In this case out of Washington County, the Commonwealth Court was asked to weigh in on what conditions a zoning hearing board may reasonably impose upon a special exception approval.  In ruling that most of the conditions imposed by the Cecil Township Zoning Hearing Board (“ZHB”) were unreasonable, and thus an abuse of discretion, the Commonwealth Court emphasized that conditions placed on a special exception approval must be based upon either the zoning ordinance or the Municipalities Planning Code (“MPC”), and must be supported by evidence in the record.

In November 2010 MarkWest applied for a special exception approval to construct a natural gas compressor station on a 71.5 acre property in the Township’s I-1 Light Industrial District.  The property was adjacent to two residential districts, but no residence was closer than 1,000 feet from the proposed facility.  Following hearings, MarkWest submitted proposed findings of fact and conclusions of law. The ZHB then issued 37 proposed conditions, which MarkWest responded to with conditions it would be willing to accept. On March 31, 2011 the ZHB denied MarkWest’s special exception application on the basis that MarkWest had failed to satisfy the Township’s Unified Development Ordinance’s (“UDO”) requirements that the proposed facility be of the same general character as other uses permitted in the I-1 District, and that its impact would be equal to or less than other permitted uses. The trial court affirmed. The Commonwealth Court reversed and remanded to the ZHB with directions to grant the special exception and if any terms or conditions were attached to such approval the ZHB must specify the applicable UDO provision and explain why the term or condition was necessary. On remand the ZHB took no additional evidence, but granted the special exception subject to 26 conditions, 24 of which had been contained within MarkWest’s list of acceptable conditions.

After the trial court affirmed, MarkWest again appealed to the Commonwealth Court. The Commonwealth Court affirmed the decision in part, and reversed the decision in part.  As an initial matter, the court held that simply because the conditions had been included by MarkWest in its counter-offer of conditions it was willing to accept, that does not inherently make those conditions reasonable.  Rather, the court concluded, those conditions were offered in an effort to amicably resolve the matter without further litigation and MarkWest had included an unequivocal disclaimer that it retained its right to challenge such conditions if the proceedings continued.  As to the specific conditions, the court ruled that the following conditions were unreasonable and therefore an abuse of discretion:

  • requiring MarkWest to retain an independent consultant to test water quality in wells and springs within 1500 feet of their facility because there was no record evidence that the operations would cause water contamination and no specific and enforceable testing/sampling requirement in the UDO;
  • requiring MarkWest to hire a noise consultant to measure noise levels every 5 years because the record evidence did not show that operations would cause excessive or objectionable noise, and there was no specific and enforceable testing requirement in the UDO;
  • requiring MarkWest to install video surveillance monitoring equipment because the record evidence did not show the operations presented any more of a risk of trespassers than any other use in the zoning district and there was no requirement to provide video surveillance monitoring in the UDO
  • requiring MarkWest to recycle normal blow down back into the gas stream because it was an operational condition, was preempted by the Air Pollution Control Act, and neither the UDO nor the MPC authorized the ZHB to prescribe how MarkWest should comply with emission standards;
  • requiring MarkWest to install electric gas compressor engines and limiting the number of compressor engines because the record evidence did not show electric engines produced less noise and vibrations and no such limitation or distinction was contained within the UDO;
  • requiring MarkWest to hire a third party to perform a baseline air quality test and annual tests thereafter because such testing was not authorized by the UDO and the ZHB lacked the authority to prescribe how MarkWest should comply with emission standards;
  • requiring MarkWest to locate the compressor engines as far as commercially reasonable, and in no event closer than 750 feet, from any existing residences because the UDO did not specify a minimum distance from nearby residences, only a 45-foot front yard setback and 150-foot side and rear yard setbacks from adjoining residential districts/uses;
  • that MarkWest limit the hours of access for heavy trucks from 7 am to 7 pm and after-hours employee site checks to pickup trucks because the UDO made no such limitations (only limiting “noise” from “loading and unloading” from 7 am to 6 pm and “excessive noise” from vehicles traveling to and from the site after-hours), the ZHB exceeded its authority by extending hours for loading/unloading from 6 pm to 7 pm, and there was no record evidence that the operations would cause excessive noise;
  • that MarkWest seek all necessary and applicable SALDO approvals and building and occupancy permits because, while MarkWest was required to obtain such approvals and permits, those approvals and permits did not fall under the ZHB’s jurisdiction;
  • that MarkWest provide a link to all DEP and EPA permits because the UDO/MPC did not require MarkWest to supply its permits, and there was no record basis to require it to do so;
  • that MarkWest enclose or provide a shroud over the flare and/or volatile organic compound (“VOC”) control device because the UDO only prohibited glare from being visible to adjacent neighbors from the ground and full enclosure where “intense” glare and heat were produced, and there was no record evidence as to the flare’s heat intensity or glare;
  • that MarkWest turn off all lighting at the site at night because the UDO only required that lights not shine or cause glare in excess of one-half foot candle on neighboring properties, and floodlight glare not be visible to neighbors from the ground, and the record evidence did not establish that the proposed lighting would shine or cause glare in excess of one-half foot candle onto neighboring properties;
  • that MarkWest provide tours of the facility to any Township representative or resident and agree to meet with the Township to discuss any matters that involve MarkWest because neither the UDO nor MPC expressly authorize such conditions;
  • that MarkWest utilize commercially reasonable and available sound and vibration mitigation measures to meet the noise standard because neither the UDO nor MPC authorize the ZHB to prescribe precisely how MarkWest should meet the agreed-upon standard;
  • that MarkWest provide landscaping along the front of the compressor pad, undertake efforts to blend the facility into the natural landscape, construct custom-built structures to house all compressor engines, and consult with the Township regarding architectural issues because the UDO only required a 40-foot wide landscape buffer abutting residential districts, and the condition was vague and beyond the ZHB’s authority;
  • that MarkWest provide a tar and chip access road because the UDO only required private driveways be paved with an “impervious surface” and the condition was not supported by the UDO/MPC or the record;
  • that MarkWest meet all federal and state regulatory requirements and permit conditions because MarkWest was already legally obligated to meet all state and federal regulatory requirements and the Board lacked the authority to enforce this condition;
  • permitting the Township Board of Supervisors to request the use be stopped if it reasonably believes residents may be subjected to harmful byproducts until the situation is remedied to the Township’s satisfaction because a special exception approval was not the appropriate stage to address nuisance abatement, and the Township lacked the authority to order the use be stopped;
  • that MarkWest not open doors or windows to cool the structure housing or compressor engines during normal operations because the ZHB had no authority under the UDO/MPC to prescribe precisely how MarkWest should limit noise at the facility;
  • that MarkWest have no more than 8 tanks to house water and condensate because the Board lacked the authority to prescribe precisely how MarkWest should operate the facility;

The Court ruled that the following conditions were reasonable:

  • that MarkWest enclose the facility in a chain link fence because MarkWest expressly represented it would do so and such a condition was consistent with the ZHB’s authority to safeguard the public health, safety, and welfare;
  • requiring MarkWest to install Vapor Destruction Units (“VDUs”) on all condensate tanks because MarkWest expressly committed to limiting emissions in accordance with DEP and EPA requirements and the ZHB made findings that MarkWest would install such VRUs; and
  • that MarkWest provide a spill prevention and control plan; training and site orientation for first responders; copies of all plans dealing with procedures to be followed in the event of spills, fires, or any other emergency at the site; and work with local emergency responders to outline procedures for nearby residents in the event of an emergency situation at the site because MarkWest made specific unsolicited representations that it would take these steps, these conditions fell within the ZHB’s authority to safeguard the public health, safety, and welfare, and were supported by the record evidence.

A concurring and dissenting opinion was filed by Judge McCullough who argued that all of the conditions should have been affirmed because they were a reasonable means for the Township to mitigate potential adverse impacts arising from the operation of a compressor stated and were not an abuse of discretion.

Click here to read: MarkWest Liberty Midstream & Resources, LLC v. Cecil Twp. ZHB, 1809 CD 2016 (Pa. Commw. Ct. Mar. 23, 2018) (UNREPORTED).

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Sivertsen_BLOGZac Sivertsen