THE COMMONWEALTH COURT REMANDS INJECTION WELL CASE TO THE PLUM BOROUGH ZONING HEARING BOARD

By John Hosa on July 5, 2024

John E. Hosa, (412) 594-5659, jhosa@tuckerlaw.com

In Plum Borough v. Zoning Hearing Bd. of the Borough of Plum, 310 A.3d 815 (Pa. Cmwlth. 2024), the Commonwealth Court addressed several important issues in the realm of land use law, including the natural expansion doctrine and the need for zoning hearing boards to issue findings of fact in support of their decisions.

In January of this year, the Commonwealth Court reviewed a zoning hearing board’s decision to grant an application for expansion of a preexisting nonconforming use in Plum Borough v. Zoning Hearing Bd. of the Borough of Plum, 310 A.3d 815 (Pa. Cmwlth. 2024). By way of background, Penneco Environmental Solutions, LLC is the owner of property located in Plum Borough, where it has operated a gas production well since 1989. In 2016, Penneco sought permission to operate an Underground Injection Control well on this property.

The 2016 UIC well was the subject of In re Penneco Environmental Solutions, LLC, 205 A.3d 401, 402 (Pa. Cmwlth. 2019), where the Commonwealth Court found that the Borough’s zoning ordinance was de jure exclusionary since it excluded UIC wells in all districts. Penneco was granted site-specific relief as to its proposed UIC well. Subsequently, in 2017, the Borough implemented a new zoning ordinance in which UIC wells were permitted as a conditional use in the HI district (Penneco’s property is located in the RR district).

In 2021, Penneco submitted a Special Exception Application to the Plum Borough Zoning Hearing Board, in which it sought to expand a nonconforming use by adding another UIC well to its property. In accordance with the natural expansion doctrine (more fully discussed below), Section 1002(c)(2) of the current zoning ordinance allows property owners to expand preexisting nonconforming uses “if necessary, by the natural expansion and growth of trade of the nonconforming use.” However, that provision also requires that all applicants seeking to expand a preexisting nonconforming use must file a Special Exception Application pursuant to Article IV of the ordinance, titled “Express Standards and Criteria for Special Exceptions and conditional Uses.” Further, the applicant “must meet all the applicable requirements and criteria of Article IV in addition to providing evidence that the enlargement or extension is necessitated by the natural expansion and growth of trade of the nonconforming use.”

A hearing was held before the ZHB, where a Penneco representative and multiple objectors presented testimony. At the hearing, several ZHB members described Penneco’s application as a “formality,” and one member remarked that even if it denied Penneco’s application, the ZHB “would be turned over in court anyway.” The ZHB believed that it was essentially powerless to stop the proposed UIC well because of the natural expansion doctrine. Under this doctrine, where a preexisting nonconforming use exists, municipalities cannot compel a change in the nature of the use or prevent the owner from making such necessary additions to the existing structure as were needed to provide for its natural expansion and the accommodation of increased trade, so long as such additions would not be detrimental to the public welfare, safety [,] and health.

In re Gilfillan’s Permit, 140 A. 136, 138 (Pa. 1927). In a short decision that apparently did not contain any findings of fact and did not address Article IV’s requirements, the ZHB concluded that the proposed UIC well was “a natural expansion of [Penneco’s] current existing non [] conforming use and is necessary for the growth of its trade.” Penneco’s Application was granted, with the ZHB noting that it felt “constrained under the law” to do so.

On appeal to the trial court and then to the Commonwealth Court, the Borough argued that under the plain terms of Section 1002(c)(2), “all of the requirements contained in Article IV . . . [are] applicable to Special Exceptions filed for the expansion of a nonconforming use before the ZHB.” In the Borough’s view, the ZHB erred because it did not consider any of these requirements in rendering its decision. The Borough further argued that Penneco failed to satisfy its burden of proving that expansion of its nonconforming use was necessary for the growth of its trade.

The Court first considered whether the UIC well in existence constituted a preexisting nonconforming use and concluded that it did. This is because the current zoning ordinance, implemented after Penneco was granted site-specific relief, only permits UIC wells as a conditional use in the HI district; Penneco’s property is in the RR district, and therefore, the UIC well is nonconforming. Accordingly, the natural expansion doctrine applied in this case.

Next, the Court emphasized that zoning hearing boards must make sufficient findings of fact to support a conclusion that expansion of a nonconforming use is necessary. In this case, however, the ZHB baldly concluded that Penneco had satisfied its burden of proving that the expansion was necessary; it did not make any “specific findings to support [its] conclusion, nor did it spell out its reasons for arriving at it.” The Court declined to “comb through” the record in search of evidence on which the ZHB based its conclusion, as that would improperly require the Court to act as factfinder.

The Court also concluded that, despite the ZHB’s contrary view, the special exception requirements of Article IV applied in this matter and should have been considered. The plain terms of Section 1002(c)(2) (set forth above) require that applicants seeking to expand a nonconforming use must comply with Article IV.

The Court emphasized that municipalities have the right to impose reasonable restrictions on the expansion of a nonconforming use, and it even noted that municipalities “often require applicants to proceed via special exception to expand a nonconforming use.” The ZHB, therefore, erred in believing that it was constrained under the law to grant the application and in failing to consider Article IV’s requirements. Ultimately, the matter was remanded to the trial court with instructions to remand to the zoning hearing board to make findings of fact and conclusions of law.

An obvious lesson of the Plum Borough decision is that zoning hearing boards should always issue written findings explaining the reasoning behind their decisions. Without sufficient factual and legal support, appellate courts cannot properly review their determinations. Additionally, the decision sheds light on the right of property owners to expand preexisting nonconforming uses and explains how that right is not unfettered. Specifically, the Court in Plum Borough placed great emphasis on the principle that municipalities have the authority to impose reasonable restrictions on the expansion of a preexisting nonconforming use. As noted by the Court, municipalities commonly require applicants to proceed via special exception to expand a nonconforming use. Here, the ZHB misinterpreted the law: it believed it was compelled to grant the application under the natural expansion doctrine and failed to consider the special exception criteria, although the ordinance required those criteria to be complied with. Contrary to the ZHB’s view, this was a reasonable restriction and comported with Pennsylvania law regarding the natural expansion doctrine.

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