Lack of document stymies Upper Burrell drilling appeal
The legal challenge to an Upper Burrell supervisors’ decision to allow unconventional gas drilling is stalled in Westmoreland County Court, in part, because not all of the paperwork has been filed.
Upper Burrell Citizens Against Marcellus Pollution, a group seeking to curb gas drilling in the largely rural township, appealed the supervisors’ Nov. 2, 2017, decision to grant a conditional use permit for a well pad along Guyer Road, known as the “Zeus” well.
The well already is drilled, but one of the plaintiffs wants a report from the township that outlines why supervisors granted the conditional use permit in case there is future litigation regarding the site.
Monroeville-based Huntley & Huntley Energy Exploration requested and won approval to locate the Zeus well pad in a residential and agricultural zone, where supervisors can make allowances for conditional uses outside of housing and farming on a case-by-case basis.
The citizens group claims in court documents that the well pad wouldn’t meet the definition of “compatible uses” outlined in the township’s zoning ordinance.
According to Jeff Ries, the citizens group’s lawyer, the township supervisors didn’t properly deliberate the conditional use application before voting on it and didn’t give residents a real chance to make their case for denying the permit.
But the group may not get its day in court to argue against the township’s decision in part because the township never filed a “findings of fact and conclusion,” which would have documented why supervisors decided to allow the development of the Marcellus well, according to Ries.
“It would have helped to know what the reasons were for the granting of the conditional use application,” he said.
“You can’t proceed with an appeal without the record,” he said.
But the court did not order the township to submit the record, said Steve Yakopec, Upper Burrell’s solicitor.
He has received such orders before, known as writs of certiorari, but not for the Zeus well appeal, he said.
It’s not that the plaintiffs didn’t try to secure the township’s findings report.
Ron Slabe, 71, the main plaintiff in the lawsuit, tried unsuccessfully to get the township’s findings report.
He lived in his Upper Burrell home for 40 years, about a quarter-mile from the Zeus well pad. He sold the property and left the township for a new home in Oakmont because of family considerations in mid-April.
Slabe asked Yakopec for the report when he ran into him at a restaurant in August.
“I hope to have this finished this month,” Yakopec wrote in an Aug. 7, 2018, letter to Slabe.
Then nothing, according to Slabe.
Slabe then filed a right-to-know request for the findings report with the township, which the township denied on Oct. 4, 2018.
He was turned down for the document by Yakopec, who also is the township’s right-to-know officer, because the “findings of fact and conclusions of law have not been completed by me. The township cannot give you what it does not have.”
Slabe appealed that denial to the state’s Office of Open Records later in October.
He lost that battle because, essentially, the township can’t be compelled to give him something it doesn’t have, according to a Nov. 30, 2018, determination by appeals officer Magdalene C. Zeppos.
In an interview with the Tribune-Review on Wednesday, Yakopec said he will finish the findings reports by the end of January even though the township never received the proper order for the document.
Slabe said he no longer would have standing in any court case against the Zeus well but said he wants the findings report in case residents have any issues with the Zeus well pad in the future.
Mary Ann Thomas is a Tribune-Review staff writer. You can contact Mary Ann at 724-226-4691, email@example.com or via Twitter @MaThomas_Trib.