          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


EQT Production Company and            :
ET Blue Grass Clearing, LLC           :
                                      :
            v.                        :      No. 1184 C.D. 2016
                                      :      ARGUED: November 14, 2016
Borough of Jefferson Hills,           :
                  Appellant           :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
SENIOR JUDGE LEADBETTER                                   FILED: May 18, 2017

            The Borough of Jefferson Hills appeals from an order of the Court of
Common Pleas of Allegheny County (common pleas) reversing the decision of the
Borough Council of the Borough of Jefferson Hills (Council) to deny the
conditional use application of EQT Production Company and ET Blue Grass
Clearing, LLC (the Applicants) to construct, operate, and maintain a natural gas
production facility on an area of their property known as the Bickerton Well Site.
In support of its denial of the application, Council primarily cited the Applicants’
alleged failure to satisfy Section 1003(a) of the Zoning Ordinance of the Borough
of Jefferson Hills (Zoning Ordinance), which provides:         “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.” Section 1003(a) of
the Zoning Ordinance; Reproduced Record (R.R.) at 1068a.           On review, we
conclude that Council erred in concluding that the burden never shifted to the
objectors to establish with probative evidence that there is a high degree of
probability that the conditional use will constitute a detriment to the public health,
safety, and welfare exceeding that ordinarily to be expected from the proposed use.
In addition, we conclude that the objectors’ evidence does not constitute the
requisite substantial evidence to thwart the Applicants’ entitlement to a conditional
use as a matter of right. Accordingly, we affirm.1
              Located off Ridge Road in Jefferson Hills, PA, the subject property
consists of Allegheny County Department of Real Estate Block and Lot Nos. 1003-
H-395-0-2 and 1003-M-250 and is situated in both the B-P Business Park Zoning
District (B-P District) and OG-U Oil and Gas Unconventional Development
Overlay District-Unconventional Wells (Overlay District). December 23, 2015,
Decision of Council, Finding of Fact (F.F.) Nos. A.1 and B.1. In the B-P District,
oil and gas drilling is permitted as a conditional use. Unconventional gas wells are
permitted as a conditional use in the B-P District as part of the Overlay District.
Id., F.F. No. B.2.
              In September 2015, the Applicants filed their application for
conditional use approval for a proposed unconventional gas well site on the
“Bickerton Well Site.” “The proposed well site is approximately 126 acres and
will include unconventional wells both at the vertical and horizontal laterals and be


    1
       Where, as here, common pleas did not take additional evidence, we are limited to
reviewing whether the local governing body committed an error of law or made findings which
are not supported by substantial evidence. Whitehall Manor, Inc. v. Planning Comm’n of the
City of Allentown, 79 A.3d 720, 724 (Pa. Cmwlth. 2013); Gerryville Materials, Inc. v. Planning
Comm’n of Lower Milford Twp., Lehigh Cnty., 74 A.3d 322, 325 (Pa. Cmwlth. 2013), appeal
denied, 87 A.3d 817 (Pa. 2014). Substantial evidence is defined as such relevant evidence as a
reasonable mind might find adequate to support a conclusion. Valley View Civic Ass’n v. Zoning
Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983).



                                              2
hydraulically fractured.” Id., F.F. No. C.1. The Applicants own both the surface
and the oil and gas rights. They have leases for all of the horizontal laterals
underground currently permitted and are working on acquiring leases for the non-
permitted wells. Id., F.F. No. C.4.
             Regarding some of the specifics of their proposed use, the Applicants
stated that they would not use borough roads during well-site construction and
would use only state-owned roads. Id., F.F. No. C.6. Further, they testified that
water truck traffic to the proposed well site would be alleviated because the
Pennsylvania American Water Company had approved a meter vault for the site.
Id., F.F. No. C.2. In addition, they stated that the proposed project would not
impact streams or wetlands and that all of the lighting requirements set forth in the
Zoning Ordinance were met. Id., F.F. Nos. C.8 and C.9. They further indicated
that they would not be seeking any compressor station sites within the Borough,
that natural gas would flow from the proposed well site to a compressor station in a
neighboring community, and that they would explore the possibility of odorizing
that gas for leak-detection purposes and report back to the Borough. Id., F.F. Nos.
C.13-15. In addition, even absent a requirement, they also agreed to a sound
testing program and to use sound walls if required as part of a conditional use
approval. Id., F.F. Nos. C.18 and C.24. Further, acknowledging that safety issues
similar to any other industrial facility could occur at the site, i.e., minor injuries,
illnesses, and fires, they testified that the group putting together the safety and
environmental plan for the well locations consisted of two people. Id., F.F. Nos.
C.16 and C.17. As for air quality, they presented no evidence as to any monitoring
plans but indicated that any complaints would go to Allegheny County as the
agency tasked with enforcing those issues.          Id., F.F. Nos. C.18 and C.19.



                                          3
Regarding traffic, the Applicants indicated that they would post roads that were not
to receive truck traffic and place speed limit signs along the truck routes. Id., F.F.
No. C.20.
              In    October      2015,     the       Planning   Commission       unanimously
recommended approval of the application, conditioned upon the Applicants
providing updated information before the public hearing on the conditional use in
order to show compliance with numerous deficiencies outlined in the borough
planning consultant’s review letter. Id., F.F. No. A.3. In December 2015, the
Council denied the Applicants’ conditional use application by a zero to five vote.
Council’s written decision followed.
              In its decision, Council determined that the Applicants complied with
all of the general requirements for conditional uses found in Section 1003 of the
Zoning Ordinance except subsection (a), pertaining to the public health, safety, and
welfare, and the environment. That subsection provides that, “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.”
              In addition, Council concluded that the Applicants satisfied Section
1004.35 of the Zoning Ordinance, providing additional standards for the specific
conditional use of oil and gas drilling.              Further, it determined that they met
Sections 1503 and 1504 of Ordinance No. 833,2 pertaining to “oil and gas overlay

    2
     In June 2014, the Borough enacted Ordinance No. 833, which specifically provides for the
zoning of oil and gas drilling operations. In so doing, the Borough found as follows:
             [T]he proposed new provisions . . . will promote the public health,
             safety and welfare and practical community development in the
             Borough . . . and will provide for gas and oil drilling to take place
             in areas of the Borough in locations which will allow extraction of
             gas and oil with the least detrimental impact on residentially zoned
(Footnote continued on next page…)


                                                 4
districts oil and gas development application requirements” and “oil and gas
development standards.”              Id., Conclusion of Law No. F.               Based on its
determination that they failed to satisfy Section 1003(a), however, Council
concluded that “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., Conclusion of Law No.
H.    Nonetheless, Council found the objectors’ testimony to be credible and
persuasive such that it gave significant weight to their testimony. 3 Id., Conclusion
of Law No. B.
               Moreover, in addition to its analysis under the applicable conditional
use criteria, Council considered the Environmental Rights Amendment (ERA)4 in
rendering its decision.         Citing the objectors’ testimony in support, Council
concluded, in relevant part, as follows:
_____________________________
(continued…)
             property, historic or recreational resources, hospitals, nursing
             homes, daycare centers and schools. As such, the proposed
             provisions will further the goals of the Comprehensive Plan to
             preserve the single family character of the Borough, to manage and
             promote future growth and to protect natural sites.
Section 1(1)(A) of Ordinance No. 833; R.R. at 1144a.
     3
       As the fact finder, it is within the province of the municipal legislative body to render
credibility determinations and to assign weight to the evidence. Joseph v. N. Whitehall Twp. Bd.
of Supervisors, 16 A.3d 1209, 1218 (Pa. Cmwlth. 2011).
     4
       The ERA provides:
                      The people have a right to clean air, pure water, and to the
               preservation of the natural, scenic, historic and esthetic values of
               the environment. Pennsylvania’s public natural resources are the
               common property of all the people, including generations yet to
               come. As trustee of these resources, the Commonwealth shall
               conserve and maintain them for the benefit of all people.
PA. CONST. art. I, § 27, cls. 1-3.



                                                5
            FF. Borough Council, not wishing to permit the
            infringement of its residents’ rights under the [ERA],
            based upon the above-referenced lack of evidence from
            Applicants on protecting the public health, safety,
            welfare and environment and the testimony of various
            persons regarding the deleterious effects of the proposed
            use, is unwilling to permit the proposed conditional use
            due to its tendency of likely causing environmental
            degradation, diminution and depletion and public health
            issues such as adversely affected air and water quality
            and the potential for cancer.
            GG. Applicants’ succinct statement that it would comply
            with [Section 1003(a) of the Zoning Ordinance] without
            providing evidence of accomplishing the same, combined
            with the evidence presented by those testifying in
            opposition . . . does not satisfy the Borough’s obligations
            under Article I of the Pennsylvania Constitution to
            approve the proposed conditional use application.
                   ...
            II. Applicants’ consistent aversion to continuous air
            quality monitoring places . . . Council in the position of
            being unable in advance of proceeding to adequately
            consider the environmental effect of the proposed
            conditional use application.
                   ...
            KK. Borough Council’s balancing of the present desire
            for gas development against the right of its residents to a
            healthy environment result in more weight being given to
            environmental concerns.
                   ...
            MM. Borough Council posits that in approving the
            proposed conditional use application it would neither be
            promoting the public health, safety and welfare, nor
            protecting the environment from deterioration, when
            there is an acknowledged risk that the activity the
            proposed conditional use allows undermines each of
            these values.
Id., Conclusion of Law Nos. FF., GG., II., KK., and MM (emphasis added).



                                        6
              Common pleas reversed without taking additional evidence and
without addressing the ERA, concluding that Council erred in determining that (1)
the Applicants did not meet their burden of proving entitlement to a conditional
use; and that (2) the burden never shifted to the objectors to present substantial
evidence of any adverse impact on the public health, safety, and welfare.
Regarding the nature of the objectors’ evidence, the court characterized it as
speculative regarding general oil and gas development and theoretical regarding air
pollution and odors. June 21, 2016, Opinion of Common Pleas at 4. In support of
its determination, the court cited Gorsline v. Board of Supervisors of Fairfield
Township, 123 A.3d 1142 (Pa. Cmwlth. 2015), appeal granted, 139 A.3d 178 (Pa.
2016).5 In Gorsline, mindful of the board of supervisors’ conclusion that the
neighbors’ “speculation of possible harms” was insufficient to demonstrate that the
proposed natural gas well would be detrimental to the health, safety, and welfare of
the neighborhood, we concluded that there was no probative evidence offered to
show that the proposed well would present such a detriment. Id. at 1153-54. The
Borough’s appeal to this Court followed.
              It is well established that, “[a] conditional use is nothing more than a
special exception which falls within the jurisdiction of the municipal legislative
body rather than the zoning hearing board.” Williams Holding Group, LLC v. Bd.
of Supervisors of West Hanover Twp., 101 A.3d 1202, 1212 (Pa. Cmwlth. 2014)
[quoting In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006)]. A conditional
use, like a special exception, is not an exception to a municipality’s zoning


    5
      The Supreme Court’s grant review for consideration of four issues primarily relates to this
Court’s holdings regarding an industrial shale gas development being similar to and compatible
with a public service facility in an R-A District.



                                               7
ordinance, but rather 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.” In re
Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009).                      It is the
applicant’s burden to establish that the proposed use satisfies the specific criteria in
the particular zoning ordinance.6 Williams, 101 A.3d at 1212. “An applicant who
satisfies this prima facie burden 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.
              Additionally, the ordinance must require that an applicant meet
reasonably definite conditions and not something in the nature of a policy
statement.7 Id. In that regard, the various burdens can be summarized as follows:

              [A]s to specific requirements of the zoning ordinance, the
              applicant has the persuasion burden, as well as the initial
              evidence presentation burden. The objectors have the
              initial evidence presentation duty with respect to the
              general matter of detriment to health, safety and general
              welfare, even if the ordinance has expressly placed the
              persuasion burden upon the applicant, where it remains
              if detriment is identified . . . . Where the ordinance
              attempts to place upon the applicant a burden of proof
              even more vague in its nature, we have refused to give it
              effect.
Id. at 1213 (emphasis added) [quoting Bray v. Zoning Bd. of Adjustment, 410 A.2d
909, 912 (Pa. Cmwlth. 1980)]. As we summarized in Williams:


    6
      What the applicant must establish to obtain conditional use approval depends on what the
specific ordinance requires. See Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Twp.
Zoning Hearing Bd., 934 A.2d 759, 764 (Pa. Cmwlth. 2007).
    7
       As we stated in Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth.
1980): “Any other view would enable the [board] to assume the legislative role . . . .”



                                              8
             Thus, if a requirement is interpreted as one upon which
             the burden is placed on an applicant, but the requirement
             is nonobjective or too vague to afford the applicant
             knowledge of the means by which to comply, the
             requirement is either one that is not enforceable . . . , or,
             if it relates to public detriment, the burden shifts to an
             objector, who must demonstrate that the applicant’s
             proposed use would constitute such a detriment.
101 A.3d at 1213.
             In any case, it is well established that, “[t]he fact that a use is
permitted as a conditional use evidences a legislative decision that the particular
type of use is consistent with the zoning plan and presumptively consistent with the
health, safety and welfare of the community.” In re Cutler Group, Inc., 880 A.2d
39, 42 (Pa. Cmwlth. 2005) (citations omitted). In other words, once an applicant
establishes compliance with the specific requirements of the ordinance, the
proposed use enjoys a presumption that it is consistent with municipal planning
objectives and with the public health, safety, and welfare.            Sheetz, Inc. v.
Phoenixville Borough Council, 804 A.2d 113, 115 (Pa. Cmwlth. 2002). Therefore,
“the degree of harm required to justify denial of the conditional use must be greater
than that which normally flows from the proposed use.” Cutler, 880 A.2d at 43.
This is so because the governing body in enacting the ordinance presumptively
took into account the impact of the use and considered it not to be a threat to
health, safety or welfare. Id. Opponents, therefore, must prove a high degree of
probability that permitting the conditional use will cause a substantial threat to the
community.     Id.   In that regard, the burden falls on them to establish with
specificity and with more than mere speculative anecdotal testimony that the
specific proposal will impose detrimental impacts exceeding those ordinarily to be
expected from the use at issue. See Kretschmann Farm, LLC v. Twp. of New
Sewickley, 131 A.3d 1044, 1055 (Pa. Cmwlth.), appeal denied, 145 A.3d 168 (Pa.

                                          9
2016) (holding that objectors’ concerns did not constitute probative evidence that
the applicant’s compressor station would adversely affect the public health, safety
and welfare in a way not expected for a usual compressor station); Cutler, 880
A.2d at 43 (holding that, “[t]he evidence of the protestants cannot consist of mere
bald assertions or personal opinions and perceptions of the effect of the use on the
community.”)
               Accordingly here, once the Applicants satisfied the specific, objective
criteria for the conditional use, the burden shifted to the objectors. See Williams,
101 A.3d at 1213. Therefore, we must consider whether objectors’ testimony
constitutes substantial evidence of a high degree of probability that Applicants’
proposal will impose detrimental impacts exceeding those ordinarily to be
expected from unconventional gas wells. Kretschmann Farm, 131 A.3d at 1055;
Cutler, 880 A.2d at 43.
               Eight objectors credibly testified at the public hearing in opposition to
the conditional use application.8 Four witnesses testified as to issues relating to
EQT’s Trax Farm well site located in a nearby municipality (Misters Domman,
Baumgartner, Gniadek, and Tullai).            Mr. Domman commented on the gag
agreements that EQT offered residents near the Trax Farm well site whereby
residents would grant an easement over and above their properties for noise, dust,
light, smoke, odors, fumes, soot or other air pollution, vibrations, and other adverse
impacts, conditions or nuisances which could arise from EQT’s operations. He
also discussed freshwater impoundments and the water testing required at that site.
In addition, based on Google Earth, Mr. Domman testified as to the proximity of

    8
        See November 10, 2015, Hearing, Notes of Testimony (N.T.) at 129-217; R.R. at 604-
692a.



                                            10
neighborhoods to the proposed Bickerton Well Site and how many of them would
be located within the half mile safety radius that the Applicants had discussed. He
also commented on the evacuation in Greene County that had occurred due to an
explosion and its effect on those residents.       December 23, 2015, Decision of
Council, F.F. No. 22(b).
             Mr. Baumgartner testified as to his proximity to the Trax Farm well
site and commented on negative impacts there, such as noise, vibrations, and
odors. Stating that Southwestern Regional Health Association had advised him as
to the presence of airborne particulate matter restricting outdoor activities, he
alleged that air quality levels and diesel odors had required him and his wife to
evacuate their home several times and had forced his pregnant daughter to move
out on her doctor’s advice. In addition, he stated that he had a respiratory illness
requiring hospitalization due to the issues at the well site. Finally, alleging that he
and his wife were going to sell their house, he encouraged Council to investigate
EQT’s fines and violations. Id., F.F. No. 22(c).
             Mr. Gniadek, a water truck driver who had worked in the oil and gas
industry, testified as to an incident near the Trax Farm well site where he witnessed
a malodorous, thick, white cloud which caused him to fall ill, return to his house,
and call an EQT contact. Gniadek relayed that the contact indicated that there had
been no other complaints and laughed at him. Thereafter, Gniadek stated that he
had red dots over his entire body and later was told that they were indicative of
asphyxiation. He also stated that EQT offered him $50,000 as part of an offer that
was being made to everyone on his street that they all had to accept, which was
later changed to permit each neighbor to decide individually. Finally, like Mr.




                                          11
Baumgartner, he testified that, after noise complaints, EQT would change its
operations during an investigation period. Id., F.F. No. 22(d).
             Mr. Tullai, who had recently moved to Jefferson Hills from near the
Trax Farm well site, testified as to issues that had occurred at the Trax Farm site
such as sleep-disrupting noise and annoying diesel fumes.         He recommended
freshwater impoundment testing to ensure that hydraulic fracturing water is left in
the impoundments. Id., F.F. No. 22(e).
             Ms. Caulkett testified that she lives approximately one thousand feet
from the proposed Bickerton Well Site and expressed concerns about noise, smell,
and the effect of the vibrations on underground mines. She was concerned about
mine subsidence and whether the drilling would exceed the two parcels at issue.
Id., F.F. No. 22(f). Raising the possibility of the drilling going underneath her
house, she asked whether EQT would enter into a deal and reimburse her for that
portion of the gas. November 10, 2015, Hearing, Notes of Testimony (N.T.) at
188-190; R.R. at 663-665a.
             Ms. Morgan discussed the hearing notice and opined that there should
have been better notice to the residents.     She also asked questions as to the
mechanics of how Council would proceed, what it would consider, and whether
there would be additional hearings. She noted that many of her questions had been
answered during the presentation and comment period. Id. at 200; R.R. at 675a.
             Ms. Marcucci, who resides in Pleasant Hills, PA, but not in the
Borough, is employed as a community outreach coordinator for the Environmental
Integrity Project. She testified that EQT was fined as a result of her employer’s
research project on one of EQT’s sites in Tioga County due to switching
permanent freshwater impoundments into flowback ponds. In addition, she opined



                                         12
that the Applicants’ practice of having only two persons applying for all of their
permits could result in details being missed.            She also discussed air quality
permitting practices that the natural gas industry uses to avoid tighter regulation
and noted EQT’s flaring practices and their effect on the sound coming from a well
site into the community. December 23, 2015, Decision of Council, F.F. No. 22(a).
              Ms. Kaufmann, a borough resident and family nurse practitioner with
a doctorate in public health,9 testified as to the health risks involved in hydraulic
fracturing and referenced some of the studies with which she was familiar such as
a recent one from the Johns Hopkins School of Public Health regarding fracking
and pregnancy.       She also discussed a recent consensus statement from the
American Academy of Pediatrics and the fact that the state of New York banned
hydraulic fracturing based on certain research. In addition, she testified as to the
changes that she has seen in health conditions in Cecil Township such as an
increase in bad rashes, asthma exacerbations, unexplained coughs, and nose bleeds.
November 10, 2015, Hearing, N.T. at 209; R.R. at 684a. Finally, she encouraged
Council to consider the knowledge of health risks and the potential cancer lag time
between exposure and presentation before moving forward with a decision on the
Bickerton Well Site. December 23, 2015, Decision of Council, F.F. No. 22(h).
              Having carefully reviewed the objectors’ testimony, we conclude that
it is insufficient to meet their burden of proof. Without a doubt, they testified
about serious problems at other well sites or the harms posed by drilling and
operation of unconventional wells generally.              While such testimony might
persuade legislators to prohibit such drilling, it does not satisfy their burden to

    9
      There is no indication from the hearing transcript that Ms. Kaufmann was qualified as an
expert.



                                             13
show that the development of the Bickerton Well Site would have an impact on
public health, safety, and welfare beyond that normally associated with any other
unconventional well site. Besides asking some questions, they failed to present
either lay or expert testimony specific to the Bickerton Well Site proposal. As
common pleas noted, their testimony was the kind of speculative evidence10
insufficient to constitute proof of detriment to health, safety, and welfare exceeding
those ordinarily to be expected from the proposed use. See Kretschmann Farm,
131 A.3d at 1055. Accordingly, 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, let alone for the courts, to second guess the legislative decision
underlying the ordinance.
               Finally, Council’s decision to augment the conditional use
requirements with criteria based on the ERA is tantamount to an attempt to, sub
silentio, abrogate the legislative determination that a conditional use for oil and gas
drilling is consistent with municipal planning objectives and with the public health,
safety and welfare, including protection of the environment.11 Therefore, once the
Applicants met the specific requirements of the ordinance, their proposed use

    10
       The Borough has raised a concern that the testimony of lay witnesses based on their own
personal experiences will never be sufficient to constitute the requisite probative evidence to
establish that a conditional use poses a detriment to public health, safety, and welfare. We do not
in any way suggest that the testimony of lay witnesses is insufficient, per se, but instead, that
probative evidence may not consist of speculation or testimony, even if concrete, which relates
generally to potential harmful effects of the use permitted by the ordinance.
    11
       See note 2 at 5, supra, quoting Section 1(1)(A) of Ordinance 833. No argument is being
made here that the conditional use allowance of unconventional gas wells, which is specifically
authorized by Pennsylvania statute, violates the ERA.



                                               14
enjoyed a presumptive consistency with that legislative determination. See Sheetz,
804 A.2d at 115.
              Accordingly we affirm the decision of common pleas which reversed
the Council’s denial of the conditional use application. Nonetheless, because of
Council’s outright denial, it did not consider attaching reasonable conditions to
Applicants’ project, to some of which Applicants had expressed their amenability,
such as water testing and noise reduction. Given the environmental sensitivity of
unconventional gas well drilling, we believe it is appropriate that we remand so
that reasonable conditions may be considered and, if found to be necessary,
attached to the grant of this conditional use.              This consideration may be
accomplished by common pleas on remand,12 or that court may remand further for
consideration by Borough Council.




                                          _____________________________________
                                          BONNIE BRIGANCE LEADBETTER,
                                          Senior Judge




    12
       Section 1006-A of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968,
P.L. 805, as amended, 53 P.S. § 11006-A. Section 1006-A was added by the Act of December
21, 1988, P.L. 1329.



                                             15
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


EQT Production Company and               :
ET Blue Grass Clearing, LLC              :
                                         :
            v.                           :     No. 1184 C.D. 2016
                                         :
Borough of Jefferson Hills,              :
                  Appellant              :


                                    ORDER


            AND NOW, this 18th day of May, 2017, the order of the Court of
Common Pleas of Allegheny County is hereby AFFIRMED. However, the matter
is remanded to the Court of Common Pleas, in accordance with the foregoing
opinion, for consideration of whether the conditional use application should be
subject to reasonable conditions and, if so, imposing such conditions.
            Jurisdiction relinquished.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


EQT Production Company and                       :
ET Blue Grass Clearing, LLC                      :
                                                 :    No. 1184 C.D. 2016
               v.                                :
                                                 :    Argued: November 14, 2016
Borough of Jefferson Hills,                      :
                  Appellant                      :



BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


DISSENTING OPINION
BY JUDGE McCULLOUGH                                            FILED: May 18, 2017


               I respectfully dissent from the thoughtful Majority because I do not
agree that Objectors’ testimony and documentation “was the kind of speculative
evidence insufficient to constitute proof of detriment to health, safety, and welfare
exceeding those ordinarily to be expected from the proposed use.” (Maj. op. at
14.)1

        1
          Pursuant to the Ordinance of the Borough of Jefferson Hills (Borough), as implemented
and modified by our decision in Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911-12 (Pa.
Cmwlth. 1980), Objectors had the initial burden of adducing sufficient evidence establishing
that, in all likelihood, the use will “endanger the public health, safety or welfare [or] deteriorate
the environment, as a result of being located on the property where it is proposed.” (Ordinance,
§1003(a).) See Manor Healthcare v. Zoning Hearing Board, 590 A.2d 65, 71 (Pa. Cmwlth.
1991) (discussing the burden of proofs under Bray: “[T]he Zoning Ordinance may, as here,
place the ‘burden of proof’ on the applicant as to the matter of detriment to health, safety and
general welfare. Such a provision in the Zoning Ordinance, however, merely places the
persuasion burden on the applicant. The objectors still retain the initial presentation burden with
respect to the general matter of the detriment to health, safety and general welfare.”).
(Footnote continued on next page…)
               Initially, I note that on a conceptual level, where, as here, an applicant
seeks a conditional use and proposes to install novel infrastructure within a
municipality’s borders, it is relatively difficult for the objectors to demonstrate that
the infrastructure will have a negative impact on the health, safety, welfare, or
environment of the community. Oftentimes, the objectors testify that they have a
generalized “fear” or “concern,” without any supporting factual basis, that the
proposed infrastructure will result in some type of harm. The primary reason for
this is that the new infrastructure is not yet in place and the objectors have not had
the opportunity to perceive or experience its effects first-hand, and, as a result, they
are reduced to testifying only as to the sheer possibility of a negative consequence.
This Court has consistently concluded that such testimony constitutes mere
speculation and is insufficient to satisfy the objectors’ burden of proof. See, e.g.,
JoJo Oil Company, Inc. v. Dingman Township Zoning Hearing Board, 77 A.3d
679, 689 (Pa. Cmwlth. 2013) (“Objectors’ witnesses testified generally about the
possibility of an explosion and their concerns about living in proximity of the
facility. There was no evidence of prior problems with such facilities.”).
               But this case is clearly distinguishable from JoJo Oil Company, Inc.
Objectors’ evidence in this case is of a different pedigree altogether. Objectors are

(continued…)


        Distilled to its essence, the only issue in this appeal is whether Objectors satisfied this
burden because the Borough Council of the Borough of Jefferson Hills (Council) determined that
EQT failed to persuasively demonstrate that operation of the Bickerton Well Site would not
result in a detrimental impact. Council’s Findings of Fact (F.F.) Nos. 25, 27; Conclusion of Law
(COL) at GG. Because the Council made the necessary findings of facts, any error that it
committed in applying the burden-shifting framework of Bray was a harmless one. See Appeal
of R.C. Maxwell Co., 548 A.2d 1300, 1303-05 (Pa. Cmwlth. 1988).



                                            PAM – 2
not merely expressing “concerns” or “fears” of abstract possibilities in a realm of
conjecture. To the contrary, Objectors’ evidence is specific and concrete and they
have established, through comparative evidence, that a substantially similar natural
gas production facility owned and operated by EQT – the “Trax Farm Well Site” –
has had a detrimental effect on Union Township, a neighboring municipality. As
the Council found as fact:

            1.    The proposed [Bickerton Well Site] is
            approximately 126 acres and will include unconventional
            wells both at the vertical and horizontal laterals and be
            hydraulically fractured. [EQT] testified that the proposed
            wells would likely descend six thousand to seven
            thousand (6,000-7,000) feet vertically before being
            turned horizontal outward up to ten thousand (10,000)
            feet.


                                  *      *      *

            7.     Exhibit C evidences the presence of wetlands and
            unnamed tributaries to Peters Creek very near the vicinity
            of the 126 acre proposed well site.

                                  *      *      *

            22. The following persons, after being duly sworn,
            testified at the November 10, 2015 public meeting:

                                  *      *      *

            b.    Bob Dorman – Union Township: Commented on
            “gag agreements” EQT offered residents near the
            EQT Trax Farm well site wherein residents would
            grant an easement/right-of-way over and above their
            properties to EQT for noise, dust, light, smoke, odors,
            fumes, soot or other pollution, vibrations, adverse
            impacts or other conditions or nuisances which may
            emanate from EQT's operations; provided [Council]
            with copies of such agreements; [and] noted the
                                      PAM – 3
proximity of neighborhoods to the proposed Bickerton
well site and how many of them would be within the half
mile safety radius [EQT] discussed . . . .

c.     Gary Baumgartner – Union Township: Provided
[Council] with an exhibit demonstrating his home’s
geographic relationship to the EQT Trax Farm well
site[;] commented on the life-disrupting levels of
vibration coming from the Trax Farm well site which
he alleges cause sleep deprivation and visible shaking
of household items; discussed odors such as diesel
fumes and sulfur coming from the well site;
commented upon advice given to him by the
Southwestern Regional Health Association regarding
the presence of airborne particulate matter
emanating from the hydraulic fracturing operation
and settling on nearby properties restricting outdoor
activities such as lawn mowing, gardening, and playing
in grass; alleged air quality levels and diesel odors
requiring evacuation of his home; stated that issues
with noise, air quality, and odors forced his pregnant
daughter to move out [of the house] at the
recommendation of her doctor and that he and his wife
also had to move out countless times; [and] alleged a
respiratory illness requiring hospitalization was due
to issues from the Trax Farm well site . . . .

d. Mickey Gniadek – Union Township: [T]estified
about a December 4, 2013 incident where he went
outside of his house near the Trax Farm well site,
witnessed a thick white cloud about three-and-half
feet off the ground, [and] smelled an acidic and then
chlorine-like smell; stated that after this incident he
had red dots over his entire body and was later told
his symptoms were one of the signs of asphyxiation;
[and] recounted that after this incident an EQT
subcontractor arrived at his house to offer him
$50,000.00 as part of an offer that was being made to the
people in his neighborhood, which first required
everyone to sign on and was later changed to allow each
neighbor to decide individually . . . .


                       PAM – 4
                e. Andy Tullai – Jefferson Hills, Pennsylvania: Recently
                moved from near Trax Farm well site to Jefferson Hills;
                testified about low frequency sounds that would come
                from the Trax Farm well site and cause loss of sleep;
                [and] commented on the annoyance of diesel fumes
                ....

                                         *       *      *

                h. Judith Kaufmann – Jefferson Hills, Pennsylvania:
                Family nurse practitioner, holds a doctorate in public
                health, wanted to testify based on her professional roles
                and Borough resident status[;] stated that the American
                Academy of Pediatrics had recently released a
                consensus statement warning people and urging them
                to not move forward with fracturing until health data
                can be reviewed due to the apparent ability of
                fracturing related toxins to cross the placenta during
                pregnancy and contaminate cord blood, amniotic fluid,
                and breast milk in addition to the placenta; [and] noted
                that fracturing chemicals such as benzene, ethylene
                and formaldehyde can cause cancer and in the case of
                ethylene, it is also considered a neurotoxin . . . .
(Council’s F.F. Nos. 1, 7, 22b-e, h) (citation omitted).
                In its brief, the Borough explains: “Because there is presently no
unconventional oil and gas development within the Borough, the focus of
[Objectors’] evidence was associated with EQT’s existing [Trax Farm]
unconventional well site in Union Township, Washington County, that was similar
to what was proposed in the [Borough].” (Borough’s brief at 18.)2
                Previously, this Court reaffirmed that while an objector’s “bald
assertions, personal opinions and speculation will not” suffice to prove detrimental
impact on a community, “[t]estimony based on specific past experiences can
satisfy this burden . . . .” Servants Oasis v. Zoning Hearing Board of South

      2
          EQT admits that this statement is accurate. (EQT’s brief at 32 n.12.)


                                             PAM – 5
Annville Township, 94 A.3d 457, 465 (Pa. Cmwlth. 2014) (citing Visionquest
National, Ltd. v. Board of Supervisors of Honey Brook Township, Chester County,
569 A.2d 915, 917-18 (Pa. 1990)).
               Citing case law from this Court, our Supreme Court in Visionquest
stated that “testimony as to prior experiences with the specific proposed use, while
the use was conducted unapproved or unlawfully, should be given greater weight
in determining the detriment to the community as such testimony is clearly not
speculative.” Id. at 918 (citing Tuckfelt v. Zoning Board of Adjustment of the City
of Pittsburgh, 471 A.2d 1311 (Pa. Cmwlth. 1984); Atlantic Richfield Company v.
City of Franklin Zoning Hearing Board, 465 A.2d 98 (Pa. Cmwlth. 1983); Hannon
v. Zoning Board of Wilkes Barre, 379 A.2d 641 (Pa. Cmwlth. 1977)).3

       3
          In Tuckfelt, the applicants sought an occupancy permit or special exception to rent the
third floor of a building to two individuals. Based on the testimony of nearby landowners
concerning their past experiences with the individuals when residing in the building, the trial
court found as fact that “the additional roomers added more noise to the neighborhood by
playing their own stereo systems, created additional parking problems since there were no on site
parking spaces available, added to the trash and litter found on the property, and inhibited their
neighbor’s enjoyment of their surrounding properties by having loud parties that generated litter
which was on occasion cleaned up by neighboring residents.” 471 A.2d at 1314-15. Because
this finding was supported by substantial evidence, and the landowners’ testimony was not
speculative, this Court concluded that there was evidence sufficient to establish an adverse effect
on the health and safety of the community. See Hannon, 379 A.2d at 461-62 (concluding that the
neighbors’ testimony concerning adverse effects of a rooming house while it was operating
illegally and without proper licensure warranted the denial of the applicant’s request for special
exception to operate a rooming house and rejecting the applicant’s argument that the zoning
board “erred in considering past events at his rooming house”).

         Similarly, in Atlantic Richfield, the applicant requested a special exception to convert an
existing gasoline station to a mini-market with self-service gasoline pumps. In opposition,
several residents who resided close to the gasoline station testified as to the adverse effects of the
unconverted gasoline station, including loud noise, littering, and loitering. This Court stated:
“[I]t is clear that this is not a case where the objectors offered unfounded presuppositions as
proof. It was on the basis of their prior experiences with the twenty-four hour operation of the
(Footnote continued on next page…)
                                             PAM – 6
                 Although the Supreme Court in Visionquest pointed to incidents
occurring at another facility operated by the applicant to bolster the objectors’
testimony, it appears that neither the Supreme Court nor this Court has ever
determined whether the rule announced in Visionquest applies in the situation
where the objectors’ testimony is based solely upon the effects they experienced at
a substantially similar facility located in an adjoining municipality. Nevertheless,
logic and fundamental fairness dictate that such an extension should be made, at
least in the context of this case, where there is no unconventional gas well located
within the Borough upon which to compare generally or analyze when it is
operated unlawfully/unapproved and prior to an application for a special exception.
After all, “specific past experiences,” Visionquest, 569 A.2d at 918, are no less
meaningful simply because they occurred elsewhere and the inquiry should
naturally and predominately focus on what it is that caused those experiences.
This is especially true considering that within the rationale of Visionquest is 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.
                 Moreover, this extension of the Visionquest rule is an extremely
modest one that has a strong foundation in other areas of the law. In point of fact,
evidence of a substantially similar accident or harmful consequence is admissible
in civil law cases to prove that an instrumentality or condition is defective or

(continued…)

unconverted gas station that they attempted to prove the adverse effects of the proposed
conversion of the gasoline service station.” 465 A.2d at 100. Therefore, we concluded that the
zoning board did not err in determining that the proposed conversion would constitute a
detriment to the public health, safety, or welfare of the community.


                                         PAM – 7
dangerous, see Blumer v. Ford Motor Co., 20 A.3d 1222, 1227-31 (Pa. Super.
2011),4 and evidence of a substantially similar property is admissible in tax
assessment cases to prove another property’s fair market value, see Aetna Life
Insurance Co. v. Montgomery County Board of Assessment Appeals, 111 A.3d 267,
278-81 (Pa. Cmwlth. 2015).5 The overriding and underlying thrust of these cases
is that when two objects are demonstrated to be like in kind, proof of how an object
performed, operated, and/or functioned in a certain circumstance tends to prove
how the object will perform, operate, and/or function in a remarkably similar
circumstance.
               Notably, Objectors’ testimony is based on their first-hand
observations and experiences at the Trax Farm Well Site and is by no means
“speculative” in that sense of the legal term.                     See Gibson v. Workers'
Compensation Appeal Board (Armco Stainless & Alloy Products), 861 A.2d 938,


       4
          In Blumer, the plaintiff alleged that a defective design of a parking brake caused the
brake to disengage, resulting in a truck rolling down a hill and killing an individual, and asserted
a strict product liability claim under a malfunction theory. The Superior Court explained that
“[e]vidence of prior accidents involving the same instrumentality is generally relevant to show
that a defect or dangerous condition existed,” id. at 1228, and concluded that twenty-five reports
of prior, similar incidents from other consumers was admissible to prove that the truck’s parking
brake mechanism was defective.

       5
         In Aetna Life, this Court noted that the comparable sales approach is one of the methods
to determine a property’s fair market value for tax assessment purposes. We reiterated: “[I]n
determining market value, ‘comparables’ means properties of a similar nature which have been
recently sold. In order to be comparable . . . however, the properties need not be identical . . . .
Thus, comparisons based on sales may be made according to location, age and condition of
improvements, income and expense, use, size, type of construction and in numerous other ways.”
Id. at 279 (citation omitted). Ultimately, in Aetna Life, this Court concluded that the trial court
did not err in assessing a property’s fair market value based, in large part, on the values of the
other, comparable properties.



                                            PAM – 8
944 (Pa. 2004) (stating that the Pennsylvania rule of evidence pertaining to lay
person testimony “contemplates admission of lay opinions rationally based on
personal knowledge that are helpful to the trier of fact. At common law, witnesses
not qualifying as experts were generally permitted to testify regarding those things
that they had seen, heard, felt, tasted, smelled, or done.”) (citation and internal
brackets and quotations omitted).     Objectors’ testimony is also buttressed by
medical information that Objectors referenced and relayed at the hearing, and EQT
does not take issue with the admission of this information or the Council’s findings
of fact crediting it. This testimony, I believe, constitutes substantial evidence to
support the Council’s finding that the grant of the conditional use will have a
detrimental impact on the community
             The Majority’s conclusion requiring Objectors “to present either lay
or expert testimony specific to the Bickerton Well Site,” (Maj. op. at 14), is unduly
restrictive and impracticable, has the effect of placing upon Objectors an almost
insurmountable burden of proving detrimental harm, and threatens “the ‘inherent
and indefeasible’ right of our citizens to possess and protect property.” PA
Northwestern Distributors, Inc. v. Zoning Hearing Board of Moon Township, 584
A.2d 1372, 1375 (Pa. 1991) (citing and quoting Article 1, Section 1 of the
Pennsylvania Constitution, Pa. Const. art. I, §1); see also Cleaver v. Board of
Adjustment of Tredyffrin Township, 200 A.2d 408, 413 (Pa. 1964). To be sure,
even if Objectors had hired an expert, the expert most likely would have had to
rely on comparative data from other well sites to support his/her opinion regarding
the Bickerton Well Site. See Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968)
(discussing foundational requirement for the admissibility of expert testimony).
Significantly, EQT had the opportunity to rebut Objectors’ testimony that the


                                     PAM – 9
vibrations, “clouds,” and “fumes” from the Trax Farm Well Site caused illness and
sleep deprivation. EQT also had the chance to offer evidence that these incidents
never occurred or explain how they were the result of negligent mistakes that have
been later identified and corrected or mere events of unforeseeable circumstances.
EQT did not do so.
              Contrary to the Majority, I would conclude that Objectors’ testimony
is not speculative or incompetent as a matter of law, but, instead, is admissible
evidence capable of being assessed for the worth that the fact-finder decides to
provide it.   In its role as the ultimate fact-finder, see In re Thompson, 896 A.2d
659, 668-69 (Pa. Cmwlth. 2006), the Council in this case determined that
Objectors’ testimony was credible and persuasive, afforded significant weight to
the testimony, and found as fact that the grant of the conditional use would not
protect the health, safety, and welfare of Borough as required by the Ordinance.
(Council’s F.F. No. 22; COL at B, G.) In particularized detail, Objectors testified
how the Trax Farm Well Site released harmful chemicals that have had an adverse
effect on the residents (or then residents) of Union Township, most notably their
physical and mental health.     From this evidence, it was within the exclusive
province of the Council, as the fact-finder, to draw the inference that it is likely
that the same effects will happen to the Borough’s residents with the Bickerton
Well Site. That is just what the Council sought to do here when it considered what
had happened at the Trax Farm Well Site and denied EQT a special exception in
the name of protecting “the public health, safety, [and] welfare” of the Borough.
(Ordinance, §1003(a).)
              Accordingly, I would conclude that Objectors’ evidence was
sufficient to satisfy their burden of proof and that EQT failed to persuade the


                                    PAM – 10
Council that the Bickerton Well Site would not have negative impact on the
Borough. Hence, I respectfully dissent.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                   PAM – 11
