In this appeal out of Allegheny County, the Commonwealth Court was presented with an appeal from the reversal of a Borough Council’s denial of a conditional use application.  In affirming the Court of Common Pleas of Allegheny County’s reversal, the Commonwealth Court found that Borough Council had not properly shifted the burden of proof to objectors once the applicant had satisfied all objective conditional use requirements in the zoning ordinance.


EQT filed an application with the Borough to develop an unconventional gas well on its property.  Unconventional gas wells were permitted by conditional use on the Property.  Borough Council held a hearing on the application at which several objectors appeared and testified about serious problems at other well sites and the harms posed by the drilling and operation of unconventional wells generally. Borough Council denied EQT’s application, finding EQT had satisfied all general and specific requirements for granting conditional use approval within the Borough’s zoning ordinance, except the provision requiring the project not “endanger the public health, safety or welfare nor deteriorate the environment.” Although Council found that the burden had never shifted to objectors to prove the impact of the proposed use would violate the conditional use requirements in the zoning ordinance, it found that objectors’ testimony had been credible and persuasive. Finally, Council cited to the Environmental Rights Amendment (“ERA”) of the PA Constitution as additional justification for denial of the application. EQT appealed, and the Court of Common Pleas of Allegheny County reversed.  The Borough appealed.

On appeal, the Commonwealth Court affirmed the trial court’s reversal. It concluded that Council had erred in finding that the burden had not shifted to objectors to establish detriment to the public health, safety, and welfare exceeding that ordinarily expected from the proposed conditional use. It also concluded that objectors’ evidence did not constitute the requisite substantial evidence to thwart EQT’s entitlement to a conditional use as a matter of right. Specifically, the Court cited that objectors had not presented either lay or expert testimony specific to the subject property, and their testimony had been speculative evidence that was insufficient to constitute proof of detriment to health, safety, and welfare exceeding that ordinarily expected from the proposed use. As for Council’s reference to the ERA, the Court concluded that Council’s decision to augment the conditional use requirements with criteria based on the ERA was tantamount to an attempt to abrogate the legislative determination that a conditional use for oil and gas drilling was consistent with municipal planning objectives and with the public health, safety and welfare, including protection of the environment.

Click here to read: EQT Production Co. v. Borough of Jefferson Hills, 1184 CD 2016 (Pa. Commw. Ct. May 18, 2017).

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