Kretschmann Farm, LLC v. Twp. of New Sewickley, 2016 Pa. Commw. LEXIS 33 (Pa. Commw. Ct. 2016).
This decision discusses the quality of evidence required for objectors to meet their burden of proof of adverse impacts that will result from a proposed use. The court also dismisses the objectors' challenge to the constitutionality of the zoning ordinance where the objector raised the argument on appeal rather than by filing a challenge in accordance with the MPC.
Applicant filed a conditional use application with the Township to build a gas compressor station on property located in the Township’s Agriculture District. The Zoning Ordinance permitted “compressor stations” in the Agriculture District by conditional use. “Compressor station” was defined as:
One or more enclosed insulated building, housing compressor units, that are to be designed compatible with other structures in the area and designed and constructed to compress natural gas and/or oil that originates from a gas and/or oil well, or collection of such wells, operating as a midstream facility for delivery of gas and/or to a transmission pipeline, distribution pipeline, processing plant or underground  storage field including one or more natural gas and/or oil compressors associated buildings, pipes, valves, tanks and other equipment.
Objectors, who were neighbors, opposed Applicant at the hearing. The Board of Supervisors found Applicant complied with all requirements of the Zoning Ordinance and approved the application. The Board of Supervisors approved the application subject to 33 conditions. On appeal by Objectors, the trial court determined that Objectors had merely presented “concerns,” which “do not equate to evidence.” Moreover, the trial court held that the Objectors did not preserve their challenge to the constitutionality of the Zoning Ordinance at the hearing. According, the trial court affirmed because the record established that the health, safety and well-being of the Township’s residents would be protected.
On appeal to the Commonwealth Court, Objectors first argued that the Township and trial court ignored their evidence. The Commonwealth Court stated:
It is true that the Township’s written decision does not refer to [Objectors’] testimony or documents, including the hundreds of e-mails expressing concern about the environmental and health impact of [Applicant’s] compressor station. However, expressions of concern do not constitute probative evidence of harm. At the hearing, [Objectors’] counsel stated that the e-mails were not being introduced to prove a direct impact on health but to establish the risk of loss of [Objectors’] customers. Further, [Objectors’] presented no expert reports or testimony to support their challenge to [Applicant’s] conditional use application.
Latching on to Robinson Township, Objectors claimed that the Township’s Zoning Ordinance permitting compressor stations by conditional use violated Article I, Sections 1, 25 and 27 of the Pennsylvania Constitution. The Commonwealth Court dismissed that argument because Objectors had failed to challenge the constitutionality of the Zoning Ordinance in accordance with the procedures established by the MPC.
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