The Legal Intelligencer
Editor’s note: The authors represented Cardinal before the township, trial court and Commonwealth Court.
On Jan. 7, the Pennsylvania Commonwealth Court rendered a decision in Kretschmann Farm v. Township of New Sewickley, 2016 Pa. Commw. LEXIS 33 (Pa. Commw. 2016), which addressed the heated debate over the compatibility of oil and gas operations and agricultural uses.
In 2014, Cardinal PA Midstream, (Cardinal) applied to the board of supervisors of New Sewickley Township, Beaver County for conditional use approval to construct and operate a natural gas compressor station in the township’s A-1 agricultural district. Pursuant to the township’s zoning ordinance “compressor station” is permitted as a conditional use in the A-1 agricultural district, provided that the use meets certain express standards and criteria.
The township board of supervisors held a public hearing on Cardinal’s application, during which Cardinal presented testimony on: (1) its experience in the natural gas industry; (2) its operations; (3) compliance with the zoning ordinance’s express standards and conditions; (4) review and approval by the Pennsylvania Department of Environmental Protection of its erosion and sediment control plan and air permit; (5) incorporation of landscaping to block the site’s visibility from neighboring landowners and roads; (6) conformity to the township’s noise standards; (7) proposed driveway construction, traffic generation and road improvements.
Adjacent property owners, who operate an organic farm, and others opposed Cardinal’s application. During the public hearing, the property owners expressed concern over potential impacts of the compressor station on their produce, water and air, and the compatibility of natural gas drilling operations with agricultural uses. Township residents also expressed concern over the potential placement of pipelines in the township, light pollution from flares, the compatibility of compressor stations with uses in residential/agricultural areas, and the potential long-term effects of emissions generated by oil and gas operations.
After closing the public hearing, the board found that Cardinal complied with all of the zoning ordinance’s express standards and criteria. It went on to approve the conditional-use application subject to 33 conditions, several of which it imposed in response to the property owners’ and others’ concerns. The property owners appealed the board’s decision to the trial court, which affirmed the approval. The property owners then appealed to the Commonwealth Court, which also affirmed the board’s approval.
On appeal to the Commonwealth Court, the property owners primarily argued that: (1) the township board abused its discretion because it did not consider nor address in its written decision their evidence; (2) the zoning ordinance violated their constitutional rights by permitting a compressor station in the A-1 district; and (3) the trial court erred in denying the their motion to present additional evidence related to the adoption of the zoning ordinance provisions at issue.
Addressing the property owners’ first argument—that the Township Board abused its discretion because it did not consider nor address in its written decision their evidence—the Commonwealth Court recited the extensive testimony by Cardinal and the property owners. In doing so, the court pointed out that Cardinal met all of the express standards and criteria of the zoning ordinance. At that point, pursuant to well-established Pennsylvania law, a presumption arose that the proposed compressor station was consistent with the general welfare of the community. This shifted the burden to the property owners to present substantial evidence that the proposed use would adversely affect the welfare of the community in a way not normally expected of that type of use.
The Commonwealth Court, citing its recent decision in Gorsline v. Board of Supervisors of Fairfield Township, explained that “expressions of concern,” similar to those presented by the property owners, do not constitute substantial evidence on which the board could base a finding of harm. Accordingly, the court, emphasizing that the property owners presented no expert reports or testimony to support their challenge, concluded that the property owners failed to meet their burden.
The property owners’ second argument—that the township’s zoning ordinance violated their constitutional rights by permitting a compressor station in the A-1 district—relied on the Pennsylvania Supreme Court’s plurality decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).
The Robinson Township decision invalidated various sections of Act 13, the General Assembly’s 2012 comprehensive update to the former Oil and Gas Act, including a uniform zoning standard for all oil and gas operations in the state. Specifically, the property owners argued that: (1) the zoning ordinance was not tailored to the local conditions within the community; and (2) the ordinance’s 750-foot setback provision was invalid because it is the same as the uniform setback invalidated in Act 13 by Robinson Township.
The Commonwealth Court rejected these arguments. The court noted that the status of the cited Robinson Township opinion as a plurality rendered the opinion binding only on the parties to that case. The court also explained that the Robinson Township decision “did not nullify [the 750-foot setback] provision of [the zoning ordinance]” because the decision “did not reach, or indeed even discuss, whether a municipality could choose to adopt a 750-foot setback, as the township did here.” Moreover, the court found that the statewide zoning enabling legislation, the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), requires that any challenge to the validity of a zoning ordinance be in the form of either a “curative amendment” submitted to the board, or a challenge to the zoning hearing board.
Rather than filing an ordinance challenge in accordance with the MPC’s procedures, which they previously initiated but later withdrew in a separate action before the township zoning hearing board, the property owners attempted to challenge the validity of the ordinance in the context of their challenge to Cardinal’s conditional-use application. Accordingly, the Commonwealth Court rejected the property owner’s constitutional argument because it was not pursued in accordance with the exclusive procedures available under the MPC.
Finally, the Commonwealth Court rejected the property owners’ argument that the trial court should have permitted them to introduce transcripts of two township public hearings related to the adoption of the zoning ordinance provisions in question, which took place several years prior to Cardinal’s filing of its conditional-use application.
The property owners contended that this legislative history supported their arguments that the township did not consider health and safety issues and did not tailor the ordinance to ensure residents’ rights to clean air and water. However, the court pointed out that the property owners had not sought to introduce those transcripts during the conditional use hearing, and, as noted above, failed to properly pursue an ordinance validity challenge. Accordingly, the court rejected the property owners’ contention.
The property owners have filed a petition for allowance of appeal with the Pennsylvania Supreme Court.
*Reprinted with permission from the 2/26/16 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
