My White IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CIVIL DIVISION MARKWEST LIBERTY MIDSTREAM. & RESOURCES, LLC, ) ) ) ‘Appellant, ) ) ve ) No, 2015-4361 ) CECIL TOWNSHIP ) ZONING HEARING BOARD, ) ) Appellee. ¥ OPINION and ORDER, AND NOW, this ie of October, 2016, upon careful consideration of the Appellant's Land Use Appeal of the 26 conditions imposed by the Ceci! Township: Zoning Hearing Board in the grant of Appellant's special exception, review of the pleadings. and in consideration of the arguments of counsel in open court, the court finds as follows: This matter comes before the court following remand by the Commonwealth Court of Pennsylvania (“Commonwealth Court”), reversing the denial and ordering the ‘grant of Appellants MarkWest Liberty Midstream d& Resources’ (“hereinafter referred to as "Mask West” or “Appellants” special exception to construct and operate « natural gas compressor station located in Cecil Township. The MarkWest property is a 71.5 acre parcel located in an I-] Light Industrial District. MarkWWest Liberty Midstream & Res, LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3d $49, 552 (Pe, Cmuvith. Ct. 2014). Upon reversing the Denial of Mark Wests special exception application, the 1Commonwealth Court remanded the matter to this court, specifically ordering the grant ofthe application and authorizing the Cecil Township Zoning Hearing Board (hereinafter referred to as “the Board” or “Appellee”) to attach reasonable conditions supported by Cecil Township's Unified Development Ordinance (“UDO”) to ensure compliance, The Board then granted the application and imposed 26 conditions to the special exception, which MarkWest epposes. Procedural History ‘On November 29, 2010, Appellant, MarkWest, ‘submitted an Application for Special Exception (“Application”) to construct and operate a natural gas compressor station on the property now or formerly owned by Richard Caruso in Cecil Township. ‘The application was submitted under section 91 1(D){1) of the Township's Unified Development Ordinance (“UDO”), which provides for special exceptions for a “Comparable Use that is not Specifically Listed.” The property in question for the proposed compressor station is 71.5 acres located within the 1-1 Light Industrial District which is adjacent to residential areas. The proposed facility is a natural gas compressor station consisting of a thirty-five foot structure containing up to eight internal combustion engines powered by natural gas, electricity, or a hybrid of both. Once constructed, the proposed compressor station will ‘operate 7 days per week, 24 hours per day, and will emit a maximum of 19.5 tons of volatile organic compounds per year, and will emit approximately 36 tons of nitrous oxides and approximately 14 tons of carbon monoxide per year. On April 5, 2011, the Cecil Township Zoning Hearing Board (“the Board”) denied MarkWest's land use application. Mark West appealed the Board's denial to thiscourt, which affirmed the Board's decision. (See Docket No, 2011-2645) MarkWest then appealed to the Commonwealth Court, which reversed Boerd’s decision and remanded the matter to this court, with instructions that the Board grant the Application, subject to any conditions it deemed necessary to ensure compliance with Cecil ‘Township's Unified Development Ordinance ("UDO"). (Id. at 8). On June 26, 2015, the Board issued its Decision granting Mark West's special exception but imposing 26 ‘conditions thereon. R.22310-2234a, On July 20, 2015, Mark West filed a Land Use Appeal with the Court of Common Pleas of Washington County, Pennsylvania, appealing Board’s Decision, Findings of Facts and Conch ions of Law regarding the 26 conditions. On July 27, 2015, Megan Warzinski, Doug Warzinski, Jessica Adamski and Melanie Dawson filed Notice of Intervention and subsequently Jessie J. White, Eileen White, Atticus White, Augustus White, and Jeffrey ‘White (“Intervenors”) filed Notice of Intervention in this ease pursuant to Section 1004-A of the Pennsylvania Municipalities Planning Code (“MPC") and Pa.R.C.P. 2327, The court denied the proposed interventions on May 9, 2016, Those matters are currently on appeal. ‘Standard of Review In reviewing the conditions imposed upon the grant of an application for special ‘exemption, the court must consider whether the Board abused its discretion. Whisehait Fiduciary, LLC v. Zoning Hearing Bd. of Whitehall, 49 A3d 945, 948 (Pa, Cmwith, Ct. 2012), An abuse of discretion is a “judgment that is plainly unreasonable, arbitrary or capricious, fails to apply the law, or was motivated by partiality, prejudice, bias, or ill will.” HHI Trucking & Supply Ine. v. Borough Cownelt af Borough of Cakmont, 990 A.2d 152, 1661. (Pa. Cmwith, Ct. 2010)(quoting Aimbrogi v, Reber, 932 A.2d 969, 974(Pa.Super 2007). While a Board may not “devise conditions out of thin air,” it may impose reasonable conditions that relate to a standard in its ordinance or in the Pennsylvania Municipalities Planning Code (“MPC”) that are supported by the record evidence. Jd. at 160-61. ‘The imposition of conditions shall be consistent with the health, safety and welfare of the applicable municipality. Leckey v. Lower Southampton Twp. Zoning Hearing Bd., 864 A.2d 593, $96 (Pa. Cmwith. Ct, 2004). Legalissucs ‘Upon reversing the denial of MarkWest's special exception application and remanding the matter to this court, the Commonwealth Court specifically authorized the ‘Board to attach reasonable conditions to the application supported by the Ceeil UDO: ‘Should the Board determine within this 45-day period and within the confines of the UDO's objective standards and criteria that any terms or conditions are needed to attach to the special exception application in order to ensure compliance with the UDO, it shall specify the applicable UDO provision and explain why the term or condition is necessary, (emphasis added) Markiest Liberty Midstream & Res, LUC v, Cecil Twp Zoning Hearing Bd. W02 A3d 549, 571 (Pa. Cmwith. Ct. 2014). In interpreting the UDO provisions, the Commonwealth Court noted, “[i]t is well settled that when the courts of this Commonwealth are faced with interpreting statutory language, they afford great deference to the interpretation rendered by the administrative agency overseeing the implementation of such legislation. Id. at $$5; citing Winslow- Quattiebaum v, Maryland Insurance Group, 752 A.2d 878, 881 (Pa. 2000). “ isa fundamental principle of administrative law that an administrative agency's interpretation of the statute it is charged to administer is entitled to deference on appellate review 4absent “fraud, bad faith, abuse of discretion, or clearly arbitrary action.'” Winslow, 752 A2dat 881, Although the Board is given deference in interpreting provisions of ordinances such as the UDO, the Pennsylvania Supreme Court has made it elear that “the authority ‘of a zoning board to act arises exclusively from the ordinance and the enabling statute and the language of bath demarcates [its] jurisdiction. .." Norate Corp. v. Zoning Ba. of Adjustment of Upper Moreland Twp., 207 A.2d 890, 893~94 (1965). A zoning board is not « legislative body, and it lacks authority to modify or amend the terms of a zoning ordinance. /d. “[ZJoning boards. ,.. must not impose their concept of what the zoning ordinance should be, but rather their function is only to enforce the zoning ordinance in accordance with the applicable law. Thus, the Board is required to apply the terms of the zoning ordinance as written rather than deviating from those terms based on an. unexpressed policy.” Mark West Liberty Midsiream & Res., LLC 102 A.3d at 555-56, citing Greth Dev. Grp., inc: v, Zoning Hearing Bd. of Lower Heidelberg Twp, 918 A.2d 181, 187 (Pa.Cmwith.2007), ‘Concurrently sith the Commonwealth Court Order, the Board is conferred authority by the MPC and the UDO in the instant matter to hear applications for special exception and render decisions with regard to the same. The MPC provides at Section 912.1: In granting a special exception, the board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance.” 53 Pa. Stat. Ann. § 10912.1 (West). The UDO provides:In granting a use by Special Exception, the Board may attach reasonable conditions and safeguards necessary to protect the public health, safety, and welfare, Violation of such conditions and safeguards, when made a part of the terms under which the Special Exception is granted, shall be deemed a violation of this Chapter. UDO, § 404(B}(1). ‘Section 404 requires the Board to act within the confines of the MPC. The UDO also imposes upon the Board the requirement that the Section 103 Community Development Objectives be met, The relevant Objectives of the UDO are the following: A, Protect and promote public health, safety and general welfare; G. Provide for performance standards for emission of noise, gases, heat, vibration, or pasticulatc matter into the alr. . and L. Prevent the pollution of air and watercourses; ensure the adequacy of drainage facilities; safeguard the water table; and encourage the wise use and of natural resources in order to preserve the community and value of the land. UDO, § 103. (Emphasis added). In sum, it is well settled that the Board has broad authority to impose reasonable conditions upon «grant of an application for special exception as defined by the MPC and UDO, but cannot create policy regulations “out of thin air without any reference to the record evidence.” HII Trucking & Supply, Inc. ¥, Borough Council af the Borough of Oakmont, 990 A.2d 152, 160 (Pe. Cmwith. 2010). Although Mark West has challenged the validity of all 26 conditions in its appeal, in reviewing the conditions, the court will begin with conditions 25 and 26, since, as set forth below, conditions 1-24 were adopted in accordance with Mark West's proposed language. A, Condition 25 is Reasonable and Supported by the Record Condition 25 imposed by the Board's June 2015 Decision states the following: MarkWest is limited to the installation of no more than five (5) electric or eight gas compressor engines at tue compressor stations, MarkWest shall install all tloctric compressor engines; however, in the event that the availablity of electric 6renders the compressor facility inoperable, then MarkWest may present evidence of the unavailability of electricity to the Zoning Hearing Board who shall then determine whether gas compressor engines shall be permitted. Section 1602 and 1603, R23de Inthe Commonwealth Court's approval of Mark West's special exemption application, the Court held that the compressor station facility “would consist of up to 8 engines and surrounding dehydration facilities, tanks, a vapor recovery unit, a flare and associated piping.” MarkWest, 102 A.3d at 552. Importantly, the Commonwealth Court did not distinguish whether natural gas or electric compressor engines must be utilized at the facility, Thus, Appellant's averment that Condition 25 violates and contradicts the Commonwealth Court's order lacks merit because the Court did not specify the type of compressor engine to be utilized in the conditional use permit prior to remand to this court. In Condition 25, the Board seeks to have electric compressor engines utilized, if feasible, instead of natural gas engines. The issue before this Court is whether Condition 25, which provides that Mark West must utilize electric compressor engines unless electricity is unavailable is 1) reasonable and 2) supported by the record, ‘The testimony of Mark West's representatives indicates that the installation of electric compressor stations is supported by the record. Although MarkWest’s. application did not provide for the type of engine utilized, much of the testimony addressed both types of engines and a willingness to utilize electric engines. R.950-51(a). Mark West representative Sullivan stated that, “electricity is the means if it's available.” R.4900, (emphasis added). That Mark West's representatives made these representationsis evidence that installing electric compressor stations would be reasonable under the circumstances. ‘As stated above, the UDO provides that: In granting a use by Special Exception, the Board may attach reasonable conditions and safeguards necessary to protect the public health, safety, and welfare. Violation of such conditions and safeguards, when made a part of the terms under which the Special Exception is granted, shall be deemed a violation of this Chapter. UDO, § 404(B)(1). Here, Sections 1602 and 1603 of the UDO provide authority for the Board's imposition of Condition 25 upon Appellant. Section 1602 of the UDO provides thet “[e]xcessive noise shall be required to be muffled so as not to be objectionable to surrounding property owners due to intermittence, beat frequency, shrillness, or volume.” R.1396a (UDO § 1602 A). Section 1603 of the UDO provides that"{n}o operation or activity shall, at any time, cause ground-transmitted vibrations that are detrimental to the public health, safety, comfort or welfare,” R.1397a (UDO § 1603). MarkWest’s representatives testified that electric engines emit fewer emissions at the site because electric engines do not bum natural gas, R.942a. Further, testimony indicated that increased noise emanates from gas compressors. R.399a. A board is permitted to impose reasonable conditions on the use of a property to mitigate any potential adverse impacts {from the proposed use. Feldman v. Bd. of Sup'rs of E. Cain Twp,, 48 A.34 $43, $48 (Pa. ‘Cmwith. Ct. 2012), citing Edgmont Township v. Springton Lake Montessori School, 622 A.2d 418 (Pe. Cmwith. Ct, 1993). Here, pursuant to UDO §§ 1602A and 1603, the court finds that Condition 25 is. reasonable means to mitigate potential adverse environmental impacts arising from the operation of the compressor station.“Appellant objects to the applicability of UDO §§ 1602A and 1603-0n grounds thet the provisions lack “ascertainable, objective standards.” Brief of MarkWest Liberty Midstream & Resources, LLC in Support of Land Use Appeal page 11, clting HHT Trucking & Supply, Inc. v. Borough Counell of Borough of Oakmont 990 A.2d 132 (Cmwith, Ct. 2010). In HHI Trucking, the Commonwealth Coun overtumed 14 conditions imposed by the Borough Counsel as unreasonable because the conditions lacked “evidence in the record explaining their need” and the “conditions appearfed) to have been drawn from thin air, which is arbitrary and capricious.” /d. at 163. Here, unlike HHI Trucking, Condition 25 was not “drawn from thin air.” It was issued ‘pursuant to noise regulations in UDO §§ 1602A and 1603, Condition 25 also referenced Mark West's record testimony that gas compressors emanate more noise than electric compressors. R.399, Regarding the objective standards issue, itis well established that a zoning board's interpretation of its zoning ordinance is to be given great weight as representing the construction of a statute by the agency charged with its execution and application. Ja re: Brickstone Realty Corp., 789 A.24 333, 339 (Pa, Cmwith.Ct. 2001). Here, the interpretation of the “excessive noise” provisions of the UDO is reasonable and in keeping with a reviewing court's deference to the knowledge and expertise that 1 local government body utilizes when interpreting the ordinance that it is charged with administering. See, inre Thompson, 896 A.24 659, 669 (Pa. Conwith. Ct. 2006). “One of ‘the primary rules of statutory construction is that an ordinance must be construed, if ‘possible, to give effect to all of its provisions. An interpretation of an ordinance which produces an absurd repult is contrary to the rules of statutory construction.” See, /d,Here, the interpretation advanced by Mark West in its brief seeks to have each provision of the UDO read in an isolated, overly technical manner, claiming “lack of specificity.” To adopt Mark West's interpretation would result in an applicant building a compressor station to essentially use the land as the applicant sees fit. This interpretation lacks merit because it contradicts the rules of statutory construction pursuant to the UDO. Accordingly, the court discerns no abuse of discretion in the Board's imposition of ‘Condition 25 upon the grant of the Mark West special exception application. B, Preemption of Act 13 Lastly, Mark'West argues that the Board abused its discretion by finding that the Township's UDO is not preempted by state law to the extent it precludes operations ancillary to oil and natural gas well development. According to the trial court's January 21,2013 opinion, regarding a discussion at the November 13, 2012 status conference, ‘The parties agreed that the recent enactment of Act 13, which repeated Pennsylvania's Oil and Gas Act and replaced it with a codified statutory framework regulating oi! and gas operations in the Commonwealth, would clearly preempt local zoning ordinanees, including (the) Township's UDO as applied in this ease, but for the Commonwealth Court's ruling on the Act. The Commonwealth Court's decision, Robinson Township [v. Pennsylvania Public Ucility Commission, $2 A.3d 463 (Pa.Cmwith.2012) | is currently awaiting review by the Supreme Court of Pennsylvania, Although the parties agreed that the awaited decision by the Supreme Court could resolve the issues before this Cour, the [Board] and the Township advocated a delay in this decision until the Supreme Court has rendered a decision regarding Act 13, while [MarkWest) and [Range Resources] urged the Court to move forward. While this Court would prefer to have the benefit of the wisdom of the Supreme Court to resolve this matter, the uncertainty of the length of the delay makes further delay impractical, ‘Trial Ct. 1/21/13 Op, at 7-8, In its July 31, 2013 Pa.R.A.P. 1925(a) opinion, the court stated that Mark West's ‘preemption argument is premised upon its position that the UDO completely precludes. the Proposed Facility. Since natural gas compressor stations are not excluded in all of the 10‘Township's zoning districts and, in fact, they are expressly permitted, Mark West's preemption argument is without merit. Trial Ct. 1925(a) Op. at 11-12, Moreover, on December 19, 2013, the Pennsylvania Supreme Court in Robinson Township, inter alia, declared Act 13, Sections 3303 (providing that Act 13 preempts and supersedes local regulation of oll and gas operations regulated by environmental acts) and 3304 (requiring that local ordinances allow for reasonable development of oil and gas operations) unconstitutional. See Robinson Twp. v. Pennsylvania Pub. Uril. Comm'n, 83 A.34 901 (Pa, 2013), Because the UDO does not exclude natural gas compressor stations, and the preemption language of Act 13 has been ruled by our Supreme Court to be ‘unconstitutional, we agree with the Commonwealth Court that the Board did not err or abuse its discretion by finding that the Township's UDO is not preempted by state law. See, Markiest Liberty Midvuream & Res, LLC v. Cecil Twp, Zoning Hearing Bd. 102 A3d $49, $73 (Pa. Cmwith, Ct. 2014). Despite the Commonwealth Court's holding, Appellant maintains that Condition 25 {and many other conditions) are preempted by the Pennsylvania Oil and Gas law, citing Section 3302 of Chapter 33, Section 3302 reads as follows: $3302. Oil and gas operations regulated pursuant to Chapter 32. Except with respect tc local ordinances adopted pursuant to the MPC and the act of October 4, 1978 (P.L.351, No. 166), known as the Flood Plain Management ‘Act, all local ordinances purporting to regulate oil and gas operations regulated by ‘Chapter 32 (relating to development) are hereby superseded. No local ordinance adopted pursuant to the MPC or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil end gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32, The Commonwealth, by this section, preempts and supersedes the regulation of oil and gas operations as provided in this chapter. 58 Pa. Stat. and Cons, Stat. Ann, § 3302 (West).‘This court does not interpret Section 3302 as expansively as MarkWest, given that Section 3302 only preempts conditions, requirements, or limitations that affect the “same” features or accomplish the ‘same purposes as set forth in Chapter 32. Since the conditions imposed by the Board do not affect the "same" features set forth in Section 3302, and since the Robinson Twp. ruling which invalidated Sections 3303 and 3304 of Act 14, the court finds that the UDO is not preempted. ‘C, Condition 26 is Reasonable and Supported by the Record: ‘Condition 26 requires Mask West to perform baseline air quality test at the site with annual air quality vesting thereafter, MarkWest provided a report to the Pennsylvania Department of Environmental Protection (“DEP”), referenced in Commonwealth Court opinion, which stated that MarkWest will obtain minor air permits from the DEP and minor source pollution permits fram the Commonwealth, MarkWest Liberty Midstream & Res., LLC v, Ceell Twp. Zoning Hearing Bd., 102 A.3d 549, $60 (Pa. Cmwith. Ci, 2014), Here, a condition requiring an air test to establish « baseline air quality is not unreasonable, UDO §§1604 and 1605 support this condition, Section 1604 provides a limit on the emission of particulate matter that endangers the safety, health, and welfare of the Township citizens, Establishing baseline air quality will provide a measurable standard in which future tests can be compared. Annual testing will determine whether the use is in conflict with the UDO, and if'so, what safeguards may need to be put in place to ensure compliance withthe UDO, Again, citing Feldman v. Bd. of Sup'rs of E. ‘Caln Twp., supra, a board is permitted to impose reasonable conditions on the use of property in order to mitigate any potential adverse impacts from the proposed use, 48A34 543, 548 (Pa. Cmwith. Ct. 2012), citing Edgmont Township v. Springion Lake Montessori School, 622 A.2d 418 (Pa. Cmwith. Ct. 1993). Mark West's averment that Condition 26 is a collateral attack on the Commonwealth Court's Order lacks merit, The Commonwealth Court order explicitly stated that the Board may determine any terms or conditions needed to atach to the special exception application in order to ensure compliance with the UDO. (emphasis added). MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 102 A.3e $49, $71 (Pa. Cmwith. Ct. 2014), Here, the air testing provisions of Condition 26 will assist in ensuring compliance with air pollution regulations in UDO §§ 1604 and 11605 by providing a baseline test of air quality to ensure that air pollutants are within an acceptable range. The Commonwealth Court has recognized the need for governing bodies to be able to enforce their conditions beyond parties simply stating that they will meet the requirements: ‘The School's promise that it intended to revise the plan to meet these requirements is not evidence but a self-serving declaration. A self-serving declaration of a future intent to. comply is not sufficient to establish compliance with the criteria contained in the ordinance. If we were to adopt a rule that to ‘obtain a special exception all that would be required is for an applicant to promise to come into compliance at some future date, it would make Board approval meaningless because once a[n} applicant promises it is entitled to reccive the jial exception. Edgmiont Twp. v. Springton Lake Montessori Sch, Jnc:, 154 Pa. Cmwith, 76, 80-81, 622 A.2d 418, 420 (1993), citing Appeal of Baird, 113 Pa. Cmwith Ct, 637, 641, 337 A.2d 976, 978 (1988). Mark West further avers that Condition 26 is preempted by Pennsylvania's Air Pollution Control Act (“APCA"), which delegates to the Pennsylvania Department of Environmental Protection the exclusive authority to implement an air pollution contro! program in the Commonwealth. See 35 P.S. §§ 4004, 4006. However, this court findsthat Condition 26 is not an “air pollution control” program within the meaning of the ACPA, but merely a reasonable air testing regimen to ensure compliance with the UDO. Similar to its preemption objection, Appellant contends that Condition 26 is inapplicable becuuse the air quality testing condition lacks “ascertainable, objective standards,” ‘Again, the Pennsylvania Code and administrative agencies set forth minimal design regulations in many activities, such as plumbing and burning, without providing precise or exact eriteria. See Pa: Code $§ 403.4-403.65, discussing minimal standards for permitting and inspections; See also Pa. Code § 129.14, discussing burning operations. ‘The court finds that condition 26 does not rise to the leve! of an “air pollution program,” which would be preempted, nor should it be overruled for vagueness or lack of objective standards. As the Commonwealth Court acknowledged, “the Board's interpretation of the UDO is entitled to deference..." MarkWest Liberty Midstream & Res. LLC v, Cecil ‘Twp, Zoning Hearing Bd,, 102 A.3d $49, 564 (Pa. Cmuith. Ct. 2014). Accordingly, the court finds no abuse of discretion in the Board's imposition of Condition 26 upon the grant of the MarkWest special exception application. D. Conditions 1-24 are Reasonable and Supported by the Board ‘As stated above, the Commonwealth Court’s Order expressly authorizes the Board to determine any terms or conditions necessary 10 attach to the special exception application, in order to ensure compliance with the UDO. In doing so, the Board shall specify the applicable UDO provision and explain why the tem or condition is necessary, ‘Here, the Board explained the reasoning behind each of the conditions 1-24 and cited the applicable section of the UDO. The court finds that each of the conditions are supported by the UDO and reasonably construed to ensure compliance with the applicable UDO 4provisions. Because the analysis of many of the conditions is duplicative, each condition will be listed, along the UDO provision which supports it, ‘The Commonwealth Court's Onder directed this Court simply to order the Board to grant of MarkWest's special exception, which it did with the 26 additional conditions. ‘MarkiVest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd, 102 A.34 $49, $71 (Pa. Cmwith, Ct, 2014), Nevertheless, Mark West avers that the Commonwealth Court specifically stated that, “no conditions are necessary in. order to ensure compliance with the UDO.” See MarkWest Brief pgs. 41-42. However, Commonwealth Court ‘expressly stated that the Board may attach reasonable conditions to the grant of Mark West's Special Exemption application. The only caveat imposed by the ‘Commonwealth Court was that the Board must cite to the applicable UDO sections for each condition and explain its reasoning. Many of the imposed conditions were authored verbatim or substantially verbatim by MarkWest, submitied tothe Board and made part of the record during initial testimony before the Board, including MarkWFest's Response 40 Cecil Township's Proposed Conditions, as hereinafter stated. See R. 1479x1489, Condition 1 is Reasonable and Supported by the Record Condition 1 provides for independent third party testing of water in wells and springs. MarkWest initially authored. condition | in their submission to the Board entitled, "MarkiWest's Response io Ceell Township's Proposed Conditions," stating “Mark West is agreeable to a condition with regard to groundwater testing as follows” and then wrote Condition 1 verbatim. R.14792. That MarkWest essentially drafied Condition 1 is presumptive evidence that this condition is reasonable, Condition 1 is supported by Section 1406 of the UDO, which provides that there will be no contamination or emission‘of hazardous materials into the sewage system, stream, or ground. ‘The Board imposed the requirement of a groundwater-sampling plan in order to establish a baseline for the water quality of nearby wells and springs, Analogous to the reasoning of Condition 26, this baseline testing is necessary to facilitate future enforcement of the UDO. Condition 2 is Reasonable and Supported by the Record Condition 2 imposes noise limitations which are mot to exceed 60 dbA for no more than two hours at the property line, and requires Mark'West to hire a noise ‘consultant to measure the noise levels every five years. MarkWest had previously submitted that it “agreeable to a self-imposed condition that noise emanating from its facilities will not exceed the 60dbA at the property line.” R, 14818, The Commonwealth Court has upheld conditions requiring sound studies with regard to turbine engines, refusing to simply aecept the representations of the epplicant. PPM Ad. Renewable v, Fayette Cry. Hearing Bd., No. 1431 C.D, 2010, 2015 WL 5314594, at 5 (Pa. Cmwith. Ct. Mar, 11,2015.) The Court determined that the Board in PPM did not abuse its discretion. because the Board had the authority to mitigate the potential adverse effects of a proposed use. Id. UDO Scetion 1602(a) applies to Condition 2, and provides that, “Excessive noise shall be required to be muffled so as not to be objectionable to surrounding property owners due to intermittence, beat frequency, shrillness, or volume.” Condition 3 is Reasonable and Supported by the Record ‘Condition 3 requires Mark West to locate the compressor facility structure at least "750 fleet from the nearest residence, Mark West had previously proposed that it would “Jocate the structures enclosing the compressor engines... . in no event closer than 750 feet from that residence.” R. 1482a, MarkWest testified that the nearest residence, the 16Fleeher residence, would be 770 feet away from the proposed facility. This condition is reasonable and less restrictive than Mark West's own testimony and is supported by the record. R. 9862-872, Condition 3 finds support in UDO Section 103, 404.B.1 and Part 16, ‘Condition 4 is Reasonable and Supported by the Record ‘Condition 4 requires MarkWeest to utilize Vapor Recovery Units (VRUs). Mark West had offered testimony through its geologist, Robert McHale, that “We put VRUs on everything,” and commitied to utilizing VRUs at this facility, consistent with Mark West's other facilities. R. 74a, Condition 4 is supported by UDO Sections 1604 and 1605, Condition § is Reasonable and Supported by the Record Condition $ requires that spill prevention and control plans be provided to the Township. This Condition is supported by UDO Sections 1608 and 1613. Condition 5 does not require Mark West to adhere to any additional regulations other than those required by state and federal law. As Mark West has committed to training and assisting first responders, this condition is necessary for the health, safety and welfare of the ‘Township residents, R.92A. Condition 6 is Reasonable and Supported by the Record ‘Condition 6 requires Mark West to install video surveillance monitoring equipment at the site for security purposes. MarkWest explicitly agreed to this condition in their Response to Cecil Township's Proposed Conditions. R. 1483a, This condition is supported by UDO sections 103, 4048.1, and Part 16. 7Conditions 7, 11, and 21 are Reasonable and Supported by the Reeord Conditions 7, 11, and 21 impose similar hazard prevention procedures, including ‘annual training to the Township's flrst responders. MarkWest agreed io Conditions 7, 11, and 21 in their entirety, R. 1483a-]484a, 14890, Moreover, MarkWest stated that it ‘would willingly provide these services when presenting before the Board at the first hearing. R. 928, 910a, The compressor station will be in close proximity of residences and » school, and the health, safety and welfare of citizens necessitates these Conditions, pursuant to UDO Section 103, 404..1, and Part 16, Condition 8 is Reasonable and Supported by the Record ‘Condition 8 limits heavy truck traffic during the hours of 7:00 A.M, and 7:00 P.M, with the exception of emergencies or exigent circumstances, MarkWest agreed to Condition 8, verbatim. R, 14834. UDO Section 1602.B.3 supports this Condition, Condition 9 is Reasonable and Supported by the Record Condition 9 requires MarkWest to follow necessary and applicable building and occupancy permits from Cecil Township, which MarkWest agreed to follow. R. 1484a. UDO Sections 406 and 50} support this condition, Condition 10 is Reasonable and Supported by the Record Condition 10 requires Mark West to provide copies of all permits received by the Pennsylvania Department of Environmental Protection and the United States Environmental Protection Agency, MarkWest agreed to this condition, R. 1484a. This condition imposes no additional duties upon Mark West and is supported by UDO Section 1604,Condition 12 is Reasonable and Supported by the Record Condition 12 obligates Mark West to enclose or provide a shroud over the flare and/ot a VOC control device at the site, which Mark West assented to, R, 1484a, Mark West's testimony assured residents that a shroud would be utilized in an attempt to hide the flames from the flare. See R. 171a., 370a., and 393a. Section 1606 of the UDO supports this condition. ‘Condition 13 is Reasonable and Supported by the Record Condition 13 requires Mask West to utilize lighting that is pointed downward and is otherwise unobtrusive and tured off when not in use. MarkWest testified that it would do exactly that within its proposed site. R.84a. Section 1606 of the UDO supports this condition and covers eliminating nuisances from lights, Condition 14 is Reasonable and Supported by the Record Condition 14 requires Mark West to permit Township representatives or residents to have tours of the compressor facility. MarkWest agreed to this exact condition. R. 1485a, Sections 103 and 404,B.1 of the UDO Support this condition. Condition 15 is Reasonable and Supported by the Record Condition 15 requires MarkWest to utilize sound and vibration mitigation measures to meet the 60 dbA standard. The analysis for this condition is identical to Condition 2, and is supported by the record and UDO. Condition 16 i Reasonable and Supported by the Record ‘Condition 16 requires Mark West to use landscaping to blend the facility into the natural landscape, MarkWest authored the exact terms of this condition. R. 1488a. ‘Mark West representatives further testified that, “Mark West is willing to work with enyneighbors or the Township on specific landscaping concerns and to exert commercially reasonable efforts to accomplish any landscaping requests.” R. 199, This condition is supported by UDO Sections 1503 and 1506, whieh provide for landscape buffers and screenings. Condition 17 is Reasonable and Supported by the Record Condition 17 requires paving or utilizing tar and chips on the access road from Route 980 to the proposed facility. Again, MarkWest authored the exact terms of this condition. R, 1486n, It is regular practice of Mark West to tar and chip access roads. R. 493a, Section 1304 of the UDO imposes requirements regarding driveways and access roads, which supports Condition 17, ‘Condition 18 is Reasonable and Supported by the Record Condition 18 requires MariWest to meet with Township residents and representatives us reasonably requested and to follow all state and federal regulatory requirements and permit conditions. MarkWest authored this condition verbatim. R. 1486a, UDO Sections 103, 404.B.1, and Part 16 support this condition. Condition 19 is Reasonable and Supported by the Record Condition 19 imposes upon Mark West a duty to cooperate with the Township supervisors and the Board where there exists potential “that the citizens of the Township would be subjected te harmful byproducts from the proposed Compressor Station that place residents in immediate and substantial danger.” That MarkWest would object to this condition or would consider continuing to operate in the event of such a circumstance is beyond comprehension, The Township has a duty to protect the health, safety and ‘welfare of its residents, This is almost verbatim language that Mark West proposed in its 0Initial response, R. 1486a-1487a, UDO Section103 supports this condition because emergency situations such as fires, emission of noxious gases, end potential explosions of the compressor station require immediate action be taken to “protect and promote public health, safety, and general welfare." Condition 20 is Reasonable and Supported by the Record Condition 20 requires that normal “blow down" from compressors be recycled and not emitted into the air. MarkWest authored this exact condition. R. 1488a. Part 16 of the UDO gives the Board authority to place reasonable conditions on Mark West with regard to-cmissions of volatile compounds into the air. Specifically, UDO Sections 103, 404,B.1 and Part 16 support this condition. Conditions 22 and 23 are Reasunable and Supported by the Record Condition 22 prohibits Mark West from opening any doors, windows, or other similar structural features of the Compressor Station for the purpose of cooling the structure housing or the compressor engines. Condition 23 limits the number of tanks to ight (8) to house water and condensate at the compressor station. Importantly, ‘Mark West agreed to both of these conditions verbatim. R. 1489a, Limiting the number of tanks requires Mark West to have the Liquid by-products removed on a more frequent basis and limits the amount of liquid on site, UDO Sections 103, 404.8,1, and Part 16 support this eondition. Condition 24 is Reasonable and Supported by the Record Condition 24 requires Mark West to install a chain-link fence or other commercially reasonable fencing around the facility. Mark West representatives testified and proposed that they would install « chain-link fence around the facility at a height of a$° with barbed wire. R. 85a. The health, safety and welfare of Township Citizens require thet only authorized individuals have access to the compressor station, pursuant to UDO Sections 103, 404.B.1 and Past 16. The Commonwealth Court has previously upheld a condition requiring a chain-link fence surrounding turbine engines to reduce the hazard of an attractive nuisance. PPA Atl. Renewable v. Fayette Cry. Hearing Bd., No. 1431 C.D. 2010, 2015 WL $314594, at $, (Pa, Cmwith, Ci, Mar 11,2015). For the reasons stated above, this court finds that the Cecil Township Zoning Hearing Board did not commit an abuse of discretion or error of law in its imposition of conditions 1 through 26-upon its approval on MarkWest’s application for a special exception. ORDER Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that the decision of the Cecil Township Zoning Hearing Board granting the application for Special Exception with imposition of 26 conditions is hereby AFFIRMED and the appeal of MarkWest reparding the imposition of the Board's 26 conditions on MarkWest's Special Exemption is hereby DENIED. By the C