Little Green Bullies Lose; Landowners Triumph

delaware riverkeeper - Tom ShepstoneTom Shepstone
Natural Gas NOW


Middlesex Township landowners won a big one (several big ones, really) over the Philadelphians and little green bullies from Bristol on the Delaware.

Nothing so characterizes the nature of the little green bullies and fractivist shills as their contemptuous assertions they, and they alone, represent the voice of the people. They pronounced it at every turn as they marched 200 miles across Pennsylvania from the plush offices of the William Penn Foundation and the gas-heated offices of the Delaware Riverkeeper in Bristol to attack the rights of landowners in Middlesex Township, Butler County. They brought with them their radical lawyer, Jordan Yeager, and set out to torment what they thought was a poor township that could be forced to roll over and provide them with another scalp in their war against oil and gas. It hasn’t gone well. The little green bullies, in fact, have lost on multiple fronts this month.

We’ve been covering this story rather thoroughly at NaturalGasNOW with posts here, here and here, for example. We even came up with this imagery to capsulize the struggle of Middlesex Township landowners.

Green Bullies

Our friend and guest blogger Jim Willis also reported on some extremely good news regarding the Mars School Board elections out there and the resounding defeat of candidates who wanted to use the school as leverage in the Delaware Povertykeeper’s war against Middlesex Township landowners on behalf the industrialist trust-funders from the William Penn Foundation. There was much more, though, including not only other election results, but also a major court decision that favored landowners and sent a strong message to the carpetbagging little green bullies from Philadelphia that it was time to head home.

The election results included the re-election, by an overwhelming margin, of the one of the township supervisors who had adopted the ordinance allowing for natural gas development; the ordinance challenged by the little green bullies. The anti-gas proxy they ran for township supervisor in Adams Township also lost by a large margin. Best of all, the anti-gas candidates who ran for spots as Butler County Commissioners lost big-time, by embarrassing margins of as much as two to one. Moreover, one of the two commissioners elected into office is Kim Geyer; the owner of the property where the wells will be placed that have been the center of the controversy. Geyer won by almost 50% over her closest rival on the anti-gas side.

Green Bullies fought by Middlesex Township

The slick fractivist schtick from the likes of Maya van Rossum may sell well in Philadelphia but, in Middlesex Township, not so much. It hasn’t sold with the courts either as Marcellus Drilling News reported and, as usual, Jim Willis got to the heart of the matter in commenting on the Butler County Judge Michael Yeager’s (no relation to Jordan Yeager, we assume) decision in favor of the Middlesex gas drilling ordinance:

The two anti-drilling groups from Philly opposed to drilling in Middlesex are THE Delaware Riverkeeper (the arrogant Maya van Rossum), and the Clean Air Council. They’ve gambled that they can use Middlesex as a precedent to block drilling across the state. What they didn’t gamble on was losing and setting a reverse precedent–allowing more drilling across the state. We once again have to stand up and holler about the complete lunacy of their argument. They WANTED localities to be able to decide for themselves whether and where there should be drilling–and now that one locality has decided something they don’t like, they want to abuse the legal system to try and stop it. The Act 13 decision did not state towns could only restrict and stop drilling–it said they can decide whether to restrict it OR ALLOW IT. The door swings both ways in the Supreme Court ruling.

Yes, it’s all about the ballot box and democracy, right? Isn’t that what these carpetbagging little green bullies have been telling us all along? Except that they didn’t mean a word of it, of course. They’re only for democracy and home rule when it yields their desired results. Otherwise, their strategy is one of using the court system to force feed those results down the throats of every community that wants any natural gas development whatsoever via a radical interpretation of Pennsylvania’s constitution that supplants  the law and they’re hoping new Supreme Court judges just elected with the votes of Philadelphians will help them do that.

Meanwhile, though, Butler County’s judge has taken democracy very seriously. His entire decision, which is a thing of beauty from the standpoint of common sense and land use law, can be read here, and I have highlighted the important aspects, Here are the most relevant excerpts (emphasis added and legal and transcript references deleted):

Appellants’ second argument centers on the Zoning Hearing Board’s exclusion of documentation offered by them, including numerous peer-reviewed studies, comprehensive scientific studies, government publications, statements, and other proffered documents…

In this case, after proper objections based on hearsay were raised by R.E. Gas, the Zoning Hearing Board excluded a number of documents offered by Appellants on the basis that there was an “inability to test the validity of the evidence through cross-examination.” It was well within the discretion of the Zoning Hearing Board to sustain the objections of R.E. Gas. However, even if the Zoning Hearing Board had admitted the documents into evidence over any objections by the Intervenors, those documents could not be used to support any of the Board’s findings or conclusions as they were unconoborated hearsay. Likewise, even if no objections had been made by any parties, the Zoning Hearing Board still could not have based any finding of fact on the documents as they were uncorroborated hearsay unsupported by any competent evidence of record. Id. (stating that “… a finding of fact based solely on hearsay will not stand.”)

Appellants’ next point of contention centers on what they believe to be the Zoning Hearing Board’s capricious disregard of evidence offered by them, specifically the testimony of Dr. David 0. Carpenter, Ms. Dayna Bowen, Dr. Jay Panish, Professor Thomas Daniels, and a number of documents, including but not limited to the expert reports of Mr. Daniels, Ms. Bowen, and Dr. Carpenter. Appellants cited a number of cases in their brief in what appears to be an effort to suggest that merely because some of the aforementioned testimony was not contradicted, the Zoning Hearing Board should have certainly found it to be credible

In a substantive validity challenge, the zoning hearing board exercises exclusive jurisdiction over matters of credibility and weight with respect to the evidence. A capricious disregard of evidence warranting reversal of the board’s decision is only found where the fact finder deliberately and baselessly ignores relevant, competent, and apparently reliable evidence. The consideration and rejection of evidence does not in and of itself establish a capricious disregard of evidence. Further, the zoning board is free to reject evidence if it finds the evidence to be lacking in credibility, even where said evidence is not contradicted.

In this case, the Appellants merely disagree with the Zoning Hearing Board’s determinations of credibility. The Board provides extensive reasoning for its determinations, all of which is outlined in great detail in its Findings of Fact and Conclusions of Law.

The MPC requires a zoning hearing board sitting as fact finder in a substantive validity challenge to issue both a decision and “findings of fact and conclusion based thereon together with the reasons therefor.” Simply put, the opinion rendered by the zoning hearing board is to provide sufficient support for its conclusions so as to facilitate appellate review.

Here again, the Appellants seem to mistake their claims of abuse of discretion with their mere disagreements with the Zoning Hearing Board’s Findings. In this case, the Court is only to determine whether enough support exists for those determinations and conclusions made by the Board, and not to supplement the Court’s own judgment for that of the Board. The Zoning Hearing Board issued a one hundred and twenty~one paragraph document stating all of its reasoning and the support therefor. Appellants have attempted to mischaracterize those Findings by essentially reasoning that the substantial evidence provided by the Zoning Hearing Board as support for its decisions, is wrong. However, Appellants argument with respect to credibility, weight, and the wrongness or rightness of evidence, are miscalculated attempts to argue issues of fact that will not wanant a reversal of the Board’s decision.

Thus, it is apparent to the Court that the Zoning Hearing Board successfully issued well~reasoned and sufficiently supported findings of fact and conclusions of law as is required, such that the Board did not abuse its discretion and/or abdicate its role as fact finder.

Appellants’ argue that Ordinance 127 is in conflict with the Pennsylvania Constitution in that it does not promote the health, safety, morals, and welfare of the public, and is arbitrary and irrational in that it discriminatorily impacts residents of the district designated by Middlesex Township as Residential-Agricultural.

Article 1, Section l of the Pennsylvania Constitution protects citizens’ rights to the enjoyment of private property. The Fifth and Fourteenth Amendments limit governmental interference with this fundamental right such that any interference therewith will only be permissible if the restriction is necessary to protect the health, safety, morals and general welfare of others.

Generally, a zoning ordinance must withstand a substantive due process inquiry to be deemed constitutional. Such an inquiry “must be directed toward the community as a whole, concerns with the public interest generally, and justified by a balancing of community costs and benefits … in conformance with a comprehensive plan for the growth and development of the community.” Special consideration is to be given to the preservation of rights of property owners, and the valid protection of neighboring property ovvners from harm. Notwithstanding said considerations, a legitimate state interest does exist in promoting and protecting economic growth and development, so long as it is not at the expense of the degradation of natural resources.

Pennsylvania law does not bestow landowners with the right to oblige local government authorities to enact more restrictive zoning provisions in an effort to insulate from their neighbors. A landowner’s complaints concerning the use of neighboring land are reserved in resolution for the ballot boxes, or in an action for trespass or nuisance. The suggestion that a zoning ordinance is rendered unconstitutional and/or does not protect the health, safety, and welfare of the people because it is not restrictive enough is contrary to the concepts and principles of zoning.

The Appellants have provided the Court with copious legal citations within their brief; however, not one of the cases is in factual conformity with the instant matter. Each case provided by Appellants is a substantive validity challenge of an ordinance which restricted a landowner’s use of his or her own land. However, Appellants challenges are rooted in restricting the land use of another. This distinction is important as any ruling to the contrary would provide landowners legal support to constrain a neighbor’s use of his or her land, in complete violation of the principles of property law on which local zoning is founded.

The Supervisors of Middlesex Township and the Zoning Hearing Board clearly and thoroughly balanced the considerations of the variously zoned districts and found that it was consistent with the Joint Comprehensive Plan to allow’ natural gas drilling in seven of the districts, the Residential-Agricultural district included. This balance is evidenced, if only, by the fact that such drilling was not permitted in a number of other districts in which the Supervisors decided natural gas drilling was improper. This conclusion was well supported by the testimony and evidence cited in the Zoning Hearing Board’s Findings.

Further, although the Appellants continue to allege harm to residential landowners in Residential-Agricultural di stricts as a result of natural gas drilling, they have not submitted any competent and acceptable evidence of such harm. The Appellants bear the burden of establishing that Ordinance 127 does not promote the health, safety, morality, and welfare of the public. They have failed to do so. Rather, the Court accepts that Ordinance 127 promotes the health, safety, morality, and welfare of the public due to its restrictive nature preventing natural gas drilling in some, but not all districts, which can only be as a result of a balancing of interests by the local government agencies, a task that is not proper for this Court to engage itself. Thus, the Court finds no error of law or abuse of discretion and sees no reasonable basis upon which to overturn this determination as unconstitutional.

In construction and opposition of this argument, much has been made of the plurality decision of the Pennsylvania Supreme Court in Robinson Twp…Specifically, the Appellants assert that “UNGD is a heavily industrial use.” This is a disingenuous argument in that Appellants assert that this is a matter of law. However, a reading of the non binding plurality opinion will indicate that the above quote is merely Appellants’ version of what the author of the plurality decision, Justice Castille, recites as facts in the “I. Background” portion of his opinion.It is not a finding of law by the plurality, but rather an explanation of what the natmal gas drilling process entails. Further, even if the quote as stated was an assertion of law by the plurality, it remains nonbinding authority.

Additionally, the Robinson Twp. series of cases were centered on the challenge of Act 13 which took all power away from local governments to regulate zonjng, a matter best undertaken in light of local demographics, changes, and developments. Act 13 was not overturned, as has been suggested by Appellants, because it injected industrial uses into non-industrial zones. In fact, Act 13 required the allowance of oil and gas drilling in all zoning districts, notwithstanding the compatibility of the uses or the purpose of the districts. As Intervenor, R.E. Gas, correctly points out in its brief, had Act 13 survived, Ordinance 127 would be invalidated because it regulates oil and gas drilling, limiting it to a permitted use in only seven districts within Middlesex Township.

With respect to the expectations of Appellants and those other residents of the Middlesex Township Residential-Agricultural districts, oil and gas drilling was not addressed in any previous zoning schemes by Middlesex Township. Ordinance 127 is a direct constraint to natural gas drilling, limiting where and how such drilling can be conducted. As was discussed hereinabove, a landowner’s issue with the lack of regulation to his or her  neighboring property owner is better addressed at the ballot box.

Notwithstanding that provided above, Section 303(c) of MPC states that “no action of the governing body shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with, the provisions of the comprehensive plan.” The Commonwealth Court of Pennsylvania has repeatedly held in conformance with this Section of the MPC, rejecting challenges of zoning based on variations from the comprehensive plan.

To the extent that the uses at issue in this case are incompatible with the Middlesex Township Joint Comprehensive Plan, that determination has been made, and with sufficient support and research therefor, by the Zoning Hearing Board. Even if natural gas drilling was inconsistent with the Joint Comprehensive Plan, the Court would not upset Ordinance 127 on that basis alone, in conformity with Section 303(c) of the MPC.

In accordance with the general zoning principles offered in the heavily relied upon Commonwealth Court Robinson Twp. case, these matters of compatible zoning are best left to the balancing and determination of the municipalities. This Court has found no basis to upset the Zoning Hearing Board’s Findings with respect to the compatibility of natural gas drilling in the Residential-Agricultural districts of Middlesex Township.

The decision speaks for itself but notice the Judge wasn’t fooled by the disingenuous, inside-out, upside-down arguments of the William Penn Foundation’s paid lackeys. He actually read Act 13, understood the Robinson case and was versed in Pennsylvania land use law, which requires a balancing of interests and not the “my way or no way” philosophy of the little green bullies from Philly. He appreciates both democracy and planning. The lackeys had their outlet in which to vent in StateImpactPA, of course, which is a member of the same crime family, financed by the same Haas family who underwrites the Delaware Povertykeeper and the trust-funder who is the Clean Air Council.

Green Bullies

Butler County Courthouse

That venting won’t change what is a well-reasoned court decision, though, and, if the Middlesex Township and Rex Energy have any smarts they’ll be following Inflection Energy’s example and requesting a huge bond to cover the losses incurred by pursuit of a frivolous appeal. The William Penn Foundation may well have dealt its anti-gas strategy a fatal blow by indulging the arrogance of its shills in pursuing this case. Butler County isn’t Philadelphia. Now, if someone will just challenge their tax-exemption for engaging in this non-charitable activity…

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One thought on “Little Green Bullies Lose; Landowners Triumph

  1. Industrial operations in non industrial areas will never be Safe and will always remain industrial with industrial related issues .No matter how much hype is thrown to try to hide this from the uneducated public …..Totally irresponsible for the state of PA ( and anywhere else ) to allow a hazardous operation next to people’s homes .Hopefully it will become a legal matter very soon .

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