EQT Prod. Co. v. Borough of Jefferson Hills, 2019 Pa. LEXIS 3059 (May 31, 2019)

A governing body may consider non-resident testimony about similar land uses regarding a conditional use application if the testimony is both relevant and probative.
Case Details:

Applicant sought to construct, operate, and maintain a natural gas production complex with up to 16 unconventional fracking wells (Complex).  Unconventional oil and gas well drilling was permitted by conditional use in the district per the Borough’s zoning code.  Applicant filed a conditional use application to construct the Complex and the Borough Council (Council) conducted a public hearing.  Four Borough residents and four non-residents (Objectors) testified in opposition to the application.  The non-resident Objectors testified to their firsthand experience living near an unconventional natural gas well site (Trax Farm) in a different municipality owned by Applicant, conveying their perceptions of how Applicant’s operations adversely impacted their health, quality of life, and community’s environment.

In its written decision, Council gave all the testimony it heard during the public comment portion of the public meeting “significant weight,” and it found Objectors’ testimony to be credible and persuasive.  Analyzing various Commonwealth Court opinions, Council stated that Applicant carried the initial burden to prove that the conditional use satisfies the objective standards in the Borough’s zoning ordinance.  However, Council found that the Borough’s zoning ordinance required Applicant to prove that the use was consistent with the public health, safety, and welfare of the community.  If Applicant met its initial burden, the burden would shift to Objectors to prove that the proposed use would adversely impact their public health, safety, and welfare.  Council found that Applicant proved most of the objective standards, but that the evidence in the record demonstrated that the conditional use would adversely impact the health, safety, and welfare of the Borough and its residents.  Therefore, Council concluded that Applicant failed to meet its burden of proof, and the burden never shifted from Applicant to Objectors.

The Trial Court reversed Council’s denial of the application.  It determined Applicant met all of the specific, objective requirements for the conditional use, which then shifted the burden of proof to Objectors regarding the adverse effects that the use would have on the general public.  Objectors failed to meet this burden because their testimony was speculative, as they raised only theoretical concerns about air pollution and odors.  The Commonwealth Court affirmed the Trial Court, stating that an applicant is entitled to a conditional use as a matter of right, unless the applicant does not satisfy the specific, objective criteria in the zoning ordinance for that conditional use.  The Commonwealth Court reasoned that Applicant met its initial burden of proof and that Objectors, through their testimony, failed to prove to a high degree of probability that allowing the conditional use would create a substantial risk of harm to the community.

On further appeal, the Pennsylvania Supreme Court addressed one issue: whether non-resident testimony regarding firsthand experiences with an applicant is admissible in that applicant’s land use hearing in another municipality.  The Supreme Court first reasoned that local agencies are empowered to consider “all relevant evidence of reasonably probative value,” and that this flexibility is heightened in conditional use hearings conducted by local municipalities.  Firsthand experiences that are similar in essential circumstances are both relevant and probative to affect the result in question.  The Supreme Court previously classified evidence relating to an applicant’s practices, past conduct, and specific impacts on a community for an existing use is relevant and probative in determining whether a conditional use application related to that existing use would pose a threat to the welfare of the community.

That principle was extended to the Applicant’s case, as the Objectors’ testimony highlighted significant similarities between the Complex and the Trax Farm.  Specifically, the non-resident testimony raised three concerns that were relevant and probative in determining whether the conditional use would adversely impact the health, safety, and general welfare of the Borough residents: (1) potential adverse impacts (such as noise, vibrations, increased traffic, and air pollution), (2) numerous potential health effects and a significant diminished quality of the day-to-day life of residents; and (3) how the Applicant, based on its operations at the Trax Farm, reasonably could be expected to respond to residents’ complaints.  The Borough’s zoning ordinance required Applicant to demonstrate that the use would not adversely impact the public health, safety, or welfare; the Applicant made no such demonstration.  Rather, Objectors’ testimony was uncontradicted and served as the only basis for determining whether the use adversely impacts the public health, safety, or welfare.  Because the Objectors provided relevant and probative evidence regarding the proposed use’s adverse impact on the public health, safety, and welfare, and the Applicant failed to prove that there would be no adverse impacts, Council properly considered the testimony of the non-resident Objectors.

The Dissenting Justice concluded that the Majority decision “undermines the long-established principle that a municipality may deny a conditional use only if the Objectors’ evidence establishes a high degree of probability that the use will cause a substantial threat to the community.”  The Dissent noted that Objectors had not met this high standard because their testimony regarding the Trax Farm and adverse health effects was speculative.  Objectors could have raised legitimate concerns through expert witness testimony, which would have been a proper basis for Council to deny the conditional use application.


Date of Decision: 5/31/19

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