The Commonwealth Court decision, in the case of B. Gorsline, et al. v. Board of Supervisors of Fairfield Twp. v. Inflection Energy, LLC, et al. – 1735 C.D. 2014, was an important victory for natural gas development. The decision established some extremely important precedents with big fracking implications going forward. The essence of the original complaint filed against Fairfield Township Supervisors was a local neighbor’s opposition to construction traffic that would pass their residence on the way to the proposed Inflections site. They challenged the approval of the application (permitting) by Fairfield Township and appealed to the Lycoming County Court of Common Pleas where it inexplicably got assigned to a local judge overturning the Township’s approval.
Fairfield Township Zoning Map – Notice that R-A District (yellow) encompasses the bulk of the Township and prohibiting development there would have effectively excluded it from the Township.
The Commonwealth Court rejected it in favor of common sense. Zoning is about land use and land use is about the permanent activity, not the temporary. Of course there are trucks, just like there are trucks when you build a home, a skilled nursing facility or a Wal-Mart, but the activity that takes place during the building is no indicator and, therefore, cannot be the basis for determining the impacts of the long-term use.
This is not to say a community cannot address traffic associated with construction (or other construction impacts) through other regulations, cooperative agreements or even reasonable conditions attached to an approval if accepted by the applicant. All these things are typical. What a community cannot do, though, is to use those temporary impacts as the basis for characterizing the permanent use. The implications will be clear to any experienced land use and zoning attorney involved in these matters – the impacts of drilling and completing a gas well cannot be used to deny a conditional use permit for a well. That is a major deal and this case can, and will undoubtedly, be cited as a precedent.
Construction site for a new hospital. Is this the basis for assessing the impacts of the permanent use? The Commonwealth Court says no.
The Zoning Ordinance permits a wide range of conditional uses in the RA District, including forestry operations, hunting camps, hospitals, retirement homes, and commercial recreation. ZONING ORDINANCE, §4.2.2; R.R. 410a-411a. Inflection notes that in contrast to the size of a hospital, for example, a natural gas well will present a low physical profile and involve a small footprint on the land. More to the point, its proposed well is similar to a public service facility, which is expressly allowed in the RA District.
…Inflection’s proposed use satisfies the requirement set forth in 12.18.1 of the Zoning Ordinance that it “is similar to and compatible with other uses permitted in the zone where the subject property is located.” ZONING ORDINANCE, §12.18.1; R.R. 493a. The evidence about Inflection’s well was in no way rebutted, and the Board has already authorized Inflection’s other wells in the RA District.
…Proving that its proposed use is similar to and compatible with uses expressly permitted in the RA District is not dispositive. Inflection also had the burden to show that its proposed use does not “conflict with the general purposes of this [Zoning] Ordinance.” ZONING ORDINANCE, §12.18.3; R.R. 493a. Again, its evidence was uncontradicted. Inflection argues that its well will not conflict with the general purpose of the Zoning Ordinance, which expressly authorizes the extraction of minerals. ZONING ORDINANCE, §§12.18.1, 12.18.3; R.R. 493a.
In holding otherwise, the trial court conflated the general purpose of the Zoning Ordinance with the requirement that the proposed use be similar to and compatible with other uses allowed in the RA District.
…We hold that Inflection’s proposed use met the threshold requirements set forth in Sections 12.18.1 and 12.18.3 of the Zoning Ordinance. It is similar to and compatible with the uses permitted in the RA District and does not conflict with the general purpose of the Zoning Ordinance.
…Inflection argues that the trial court erred in concluding that it did not prove that its natural gas well would “not be detrimental to the public health, safety and welfare of the neighborhood where it is to be located.” ZONING ORDINANCE, §12.18; R.R. 493a. Inflection presented expert testimony on that issue, which the Board accepted. Neighboring Landowners presented no evidence to the contrary.
Neighboring Landowners claim that the Township did not do its job. They claim that the Township failed to obtain meaningful information from Inflection about the storage and transportation of chemicals and wastewater and the impact the well would have on the environment. They assert that “the record” contains evidence that Inflection’s activities will constitute a nuisance and have a noxious effect on the surrounding area due to noise, light, and traffic impacts. Neighboring Landowners’ Brief at 47. However, they do not cite where in the record this evidence is to be found.
…The Board acknowledged that Neighboring Landowners expressed concerns but concluded that their “speculation of possible harms” was insufficient to show that the proposed natural gas well will be detrimental to the health, safety and welfare of the neighborhood …Nevertheless, the Board responded to the concerns of Neighboring Landowners by imposing numerous conditions related to roadway maintenance, traffic and parking. It also required Inflection to provide emergency contact information upon request, visually screen the well from the neighborhood and comply with all federal state and local permits and approvals. As with all its other mandates and regulatory requirements Inflections Energy LLC will proposed with the safety of the workers and that of their new neighbors with the utmost integrity- but we all knew that.
The trial court erred in holding that Inflection’s proposed use was not similar to a public service facility, which is expressly permitted in the RA District and compatible with other uses permitted in the RA District. The trial court also erred in holding that Inflection’s proposed use conflicted with the general purpose of the Zoning Ordinance, which specifically authorizes extraction of minerals. Finally, there was no probative evidence offered to show that Inflection’s proposed well will present a detriment to the health and safety of the neighborhood. Inflection satisfied the requirements of Section 12.18 of the Zoning Ordinance.
For these reasons we reverse the order of the trial court.
Natural Gas NOW
Inflections Energy LLC and the Fairfield Township will face another opposition – stay tuned…..