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Fracking and Alternative Energy

Babst Calland: Pa. Zoning Hearing Board Erred When It Denied Application for Natural Gas Compressor Station

By Alana E. Fortna

On September 26, 2014, the Commonwealth Court of Pennsylvania issued an opinion in favor of MarkWest Liberty Midstream & Resources, LLC [enhanced opinion available to subscribers].  MarkWest had purchased a 71.5 acre parcel of undeveloped land in Cecil Township, Pennsylvania, and had applied to the township’s zoning hearing board for a special exception under the zoning ordinance to construct and operate a natural gas compressor station.

The zoning hearing board denied MarkWest’s special exception application holding that MarkWest failed to satisfy the zoning ordinance’s requirements that the compressor station would be of the same general character as other permitted uses, and that its impact would be equal to or less than other permitted uses.  MarkWest appealed to the trial court, which affirmed the zoning board’s decision.  MarkWest then appealed to the Commonwealth Court.

On appeal, MarkWest argued that the zoning board erred because the compressor station is of the same general character as an “essential service” and because it meets the standards for permitted uses in the Township’s I-1 Light Industrial District.  The zoning hearing board argued that MarkWest is a commercial enterprise that is neither a public utility nor an entity that provides an essential service to the public.  The Commonwealth Court noted that the issue is not whether MarkWest’s proposed use is an “essential service” as defined, but rather, whether MarkWest’s proposed use is of the same general character as any essential service.  The court then held that the zoning hearing board did not make any finding that the proposed compressor station was not of “the same general character” as other permitted uses.  Instead, the court found that the zoning hearing board applied the wrong legal standard by requiring the use to be “of the same character” rather than “the same general character.”

Accordingly, the Commonwealth Court concluded that the zoning hearing board’s position was an unreasonable interpretation and application of the zoning ordinance, and it reversed the portion of the trial court’s decision affirming the denial of the special exception application.  The Commonwealth Court remanded the case to the trial court and directed it to immediately remand the case to the zoning hearing board with the direction to grant MarkWest’s special exception application within 45 days of receiving the remand order.

Copyright 2012 • Babst, Calland, Clements and Zomnir, P.C. • Two Gateway Center, Pittsburgh, PA 15222 • 412-394-5400 • Administrative Watch is privately distributed by Babst, Calland, Clements and Zomnir, P.C., for the general information of its clients, friends and readers. It is not designed to be, nor should it be considered or used as, the sole source of analyzing and resolving legal problems. If you have, or think you may have, a legal problem or issue relating to any of the matters discussed in the Administrative Watch, consult legal counsel.

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