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  • Marlene

Nothing Phony About Outside Testimony

In this month’s blog we’re looking at an important case out of the Pennsylvania Supreme Court that analyzes whether or not residents from other municipalities can testify in a local zoning case about the impacts of gas drilling. This case is important because it informs municipalities about the breadth of testimony they are allowed to take in similar permitting cases.

The case at issue is EQT Production Company and ET Blue Grass Clearing, LLC v. Borough of Jefferson Hills, which stemmed from a gas company’s application for a conditional use permit for construction and operation of a well pad in a local community (EQT Production Company and ET Blue Grass Clearing, LLC v. Borough of Jefferson Hills).

EQT sought approval to install and operate 16 shale gas wells on a nearly 30-acre well pad in Jefferson Hills Borough. The development was to be constructed in an area designated as a Business Park, within an Oil and Gas Development Overlay District. It was to be the first such development in the Borough. EQT already operated a similar multi-well pad in adjacent Union Township. To obtain a conditional use permit, the ordinance required that EQT comply with certain specific conditions, and show that the proposed land use would not “endanger the public health, safety or welfare nor deteriorate the environment …”

The Jefferson Hills Borough Council held a hearing on EQT’s conditional use application. The Borough received testimony from persons who objected to the development, including non-resident witnesses who related their experience living near the EQT well-pad in Union Township. These witnesses testified to a variety of impacts, including noise, dust, noxious odors, light pollution, and vibrations.

After the hearing, the Borough Council denied the permit, finding that EQT failed to show that the facility would not adversely affect the public health, safety and welfare, in part, based on the uncontested testimony given about the harm to the community caused by the Union Township well-pad.

Before the Supreme Court issued its decision, both the Common Pleas Court and Commonwealth Court reviewed the Borough’s decision. Both courts sided with EQT and overturned the Borough’s decision to deny the conditional use permit.

The Common Pleas Court said that EQT did not have to show that its land use would protect the public health and safety. Instead, it said that objectors had to show that the land use would harm the public health and safety, and that objectors failed to do so. What about the testimony of the persons who lived near the Union Township well-pad, you might ask? The Common Pleas Court characterized that testimony as “speculative,” and disregarded it. Not only did the Commonwealth Court agree with the Common Pleas Court, it doubled down by holding that the harm that had to be shown by objectors was not simply that which would ordinarily flow from this type of land use — objectors had to show harm that would exceed that which was “normally” generated by this type of land use.

From a practical standpoint, these decisions imposed a near impossible burden on objectors. First, the courts ignored the plain language of the ordinance, and shifted the burden from the applicant to the objectors to show that the land use would adversely affect the local community. Second, the courts said that objectors had to make that showing without speculating about potential harm, despite that the facility was the first of its kind to be constructed in the community.

Third, the courts held that testimony from persons who experienced harm living near a similar facility in another township was “speculative” and not relevant to show what harm might flow from the proposed facility. Finally, even “normal harm” would not suffice to deny the permit - the harm, apparently, had to be extraordinary. If left to stand, the decisions would have not only subverted the language of the Jefferson Hills ordinance, it would have made it virtually impossible for local residents to successfully oppose a conditional use permit without employing an expert witness.

It was this last point that the Supreme Court addressed with particularity in its decision, holding that the lower courts were wrong to characterize and dismiss the experiences of non-expert witnesses who resided near a similar facility, that was operated by the same entity, and in a similar manner and location as the proposed facility. The Court said that municipalities have a duty to protect residents from harm to their persons and property, and must be provided flexibility in hearing testimony to fulfill their duties.

Whether you are a township or borough official, or a resident concerned about a land use proposed for your community, this decision provides clarity as to the type of testimony that must be considered, if offered, when deciding whether a proposed land use will adversely affect the community.

If you have more questions about drilling permits or other zoning issues in your area we'd be happy to help.


DISCLAIMER: This blog is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.

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