Agenda - Planning Commission - 01/08/2015

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Zoning Bulletin November 25, 2014 I Volume 8 1 Issue 22 In March 2011, the Board denied MarkWest's special exception application on the basis that MarkWest failed to satisfy the UDO's requirements that the Proposed Facility would be of the "same general character" as other uses permitted in an I-1 Light Industrial District, and that its impact would be equal to or less than other permitted uses. MarkWest appealed to the trial court. Range Resources -Appalachia, LLC ("Range Resources") intervened as an owner or tenant of the Property on which the Proposed Facility would be constructed. The Township also intervened. In January 2013, the trial court affirmed the Board's decision. MarkWest and Range Resources appealed, and the appellate court consoli- dated the appeals. The arguments on appeal were that: (1) the Board erred or abused its discretion by denying MarkWest's special exception; and (2) state law, Act 13, preempted the UDO to the extent that the UDO precluded opera- tions ancillary to oil and natural gas well development. DECISION: Judgment of trial court reversed in part, and matter remanded. The Commonwealth Court of Pennsylvania first held that the Board acted arbitrarily and abused its discretion in denying MarkWest's application for special exception. The court explained that "[a] special exception is a use that is expressly permitted by the zoning ordinance, absent a showing of a detrimental effect on the community." Again, here, the UDO permitted a proposed facility that would have an equal or lesser impact than, and is of the same general character as pennitted essential uses. The Board had found that MarkWest's Proposed Facility was not of the "same character" as an essential service, but was more comparable to a cellular communications facility which was expressly excluded from uses permitted by special exception under the UDO. The appellate court found the Board's findings were errors of law that mandated requirements not set forth in the UDO. The court found that the two distinct operations (natural gas compressor facilities and cellular communica- tions facilities) were in no way "comparable." Further, the court found that al- though MarkWest's Proposed Facility was a commercial business and not a public utility, it was of the "same general character" as an essential service— all that was required by the UDO for a special exception. The court concluded that "every factor that the UDO require[d] the Board to consider when review- ing special exception applications in the Township's I-1 Light Industrial District [had] been satisfied." Accordingly the court remanded the matter with direction that the special exception be granted. The court also addressed MarkWest and Range Resources' contention that state law, Act 13, clearly preempted local zoning ordinances, including the Township's UDO as applied in this case. Among other things, Act 13 preempted local zoning control over oil and gas in favor of statewide standards. However, Act 13's preemption language had been ruled by the Pennsylvania Supreme Court to be unconstitutional. Thus, because the UDO did not exclude natural gas compressor stations, and Act 13's preemption language was unconstitutional, the appellate court concluded that the UDO was not preempted by state law. 2014 Thomson Reuters 11