For many years, the opinions of non-resident objectors – especially unsubstantiated opinions – were of little to no relevance in zoning hearings, including conditional use and special exception hearings.  However, applicants and municipal officials could see more objectors from other municipalities present testimony and evidence at hearings because the Pennsylvania Supreme Court has endorsed the relevancy of that testimony and evidence in certain situations.

In EQT v. Borough of Jefferson Hills, the applicant sought conditional use approval for a natural gas well site in the Borough of Jefferson Hills.  During the public hearing before borough council, objectors from other municipalities testified about the alleged negative effects on health and quality of life that they experienced from a similar well in a neighboring township that was operated by the conditional use applicant.  The testimony was wide-ranging and covered topics including foul stenches, intense vibrations, loud and penetrating sounds, increased traffic and air and light pollution all resulting from the well site in the neighboring township.  The applicant did not rebut the testimony.

Borough council denied the conditional use application on the basis that the applicant failed to demonstrate compliance with all the standards for a conditional use.  Borough council cited only to the standard in the Zoning Ordinance requiring that the applicant “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.”  On appeal, the trial court overturned the denial and reasoned that in a typical conditional use proceeding the burden shifts to objectors after the applicant demonstrates compliance with objective standards in the zoning ordinance.  The trial court did not consider the ordinance standard to be an objective standard and concluded that the testimony regarding the well site in the neighboring township was speculative at best.  The Commonwealth Court agreed with the trial court.

On further appeal, the Pennsylvania Supreme Court, in a 6-1 decision, overturned the Commonwealth Court and ordered the trial court to reconsider its decision in light of the Court’s decision.  The Court found the testimony regarding the well site in the neighboring township to be “highly relevant” and specific and concrete enough for the borough council to analogize between the neighboring well site and proposed well site.  The Court compared the situation to when an applicant for a liquor license has prior conduct called into question and noted the relevancy of that prior conduct in the proceeding for the new license.  The Court concluded that the testimony and evidence will be highly relevant so long as there is a significant degree of similarity between the past and proposed uses.

The dissenting opinion questioned whether the decision “undermines long-established principles that a municipality may deny a conditional use only if the objectors’ evidence establishes a high degree of probability that the use will cause a substantial threat to the community.”  It certainly seems that the balance has shifted to some degree and that applicants for conditional uses and special exceptions will have more work to do in preparing their applications and presenting their evidence and testimony at the hearing.  Moreover, testimony from objectors about uses in other municipalities likely will not be dismissed as irrelevant with as much ease (or at all) like it may have been in the past.  It will be interesting to see how developers, municipal officials, and objectors react to this decision.

Please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues.