United States: Pennsylvania Appeals Court Reverses Lower Court Decision And Allows A Natural Gas Well Project To Proceed In A Residential Neighborhood

On September 9, 2015, Judge Mary Leavitt of the Commonwealth Court of Pennsylvania reversed the Court of Common Pleas of Lycoming County's ruling, which had set aside the Board of Supervisors of Fairfield Township's (the "Board") grant of a conditional use permit to Inflection Energy LLC for the construction and operation of a natural gas well.

Inflection Energy applied to the Board, which acts as a zoning hearing board, in 2013 for a permit to build a natural gas well pad on property owned by David and Eleanor Shaheen. The site in question was in a region of the township designated as a "Residential Agriculture" district under the township's zoning ordinance. After public hearings and the imposition of certain restrictions, the township board approved the conditional use permit.

In the case, captioned as Gorsline et al. v. Board of Supervisors of Fairfield Township v. Inflection Energy LLC et al., No. 1735 C.D. 2014, a group of Lycoming County residents challenged the Board's grant of the conditional use permit.

The lower court found for the residents, holding the permit did not satisfy the applicable portion of the ordinance, which states:

Whenever, under this Ordinance, a use is neither specifically permitted or denied[sic], and an application is made by an applicant to the Zoning Officer for such a use, the Zoning Officer shall refer the application to the Board of Supervisors to hear and decide such request as a conditional use. The Board of Supervisors shall have the authority to permit the use or deny the use in accordance with the standards governing conditional use applications set forth in Section 14.2 of the Ordinance. In addition, the use may only be permitted if:

12.18.1 It is similar to and compatible with other uses permitted in the zone where the subject property is located;

12.18.2 It is not permitted in any other zone under the terms of this Ordinance; and

12.18.3 It in no way is in conflict with the general purpose of this Ordinance.

The burden of proof shall be upon the applicant to demonstrate that the proposed use meets the foregoing criteria and would not be detrimental to the public health, safety and welfare of the neighborhood where it is to be located.

Id. at 7-8, quoting Fairfield Township Zoning Ordinance, §12.18; R.R. 493a (emphasis in original).

The Commonwealth Court reversed this ruling, finding the proposed well did not contradict the zoning ordinance's purpose while also noting four other wells had been allowed in the same district.

It further agreed with Inflection Energy that the proposed use was "similar to and compatible with" other public service uses already in existence in the region, emphasizing the fact that under the ordinance, such uses need only be similar to, not necessarily the same as, other public services. Id. at 17.

It was of particular importance that the trial court overstepped its authority by "act[ing] as fact finder and substitute[ing] its credibility determinations for those of the board." Id. at 14. "The zoning board is the fact-finder, with the responsibility for credibility determinations and the weight to assign the evidence." Id. at 14.

Thus, the judge reviewed the evidence Inflection Energy presented before the Board and found Inflection Energy's evidence sufficient to support the Board's finding. Specifically:

The trial court erred in holding that Inflection's proposed use was not similar to a public service facility, which is expressly permitted in the RA District and compatible with other uses permitted in the RA District. The trial court also erred in holding that Inflection's proposed use conflicted with the general purpose of the Zoning Ordinance, which specifically authorizes extraction of minerals. Finally, there was no probative evidence offered to show that Inflection's proposed well will present a detriment to the health and safety of the neighborhood. Inflection satisfied the requirements of Section 12.18 of the Zoning Ordinance.

Zoning disputes continue to be a regular feature in the landscape of the Pennsylvania oil and gas industry, but this ruling is a helpful precedent in the effort to encourage and support reasonable and fact-based zoning board determinations, which permit development.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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