Markwest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 1809 C.D. 2016

• Decision Date: 23 March 2018
• Docket Number: No. 1809 C.D. 2016,1809 C.D. 2016
• Citation: 184 A.3d 1048
• Parties: MARKWEST LIBERTY MIDSTREAM AND RESOURCES, LLC, Appellant v. CECIL TOWNSHIP ZONING HEARING BOARD
• Court: Pennsylvania Commonwealth Court

184 A.3d 1048

MARKWEST LIBERTY MIDSTREAM AND RESOURCES, LLC, Appellant

v.CECIL TOWNSHIP ZONING HEARING BOARD

No. 1809 C.D. 2016

Commonwealth Court of Pennsylvania.

Argued April 6, 2017¹

Decided March 23, 2018

Publication Ordered June 13, 2018

Christopher R. Nestor, Harrisburg, for appellant.

Jonathan M. Kamin, Pittsburgh, and Jeffrey D. Ries, White Oak, for appellees.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

MarkWest Liberty Midstream and Resources, LLC (MarkWest)² appeals from the Washington County Common Pleas Court's (trial court) October 5, 2016 order affirming the Cecil Township (Township) Zoning Hearing Board's (Board) decision granting MarkWest's application for special exception subject to 26 conditions (Conditions). There are four issues before this Court: (1) whether the Board-imposed conditions exceed the Board's authority under the Pennsylvania Municipalities Planning Code (MPC)³ and the Township's Unified Development Ordinance (UDO)⁴ and, thus, violate this Court's September 26, 2014 order;⁵ (2) whether the Board is authorized to impose standards separate and apart from the UDO regarding where a particular use may be located; (3) whether the Board's conditions are unduly restrictive and result in disparate treatment of MarkWest's proposed use without a reasonable basis; and, (4) whether certain of the Board's conditions are preempted by Pennsylvania Department of Environmental Protection (DEP) statutes and regulations. Upon review, we affirm in part and reverse in part.

Background

MarkWest is a limited liability corporation that owns and operates midstream facilities which transport, compress and process oil, gas and other substances extracted from oil and gas wells. MarkWest operates gas compressor stations in Washington County, Pennsylvania.⁶ Section 2 of Township Ordinance No. 2–2010 permits natural gas compressor stations that operate as midstream facilities, so long as they are consistent with the Township's UDO which allows them by special exception.⁷ See Reproduced Record (R.R.) at 460a–467a. On September 20, 2010, MarkWest executed an agreement to purchase a 71.5–acre undeveloped parcel of land (Property) from Richard Caruso located in the Township's I–1 Light Industrial District.

On November 29, 2010, MarkWest applied to the Board for a special exception under Section 911.D.1 of the Township's UDO to construct and operate a natural gas compressor station roughly in the center 15 acres of the Property. The proposed facility would consist of up to 8 compressor engines and surrounding sound structures, dehydration facilities, tanks, a vapor recovery unit, a flare and associated piping (Proposed Facility). The Property is adjacent to R–1 Low Density and R–2 Medium Density Residential Districts, but no residence would be closer than 1,000 feet from the Proposed Facility. Board hearings were held on January 17, January 31 and February 21, 2011. MarkWest submitted to the Board Proposed Findings of Fact and Conclusions of Law. See R.R. at 468a–482a. Thereafter, the Township issued 37 then-proposed conditions to which MarkWest responded.⁸ See R.R. at 468a–494a.

On March 31, 2011, the Board denied MarkWest's special exception application on the basis that MarkWest failed to satisfy the UDO's requirements that the Proposed Facility would be of the same general character as other uses permitted in the I–1 Light Industrial District, and that its impact would be equal to or less than other permitted uses. On April 21, 2011, MarkWest appealed to the trial court from the Board's special exception application denial and exclusionary zoning challenge which was deemed denied. On May 20, 2011, Range Resources intervened as an owner or tenant of the Property on which the Proposed Facility would be constructed. The Township intervened on June 13, 2011.⁹ On January 21, 2013, the trial court, without taking additional evidence, affirmed the Board's decision. MarkWest (No. 223 C.D. 2013) and Range Resources (No. 232 C.D. 2013) appealed to this Court. By August 14, 2013 order, this Court consolidated the appeals. On September 26, 2014, this Court reversed the trial court's order and remanded the matter to the trial court to remand to the Board with the direction to grant MarkWest's special exception application.¹⁰ See MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd. , 102 A.3d 549 (Pa. Cmwlth. 2014) ( MarkWest I ). This Court further ruled:

Should the Board determine ... within the confines of the UDO's objective standards and criteria that any terms or conditions are needed to attach to the special exception application in order to ensure compliance with the UDO, it shall specify the applicable UDO provision and explain why the term or condition is necessary .

Id. at 573–74 (italic and bold emphasis added). This Court upheld the portion of the trial court's order affirming the Board's conclusions that the UDO did not unlawfully exclude natural gas compressor stations, and that the UDO is not preempted by state law. See id. at 573.

On June 26, 2015, the Board, on remand, granted MarkWest's special exception application, subject to the Conditions.¹¹ See MarkWest Br. App. B (Remand Decision) at 2–5; see also R.R. at 76a–81a, 707a–719a. On July 20, 2015, MarkWest appealed from the Board's decision to the trial court.¹² On October 5, 2016, the trial court affirmed the Board's decision, stating that the Conditions were reasonable and supported by the record. See MarkWest Br. App. A. Thereafter, MarkWest appealed to this Court.¹³

Discussion

MarkWest argues that the Conditions exceed the Board's authority under the MPC and the UDO and, thus, violate this Court's September 26, 2014 order. MarkWest generally asserts that since this Court declared that it had "fully satisfied all of the applicable objective requirements of the UDO[,] ... no conditions are necessary to ensure compliance with the MPC or the UDO." MarkWest Br. at 11. In the alternative, MarkWest avers that the Conditions are unreasonable, unsupported by the record and contrary to law. MarkWest more specifically contends that, with the exception of the first sentence of Condition 2, the Board's Conditions exceed the Board's authority under the MPC because they regulate the how of MarkWest's proposed use, rather than the where ; MarkWest's proposed use has been legislatively determined not to materially affect the public interest; and, the Conditions are unduly restrictive and result in arbitrary and unreasonable discriminatory and unequal treatment of MarkWest's proposed use as compared to other such uses in the Township. See MarkWest Br. at 15–49; see also MarkWest Reply Br. at 3–15.

The law is clear that "[the Board's] authority is defined by the MPC and the [UDO]." HHI Trucking & Supply, Inc. v. Borough Council of Borough of Oakmont , 990 A.2d 152, 160–61 (Pa. Cmwlth. 2010) ; see also Section 303.D of the UDO (R.R. at 166a). Section 912.1 of the MPC¹⁴ states, in pertinent part: "In granting a special exception, the [B]oard may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of [the MPC] and the zoning ordinance." 53 P.S. § 10912.1. Section 404.B.1.1¹⁵ of the UDO specifically provides that "the Board may attach reasonable conditions and safeguards necessary to protect the public health, safety, and welfare." R.R. at 185a. Accordingly, this Court's September 26, 2014 order expressly authorized the Board to impose reasonable conditions necessary to ensure MarkWest's compliance with the UDO. See R.R. at 62a–63a.

This Court has expressly held that "[a] board is permitted to impose conditions on the use of a property to mitigate any potential adverse impacts from the proposed use, and is required to reduce the negative impacts to an acceptable level if it can, by imposing conditions." In re Appeal of Maibach, LLC , 26 A.3d 1213, 1216 (Pa. Cmwlth. 2011).

However, the ability to impose a condition on a special exception is not unfettered. Conditions must be reasonable and must [have ] support in the record warranting the imposition of such conditions; otherwise, the imposition of conditions constitutes an abuse of discretion.^[16]Sabatine v. Zoning Hearing B [d. ] of Washington T [wp. ], 651 A.2d 649, 655 (Pa. Cmwlth. 1994). ‘[T]he Board is not required to support the imposition of conditions; rather, the opposite is true—property owners are required to show that the imposition of conditions was an abuse of discretion .’ Leckey v. Lower Southampton T [wp. ] Zoning Hearing B [d. ], 864 A.2d 593, 596 (Pa. Cmwlth. 2004).]10

^]10 In Leckey, this Court described the standard of review of conditions attached to the grant of a special exception as follows:

... a court reviews a challenge to the reasonableness of those conditions; it does not determine whether there is substantial evidence, which is a ‘fact standard,’ but whether those conditions constitute an abuse of discretion .

Id. at 596. As explained in several other cases, the imposition of a condition when there is no evidence in the record to support the condition is manifestly unreasonable and an abuse of discretion . See Berger v. Zoning Hearing B [d. ] of the Borough of Mifflinburg, ... 85 Pa.Cmwlth. 480, 482 A.2d 1184 (1984) ; Abernathy v. Zoning Hearing B [d. ] of Hampton T [wp. ], ... 119 Pa.Cmwlth. 193, 546 A.2d 1311 (1988) ; Sabatine, supra.

Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd. , 944 A.2d 832, 839 (Pa. Cmwlth. 2008) (emphasis added). Accordingly,

Leckey does not authorize a zoning hearing board to ‘devise conditions out of thin air and without any reference to the record evidence.’ [ HHI , 990 A.2d] at 160. Rather, a reasonable condition must (1) relate to a standard in the applicable zoning ordinance or in the [MPC ] and (2) be supported by evidence in the record before

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