Agenda - Planning Commission - 11/12/2015

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October 25, 2015 1 Volume 9 1 Issue 20 Zoning Bulletin Neighbors failed to meet their burden of rebutting the Board's presumptive conclusion with their own evidence. The Neighbors appealed to court. Disagreeing with the Board, the trial court held that Inflection failed to satisfy each factor inthe zoning ordinance section governing CUPS. The court found that Inflection had failed to show that its proposed well was: (1) similar to other uses expressly peiiiritted in the RA District; and (2) compatible with other uses permitted in the RA District. The court found that there was too much uncertainty in Inflection's CUP application (i.e., uncertainty as to how many wells would be drilled; how much water would be used; how long the Property would be used for natural gas extraction) to compare it to other expressly permitted uses. More- over, the court found that the truck noise and fracking activities would create much noise, which was not compatible with the quiet residential and farming uses of the RA District. The trial court granted the Neighbors' appeal and nullified the Board's decision to grant Inflection's CUP. Inflection appealed. On appeal, Inflection's primary argument was that it had proven that its well would be similar and compatible with uses permitted in the RA District, as required for CUP approval under the zoning ordinance's savings clause. Inflection pointed to other uses allowed either as a matter of right or as conditional uses in the RA District, including: forestry operations; hunting camps; hospitals; retirement homes; and commercial recreation. More specifically, Inflection maintained that its proposed well was similar to a "public service facility," which was expressly permitted under the zoning ordinance in an RA District. Inflection claimed that its proposed well would serve the general public by producing natural gas for its use and consumption. DECISION: Judgment of Court of Common Pleas reversed. Disagreeing with the trial court and agreeing with the Board, the Com- monwealth Court of Pennsylvania held that Inflection's proposed use satis- fied the requirements of the savings clause of the Township's zoning ordinance, which governed Inflection's proposed conditional use. The court found that, based on the evidence presented, the proposed natural gas well was "similar to and compatible with other uses permitted in the [RA] zone ,) In so holding, the court recognized that the zoning ordinance permitted a "wide range of conditional uses in the RA District." The court agreed with Inflection's argument that in contrast to the size of a hospital—which was a permitted conditional use in the RA District—a natural gas well would pres- ent a low physical profile and involve a small footprint on the land. The court agreed with Inflection that Inflection's proposed well was similar to a public service facility, which was expressly allowed in the RA District. In fact, noted the court, the Board had already authorized other natural gas wells owned by Inflection in the RA District. Moreover, the court found that the evidence about Inflection's well at this Property "was in no way rebutted"; the Neighbors had presented speculated concerns but no evidence. The court further noted that, in addition to proving that its proposed use was similar and compatible with uses expressly permitted in the RA District, Inflection also had the burden of showing that is proposed use did not 4 © 2015 Thomson Reuters