Frederick v. Allegheny Twp. Zoning Hearing Bd.
Decision Date | 26 October 2018 |
Docket Number | No. 2295 C.D. 2015,2295 C.D. 2015 |
Citation | 196 A.3d 677 |
Parties | Dolores FREDERICK, Patricia Hagaman, and Beverly Taylor, Appellants v. ALLEGHENY TOWNSHIP ZONING HEARING BOARD v. CNX Gas Company, LLC v. Allegheny Township v. John H. Slike and Anne E. Slike, Northmoreland Farms LP v. Michael Golembeiwski and Lisa Golembeiwski, John P. Brunner, II, Esq., Jeffrey and Sheila Brunner, Miller Niksic, Joanne Resh, Richard and Patricia Trumble, Michael and Jacalyn Schumaker |
Court | Pennsylvania Commonwealth Court |
Christopher A. Papa, New Castle, for appellants.
David R. Overstreet, Pittsburgh, for amicus curiae Pennsylvania Chamber of Business and Industry.
Jordan B. Yeager, Doylestown, for amicus curiae Delaware Riverkeeper Network.
Robert M. Junker, Pittsburgh, for amicus curiae CNX Gas Company LLC.
Bernard P. Matthews, Jr., Greensburg, for appellee Allegheny Township.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge
OPINION BY PRESIDENT JUDGE LEAVITT
Dolores Frederick, Patricia Hagaman, and Beverly Taylor (collectively, Objectors) appeal an order of the Court of Common Pleas of Westmoreland County (trial court) that affirmed the decision of the Allegheny Township Zoning Hearing Board (Zoning Board) to deny Objectors' land use appeal. In that appeal, Objectors raised a substantive validity challenge to Zoning Ordinance 01-2010,1 which supplemented the Township's Zoning Ordinance2 to allow oil and gas well operations in all zoning districts so long as they satisfy enumerated standards designed to protect the public health, safety and welfare. Pursuant to Zoning Ordinance 01-2010, the Township issued a permit to CNX Gas Company (CNX) to develop an unconventional gas well on property located in the Township's R-2 Agricultural/Residential Zoning District (R-2 Zoning District). Objectors assert that Zoning Ordinance 01-2010 improperly instituted illegal spot zoning in violation of substantive due process; does not comport with the Environmental Rights Amendment in Article I, Section 27 of the Pennsylvania Constitution ; and contravenes several provisions of the Pennsylvania Municipalities Planning Code (MPC).3 Consequently, Objectors contend, the CNX permit was improperly issued. After review, we affirm.
On December 13, 2010, the Township enacted Zoning Ordinance 01-2010, entitled "Providing for the Zoning of Oil and Gas Drilling Operations." Reproduced Record at 203a-12a (R.R. __). Zoning Ordinance 01-2010 makes oil and gas development "a permitted use by right in all Zoning Districts[,]" subject to numerous standards, or conditions. Section 3 of Zoning Ordinance 01-2010; R.R. 205a. These standards, inter alia, relate to road safety; the clearing of brush and trees; emergency planning; dust, noise and lighting controls; and security measures.
More specifically, Zoning Ordinance 01-2010 requires gas well operators to give residents within 1,000 feet of the well: a copy of the survey plat; a description of the planned operations; contact information for the operator; and the opportunity to meet with the operator. It requires the installation of a chain link fence and warning signs at the well site and the posting of a security guard whenever a drilling rig is present. It limits the hours for site preparation and construction as well as the ambient noise levels. It requires the operator to maintain a copy of the material safety data sheets for all chemicals used in drilling operations on-site and to provide a copy to the Township's manager. It prohibits the on-site disposal of refuse or burning of brush during clearing of the site. It requires operators to mitigate any problems they cause, including the disruption of telephone, cell phone, and other signals.
Zoning Ordinance 01-2010 requires gas well operators to comply with all federal and state permitting requirements. Operators must produce these permits 10 days before construction. Notably, a permit from the Pennsylvania Department of Environmental Protection (DEP) requires compliance with the setbacks of gas and oil wells from water wells and buildings set forth in the statute known as "Act 13." See 58 Pa. C.S. § 3215(a). Notwithstanding the decision of our Supreme Court holding that certain provisions of Act 13 were unconstitutional, these setbacks remain in effect. Robinson Township v. Commonwealth , 637 Pa. 239, 147 A.3d 536, 542 n.3 (2016) ( Robinson Township IV ).4 Operators must also obtain permits from the Pennsylvania Department of Transportation (PennDOT).
Zoning Ordinance 01-2010 establishes civil penalties for violations of its terms.
Background
On October 6, 2014, the Township issued a "zoning compliance permit" to CNX to develop an unconventional gas well on property located in the R-2 Zoning District. The property is owned by Northmoreland Farms, LP, which has three members, John H. Slike, his wife, Anne E. Slike and their son, Neil Slike. CNX's gas well is known as the Porter Pad project.
Objectors, who live near the Slike property, filed a substantive validity challenge to Zoning Ordinance 01-2010, arguing that an unconventional gas well is not a use compatible with an agricultural-residential use. Objectors also appealed the permit issued to CNX. The Zoning Board held public hearings on Objectors' filings on January 7, 2015; January 28, 2015; February 11, 2015; and March 5, 2015.5
Objectors presented the testimony of Dr. John Stoltz, Professor of Biology at Duquesne University and Director of the Center for Research and Education.6 Dr. Stoltz testified about his general understanding of drilling and the hydraulic fracturing process. Dr. Stoltz stated that CNX's drilling would impact water wells; however, he conceded that he had no knowledge of the location of wells or public water sources in the Township and had not realized that the Porter Pad project would not use water from streams but, rather, public water sources. Dr. Stoltz testified that onsite burial of waste is problematic; he was unaware that CNX did not plan to bury waste at the Porter Pad site. Finally, Dr. Stoltz opined that truck traffic would increase at the site because CNX will need to drain the condensate tanks. Dr. Stoltz did not know how much condensate would be generated or what type of gas would be extracted at the Porter Pad; he agreed that "dry gas" does not present condensation issues. Notes of Testimony (N.T.), 1/7/2015, at 88; R.R. 331a.
Objectors also presented the testimony of Steven Victor, who was qualified to testify as an expert in land use planning and landscape architecture. Victor testified that 85 percent of the Township lies in the R-2 Zoning District. Victor opined that oil and gas drilling could be compatible with other uses in the R-2 Zoning District, but he believed that "stronger standards and regulations" were needed in Zoning Ordinance 01-2010. N.T., 1/28/2015, at 75; R.R. 537a. Victor opined that Zoning Ordinance 01-2010 did not adequately protect the local water supply; limit noise; or reduce light pollution. Victor was unsure what protections would be adequate. He did not know whether numerous environmental protection laws, such as those enforced by DEP, would address his listed concerns.
Objectors also testified. Beverly Taylor stated that she chose her residence for its quiet, rural setting. Her property lies approximately 1,000 feet away from the well and 700 feet from the perimeter of the site. Taylor testified that CNX used heavy machinery from approximately 6:30 a.m. until dusk seven days per week to prepare the site by removing trees, clearing ground, and constructing roadways. Eventually the work was reduced to six days per week.
Objector Dolores Frederick testified that she lives approximately 900 feet from the Porter Pad project. She also complained about the noise during the clearing process, as well as the traffic inconvenience caused by the trucks, which left mud and dirt on the roads.
Objector Patricia Hagaman's home is located approximately 1,200 feet away from the Porter Pad site. She cannot see the site from her house, but can hear the "beeps [of the trucks because she lives] in a valley." N.T., 1/28/2015, at 117; R.R. 579a. She expressed concern that a stream flowing across her property would be polluted. Hagaman testified that if development continues, she will try to sell her property because it will be "too dangerous" to stay. N.T., 1/28/2015, at 121; R.R. 583a.
Kevin Zigler,7 who lives approximately 625 yards from the Porter Pad, testified that two people, one a realtor, advised him that the Porter Pad project will reduce his property's value. Zigler believed the devaluation would be substantial. He complained about the noise from trucks and the mud they tracked onto the roads. Zigler acknowledged that in 2014, he signed a lease with another gas company, Huntley and Huntley, for the drilling of a horizontal line under his property to extract gas.
CNX presented the testimony of Kyle Stefanick, a senior land agent with Consol Energy,8 who is responsible for leasing land for well pads, pipelines and rights-of-way for gas exploration. Stefanick stated that the Township encompasses approximately 20,000 acres of land, of which 12,500 acres have been leased to "various" natural gas exploration companies. N.T., 2/11/2015, at 59; R.R. 741a. Seventy-five percent of the land in the R-2 Zoning District has been leased for natural gas drilling.
Stefanick testified that there are approximately 242 gas wells in the Township, all of which are conventional.9 The Porter Pad will be the first unconventional well in the Township. However, it will not be the first gas well in the Township to be opened by hydraulic fracturing because conventional well developers, including some in the Township, also employ hydraulic fracturing.
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