In Plum Borough v. Zoning Hearing Board of the Borough of Plum,____ A.3d ____ , No. 1198 CD 2022 (Pa. Commw. Ct. Jan. 29, 2024), the Pennsylvania Commonwealth Court vacated the grant of a special exception to Penneco Environmental Solutions LLC for its proposed natural drilling waste injection well and remanded the case back to the Plum Borough Zoning Hearing Board so it could make findings of fact and conclusions of law regarding Penneco’s need to expand a preexisting nonconforming use and Penneco’s compliance with special exception requirements in the zoning ordinance. In essence, the Plum Borough court found that the municipal Zoning Hearing Board failed to set forth sufficient factual findings and legal conclusions to support its grant of a special exception. Standing at the intersection of oil and gas law and zoning law, Plum Borough highlights the importance of developing a record in municipal zoning hearings and the primacy of zoning ordinance requirements.

Since 1989, Penneco operated a gas well, known as the Sedat #3, on a 69 acre property in Plum Borough, Allegheny County, Pennsylvania. That location is in Plum’s “RR” Rural Residential zoning district. Plum Borough at p. 1. In 2016, Penneco sought permission from the federal Environmental Protection Agency to transition its Sedat #3 well from a production well to an injection well that disposes of drilling wastes by injecting them into the ground. That transition was approved and the Sedat #3 production well became the Sedat 3A injection well.

Several years later, Penneco wanted to drill and operate another injection well on that 69 acre property in order to service more clients and dispose of more drilling wastes. The Plum Zoning Ordinance authorized injection wells as a conditional use in the “HI” Heavy Industrial zoning district. Id. at p. 15. But, such injection wells were not allowed in the “RR” zoning district where the 69 acre property was located. In 2021, Penneco applied to the Zoning Hearing Board for a special exception, requesting an expansion of a preexisting nonconforming use, namely the addition of another injection well on its 69 acre property and an observation well. Id. at p. 2.

Under the Plum Zoning Ordinance, property owners who wanted to enlarge preexisting nonconforming uses based on expansion and growth of trade were required to apply to the Zoning Hearing Board for special exception approval. Id. at p. 21. As part of that process, applicants were required to present evidence that the proposed enlargement or extension of a preexisting nonconforming use was necessitated by the natural expansion and growth of trade associated with that nonconforming use. Id. Additionally, applicants had to show compliance with Article IV of the Borough’s Zoning Ordinance, which was the “Express Standards and Criteria for Special Exceptions and Conditional Uses.”

The Zoning Board conducted a public hearing, where it received evidence and the testimony of several witnesses, including objectors. The Zoning Hearing Board issued a Decision, with findings of fact and conclusions of law, that approved Penneco’s special exception application for the expansion of the nonconforming use to install another injection well. Id. at p.7. Despite approving Penneco’s special exception application, the Zoning Hearing Board stated that it was “gravely concerned” with the proposed use, but nonetheless “felt constrained under the law” to allow the additional underground injection well. Id. at pp. 7-8.

Plum Borough appealed that decision to the Allegheny County Court of Common Pleas, which affirmed. The Borough then appealed to Commonwealth Court. Id. at p. 8. At Commonwealth Court, the Borough argued that the Zoning Hearing Board did not properly consider the special exception requirements in the Zoning Ordinance that Penneco was obligated to satisfy, like a traffic study, noise management plan, environmental impact analysis, air quality study, hydrological study, geological study and soil testing. Id. at p.8. The Borough also claimed that the proposed injection well was closer to a property line than the ordinance permitted. Id. at p. 9. Objectors contested that Penneco failed to satisfy its obligation under the Zoning Ordinance to establish that the proposed use would not have an adverse impact on the health, safety and welfare. Id. For its part, Penneco argued that it was entitled to expansion of its preexisting nonconforming use under the law and was not obliged to satisfy the requirements in Article IV of the Zoning Ordinance because it sought expansion of a preexisting nonconforming use, and was not seeking a new special exception. Id. at p. 10.

The Commonwealth Court recognized that Penneco’s use of the property for a disposal injection well was a preexisting nonconforming use. Id. at p. 15. A preexisting nonconforming use is a “. . . use that predates the enactment of a prohibitory zoning restriction.” Johnson v. Pocono Township Zoning Hearing Board, ____ A.3d ___; No. 1048 C.D. 2021 at *7 (Pa. Commw. Ct. Feb. 7, 2024). “The ability to maintain a nonconforming use is “only available for uses that were lawful when they came into existence and which existed when the ordinance took effect.” Id. Additionally, just because a preexisting nonconforming land use is not authorized in a zoning district does not mean that it cannot be expanded. “The right to expand a nonconforming use to provide for the natural expansion and accommodation of increased trade ‘is a constitutional right protected by the due princess clause.’” Richards v. Borough of Coudersport Zoning Hearing Board, 979 A.2d 957, 963 (Pa. Commw. Ct. 2009) (quoting Jenkintown Towing Service v. Zoning Hearing Board of Upper Moreland Township, 446 A.2d 716, 718 (Pa. Commw. Ct. 1982)).

In short, Penneco had a preexisting nonconforming use of the property for an injection well, and it sought to expand that use, which is something that the law allowed. And, the Zoning Hearing Board granted Penneco’s application for this expansion. However, there was a significant problem: the Zoning Hearing Board failed to present sufficient findings of fact and conclusions of law to demonstrate Penneco’s entitlement to the special exception for expansion of its preexisting nonconforming use. That took two forms.

First, the Plum Borough court concluded that the Zoning Hearing Board failed to demonstrate that Penneco satisfied the requirements to be entitled to expand its preexisting nonconforming use. “The right to natural expansion of an existing nonconforming use ‘must be shown to be needed to provide for natural expansion and the accommodation of increased trade.” Plum Borough at p. 15 (emphasis in original) (quoting Harrisburg Gardens, Inc. v. Susquehanna Township Zoning Hearing Board, 981 A.2d 405, 410–11 (Pa. Commw. Ct. 2009)). The Plum Borough court wrote that “for a zoning hearing board to find the doctrine of natural expansion applicable in a given scenario, it must make sufficient findings of fact to support a conclusion that the expansion is necessary”, as required by Section 908 of the Pennsylvania Municipalities Planning Code. Plum Borough at p. 16.

On the issue of natural expansion, the Zoning Hearing Board stated that Penneco met its burden to show that adding another injection well was a natural expansion of a preexisting nonconforming use needed for the growth of trade, but “made no factual findings, nor did it explain its reasoning, to support that conclusion.” Plum Borough at p. 17 (emphasis in original). The Commonwealth Court declined to search through the record for facts to support this conclusion. The Commonwealth Court determined that this was one area that the Zoning Hearing Board had to address when the case was remanded.

The second issue with the Zoning Hearing Board’s approval was its failure to present findings of fact and conclusions of law related to the special exception requirements in Article IV of the Zoning Ordinance. The Commonwealth Court wrote that, through its Zoning Ordinance, “the Borough has placed reasonable restrictions on the expansion of a nonconforming use by requiring applicants to satisfy the requirements applicable to all special exceptions.” Plum Borough at p. 23 (emphasis in original). Yet, the Zoning Hearing Board failed to make findings about traffic, health, safety and welfare under Article IV of the Zoning Ordinance. Id. at pp. 22-23.

The Plum Borough court rejected Penneco’s contention that its compliance with special exception ordinance requirements could be inferred from the Zoning Hearing Board’s absence of discussion about those points. Id. at p. 23. The Commonwealth Court also rejected Penneco’s contention that “application of special exception requirements beyond purely procedural ones renders its right to expand its nonconforming use meaningless”. Id. at pp. 23-24. The Plum Borough court stated that “[t]he doctrine of natural expansion does not provide landowners carte blanche to expand in violation of reasonably and duly enacted requirements of zoning ordinances.” Id.

The Commonwealth Court concluded that the case had to be sent back to the Zoning Hearing Board with instructions that the Zoning Hearing Board make findings of fact and conclusions of law about both the necessity for expansion of Penneco’s preexisting nonconforming use and Penneco’s compliance with the Borough’s requirements applicable to special exceptions. Id. at 25.

The Plum Borough decision is important in several ways. Similar to its recent decision in Brookview Solar I, LLC v. Mount Joy Township Board of Supervisors, 305 A.3d 1222 (Pa. Commw. Ct. 2023), which we wrote about here, the Commonwealth Court reinforced the importance of compliance with the provisions in a municipal zoning ordinance. Conclusory findings and statements that do not substantively address the terms and provisions of ordinances do not pass muster. That connects to the importance of creating a comprehensive record before a municipal body. As demonstrated in Plum Borough, meaningful appellate review of municipal and lower court zoning decisions is impaired when the record being reviewed by the appellate court lacks key factual findings or legal conclusions associated with key points required by ordinance, statute or case law.

Additionally, the Plum Borough decision and its factual background is relevant to oil and gas owners, surface owners, and municipalities. The property at the center of Plum Borough was a preexisting nonconforming use because its producing gas well had been converted to a waste injection well. As the economics of drilling waste disposal wells may outweigh revenues from producing older wells, conversion of producing gas wells to waste disposal wells may become more common, not to mention potential re-use of wells for injection of other substances for subsurface storage or disposal, like carbon capture. Oil and gas owners should examine whether their lease grants disposal rights, and surface owners should evaluate whether subsurface drilling waste disposal involves pore space that they may own. Likewise, municipalities should be cognizant that areas zoned for natural gas development today may host disposal injection wells tomorrow.