                                   [J-70-2018]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 EQT PRODUCTION COMPANY AND ET                    :   No. 4 WAP 2018
 BLUE GRASS CLEARING, LLC,                        :
                                                  :   Appeal from the Order of the
                       Appellees                  :   Commonwealth Court entered May 18,
                                                  :   2017 at No. 1184 CD 2016, affirming
                                                  :   the Order of the Court of Common
                v.                                :   Pleas of Allegheny County, Civil
                                                  :   Division, entered June 21, 2016 at No.
                                                  :   SA 16-000025 and remanding.
 BOROUGH OF JEFFERSON HILLS,                      :
                                                  :   ARGUED: October 23, 2018
                       Appellant                  :


                                           OPINION


JUSTICE TODD                                          DECIDED: MAY 31, 2019
       In this appeal, we consider the question of whether a municipality, in addressing a

natural gas extraction company’s conditional use application for the construction and

operation of a well site, may consider as evidence the testimony of residents of another

municipality regarding the impacts to their health, quality of life, and property which they

attribute to a similar facility constructed and operated by the same company in their

municipality. After careful review, we hold that such evidence may be received and

considered by a municipality in deciding whether to approve a conditional use application,

and, thus, we vacate the order of the Commonwealth Court and remand this matter to

that court, with instructions to remand this matter to the trial court for further consideration.

                            I. Factual and Procedural History
       In 2015, Appellees EQT and ET Blue Grass Clearing LLC, an affiliate of EQT

(collectively, “EQT”), sought to construct, operate, and maintain a natural gas production

complex on a 126-acre tract of property within the Borough of Jefferson Hills, Allegheny

County (“Borough”), the Appellant in this matter. The proposed site for this facility, known

as the Bickerton Well Site (“Bickerton site”), was a 29.7-acre site projected to include up

to 16 “unconventional” gas wells, so described because they utilize the hydraulic

fracturing production process (“fracking”) to extract natural gas from a subjacent reservoir.

This was to be the first unconventional well site in the Borough.          According to its

conditional use application filed with the Borough, the wells that EQT planned to drill

would penetrate the subsurface vertically to a distance of 6,000 to 7,000 feet, and then

extend horizontally for another 10,000 feet. Next to every well, impoundment ponds

would be constructed, each with the capacity to store 3.4 million gallons of freshwater.1

Additionally, all well sites were to have holding tanks for the wastewater that is returned

from the well during the drilling process. Said tanks, also called flowback impoundments,

which are open to the air, store the wastewater generated during the fracking process for

one week, during which time a large portion of the water contained therein would

evaporate into the atmosphere, after which any remaining water would be reused in the

fracking process.2    Jefferson Township Council Decision on EQT Conditional Use

Application, 12/23/15, at 19.




1  This freshwater, along with sand and other friction reducing additives, is pumped at
high pressure during the fracking process to fracture the rock formation holding the
natural gas enabling its removal. Robinson Township v. Commonwealth, 147 A.3d 536,
543 n.4 (Pa. 2016).
2 EQT’s plans called for the flowback impoundments to be covered once fracking was

completed at the site.



                                      [J-70-2018] - 2
       The site is located in a zoning district of the Borough designated a Business Park,

which is also an Oil and Gas Development Overlay District.3              In both districts,

unconventional oil and gas well drilling is permitted by the Borough’s zoning code as a

conditional use. In September 2015, EQT filed an application with the Borough for

conditional use approval so that it could commence construction of this facility. On

October 26, 2015, the Borough Planning Commission provisionally recommended that

the application be approved, contingent on EQT’s furnishing to it additional detailed

information regarding matters such as: notices of EQT’s past violations from the

Pennsylvania Department of Environmental Protection (“DEP”); the height of the

structures utilized in the drilling and operation of the wells; descriptions and maps of how

materials, equipment, and the water and other chemicals used in the fracking process

would be transported to the site; the route through the Borough which vehicles servicing

the site would take; and plans for the installation of fencing and warning signs. Id. at 1-

2.

       On November 10, 2015, the Borough Council (“Council”) conducted a public

hearing on the application, as required by the Municipalities Planning Code (“MPC”).4 At

this hearing, eight individuals (“objectors”) testified in opposition to the conditional use

application. Four of the objectors were Borough residents, one of whom lived within 1,000

feet of the Bickerton site. However, three of the objectors were, at that time, residents of

Union Township, Washington County, which adjoins the Borough at its southern border,

3 Overlay districts, as their name implies, are zoning districts which are superimposed on
a zoning map over already existing zoning districts, and feature additional land use rules
beyond those governing the underlying zoning district. Jennie C. Nolon, John R. Nolon,
Zoning and Land Use Planning, 40 Real Est. L.J. 237, 250 (2011).
4 See 53 P.S. § 10913.2 (“Where the governing body, in the zoning ordinances, has

stated conditional uses to be granted or denied by the governing body pursuant to express
standards and criteria, the governing body shall hold hearings on and decide requests for
such conditional uses in accordance with such standards and criteria.”).



                                      [J-70-2018] - 3
and were living near another unconventional natural gas well site known as “Trax Farm,”

which EQT had constructed and operated in Union Township since 2007 (“Trax Farm

site”). Council also heard testimony from an objector who had recently moved to the

Borough, but previously lived in Union Township in proximity to the Trax Farm site. As

pertinent to the issue presented by this appeal, the present and former Union Township

objectors gave evidence of their firsthand personal experiences with EQT’s drilling and

operational practices while living near its Trax Farm site, and they conveyed their

perceptions of how EQT’s activities at that site had negatively impacted their health and

quality of life, and, also, their community’s environment. Given its relevance herein, we

will recount their testimony in detail.

       Union Township resident Bob Domman related that because “the Trax site was

probably the closest one to where I lived, we followed that pretty closely,” and he testified

that EQT had offered what he characterized as “gag agreements” to individuals who lived

next to the site, and he provided Council with copies thereof which were entered into the

evidentiary record. N.T. Jefferson Hills Council Public Hearing (“Hearing”), 11/10/15, at

138, 143. Because these individuals had apparently complained that EQT’s extraction

activities at the Trax Farm site constituted a nuisance which interfered with the use and

enjoyment of their property, the agreements provided that, in exchange for a $50,000

cash payment, the residents would grant EQT easements and rights-of-way over their

properties for “noise, dust, light, smoke, odors, fumes, soot or other pollution, [and]

vibrations . . . [and other] adverse impacts or other conditions or nuisances which may

emanate or be caused by [EQT’s] operations.” Id. at 139-40. These easements were for

varying lengths of time, ranging from one year to perpetuity. Id. at 140.

       Domman additionally recounted that there were loud sounds associated with the

banging of large pipes as they were being loaded into the drilling rigs during the extraction




                                          [J-70-2018] - 4
process, and, thus, he recommended that Jefferson Hills require the installation of sound

walls between the drilling rigs and the three residential neighborhoods which would be

nearest to the Bickerton site.5 Id. at 143-44. Domman also noted that one of the

pronounced features of the Trax Farm site was the storage impoundments holding the

substantial quantities of water used in the drilling process, and he recalled that Union

Township had sufficient concern about the quality of the water contained therein to require

that it be tested. Domman further related his observations that, whenever the wells were

in operation, there would be a continuous series of at least 16 or 17 heavy diesel trucks

traveling back and forth over township roads hauling water to the well site, generating

noticeable air pollution in the process. Id. at 145-46. Lastly, Domman observed that each

of the 12 well pads at the Trax Farm site had condensate tanks sitting on them, which he

found to be an additional source of air pollution, and cautioned that such tanks would

likely accompany the wells at the Bickerton site. Id. at 146.

       Next, Union Township resident Gary Baumgartner, whose home was located less

than a tenth of a mile from one of the well pads on the Trax Farm site, testified. Id. at

148. He began by encouraging Council to look into local accidents in Washington County

that related to EQT’s drilling activities there, one of which he asserted was a blowback of

drilling mud from one of its wells. According to Baumgartner, this mud flowed into Mingo

Creek and the Monongahela River and encrusted the bottoms of both watercourses. Id.

at 149. Baumgartner then related, in detail, what he perceived as the deleterious effects




5  Domman estimated, based on the maps submitted with EQT’s application, and aerial
photographs of the area of the proposed Bickerton site and the three nearest Borough
residential neighborhoods, obtained through the use of “Google Earth,” that all three
groups of homes were situated less than a third of a mile from the Bickerton site. N.T.
Hearing, 11/10/15, at 140-41; Conditional Use Hearing Exhibits, R.R. 749-51. In its brief
to our Court, the Borough adopts this estimate as accurate, Borough Brief at 19, and EQT
does not dispute it.

                                     [J-70-2018] - 5
of the fracking activities at the nearby well on both his and his family’s health and quality

of life during the 18-month period since it began operating. Id. at 150.

       Baumgartner first described the intense vibrations that he and his family repeatedly

endured inside of their home, as well as those experienced by his neighbors, which

started once the well became operational. Baumgartner recalled that these vibrations

were so powerful that, even while sitting on a couch or lying on his bed, he could feel

them going through his entire body. He noted that these vibrations would routinely shake

glasses of water sitting on tables or counters, and he even observed the same vibrational

disturbances in the water of his neighbor’s toilet after his neighbor became disturbed by

the phenomenon, and, believing that the toilet was malfunctioning, requested that

Baumgartner examine it.       He indicated that many of his neighbors had the same

experiences, and that they had shared videos and pictures with him of their household

items shaking because of the vibrations. Id. at 150-51.

       Baumgartner also told Council of the very high levels of noise which he and his

family were repeatedly subjected to after the commencement of fracking activities, and

which both he and his wife found made living conditions in their home intolerable. Id. at

156. Baumgartner testified that the noise was so intense it made it impossible for his wife

to sleep in the master bedroom of their home, and that a sound monitor which was placed

in that bedroom at one point registered 82 decibels, which he observed was nearly

equivalent to the decibel level generated by a diesel locomotive at a distance of 100 feet.

Id. Baumgartner related that whenever sound studies were done to assess the noise

generated by the well site, drilling activities at the site were abruptly reduced, as well as

the accompanying noise, such that his home again became livable. This prompted he

and fellow residents to remark that they wished such studies were conducted all the time,

so they could “live in peace.” Id. at 163-64.




                                      [J-70-2018] - 6
       Baumgartner next chronicled the deterioration in air quality which he and his family

experienced after fracking activities began at the well. He asserted that they repeatedly

smelled strong odors of what he believed to be diesel fuel and sulfur emanating from the

well site. Baumgartner recalled that one evening, as he was outside with his dog, he

noticed a thick white fog enveloping the well pad and cloaking his backyard, and he

remembered that it stank of sulfur. Id. at 156. A nonprofit public health organization,

based in southwestern Pennsylvania, which became aware of the air quality concerns of

Baumgartner and others who lived near the Trax Farm site, held a meeting with all of

those residents and recommended that, while fracking was occurring at the well site, due

to the presence of dangerous particulate matter on blades of grass, their children should

not play outside, nor should residents mow their lawns without wearing a respirator. Id.

at 152-53. Likewise, Baumgartner and the other residents were cautioned not to plant

their gardens while fracking was going on. Id.

       The nonprofit health organization also provided Baumgartner and the other

residents with air quality monitors and warned them that, if the monitors read 200 or above

for an hour or more, they should evacuate their homes. Baumgartner related that, at one

point, his monitor registered 260, and he and his wife were forced to quickly leave their

home. According to Baumgartner, this was not an isolated occurrence, as he detailed

another incident which occurred on a subzero February night when the smell of diesel

fuel inside his house became so strong he called the fire department. Once the fire

department arrived, they recommended that he and his family immediately remove

themselves from their home so they could bring in fans to blow the fumes out of their

house. Id. at 155.

       Baumgartner testified that he and his wife were forced to leave “countless times”

in the middle of the night because of these type of incidents, and, at one point, he and his




                                      [J-70-2018] - 7
wife had to stay in a hotel for two months. Id. at 157. Even despite taking these

measures, Baumgartner recounted that he developed a serious respiratory illness that he

attributed to his exposure to these fumes, and this illness necessitated his hospitalization

for a five-day period, during which he was placed on a ventilator and given oxygen. Id.

Baumgartner noted that, because of these worsened air quality levels and diesel odors,

his daughter, who was 7-months pregnant at the time and living in the house with her

husband, was forced to move out at her doctor’s recommendation. Id. at 154.

       Baumgartner also elaborated on his efforts to seek relief from these conditions

from the DEP and the federal Environmental Protection Administration (“EPA”). He

recalled that both agencies informed him that they could offer no assistance due to

understaffing of their enforcement divisions and outdated laws which were ill-suited to

address such events. Id. at 158-59.

       Because of these events, Baumgartner made the decision to attempt to sell his

property; however, he anticipated taking a loss on it because of all of these negative

impacts from the nearby well. Id. at 161. He further described how a realtor informed

him that, if he entered into one of the aforementioned easement agreements offered by

EQT, she would not even list his house for sale. Id. at 162.

       Mickey Gniadek, a neighbor of Baumgartner who lived across the street from one

of the Trax Farm wells, testified that one night in early December 2013 he went out to get

the mail, and he witnessed a thick white cloud hovering about 3-1/2 feet off the ground

and surrounding the well pad. Id. at 167. Gniadek also encountered a strong aroma of

what he believed to be chlorine permeating the air. Gniadek, who formerly worked as a

truck driver hauling water to fracking sites, recalled that, while he was familiar with the

various smells associated with drilling sites from his former employment, he had never

experienced an odor of this nature before.




                                      [J-70-2018] - 8
       As Gniadek retrieved his mail from the mailbox, he suddenly began having intense

respiratory distress, which he characterized as a feeling of great pressure in his chest.

Id. at 168. Gniadek testified that he staggered with great difficulty back to his home, and,

once inside, collapsed against the wall, gasping for air. Id. at 169. Eventually, Gniadek

regained his breath and, because he was concerned that there had been a possible

accident at the pad resulting in a chemical discharge, as well as possible injury or loss of

life to workers at the site, he called one of EQT’s representatives, who ostensibly was

responsible for its supervision. Id. at 170.

       Gniadek testified that the individual whom he talked to on the phone was

dismissive of his concerns and, at one point, laughed at him after he raised the prospect

of injured workers being present at the well pad. Id. at 171. After further exchanges, the

individual Gniadek spoke with eventually said he would call to the site to see if there were

any reports of problems, but Gniadek heard nothing further from him, or anyone else at

EQT, about the incident. Id. at 171-72. Once Gniadek ended the phone call, he became

very alarmed as he observed that his face, hands, and body were covered with red spots

that resembled measles. Id. at 172-73.

       Gniadek recounted that, after the incident, a subcontractor of EQT appeared at his

house to offer him $50,000, which he was told he would receive only if he and all of his

neighbors signed an agreement that the subcontractor presented to him.             Gniadek

recalled that the contract prohibited the signatory from asserting any past or present

claims against EQT, including health ones. Id. at 173. Gniadek, because of his concern

over his breathing difficulties and the unexplained red dots that appeared on his body

after inhaling the acrid fumes, declined to do so. He informed the subcontractor that he

was not signing any such agreement until he was given a satisfactory explanation as to

the cause of his skin outbreak. Id. at 179-80. The subcontractor left, but returned a week




                                      [J-70-2018] - 9
later and told him that the agreement was now available to him on an individual basis. Id.

at 174.

       Gniadek also testified that vapor recovery units which had been installed on the

well pad ran 24 hours a day and generated considerable noise, which was clearly audible

to him at his house, along with the sounds the workers at the well pad made during their

activities there. Id. at 176. Gniadek echoed Baumgartner’s observation that the general

noise level at the well site would abate considerably during the time periods in which

sound studies were being conducted. Id. at 176-77.

       Lastly, former Union Township resident, and current Jefferson Hills resident, Andy

Tullai detailed his experiences living near the Trax Farm site. He too recalled how he

was disturbed in his home by sounds emanating from the well pads. Not only did he

experience the high decibel noises that Baumgartner related, but he recounted that his

home was subjected to constant, steady low frequency sounds emanating from the well

site which permeated his entire house and disturbed his sleep. Id. at 183. He also told

of being annoyed on certain nights by the intense banging of pipes and other equipment,

as well as sledgehammering, when drilling rigs were moved from well to well. Id.

       Tullai additionally described how lights erected at the site at the beginning of the

drilling process, which EQT eventually moved at his request, were so bright he could read

a newspaper at night in his backyard. What Tullai remembered to be most upsetting to

him, annoying him to the point of tears as he put it, was the intense smell of diesel exhaust

fumes, which he said would frequently invade his house. Id. at 184. These experiences

motivated Tullai to move out of his home and relocate to the Borough. 6 EQT presented

no rebuttal or explanatory evidence in response to objectors’ testimony.

6 The four objectors who were Borough residents respectively testified to, inter alia: fines
assessed against EQT for its drilling practices in Tioga County, general fracking industry
practices, scientific research done about the hazards of the chemicals used in the fracking



                                      [J-70-2018] - 10
       On December 14, 2015, Council unanimously voted at a public meeting to deny

EQT’s application. In its written decision, Council credited all of the testimony it heard at

the public hearing during the public comment portion, and it found the persons testifying

to be “credible and persuasive.”         Jefferson Township Council Decision on EQT

Conditional Use Application, 12/23/15, at 25. Accordingly, Council indicated that it gave

their testimony “significant weight.” Id.

       In deciding whether EQT had met its requisite burden of proof to be granted a

conditional use, Council first recited what it perceived as the relevant law articulated by

the Commonwealth Court regarding the respective burdens of proof of an applicant for

such a use and those objecting to its approval:

              An applicant is entitled to a conditional use as a matter of right,
              unless the governing body determines that the use does not
              satisfy the specific, objective criteria in the zoning ordinance
              for that conditional use. The applicant bears the initial burden
              of showing that the proposed conditional use satisfies the
              objective standards set forth in the zoning ordinance, and a
              proposed use that does so is presumptively deemed to be
              consistent with the health, safety and welfare of the
              community. Once the applicant satisfies these specific
              standards, the burden shifts to the objectors to prove that the
              impact of the proposed use is such that it would violate the
              other general requirements for land use that are set forth in
              the zoning ordinance, i.e., that the proposed use would be
              injurious to the public health, safety and welfare.
Id. (citing In re Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009)).

       Council found that EQT’s application met the general standards for the grant of a

conditional use enumerated in Section 1003(b)-(f) of the Borough’s Zoning Ordinance, as

well as the specific requirements set forth in the Borough’s Zoning Code for a natural gas

facility to operate as a conditional use in both a Business Park and Oil and Gas



process, and the health effects of fracking on those living near well sites. Jefferson
Township Council Decision on EQT Conditional Use Application, 12/23/15, at 20-23.

                                      [J-70-2018] - 11
Development Overlay zoning district.        However, Council found that there existed

“evidence in the record that permitting the proposed natural gas production facility as a

conditional use does not protect the health, safety and welfare of the Borough and its

residents as required by the objective standards of the Borough Zoning Ordinance

Section 1003(a).”7    Jefferson Township Council Decision on EQT Conditional Use

Application, 12/23/15, at 26.       As a result, Council concluded that “pursuant to

Pennsylvania case law, [EQT] [has] not met [its] burden of proof for a conditional use

application and the burden never shifted to the objectors to prove that the impact of the

proposed use is such that it would violate the other general requirements for land use set

forth in the Borough Zoning Ordinance.” Id. Council further noted in its decision that the

fact that the burden of proof never shifted to the objectors did not preclude its

consideration of evidence received at the public hearing from the objectors, which

concerned how EQT did not meet its burden “related to the proposed use’s effects upon

the health, safety and welfare as well as the potential deterioration of the environment.”

Id.8



7This ordinance provides, in relevant part:
             In addition to the specific standards and criteria listed for each
             use in Section 1004 below, all applications for conditional
             uses and uses by special exception listed in each Zoning
             District shall demonstrate compliance with all of the following
             general standards and criteria:
                     (a) The use shall not endanger the public health, safety
                     or welfare nor deteriorate the environment, as a result
                     of being located on the property where it is proposed.
Borough of Jefferson Hills Zoning Ordinance § 1003(a).
8 Additionally, Council went on to consider EQT’s application under the Environmental
Rights Amendment to the Pennsylvania Constitution. This alternative rationale for
denying EQT’s conditional use application is not before us in this appeal; hence, we will
not opine to it.




                                      [J-70-2018] - 12
       EQT thereafter appealed Council’s decision to the Court of Common Pleas of

Allegheny County. The trial court, Senior Judge Joseph M. James, reversed, without

taking additional evidence. The court noted that, under what it considered to be the

relevant legal standard for determining whether a developer is entitled to conditional use

approval, the developer has the initial burden of proving by a preponderance of the

evidence that its proposed use is the nature and type of conditional use described in the

zoning code, and, also, that the proposed use complies with the other specific

requirements of the zoning ordinance. The court opined that, once the developer makes

these showings, the burden then shifts to those objecting to the use to prove the proposed

land use will have an adverse effect on the general public, i.e., demonstrate with “a high

degree of probability” that the proposed use will pose a substantial threat to the health,

safety, and welfare of the public. Trial Court Opinion, 6/21/16, at 3 (quoting Bray v. Zoning

Bd. of Adjustment, 410 A.2d 909, 914 (Pa. Cmwlth. 1980)).

       The trial court concluded that EQT complied with the specific requirements of the

zoning ordinance for this type of conditional use, inasmuch as Council found that EQT

met all the requirements of the Borough’s Zoning Ordinance which governed the grant of

conditional use approval for oil and gas drilling facilities; thus, in the court’s view, the

burden of proof shifted to objectors to show that this proposed use would have adverse

effects on the general public. The court found that objectors did not meet this burden,

characterizing their testimony as being “speculative regarding general oil and gas

development,” and raising only “theoretical concerns about air pollution and odors.” Trial

Court Opinion, 6/21/16, at 4.      Consequently, the court reversed Council’s decision

denying the conditional use application. The Borough appealed this decision to the

Commonwealth Court.




                                      [J-70-2018] - 13
       A panel of the Commonwealth Court affirmed in a divided, published opinion

authored by President Judge Emeritus Bonnie Brigance Leadbetter. EQT v. Borough of

Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 2017). The majority began by observing that

a conditional use is not an exception to a municipality’s zoning ordinance, but, rather, is

a use to which an applicant is entitled as a matter of right, unless the municipal legislative

body determines “that the use does not satisfy the specific, objective criteria in the zoning

ordinance for that conditional use.” Id. at 560 (quoting In re Drumore Crossings, supra).

The majority stated that the applicant seeking conditional use approval has the burden of

persuasion to establish that its proposed use satisfies the objective requirements

enumerated by the relevant zoning ordinance governing conditional uses. Once an

applicant meets this prima facie burden, then it “is entitled to approval, unless objectors

in the proceeding offer credible and sufficient evidence that the proposed use would have

a detrimental impact on public health, safety, and welfare.” Id. (quoting Williams Holding

Group, LLC v. Board of Supervisors of West Hanover, 191 A.3d 1202, 1212 (Pa. Cmwlth.

2014) (internal quotation marks omitted)). The majority characterized the nature of

objectors’ burden in this regard as proving, with a high degree of probability, that allowing

the conditional use will create a substantial risk of harm to the community — i.e., that it

“will impose detrimental impacts exceeding those ordinarily to be expected from the use

at issue.” Id. at 561.

       The majority found that, because EQT had met its initial burden of complying with

the requirements of the zoning ordinances governing conditional uses, the burden of proof

shifted to objectors to show with a high degree of probability that EQT’s proposed well

site would cause detrimental impacts that exceed those which would be ordinarily

expected from unconventional gas wells. Id.




                                      [J-70-2018] - 14
       Reviewing the testimony of the objectors at the public hearing, the majority

concluded it was insufficient to carry this burden.        The majority deemed objectors’

testimony about problems at the Trax Farm site and the general harms posed by drilling

activities and operation of unconventional wells insufficient to prove that the development

of the Bickerton site would have a negative impact on the public health, safety, and

welfare which was greater than that normally associated with any other unconventional

well site. The majority agreed with the trial court’s characterization of objectors’ testimony

as “speculative.” Id. at 563.

       Further, the majority declared that, “[w]hile such testimony might persuade

legislators to prohibit such drilling, it does not satisfy [objectors’] burden to show that the

development of the Bickerton Well Site would have an impact on public health, safety,

and welfare.” Id. The majority added that, “given the fact that there has been a legislative

decision that the particular use is presumptively consistent with the health, safety, and

welfare of the community, the objectors’ testimony is insufficient to satisfy their burden,

and it is not the role of the Council in adjudicating a conditional use application . . . to

second guess the legislative decision underlying the ordinance.” Id. The majority denied

that it was adopting a per se rule precluding the testimony of lay witnesses to establish

that a conditional use was a danger to the public health, safety, and welfare; rather, the

majority asserted that it was holding that such lay testimony cannot merely address the

general risks posed by the proposed use, or be speculative in nature. Id. at 563 n.10.

       Judge Patricia A. McCullough dissented. She noted that, as a general proposition,

whenever an applicant seeks conditional approval for what is a novel use of land within

municipal boundaries, it is difficult for objectors to demonstrate that it will have a negative

impact on the health, safety, and welfare of the community, as they have not, heretofore,

had any firsthand experience with the particular use; thus, they are normally forced to




                                      [J-70-2018] - 15
speculate as to the possible negative consequences which might ensue from approval of

the conditional use.      However, Judge McCullough disagreed with the majority’s

conclusion that objectors’ testimony in this instance constituted such speculation. While

she acknowledged that the Commonwealth Court has consistently held that objectors’

testimony of a generalized fear that construction of a proposed facility will result in harm

is insufficient to satisfy their burden of proof, Judge McCullough found such caselaw

distinguishable because, in her view, objectors’ evidence was specific and concrete, and

established that EQT’s similar Trax Farm site had marked detrimental effects on adjoining

residents of a neighboring municipality.

       Judge McCullough found support for the evidentiary relevance of individuals’

firsthand experiences with similar proposed uses from our Court’s decision in Visionquest

National Limited v. Board of Supervisors of Honey Brook Township, 569 A.2d 915 (Pa.

1990). In that decision, we held that, while an objector’s bald assertions, personal

opinions, and speculation will not suffice to prove detrimental impact on a community from

a proposed development project, testimony by individuals regarding specific past

experiences with the proposed use can be used to satisfy an objector’s burden of proof

that a proposed conditional use poses a significant risk of harm to the community. Id. at

917-18.

       Judge McCullough opined that, although our holding in that case found only prior

incidents occurring at the same facility relevant for the purpose of bolstering the objectors’

challenge, neither this Court, nor the Commonwealth Court, has ever considered whether

Visionquest can be extended to cases where the objectors’ testimony is based solely

upon effects experienced at a different, albeit similar, facility located in an adjoining

municipality. Even so, Judge McCullough reasoned that logic and fairness dictate that

such an extension of our holding in Visionquest should apply in this case, particularly




                                      [J-70-2018] - 16
where there is no similar unconventional gas well facility located within the Borough with

which to compare the proposed Bickerton site.

       Additionally, she criticized the majority’s determination that objectors were limited

to presenting evidence specific to the Bickerton site as being unduly restrictive and

impracticable, resulting in the imposition of a nearly insurmountable burden on them of

proving detrimental harm. Adding that, had objectors hired an expert, that expert would

likely have had to rely on comparative data from other well sites to support his or her

opinion, in her view, an independent expert opinion was of little value in this matter.

       Judge McCullough repudiated the majority’s view that the testimony provided by

the Union Township residents as to their own experiences living near the Trax Farm site

was incompetent or inadmissible as a matter of law. By contrast, she concluded that it

was within Council’s province, as fact-finder, to infer that the same negative effects

complained of by the residents who lived near the Trax Farm site would likely occur near

the Bickerton site if the conditional use was granted. EQT, 162 A.3d at 569 (McCullough,

J., dissenting).

       The Borough filed a petition for allowance of appeal with our Court, which we

granted in order to consider the following issue, as framed by the Borough:

              Whether the Commonwealth Court erred as a matter of law
              by imposing a standard upon the admissibility of objectors’
              evidence that effectively eliminates the ability to raise any
              objection to a land use application based on firsthand
              experience with a similar use when the proposed use does
              not already appear within municipal borders?
EQT v. Borough of Jefferson Hills, 179 A.3d 454 (Pa. 2018) (order).

                                      II. Arguments

       The Borough argues that the effect of the Commonwealth Court decision is to

establish a “draconian” standard for the admissibility of testimony at a land use hearing

that excludes otherwise probative, relevant, and credible evidence furnished by witnesses


                                     [J-70-2018] - 17
with firsthand knowledge of how an applicant has previously conducted the land use

activity. Borough Brief at 15.     The Borough criticizes the Commonwealth Court for

summarily dismissing the testimony of the witnesses from Union Township who lived near

the Trax Farm site as “speculative” on the grounds that it was not specific to the Bickerton

site, particularly when, at the time of the application, no unconventional drilling activity

had ever taken place within the Borough. The Borough asserts that the testimony of the

Union Township residents regarding the operation of the Trax Farm site was highly

relevant to their burden to show that the proposed Bickerton site would adversely affect

the health, safety, and welfare of the residents of Jefferson Borough, given that the Trax

Farm site was “similar” to the proposed Bickerton site, and Union Township and Jefferson

Borough share a common municipal border. Id. at 16.

       The Borough claims that the Commonwealth Court’s requirements for the

testimony of witnesses at a land use hearing — i.e., requiring them to connect such

testimony to the particular future proposed land use by the applicant within the

municipality, while prohibiting them from analogizing the proposed use to past similar

uses outside of the municipality — are both unjustified and unworkable in situations where

the land use is a novel one for the municipality.

       The Borough asserts that such restrictions on witness testimony also intrude on

the province of a local governing body to function as a finder of fact when considering a

land use application, as it interferes with its duty to evaluate and assess the credibility of

all relevant evidence in order to guard against unwarranted approval of a land use that

will negatively affect the health, safety, and welfare of its citizens. According to the

Borough, the testimony of the Union Township residents as to their firsthand experiences

with the noise and pollution generated by the Trax Farm site was highly relevant to its




                                      [J-70-2018] - 18
fact-finding process, as it described recent harmful impacts on residents of a bordering

municipality from the very same type of development which EQT was proposing.

       The Borough emphasizes that EQT, which was represented by counsel at the

public hearing, did not cross-examine the Union Township residents, nor did it present

any evidence to counter their testimony. Consequently, the Borough points out, Council

was faced with a situation where it had heard uncontradicted evidence from witnesses,

who Council deemed credible, about the detrimental effects caused by EQT’s operation

of a facility similar to the one it sought to construct in the Borough, yet, under the

Commonwealth Court’s holding, they would be required to ignore this evidence. This, in

the Borough’s view, essentially eliminates an objector’s ability to challenge land uses by

utilizing evidence of an applicant’s past conduct, and undermines the ability of a local

governing body to examine past practices of an applicant in order to ensure the protection

of the health, safety, and welfare of its citizens. In essence, argues the Borough, an

evidentiary rule that excludes evidence of past similar practices in other municipalities

grants applicants a “free pass” simply because they are proposing a land use for the first

time in a community. Borough Brief at 28.

       Further, the Borough notes, in considering an application for drilling an

unconventional well, the DEP is required to consider evidence of the driller’s past conduct

and to deny the application if the driller remains in violation of the law. The Borough

contends that this demonstrates the probative evidentiary value of past conduct by a

driller such as EQT. Moreover, the Commonwealth Court’s rejection of such firsthand

testimony, the Borough asserts, runs contrary to prior caselaw from that court which

favorably regards testimony from witnesses as to their personal experiences with the

current operations of an applicant for zoning approval for a planned use. Id. at 25 (quoting

Pennsy Supply v. Zoning Hearing Board of Dorrance Township, 987 A.2d 1243, 1250




                                     [J-70-2018] - 19
(Pa. Cmwlth. 2009) (holding that testimony of residents who lived near a quarry about the

adverse effects they had suffered from its operation was not speculative since “it was

based upon the experiences they have had with [the quarry’s] current operations.”)).

       Additionally, in the Borough’s view, the Commonwealth Court’s decision will have

far reaching implications beyond conditional use applications, as it will affect the ability of

local governing bodies to grant conditional approval for a proposed use based on the

applicant meeting certain conditions. The Borough maintains that the ability of such

bodies to consider evidence of an applicant’s past practices is crucial to their ability to

identify areas of concern that they wish an applicant to address, or to attach conditions

tailored to avoid practices that endanger the health, safety, and welfare of the community.

       The Borough agrees with Judge McCullough’s dissent that our Court’s holding in

Visionquest should govern the outcome of the case at bar. The Borough argues that the

testimony at issue in that case — from residents of a municipality where an applicant

sought zoning approval to continue to run a facility housing troubled juveniles about their

personal experiences with how the facility actually functioned — was regarded by our

Court as not speculative, but, instead, entitled to considerable weight in assessing

whether the facility’s continued use would be a detriment to the community. The Borough

adopts Judge McCullough’s view that the rationale of that case rests on “the unstated

presupposition that what has happened (or more appropriately, ‘experienced’) in the past

is competent evidence of what will continue to happen in the future.” Borough Brief at 27

(quoting EQT, 162 A.3d at 566-67 (McCullough, J. dissenting) (internal quotation marks

omitted)).9

9 Amicus, the Pennsylvania State Association of Boroughs, has filed a brief in support of
the Borough which chiefly tracks its arguments. Additionally, however, Amicus avers that
the Commonwealth Court in this matter contravened its prior precedent by placing the
ultimate burden of proof on the objectors to show that the particular land use they are
challenging will cause a substantial threat to the health, safety, and welfare of the



                                      [J-70-2018] - 20
       In its response, EQT contends that the Borough mistakenly views the

Commonwealth Court’s ruling as addressing the admissibility of the objectors’ evidence.

EQT contends that the Commonwealth Court did not hold that the objectors’ evidence

was inadmissible; instead, it held that the evidence was legally insufficient for objectors

to meet their burden of production. EQT highlights that the Commonwealth Court was

tasked with determining whether Council’s decision to deny its conditional use application

was supported by substantial evidence. In EQT’s view, the court determined that, even

though Council accepted the witnesses’ testimony as credible, the evidence was, due to

its nature, insufficient as a matter of law to meet the objectors’ burden of production, and,

thus, Council’s decision was not supported by substantial evidence. EQT Brief at 18

(quoting EQT, 162 A.3d at 563 (“Having carefully reviewed the objectors’ testimony, we

conclude that it is insufficient to meet their burden of proof.”)).10

community. Amicus asserts that, under prior decisions of that court, Butler v. Derr
Flooring, 285 A.2d 538 (Pa. Cmwlth. 1971), and Bray v. Zoning Hearing Board of
Philadelphia, 410 A.2d 909 (Pa. Cmwlth. 1980), if an objector to a proposed use comes
forth with evidence that it would violate the health, safety, and general welfare of the
community, then the burden of proof remains with the applicant to show that the intended
use would not pose the danger to the community which the objector claims.
10 The concepts of burden of production and burden of proof do not mean the same thing

in the context of a hearing on a conditional use application. The Commonwealth Court
has previously explained that, if a Borough’s zoning ordinance explicitly places the burden
of proof on an applicant for a conditional use exception to demonstrate that the proposed
land use would not detrimentally affect the health, safety, and general welfare of the
community, the applicant has the initial burden to produce evidence, and also to prove,
that its proposed use meets all of the specifications and requirements provided by the
Borough’s zoning code for the grant of a conditional use. Butler, 285 A.2d at 542; Bray,
410 A.2d at 912. At that point, the objectors have a burden to produce evidence showing
that the proposed development would have a detrimental effect on the health, safety, and
welfare of the community. If the objectors produce such evidence, the applicant must
then prove “that the intended use would not violate the health, safety, and general welfare
of the community with relation to such objections.” Butler, 285 A.2d at 542; Bray, 410
A.2d at 912 (internal quotation marks omitted).
        If, on the other hand, the zoning ordinance does not specifically assign the burden
of proof regarding the question of whether a conditional use will be a detriment to the
health, safety, and welfare of the community to the applicant, and the applicant has



                                       [J-70-2018] - 21
       EQT then turns to its main argument that “[t]he Commonwealth Court correctly

concluded that the objectors’ evidence was not sufficient to meet their burden of

production to challenge EQT’s conditional use application.” EQT Brief at 18. EQT

contends that, as the Commonwealth Court below found, the objectors were required to

demonstrate a high probability that the use in question will generate adverse impacts

exceeding that normally generated by this type of use and that these impacts pose a

substantial threat to the health, safety, and welfare of the community. Id. at 20 (citing In

re Cutler Group, 880 A.2d 39 (Pa. Cmwlth. 2005); Oasis v. Zoning Hearing Board of South

Annville Township, 94 A.3d 457 (Pa. Cmwlth. 2014)). Moreover, EQT maintains that,

under the Borough’s Ordinance, objectors were also required to present evidence that

the use would endanger the public’s health, safety, and welfare “as a result of being

located on the property where it is proposed.” Id. at 20 (quoting Borough of Jefferson

Hills Zoning Ordinance § 1003(a)). EQT argues that the Commonwealth Court correctly

found that objectors did not meet these burdens.

       EQT notes that some of the objectors from the Borough gave testimony only

regarding the impact of oil and gas operations on public health, generally, and that the

two objectors who lived near the proposed Bickerton site offered no evidence at all, but

merely asked questions at the hearing. As for the testimony of the objectors from Union

Township, though they described their own experiences with the Trax Farm site, they

gave no testimony relating to the Bickerton site, nor did they assert that their experiences

with the noise, light, and odors emanating from Trax Farm were somehow abnormal in


proved that he or she has complied with all of the specific conditions and requirements of
the zoning ordinance, the burden of production and proof regarding detriment shifts to the
objectors. Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607, 611 (Pa. Cmwlth.
2010). Although we did not grant allowance of appeal to speak to this aspect of the case,
it is evident that the parties and the Commonwealth Court have differing views regarding
the proper allocation of the burdens of production and proof in this matter.



                                     [J-70-2018] - 22
relation to other oil and gas operations. Therefore, according to EQT, the Commonwealth

Court properly found objectors’ evidence did not meet their burden, as it was merely

generalized and speculative in nature.

      Regarding the Borough’s assertion that evidence of EQT’s past practices in

neighboring Union Township was necessary because there was no oil and gas

development in the Borough, EQT suggests that objectors could have offered expert

testimony. EQT points out that such testimony could have addressed the suitability of the

Bickerton site, highlighting unique characteristics of the site that would have made it

unsuitable for unconventional drilling, or expert testimony that showed that such drilling

would likely cause detrimental health and safety effects on nearby residents; instead,

objectors relied on the general speculative testimony of their witnesses.

      EQT also suggests that such lay testimony is proper only when, as in Pennsy

Supply, supra, the testifying witnesses have personal experience with the use in question

because it occurred at the site of the proposed future land use. EQT proffers that, by

contrast, none of the witnesses who testified to their experiences with the Trax Farm site

were qualified to render an expert opinion regarding potential community impacts from

the Bickerton site, or whether EQT’s operations there would comport with the Borough

ordinance.

      EQT finally contends that the Borough already considered potential environmental

impacts of oil and gas drilling when it approved such drilling as a conditional use. EQT

reasons that the Borough’s further purported reliance on potential adverse environmental

effects in denying EQT’s application was irrelevant, as those concerns had already been

addressed through the adoption of the standards contained in the ordinance. Thus, EQT




                                    [J-70-2018] - 23
views the Board’s denial of its application as an improper effort to rewrite its ordinance

without following the mandatory procedures for doing so set forth in the MPC.11

                                          III. Analysis.

       We begin our discussion by noting our standard of review of a municipality’s denial

of a conditional use application.        Our review is limited to determining whether the

municipality abused its discretion, or committed an error of law in denying the application.

Visionquest, 569 A.2d at 918. An abuse of discretion will be found whenever the findings

of the governing body are not supported by substantial evidence.                 Id.   Substantial

evidence is defined by our Court as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Gorsline v. Board of Supervisors of Fairfield

Township, 186 A.3d 375, 385 (Pa. 2018). Our review of whether the governing body

committed an error of law is, as with all such determinations, conducted de novo and,

thus, we are not bound by the legal conclusions of the governing body or lower courts.

Id.

11  Amicus, the Pennsylvania Independent Oil and Gas Association (“PIOGA”), has filed
a brief in support of EQT. Amicus argues that this case implicates the fundamental right
of every individual to own and use his or her private property in the manner they see fit.
Inasmuch as zoning laws represent a restriction on that right, Amicus propounds that, if
a zoning code allows for a particular use if its specific criteria are met, then it is a legislative
determination that the use is one which will not interfere with the health, safety, or welfare
of the community. Hence, in the view of Amicus, a landowner has the unquestioned right
to use his or her property in the manner permitted by the zoning ordinance if he or she
has met all of its requirements. Amicus contends that, under such circumstances, “a
landowner must be granted a zoning approval if he satisfies the objective criteria of the
ordinance.” PIOGA Brief at 10 (emphasis original). According to PIOGA, it is only
whenever an objector to the proposed use can demonstrate a high degree of probability
that the use in question will cause a detrimental impact on the public health, safety, and
welfare that infringement of the landowner’s property right will be constitutionally
permissible.
        While conceding that this issue is not before our Court, PIOGA also attacks the
Borough’s reliance on Article I, Section 27, contending that this provision is not self-
executing, and thus cannot be applied to applicants for a conditional use exception, as it
would effectively supersede the MPC, which it views as is the only source of legal
authority for a municipality to act in these matters.

                                        [J-70-2018] - 24
       The issue which we accepted for review is one of evidentiary admissibility — i.e.,

whether the testimony of the residents of a municipality regarding their firsthand

experiences with the manner in which a particular land use was conducted by the owner

of property in very near proximity to their own homes was admissible in a hearing held in

another municipality on a land use application to conduct a similar land use there.

Contrary to EQT’s assertion, we do not read the Commonwealth Court’s majority opinion

as being merely a sufficiency of the evidence analysis; rather, the panel majority endorsed

the trial court’s sweeping characterization of the nature of the testimonial evidence at

issue as “speculative.” EQT, 162 A.3d at 563. Such a dismissive pronouncement

regarding the general nature of this type of evidence gives credence to the Borough’s

concern that the panel decision in this matter will be interpreted as a categorical bar to

the admissibility of this type of firsthand experiential evidence in future conditional use

hearings.

       Turning to the merits of the question that this Court granted allowance of appeal

to address, we note that local agencies are not bound by technical rules of evidence when

conducting hearings. 2 Pa.C.S. § 554. Instead, they are empowered to consider “all

relevant evidence of reasonably probative value.” Id. The need for such flexibility in

matters of evidentiary admissibility is heightened in conditional use hearings conducted

by local municipalities, which have the paramount duty to protect their residents from

harm to their persons and property, due to the fact that such land uses present the

possibility that the property rights of neighboring landowners will be affected. Luke v.

Cataldi, 932 A.2d 45, 54 (Pa. 2007).

       In determining whether the evidence provided by the Union Township objectors

was relevant and of reasonably probative value in the Jefferson Borough conditional use

hearing, we are guided by the fundamental legal tenet that evidence will be deemed




                                       [J-70-2018] - 25
relevant if it “logically tends to establish a material fact in the case, tends to make a fact

at issue more or less probable, or supports a reasonable inference or presumption

regarding the existence of a material fact.” Commonwealth v. Johnson, 160 A.3d 127,

146 (Pa. 2017); Commonwealth v. DeJesus, 880 A.2d 608, 615 (Pa. 2005). The probative

value of evidence is measured by the tendency of the evidence to establish the

proposition that it is offered to prove. 1 McCormick On Evidence. § 185 (7th ed. 2016).

       As a general matter, our Court has recognized the relevancy and probative value

of an applicant’s past conduct in determining whether he meets the conditions of licensure

for conducting future business activities of the same nature as those in which he had

previously engaged. See Street Road Bar and Grille v. Pennsylvania Liquor Control

Board, 876 A.2d 346, 357-58 (Pa. 2005) (holding that prior instances of conduct of liquor

license applicant, including liquor code violations, was both relevant and “extremely

probative” in determining whether applicant met the statutory criteria for being reputable,

given that this history was an accurate gauge of whether the applicant had the requisite

degree of fitness required to operate a liquor selling establishment).            Of greatest

pertinence to the issue we are considering, in the context of a hearing on an application

for conditional use approval, our Court has regarded evidence relating to past conduct

and practices of a facility’s owners, and specific impacts on the community from the

functioning of the facility, to be relevant and probative in determining whether, if

conditional use authorization were granted, the facility’s operation would pose a threat to

the welfare of the community.

       In Visionquest, supra, the applicant sought conditional use approval from a

municipality to continue operation of a rehabilitative facility which housed youths with

behavioral difficulties. This facility had already been operating within the municipality prior

to this conditional use approval being sought. At the hearing on the application held by




                                      [J-70-2018] - 26
the municipality’s governing body, residents of the municipality testified regarding

incidents occurring at the facility that disrupted their lives — namely, obscenities and loud

noises emanating from it every morning. Residents also detailed their apprehension

about the potential for escapes occurring from the facility, as well as their fears that

escapees would cause property damage. Evidence was presented to the governing body

that such escapes had already occurred when the facility was operating in an unlicensed

manner, and that, during the time searches were underway for the escapees, the facility’s

operators advised them of the necessity to take precautions. Additionally, the governing

body received evidence that a similar facility operated by the same owners in another

county had sustained property damage, and that the owners had expressly disclaimed

responsibility for any property damage caused by escapees. Based on this evidence, the

governing body denied the conditional use application on the grounds that it did not meet

the objective criteria of the zoning ordinance governing the grant of a conditional use

permit, and that, even assuming arguendo that it did, denial would have been justified

because the proposed use “would have a detrimental effect on the welfare of the

community.” Visionquest, 569 A.2d at 916-17.

       In reviewing the denial, the trial court found that the applicant had met the criteria

established by the zoning ordinance for the grant of the conditional use exception.

However, the trial court, relying on the evidence relating to the facility’s operations inside

the township, and the incidents of property damage arising out of the operation of a similar

facility in another county, upheld the denial. The court found that this evidence supported

a finding that denial was warranted because of detriment to the community. Id. at 917.

The Commonwealth Court reversed on the basis that the evidence constituted only

“unsupported anxieties” and established only “the mere possibility of an adverse impact,”

which was insufficient to establish detriment. Id.




                                      [J-70-2018] - 27
       Our Court, in turn, reversed the Commonwealth Court ruling. We determined that

the evidence received by the governing body, detailed above, including that provided by

the residents of the community regarding how the facility impacted their day-to-day lives

while it was in operation, was sufficient to enable the objectors to demonstrate detriment.

We expressly rejected the Commonwealth Court’s conclusion that this testimony

constituted only “bald assertions,” or “unsupported anxieties,” because the residents’

testimony was based on their own firsthand experiences with the operation of the facility.

       Although the facility at issue in Visionquest was located within the community in

which it sought to continue its operation, we discern no reason why that decision’s

underlying rationale — that firsthand experiences with a particular type of land use by

people living near it are relevant and probative evidence for a local government to

consider in evaluating whether a similar land use activity conducted by the same entity,

in a similar manner, and in a similar type of location will pose a detriment to its community

— should not be applicable to the case at bar. Although the Commonwealth Court and

EQT attach great significance to the fact that the Union Township residents did not

present evidence regarding how the Bickerton site would specifically impact the lives of

Borough residents, as the Borough and the dissent below have emphasized, the evidence

of record in this matter, which is not disputed by EQT, demonstrated that there is a

significant degree of similarity between the nature of the proposed land use at the

Bickerton site and the present use of the Trax Farm site.

       The unrebutted evidence provided through the testimony of the Union Township

objectors, discussed above, considered in its entirety, established that EQT’s Trax Farm

site was of a similar nature to its proposed Bickerton site.12 Because EQT would be

12 As to the dissent’s contention that EQT had no burden to rebut Objectors’ evidence
given the dissent’s conclusion that such evidence lacked proper foundation, Dissenting
Opinion (Mundy, J.) at 5, we make the following observation. As discussed supra, the



                                      [J-70-2018] - 28
conducting drilling activities at the Bickerton site in the same manner as the Trax Farm

site, once the Bickerton site is completed, and fracking begins there, both sites will feature

multiple unconventional well pads on which EQT will be drilling for natural gas and

conducting other operational activities associated with that process on a round-the-clock

basis, and both sites are located in similar close proximity to residences.

       This similarity rendered the testimony of the Union Township residents, as to their

firsthand actual experiences with the effects of the construction and operational activities

at the Trax Farm site, relevant and probative as to the question of whether the grant of

conditional use approval to EQT for construction and operation of the Bickerton site would

adversely impact the health, safety, and general welfare of the residents of Jefferson

Borough. As Professor Wigmore has explained:

              The general logical requirement is . . . that when a thing’s
              capacity or tendency to produce an effect of a given sort is to
              be evidenced by instances of the same effect found attending
              the same thing elsewhere, these other instances have
              probative value--i.e., are relevant--to show such a tendency
              or capacity only if the conditions or circumstances in the other
              instances are similar to those in the case at hand.
                                             ***
              But this similarity need not be precise in every detail. It need
              include only those circumstances or conditions which might
              conceivably have some influence in affecting the result in
              question. . . . The similarity that is required is, in short, a
              similarity in essential circumstances, or, as it is usually

Borough’s zoning ordinance required that, in addition to demonstrating compliance with
the conditions for grant of a conditional use set forth in the Borough’s ordinance, an
applicant for a conditional use “shall demonstrate” that “[t]he use shall not endanger the
public health, safety or welfare nor deteriorate the environment, as a result of being
located on the property where it is proposed.” Borough of Jefferson Hills Zoning
Ordinance § 1003(a). Thus, under this ordinance, in order to be granted a conditional
use, EQT was required to establish these additional criteria. It was on the basis of
Objectors’ unrebutted testimony that the Borough Council found that EQT never carried
this burden of proof. Jefferson Township Council Decision on EQT Conditional Use
Application, 12/23/15, at 26. As a result, whatever the basis for EQT’s decision not to
rebut Objectors’ evidence, it ran the risk that the Borough, and ultimately this Court, would
conclude that such evidence was properly admitted.

                                      [J-70-2018] - 29
              expressed, a substantial similarity, i.e., a similarity in such
              circumstances or conditions as might supposably affect the
              result in question


David P. Leonard, The New Wigmore. A Treatise on Evidence: Evidence of Other

Misconduct and Similar Events. § 14.3 (2018) (footnotes, internal quotation marks and

original emphasis omitted).

       Thus, the testimony of the Union Township objectors as to the foul stenches,

intense vibrations, loud and penetrating sounds, and increased levels of traffic and air

and light pollution they continuously endured, in and around their homes, was both

relevant and probative in establishing the potential adverse impacts which Jefferson

Borough residents living near the Bickerton site reasonably could expect. Likewise, the

numerous health effects, and the significantly diminished quality of day-to-day life

experienced by the Union Township objectors, which they perceived to be caused by their

exposure to these phenomena, was relevant and probative of how the health and overall

welfare of Jefferson Borough residents reasonably could be diminished by the operation

of the Bickerton site, if it were approved.

       Similarly, testimony about EQT’s proffer of waiver agreements to residents living

near the Trax Farm site in response to the deleterious effects they perceived EQT’s

drilling activities to be causing to both the value of their property, and their ability to use

and enjoy it, was suggestive of a practice by EQT to not terminate activities which were

adversely affecting residents living near its well sites, but, instead, to pay them so that

EQT could continue those activities without alteration.13 This was both relevant and

13  In response to the dissent’s observation that, in the easement agreements, EQT
denied responsibility for causing the harms of which the residents complained, Dissenting
Opinion (Mundy, J.) at 4-5, we presume that Council, having received this evidence, was
aware of this denial. However, as finder of fact, it was free to assign whatever weight that
it deemed appropriate to this evidence. Moreover, it is not any putative assignment of
liability in the agreements themselves which gave them relevance; rather, the agreements



                                      [J-70-2018] - 30
probative of how EQT reasonably could be expected to handle complaints from Jefferson

Borough residents living near the Bickerton site, and to respond to the concerns of

Borough residents who complained of similar negative impacts.

       In sum, then, we conclude that the testimonial evidence of the Union Township

objectors was both relevant and probative as to the question of whether the grant of

conditional use authorization to EQT for construction and operation of the Bickerton site

would adversely impact the health, safety, and general welfare of the residents of

Jefferson Borough; therefore, it was properly received and considered by Council in

rendering its decision on EQT’s application. The Commonwealth Court panel improperly

characterized this firsthand experiential evidence as “speculative”; therefore, we are

constrained to vacate the order of the Commonwealth Court and remand to that tribunal,

with instructions to remand this matter to the trial court to reconsider its decision in light

of this opinion.

       Order vacated and case remanded with instructions. Jurisdiction relinquished.

       Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Wecht join the

opinion.

       Justice Mundy files a dissenting opinion.




were probative of the practice of EQT in responding to residents’ complaints about how
its drilling activities were affecting their health and property.

                                      [J-70-2018] - 31
