subjacent reservoir. According to EQT’s conditional use application filed with the Borough, the wells would penetrate the subsurface vertically to a distance of 6,000 to 7,000 feet, and then extend horizontally for another 10,000 feet.

As required by the Municipalities Planning Code (“MPC”) the Borough Council conducted a public hearing on the application. At the hearing, the present and former Union Township objectors gave evidence of their firsthand personal experiences with EQT’s drilling and operational practices while living near its Trax Farm site, and conveyed their perceptions of how EQT’s activities at that site had negatively impacted their health, quality of life, and their community’s environment. When the Council unanimously voted to deny EQT’s application, it indicated that it gave these objectors’ testimony “significant weight.” The Court of Common Pleas of Allegheny County reversed without taking additional evidence.

On appeal, the court found that the testimony of the Union Township objectors as to the “foul stenches, intense vibrations, loud and penetrating sounds, and increased levels of traffic and air and light pollution they continuously endured, in and around their homes”, was both relevant and probative in establishing the potential adverse impacts which Jefferson Borough residents living near the Bickerton site reasonably could potentially expect. Furthermore, the numerous health effects, and the significantly diminished quality of day-to-day life experienced by the Union Township objectors, which they claimed to be caused by their exposure to these adverse impacts, was relevant and probative of how the health and overall welfare of Jefferson Borough residents reasonably could be diminished by the operation of the Bickerton site, if approved. Accordingly, the court vacated the order of the Commonwealth Court and remanded the case.

EQT Production Company v Borough of Jefferson Hills,  2019 WL 2313377 (PA 5/31/2019)

Judge Dissents from Holding that Testimony from Residents of Another Municipality Could Be Considered in Addressing a Natural Gas Extraction Company’s Conditional Use Application

The Borough Council conducted a public hearing, as required by the Municipalities Planning Code (“MPC”), regarding the application of EQT and ET Blue Grass Clearing LLC (collectively, “EQT”) to construct, operate, and maintain a natural gas production complex. The proposed site for this facility, known as the Bickerton Well Site, was in Allegheny County. The present and former Union Township objectors gave evidence of their firsthand personal experiences with EQT’s drilling and operational practices while living near its Trax Farm site, and conveyed their perceptions of how EQT’s activities at that site had negatively impacted their health and quality of life, and, also, their community’s environment. The Council unanimously voted at a public meeting to deny EQT’s application, and indicated that it gave their testimony “significant weight.” The Court of Common Pleas of Allegheny County reversed, without taking additional evidence.

Justice Mundy dissented from the Majority’s conclusion that when addressing a conditional use application a municipality could consider the testimony of residents of another municipality regarding what they characterized as a similar use by the same applicant. The judge first noted that objectors to a proposed conditional use do not meet their initial burden with respect to public health, safety or welfare criteria of a zoning ordinance by expressing generalized concerns. Instead, these objectors are required to produce “sufficient evidence to establish that there is a high degree of probability that the use will cause substantial threat to the community.” Here, the objectors failed to present any testimony from industrial, environmental or medical experts supporting their concerns or linking the conditions at the Trax Farm site to the Bickerton well site. Conversely, the Borough Council’s written decision recognized that EQT’s application complied with both the general and specific requirements for a natural gas production facility as a conditional use in the B-P Business Park Zoning District and the OG-U Gas Development Overlay District.

Accordingly, Judge Mundy disagreed with the Majority that anecdotal evidence by lay witnesses regarding operations in a different municipality could serve as a basis for denying a conditional use to a landowner who had satisfied the objective criteria of the zoning ordinance.

EQT Production Company v Borough of Jefferson Hills, 2019 WL 2305950 ( PA 5/31/2019)