Coal Gas Recovery v. Franklin Township Zoning Hearing Board

• Decision Date: 20 March 2008
• Docket Number: No. 1120 C.D. 2007.,1120 C.D. 2007.
• Citation: 944 A.2d 832
• Parties: COAL GAS RECOVERY, L.P., and Emerald Coal Resources, L.P., Appellants v. FRANKLIN TOWNSHIP ZONING HEARING BOARD, GREENE COUNTY, Pennsylvania.
• Court: Pennsylvania Commonwealth Court

944 A.2d 832

COAL GAS RECOVERY, L.P., and Emerald Coal Resources, L.P., Appellants v. FRANKLIN TOWNSHIP ZONING HEARING BOARD, GREENE COUNTY, Pennsylvania.

No. 1120 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued February 11, 2008.

Decided March 20, 2008.

Clifford B. Levine, Pittsburgh, for appellants.

Kirk A. King, Waynesburg, for appellee.

BEFORE: McGINLEY, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge LEAVITT.

Coal Gas Recovery and Emerald Coal Resources appeal an order of the Court of Common Pleas of Greene County (trial court) affirming the grant of a special exception by the Franklin Township Zoning Hearing Board (Board), which included a condition that was challenged by appellants. In this case we consider, inter alia, whether the Board had grounds to order the construction of a building around a gas compressor as a condition to the grant of a special exception to install the compressor. Concluding that the evidence did not support the imposition of this condition, we reverse.

Emerald, a coal mine operator, owns an 85 acre tract of land situated in an A-1 Rural Agricultural zoning district in Greene County. The land is vacant except for a log cabin that is currently uninhabited. Located on the property is a "gob pipe vent," i.e., an opening which allows methane gas to vent from Emerald's mine into the atmosphere. However, Coal Gas Recovery would like to capture the gas and sell it for a profit. This involves placing a gas compressor over the vent opening.

The parties agree that this type of endeavor qualifies as an "extractive industry" under the Franklin Township Zoning Ordinance (Zoning Ordinance)¹ and is allowed by special exception in the A-1 district. Coal Gas Recovery filed an application for a special exception to install and run a gas compressor on Emerald's property. Reproduced Record at 5a-10a (R.R. ___). The Franklin Township Planning Commission recommended to the Board that the special exception be granted.²

A hearing on the special exception was held by the Board on January 23, 2007. Mark Leidecker, of Jesmar Energy, which installs equipment for methane extraction, testified. He explained that the project proposed by Coal Gas Recovery involves the installation of a 95 horsepower compressor, which is smaller than an automobile engine, at the vent site. The compressor is attached to a pipeline leading to individual bore holes drilled into the coal mine and is also attached to a gas gathering line that leads to a gas treating plant. There, the gas is treated and sold into the Equitrans pipeline.

Franklin Township gave Coal Gas Recovery permission to install the compressor so that it could be tested for compliance with the noise level provisions of the Zoning Ordinance.³ The Township Supervisor, the Zoning Officer and Leidecker were all present at the compressor site when the noise level readings were taken. The first reading was taken beside the compressor when it was not running. The second reading was taken beside the compressor running at its maximum speed of 1,700 rpm, and it measured 55 to 60 decibels. The third reading was taken at a point on the Emerald property closest to a neighbor's house; with the compressor running at maximum speed, the noise measured approximately 35 decibels. Leidecker testified that all the readings were within acceptable noise levels under the Zoning Ordinance, and that the noise from the compressor at the point closest to the neighbor's home was "above a whisper" and could barely be heard. R.R. 22a. Since these tests, the compressor has not been turned on; once approved, the compressor will run continuously.

Steven Coss, the Franklin Township Zoning Codes Enforcement Officer, confirmed that he was present when the noise readings were taken. He explained that the decibel readings taken close to the neighboring residence were 20 to 25 decibels below the maximum noise level allowed by the Ordinance.

Some neighboring residents spoke at the hearing. They understood that the compressor was an allowed use, but they had concerns they wanted addressed. None of the neighbors stated that they heard the compressor being tested or that they know what it will sound like. However, Alan Bianchi, the neighbor living in the house nearest the compressor, expressed concern over the possible noise.⁴ He requested that the compressor be enclosed inside a building.

The Pattons, a husband and wife who live in the vicinity, explained that they once lived on Emerald's property; are in the process of buying the land back; and could possibly move into the log cabin on the property. Mrs. Patton asked what the compressor would sound like and expressed dissatisfaction with the locations where the noise level readings were taken. She was also concerned that if they move back onto the land, their children and cattle could get too close to the compressor. Mr. Patton expressed concern that the noise testing was only done on one particular day and that, in his opinion, the compressor is unattractive. The Pattons asked that the compressor be enclosed within a building.⁵

Following the hearing, the Board issued a decision approving the special exception request

with a condition that a suitable building for safety, aesthetics and noise conditions meeting the applicable codes be installed around the compressor.

Board Decision at 2; R.R. 34a. Coal Gas Recovery and Emerald appealed and filed a petition to stay the requirement of constructing a building. A hearing on the petition for a stay was held before the trial court on March 28, 2007.

Coal Gas Recovery presented testimony from Joanne Riley, a certified professional geologist who is the senior engineer in charge of the coal bed methane project. Riley explained that methane is a highly explosive gas that must be vented from the coal mine. Methane is a greenhouse gas which can be harmful to the environment; therefore, technology has been developed to gather the methane, compress it, process it and place it into a natural gas pipeline instead of allowing it to escape into the atmosphere.

Riley testified about the decibel readings that were taken. The first noise readings taken at the compressor site with the compressor not running were in the 29 to 30 decibel range, which is a normal background noise level for a rural area. The second readings taken beside the compressor with the compressor running at a high rate of speed were in the 60 decibel range, the maximum noise the compressor would generate. The third readings that were taken at the edge of the Emerald property closest to the Bianchi home were in the range of 30 decibels. All noise levels satisfied Franklin Township standards. Riley measured the distance from the compressor to the nearest homes; the nearest home is 1,755 feet away, the next home is 2,007 feet away and the next home is 2,517 feet away.⁶

Not every methane ventilation site is suitable for a compressor, as is this one. The Emerald site is projected to make $300 a day. Riley confirmed that the compressor has not been started since the noise testing was conducted, because the building has not yet been constructed. The building, if required, will cost $21,200 and will be steel-sided with doors on each end. Riley testified that the "compressor is already equipped with a hospital grade muffler, so that cuts down significantly on the noise." R.R. 65a.

Riley testified that the Pennsylvania Department of Environmental Protection (DEP) oversees the methane gas extraction project. DEP gave plan approval to run all compressors involved in the project, which includes the compressor at issue here. DEP also issued a letter authorizing continued operation.

Coal Gas Recovery offered DEP's plan approval to install and run compressors into evidence. DEP's approval is subject to several conditions, one of which requires the compressor to be enclosed by a chain link fence and equipped with a muffler or other noise reduction device. DEP's letter authorizing continued operation was also submitted into evidence.

Coal Gas Recovery and Emerald also presented testimony from Zoning Officer Steven Coss, who reiterated that he was present when the decibel readings were taken in this case and that all decibel levels were within the limits set by the Zoning Ordinance. The Ordinance requires that the noise from the compressor must be 55 decibels or less from "points of measurement." R.R. 81a. Coss explained that it was within his discretion to decide where to measure the decibel readings, and he chose to do the reading close to the nearest house. The decibel range near the neighbor's house was well below what is allowed.

At the close of testimony, the trial court granted the petition for a stay of the requirement of constructing a building. The parties discussed whether another hearing would be needed for the merits of the appeal, and it was agreed that another hearing was not necessary because the evidence would be the same as was already presented. The trial court asked, "did we just have the appeal hearing also?" R.R. 90a. The parties agreed that the hearing on the petition for a stay was also the appeal hearing.

The trial court denied the appeal. In its opinion, the trial court noted that there is no evidence that Coal Gas Recovery's proposed use violates any requirement in the Zoning Ordinance. As such, the trial court felt that the objectors had the burden to show that the proposed special exception would impact adversely on the public interest without the special condition. The trial court determined that the record supports the Board's condition in two ways: (1) the objectors' concerns about noise levels were based on more than mere possibilities of harm because the compressor was in place and running at the time of the hearing and the objectors had "actual experience listening to the compressor," and (2) "a building would make for a safer installation than would a mere fence." Trial Court Opinion at 4-5....