D. Frederick, P. Hagaman, and B. Taylor v. Allegheny Twp. ZHB v. CNX Gas Company, LLC. v. Allegheny Twp. v. J.H. Slike and A.E. Slike, Northmoreland Farms LP v. M. Golembeiwski , 196 A.3d 677 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dolores Frederick, Patricia Hagaman, :
and Beverly Taylor, :
Appellants :
:
v. :
:
Allegheny Township Zoning Hearing :
Board :
:
v. :
:
CNX Gas Company, LLC :
:
v. :
:
Allegheny Township :
:
v. :
:
John H. Slike and Anne E. Slike, :
Northmoreland Farms LP :
:
v. : No. 2295 C.D. 2015
: Argued: February 7, 2018
Michael Golembeiwski and Lisa :
Golembeiwski, John P. :
Brunner, II, Esq., Jeffrey and Sheila :
Brunner, Miller Niksic, Joanne Resh, :
Richard and Patricia Trumble, :
Michael and Jacalyn Schumaker :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
PRESIDENT JUDGE LEAVITT FILED: October 26, 2018
Dolores Frederick, Patricia Hagaman, and Beverly Taylor (collectively,
Objectors) appeal an order of the Court of Common Pleas of Westmoreland County
(trial court) that affirmed the decision of the Allegheny Township Zoning Hearing
Board (Zoning Board) to deny Objectors’ land use appeal. In that appeal, Objectors
raised a substantive validity challenge to Zoning Ordinance 01-2010,1 which
supplemented the Township’s Zoning Ordinance2 to allow oil and gas well operations
in all zoning districts so long as they satisfy enumerated standards designed to protect
the public health, safety and welfare. Pursuant to Zoning Ordinance 01-2010, the
Township issued a permit to CNX Gas Company (CNX) to develop an unconventional
gas well on property located in the Township’s R-2 Agricultural/Residential Zoning
District (R-2 Zoning District). Objectors assert that Zoning Ordinance 01-2010
improperly instituted illegal spot zoning in violation of substantive due process; does
not comport with the Environmental Rights Amendment in Article I, Section 27 of the
Pennsylvania Constitution; and contravenes several provisions of the Pennsylvania
Municipalities Planning Code (MPC).3 Consequently, Objectors contend, the CNX
permit was improperly issued. After review, we affirm.
Zoning Ordinance 01-2010
On December 13, 2010, the Township enacted Zoning Ordinance 01-
2010, entitled “Providing for the Zoning of Oil and Gas Drilling Operations.”
Reproduced Record at 203a-12a (R.R. __). Zoning Ordinance 01-2010 makes oil and
1
TOWNSHIP OF ALLEGHENY, WESTMORELAND COUNTY, ORDINANCE No. 01-2010 (Zoning Ordinance
01-2010), enacted December 13, 2010, effective December 18, 2010.
2
ALLEGHENY TOWNSHIP ZONING ORDINANCE, §§250-1 to 250-155, adopted June 16, 1997, by
Ordinance No. 11-1997, as amended.
3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
gas development “a permitted use by right in all Zoning Districts[,]” subject to
numerous standards, or conditions. Section 3 of Zoning Ordinance 01-2010; R.R.
205a. These standards, inter alia, relate to road safety; the clearing of brush and trees;
emergency planning; dust, noise and lighting controls; and security measures.
More specifically, Zoning Ordinance 01-2010 requires gas well operators
to give residents within 1,000 feet of the well: a copy of the survey plat; a description
of the planned operations; contact information for the operator; and the opportunity to
meet with the operator. It requires the installation of a chain link fence and warning
signs at the well site and the posting of a security guard whenever a drilling rig is
present. It limits the hours for site preparation and construction as well as the ambient
noise levels. It requires the operator to maintain a copy of the material safety data
sheets for all chemicals used in drilling operations on-site and to provide a copy to the
Township’s manager. It prohibits the on-site disposal of refuse or burning of brush
during clearing of the site. It requires operators to mitigate any problems they cause,
including the disruption of telephone, cell phone, and other signals.
Zoning Ordinance 01-2010 requires gas well operators to comply with all
federal and state permitting requirements. Operators must produce these permits 10
days before construction. Notably, a permit from the Pennsylvania Department of
Environmental Protection (DEP) requires compliance with the setbacks of gas and oil
wells from water wells and buildings set forth in the statute known as “Act 13.” See
58 Pa. C.S. §3215(a). Notwithstanding the decision of our Supreme Court holding that
certain provisions of Act 13 were unconstitutional, these setbacks remain in effect.
Robinson Township v. Commonwealth, 147 A.3d 536, 542 n.3 (Pa. 2016) (Robinson
2
Township IV).4 Operators must also obtain permits from the Pennsylvania Department
of Transportation (PennDOT).
Zoning Ordinance 01-2010 establishes civil penalties for violations of its
terms.
Background
On October 6, 2014, the Township issued a “zoning compliance permit”
to CNX to develop an unconventional gas well on property located in the R-2 Zoning
District. The property is owned by Northmoreland Farms, LP, which has three
members, John H. Slike, his wife, Anne E. Slike and their son, Neil Slike. CNX’s gas
well is known as the Porter Pad project.
Objectors, who live near the Slike property, filed a substantive validity
challenge to Zoning Ordinance 01-2010, arguing that an unconventional gas well is not
a use compatible with an agricultural-residential use. Objectors also appealed the
permit issued to CNX. The Zoning Board held public hearings on Objectors’ filings
on January 7, 2015; January 28, 2015; February 11, 2015; and March 5, 2015.5
Objectors presented the testimony of Dr. John Stoltz, Professor of Biology
at Duquesne University and Director of the Center for Research and Education.6 Dr.
Stoltz testified about his general understanding of drilling and the hydraulic fracturing
process. Dr. Stoltz stated that CNX’s drilling would impact water wells; however, he
4
The Township’s Zoning Ordinance contains “area and bulk regulations” that apply to uses in
multiple zoning districts. See, e.g., ALLEGHENY TOWNSHIP ZONING ORDINANCE, §250-24 (setting
forth minimum lot sizes and yards in the R-2 Zoning District).
5
In addition to the Slikes and Northmoreland Farms, LP, other Township residents interested in
leasing their property for gas exploration intervened in the hearing. They include: Michael
Golembeiwski; Lisa Golembeiwski; John P. Brunner, II, Esquire; Jeffrey Brunner; Sheila Brunner;
Miller Niksic; Joanne Resh; Richard Trumble; Patricia Trumble; Michael Schumaker; and Jacalyn
Schumaker.
6
The Board did not qualify Dr. Stoltz as an expert.
3
conceded that he had no knowledge of the location of wells or public water sources in
the Township and had not realized that the Porter Pad project would not use water from
streams but, rather, public water sources. Dr. Stoltz testified that onsite burial of waste
is problematic; he was unaware that CNX did not plan to bury waste at the Porter Pad
site. Finally, Dr. Stoltz opined that truck traffic would increase at the site because CNX
will need to drain the condensate tanks. Dr. Stoltz did not know how much condensate
would be generated or what type of gas would be extracted at the Porter Pad; he agreed
that “dry gas” does not present condensation issues. Notes of Testimony (N.T.),
1/7/2015, at 88; R.R. 331a.
Objectors also presented the testimony of Steven Victor, who was
qualified to testify as an expert in land use planning and landscape architecture. Victor
testified that 85 percent of the Township lies in the R-2 Zoning District. Victor opined
that oil and gas drilling could be compatible with other uses in the R-2 Zoning District,
but he believed that “stronger standards and regulations” were needed in Zoning
Ordinance 01-2010. N.T., 1/28/2015, at 75; R.R. 537a. Victor opined that Zoning
Ordinance 01-2010 did not adequately protect the local water supply; limit noise; or
reduce light pollution. Victor was unsure what protections would be adequate. He did
not know whether numerous environmental protection laws, such as those enforced by
DEP, would address his listed concerns.
Objectors also testified. Beverly Taylor stated that she chose her
residence for its quiet, rural setting. Her property lies approximately 1,000 feet away
from the well and 700 feet from the perimeter of the site. Taylor testified that CNX
used heavy machinery from approximately 6:30 a.m. until dusk seven days per week
to prepare the site by removing trees, clearing ground, and constructing roadways.
Eventually the work was reduced to six days per week.
4
Objector Dolores Frederick testified that she lives approximately 900 feet
from the Porter Pad project. She also complained about the noise during the clearing
process, as well as the traffic inconvenience caused by the trucks, which left mud and
dirt on the roads.
Objector Patricia Hagaman’s home is located approximately 1,200 feet
away from the Porter Pad site. She cannot see the site from her house, but can hear the
“beeps [of the trucks because she lives] in a valley.” N.T., 1/28/2015, at 117; R.R.
579a. She expressed concern that a stream flowing across her property would be
polluted. Hagaman testified that if development continues, she will try to sell her
property because it will be “too dangerous” to stay. N.T., 1/28/2015, at 121; R.R. 583a.
Kevin Zigler,7 who lives approximately 625 yards from the Porter Pad,
testified that two people, one a realtor, advised him that the Porter Pad project will
reduce his property’s value. Zigler believed the devaluation would be substantial. He
complained about the noise from trucks and the mud they tracked onto the roads. Zigler
acknowledged that in 2014, he signed a lease with another gas company, Huntley and
Huntley, for the drilling of a horizontal line under his property to extract gas.
CNX presented the testimony of Kyle Stefanick, a senior land agent with
Consol Energy,8 who is responsible for leasing land for well pads, pipelines and rights-
of-way for gas exploration. Stefanick stated that the Township encompasses
approximately 20,000 acres of land, of which 12,500 acres have been leased to
“various” natural gas exploration companies. N.T., 2/11/2015, at 59; R.R. 741a.
Seventy-five percent of the land in the R-2 Zoning District has been leased for natural
gas drilling.
7
Zigler is not a party to this appeal.
8
CNX is a subsidiary of Consol Energy.
5
Stefanick testified that there are approximately 242 gas wells in the
Township, all of which are conventional.9 The Porter Pad will be the first
unconventional well in the Township. However, it will not be the first gas well in the
Township to be opened by hydraulic fracturing because conventional well developers,
including some in the Township, also employ hydraulic fracturing.
Stefanick testified that six wells are proposed for the Porter Pad. He noted
that the Slikes’ farm already has three gas wells that are plainly visible to persons
driving by the property. During drilling, the only apparatus that will be visible from
the Taylor property, which is closest to the well site, is the derrick. Once drilling is
complete, the derrick will be removed, and nothing will be visible. Stefanick testified
that there is an existing gas well 320 feet from the Taylor property that was drilled in
1947 and another 842 feet away that was drilled in 1996. Stefanick observed that there
is an existing well 509 feet from the Hagaman residence that was drilled in 1960.
Ted Szalewicz, a land agent and consultant for Western Pennsylvania Gas
Leasing Consultants, testified for CNX. He testified that his search of the
Westmoreland County Recorder of Deeds Office revealed that “approximately 400
leases” were recorded in the county in 2014, encompassing “approximately 4,000 acres
of land[.]” N.T., 2/11/2015, at 116; R.R. 798a. The rental payments on the leases filed
in 2014 totaled “about $12 million [dollars].” Id.
CNX offered the testimony of Ross H. Pifer, J.D., LL.M. a professor at
Penn State Law School who teaches agricultural law and oil and gas law. He also
supervises a law school clinic focused on rural communities. He has written
9
A conventional gas well is drilled vertically; unconventional gas well drilling begins in a vertical
direction, but then deviates to a horizontal direction, followed by multistage hydraulic fracturing.
Kiskadden v. Department of Environmental Protection, 149 A.3d 380, 382 n.2 (Pa. Cmwlth. 2016),
petition for allowance of appeal denied, 168 A.3d 1281 (Pa. 2017).
6
extensively on the impact of gas extraction on agricultural development. The Zoning
Board qualified Professor Pifer as an expert “regarding [the] interplay between the oil
and gas industry and agricultural and rural communities in the Commonwealth of
Pennsylvania.” N.T., 1/28/2015, at 148-49, 152; R.R. 610a-11a, 614a.
Professor Pifer testified that shale gas extraction is taking place in 39 of
Pennsylvania’s 67 counties. There are approximately 250 shallow gas wells located in
the Township, and 102 are active. Professor Pifer testified that there is a long history
of safe coexistence between the oil and gas industry and Pennsylvania’s rural
communities.
Professor Pifer further testified that as of September 30, 2014, there were
261 unconventional shale gas wells in Westmoreland County that used hydraulic
fracturing and horizontal drilling. He explained that this type of unconventional
drilling has allowed a single multi-well pad to extract the gas reserves from a 20 to 40-
acre tract of land. In the past, extracting the same amount of gas would have required
30 to 60 conventional well pads. Thus, unconventional drilling leaves more land for
farming while providing economic stability for the farmers leasing their land.
Daniel Bitz, the General Manager of Gas Permitting for Consol Energy,
also testified for CNX. He testified that CNX was required to obtain permits from
several state agencies in connection with the Porter Pad project. These include a well
permit from DEP, which required, inter alia, a water management plan and an
excavation permit. PennDOT required a driveway connection permit as well as a road
maintenance agreement, a road bond, and a posted highway permit.
Bitz explained that after CNX identifies a well site, it must complete a
geotechnical sub-surface and hydrologic investigation, along with a wetland stream
review. CNX must prepare both an erosion and sediment control plan and a stormwater
7
management plan for DEP. DEP also requires that CNX prepare and maintain a
construction “Preparedness, Prevention and Contingency Plan.”10 It must do a mineral
study of the well layout and the mineral tract boundaries and complete pre-drill and
post-drill water surveys on all water sources within 2,500 feet of the well bores. CNX
must send notices to all water purveyors within 3,000 feet of the well.
John H. Slike testified. He is a member of Northmoreland Farms, LP,
which owns the 330-acre farm where the Porter Pad project is located. Slike testified
that there were active conventional gas wells on the farm when he purchased it in 1976.
Since then, four additional conventional gas wells have been drilled. The wells do not
affect his ability to farm. To the contrary, Slike testified that the income he receives
from the CNX lease has enabled his family to continue farming the land, as opposed to
developing a 235-unit residential subdivision on it, a purpose for which the farm has
been found suitable.
The Zoning Board allowed the Township residents present at the hearing
to testify about the Porter Pad project. Some residents expressed concerns that the
drilling will pollute the land or spoil their scenic views. Others echoed Slike’s
testimony that the mineral lease payments will allow farmers to continue farming.
Keith Alter, a local farmer, explained that his family loves their farm but struggles
financially. He confirmed that gas development has allowed him and others to keep
their land in farming rather than sell it to residential developers. Alter observed that if
land is sold to real estate developers, then the pristine areas in the Township will, over
time, disappear.
10
The purpose of the preparedness, prevention and contingency plan is “to minimize the occurrence
of accidents and releases and to reduce risks to human health and the environment ….” R.R. 1312a.
See R.R. 1309a-55a (CNX’s “Preparedness, Prevention & Contingency Plan[;] Control and Disposal
Plan & Containment Plan”).
8
Zoning Board Decision
The Zoning Board rejected as not credible the testimony of Objectors’
primary witnesses, Dr. John Stoltz and Steven Victor, citing their lack of relevant
training. It also cited their lack of knowledge about the oil and gas permitting process,
the Township’s geography, and the specifications of CNX’s Porter Pad project. The
Zoning Board rejected Objectors’ testimony about decreasing property values because
it was speculative and unsupported by probative evidence.
The Zoning Board credited Professor Pifer’s testimony, including his
expert opinion that Zoning Ordinance 01-2010’s authorization for “oil and gas
operations within the Township’s agricultural zoned areas, is proper and compatible
within a rural agricultural zone and can safely coexist therein.” Zoning Board
Decision, 3/5/2015, at 30 (Board Decision at ___); Finding of Fact No. 47. The Zoning
Board also credited Daniel Bitz’s testimony about the thorough and extensive
environmental protection reviews CNX must undergo to obtain permits from the
Commonwealth. Finally, the Zoning Board credited Kyle Stefanick’s testimony about
the prevalence of drilling activity in the Township.
Based upon the evidence of record, including the above testimony, the
Zoning Board made the following pertinent findings of fact:
59. Approximately 12,000 of the 20,000 total acres in the
Township are leased to oil and gas operators. This represents
more than 60 [percent] of the land mass of the Township.
60. In the R-2 District, approximately 75 [percent] of the land
mass is leased to oil and gas operators.
***
64. In addition to considering where an operator holds leases,
factors such as topography, adjacent land uses, and required
buffers around existing buildings and water wells limit the
9
placement of oil and gas operations in the Township. [ ] [T]he
500 foot buffer from wellbore to existing building mandated by
Section 3215(a) of the Oil and Gas Act, 58 [Pa. C.S.] §3215,
alone eliminates more than 50% of the Township’s land mass
from possible unconventional gas well development, without
taking into account the other factors noted above.
***
69. The only temporary feature of the Porter Pad that will be
visible to [Objectors] from their homes is the drilling rig. No
permanent feature of the Porter Pad will be visible to [Objectors]
from their homes.
***
74. The traffic for the Porter Pad will not go past the homes of
[Objectors].
***
84. [Slike] testified that existing gas wells have not affected his
ability to actively farm his property.
85. [Slike] testified that in the event he was unable to receive
royalties from the gas well sites and the proposed Porter Pad, he
would suffer financial hardship and substantial financial loss. He
further testified that in the event he is not able to receive royalties
from the proposed Porter Pad, he would not have enough money
to actively farm the property . . . .
***
95. Leasing already has brought in excess of $12,000,000 in
lease rentals to landowners of the Township in 2014.
96. Drilling and production of the newly leased properties alone
will add an estimated additional $60 – 90 million in income.
97. Once drilling operations cease, the affected land can be
returned to its existing use.[]
10
Board Decision at 36-40; Findings of Fact Nos. 59-60, 64, 69, 74, 84-85, 95-97
(internal citations to the record omitted).
The Zoning Board rejected Objectors’ challenge to the substantive
validity of Zoning Ordinance 01-2010. It rejected Objectors’ challenge to the permit
issued to CNX for the Porter Pad project because their appeal was based solely on the
rejected premise that Zoning Ordinance 01-2010 was invalid.
The Zoning Board concluded that Zoning Ordinance 01-2010 was neither
arbitrary nor unreasonable in violation of substantive due process but, rather, promoted
the public health, safety, and welfare of the Township. Further, the Township “acted
within its constitutional police power in enacting [Zoning Ordinance 01-2010] to
further the general welfare of its citizens by permitting them to benefit economically
from oil and gas resources and royalties, in order to help their livelihood and way of
life.” Board Decision at 46; Conclusion of Law No. 21. The Zoning Board emphasized
that Zoning Ordinance 01-2010 requires gas drilling to comply “with rigorous state and
federal permitting requirements[],” which includes substantial buffers or setbacks, and
supplements “those requirements with additional standards and criteria aimed at
mitigating local impact.” Board Decision at 47; Conclusion of Law No. 25. The
Zoning Board further observed that Pennsylvania law has never provided that land
zoned for agriculture must be used exclusively for agricultural purposes. To invalidate
Zoning Ordinance 01-2010 could result in an “unconstitutional taking and [a] violation
of the prohibition against ex post facto laws.” Board Decision at 54; Conclusion of
Law No. 43.
The Zoning Board found that Objectors did not present credible,
substantial evidence that the Porter Pad would have an adverse effect on public health,
safety, welfare or the environment. The Board explained that “Pennsylvania appellate
11
courts have long held that generalized, speculative complaints about traffic,
environmental impacts and devaluation of property fail to demonstrate an ‘adverse’
effect or ‘an interest beyond the common interest of all citizens that the law be obeyed,’
and are insufficient to sustain a zoning appeal.” Board Decision at 49-50; Conclusion
of Law No. 32 (quoting Nernberg v. City of Pittsburgh, 620 A.2d 692, 695 (Pa.
Cmwlth. 1993); Masside Associates, Ltd. v. Zoning Hearing Board of Municipality of
Monroeville, 454 A.2d 199, 203 (Pa. Cmwlth. 1982)).
The Zoning Board rejected Objectors’ claim under the Environmental
Rights Amendment, explaining that Objectors’ reliance on Robinson Township v.
Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality) (Robinson Township II),11 was
misplaced. In Robinson Township II, the Supreme Court addressed an amendment to
the Pennsylvania Oil and Gas Act,12 known as Act 13, and held that it
unconstitutionally deprived municipalities of the ability to make zoning decisions
about oil and gas extraction. The Supreme Court did not address the case at hand, i.e.,
where the municipality has exercised its power to decide where oil and gas extraction
can take place. Indeed, the Zoning Board noted that the Robinson Township II plurality
stated that protection of the environment is a “quintessential[ly] local issue that must
be tailored to local conditions.” Board Decision at 51; Conclusion of Law No. 37
(quoting Robinson II, 83 A.3d at 979).
The Zoning Board rejected Objectors’ claim that Zoning Ordinance 01-
2010 instituted a scheme of impermissible “spot zoning.” Because the ordinance
11
In Robinson Township II, the Pennsylvania Supreme Court affirmed in part, reversed in part and
remanded this Court’s decision in Robinson Township v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth.
2012) (Robinson Township I). In its mandate, the Supreme Court stated that “enforcement of Section
3215(b)(4), 3215(d) and 3304 is hereby enjoined.” Robinson Township II, 83 A.3d at 1000. As
explained, infra, other provisions in Section 3200 of Act 13 were left intact and enforceable.
12
Act of February 14, 2012, P.L. 87, as amended, 58 Pa. C.S. §§2301-3504.
12
allows oil and gas development by right in all districts, there is no “spot” being singled
out for special treatment. Board Decision at 45-46; Conclusion of Law No. 20.
For all the above-stated reasons, the Zoning Board rejected Objectors’
substantive validity challenge and their appeal of the permit issued to CNX. Objectors
appealed to the trial court.
Trial Court Opinion
The trial court affirmed the Zoning Board’s decision without receiving
additional evidence. In relevant part, the trial court concluded:
Here, the legislative body sought to further the general welfare
of its citizens by permitting them to benefit economically from
oil and gas resources and royalties, and enabling them to retain
the agricultural use and rural setting of their land. Absent a
finding that this ordinance was unreasonable, arbitrary, or not
substantially related to the police power or interests that the
ordinance purports to serve, the presumption of constitutionality
cannot be overcome. [Objectors] have not met their burden in
this case.
With respect to the illegal “spot” zoning allegation, this argument
fails because there is no “spot” being zoned in this case. The
ordinance permits oil and gas development by right in all
districts; therefore, there is no specific area or “spot” that is being
treated any differently from the surrounding land with regard to
oil and gas development.
***
[T]he Board correctly found that [Objectors] failed to prove that
they would suffer a concrete injury or deprivation sufficient to
bring a due process claim. As noted by the [Zoning Board], even
if [Objectors’] rights were affected, [Zoning Ordinance 01-2010]
“promote[s] public health, safety, and welfare of the community
by requiring that any such activity complies with rigorous state
and federal permitting requirements, and by supplementing those
13
requirements with additional standards and criteria aimed at
mitigating local impact.”
Trial Court Op., 10/21/2015, at 5-6 (emphasis added).
Accordingly, the trial court denied Objectors’ appeal, and they have
appealed to this Court.
Issues
On appeal,13 Objectors raise the following issues: (1) whether the
Township’s zoning ordinance violates substantive due process by instituting illegal
spot zoning; (2) whether CNX’s permit to develop an unconventional gas well in the
R-2 Zoning District violates the Environmental Rights Amendment; and (3) whether
permitting oil and gas development in every zoning district violates the MPC.14 We
address these issues seriatim.
Substantive Due Process
Objectors contend that Zoning Ordinance 01-2010 contravenes
substantive due process because the Township failed to (1) consider the public interest
of the the community as a whole; (2) protect the lives, morals, health, comfort and
general welfare; and (3) insure that an individual’s use of his property will not infringe
upon the property rights of neighboring property owners. Objectors contend that the
13
Where, as here, the trial court does not take additional evidence, this Court’s review determines
whether the Zoning Board committed an abuse of discretion or an error of law. JoJo Oil Company,
Inc. v. Dingman Township Zoning Hearing Board, 77 A.3d 679, 685 n.6 (Pa. Cmwlth. 2013). An
abuse of discretion will be found where the Zoning Board’s findings of fact are not supported by
substantial evidence. Id.14
Appellees (collectively, CNX) have filed a joint brief to this Court. The Clean Air Council and
Citizens for Pennsylvania’s Future filed an amicus curiae brief in support of Objectors. Brian
Coppola and David Ball filed an amicus curiae brief in support of Objectors. The Delaware
Riverkeeper Network filed an amicus curiae brief in support of Objectors. The Pennsylvania State
Association of Township Supervisors and the Pennsylvania Chamber of Business and Industry filed
amicus curiae briefs in support of the Township.
14
Township has failed to designate uses within the same district that are compatible and,
thus, has engaged in impermissible “spot zoning.”
CNX counters that spot zoning occurs when an ordinance treats one “spot”
of land in a different manner than similar surrounding land. 15 Here, no land in the
Township is being treated differently because oil and gas development is permitted by
right in every zoning district. CNX challenges Objectors’ premise that oil and gas
development is incompatible with the uses allowed in the R-2 District. In support,
CNX points to the Zoning Board’s finding that oil and gas development has long
existed in agricultural and rural zoning districts, both in the Township and in
Westmoreland County. Further, numerous gas wells already exist in the Township’s
agricultural and rural areas.
We begin with the Pennsylvania Supreme Court’s explication of how to
analyze a substantive due process challenge to a zoning ordinance:
A zoning ordinance is a valid exercise of the police power when
it promotes public health, safety or welfare and its regulations
are substantially related to the purpose the ordinance purports to
serve…. In applying that formulation, Pennsylvania courts use
a substantive due process analysis which requires a reviewing
court to balance the public interest served by the zoning
ordinance against the confiscatory or exclusionary impact of
regulation on individual rights…. The party challenging the
constitutionality of certain zoning provisions must establish that
they are arbitrary, unreasonable and unrelated to the public
health, safety, morals and general welfare…. Where their
validity is debatable, the legislature’s judgment must control….
15
In DiMattio v. Millcreek Township Zoning Hearing Board, 147 A.3d 969, 974 (Pa. Cmwlth. 2016),
we explained:
Spot zoning is a singling out of one lot or a small area for different treatment from
that accorded to similar surrounding land indistinguishable from it in character, for
the economic benefit or detriment of the owner of that lot.
15
Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 491 A.2d
86, 90 (Pa. 1985) (internal citations omitted) (emphasis added). Our Supreme Court
has further explained:
[t]he substantive due process inquiry, involving a balancing of
landowners’ rights against the public interest sought to be
protected by an exercise of the police power, must accord
substantial deference to the preservation of rights of property
owners, within constraints of the ancient maxim of our common
law, sic utere tuo ut alienum non laedas … [advising to] use your
own property as not to injure your neighbors. A property owner
is obliged to utilize his property in a manner that will not harm
others in the use of their property, and zoning ordinances may
validly protect the interests of neighboring property owners from
harm.
In re Realen Valley Forge Greenes Associates, 838 A.2d 718, 728 (Pa. 2003) (quoting
Hopewell Township Board of Supervisors v. Golla, 452 A.2d 1337, 1341-42 (Pa. 1982)
(internal citation omitted)). Where a zoning hearing board’s findings of fact are
supported by substantial evidence, “those findings of fact are binding upon this Court
for purposes of appellate review.” DiMattio v. Millcreek Township Zoning Hearing
Board, 147 A.3d 969, 374 (Pa. Cmwlth. 2016). Objectors do not assert that the Zoning
Board’s findings of fact are not supported by substantial evidence; they do not
challenge its factual findings on any ground. They are binding on this Court.
Here, the Zoning Board found that oil and gas operations have long
existed in the R-2 Zoning District and provide needed income to Township residents,
particularly farmers, so that they can maintain “their livelihood and way of life.” Board
Decision at 39-40, 46; Findings of Fact Nos. 85, 96-97; Conclusion of Law No. 21.
Notably, in Robinson Township II, 83 A.3d at 954, the plurality recognized “that
development promoting the economic well-being of the citizenry obviously is a
16
legitimate state interest.” The Zoning Board found, as fact, that oil and gas operations,
including shale gas development, have compatibly coexisted with other uses in the
Township’s rural areas for many years. To issue a permit, DEP, inter alia, specifically
considers the impact of oil and gas drilling upon the community and environment and
requires compliance with the setback requirements in 58 Pa. C.S. §3215. See, e.g.,
Pennsylvania Independent Oil and Gas Association v. Department of Environmental
Protection, 146 A.3d 820 (Pa. Cmwlth. 2016), affirmed, 161 A.3d 949 (Pa. 2017)
(discussing DEP’s permitting process for unconventional gas wells). In accordance
with these findings, the Zoning Board concluded that Zoning Ordinance 01-2010
represented an appropriate exercise of the police power.
Relying on the testimony of Dr. Stoltz and Steven Victor, Objectors
contend that unconventional gas wells will have a negative impact on the surrounding
community. However, the Zoning Board rejected the testimony of these witnesses as
not credible because of their lack of knowledge about the Township’s geography, its
water resources or CNX’s operations. A zoning hearing board, “as fact finder, is the
ultimate judge of credibility and resolves all conflicts of evidence.” In re Appeal of
Brickstone Realty Corporation, 789 A.2d 333, 339 (Pa. Cmwlth. 2001). Indeed, a
zoning hearing board “has the power to reject even uncontradicted testimony if [it]
finds the testimony lacking in credibility.” Constantino v. Zoning Hearing Board of
Borough of Forest Hills, 618 A.2d 1193, 1196 (Pa. Cmwlth. 1992). Here, the Zoning
Board determined that Objectors “did not present credible, substantial evidence” that
the Porter Pad “will, in fact, have any adverse effect on public health, safety, welfare
or the environment.” Board Decision at 49; Conclusion of Law No. 32. The Zoning
Board’s reasons for this determination are fully explained and supported by the record.
17
Objectors presume, without any supporting evidence, that oil and gas
operations, by their very nature, adversely affect property rights.16 Mere speculation is
insufficient to establish a real possibility of concrete harm to their property rights. See
Rural Area Concerned Citizens, Inc. v. Fayette County Zoning Hearing Board, 646
A.2d 717, 722 (Pa. Cmwlth. 1994) (objectors’ evidence of harm must meet a high
degree of probability standard).17
The Zoning Board found, as fact, that no permanent feature of the Porter
Pad will be visible to Objectors from their homes; that vehicular traffic to and from the
Porter Pad will not go past Objectors’ homes; and that no credible evidence of harm to
Objectors or the community was presented. To the contrary, the credited evidence
established that existing gas wells have not impeded, but advanced, the ability of
farmers in the Township to continue to use their land for farming. Board Decision at
37, 39; Findings of Fact Nos. 69, 85. The Zoning Board’s findings of fact are binding
because they have not been challenged. DiMattio, 147 A.3d at 374.
16
For example, Objectors state in their brief:
An industrial unconventional gas well site, such as the Porter [P]ad, next door to
[Objectors’] homes upsets their investment backed expectations of buying a home
in a quiet, residential-agricultural area by causing industrial operations for years to
come; diminishing the value of their properties; injecting a source of industrial air
pollution; subjecting [Objectors] and their children to periods of round-the-clock
lighting, flaring, truck traffic, dust, and noise; and raising a risk of industrial
accidents that may force them to evacuate.
Objectors’ Brief at 38. However, Objectors did not present credible evidence to substantiate these
allegations.
17
Notably, a gas well operator engaged in hydraulic fracturing and drilling operations is not subject
to strict liability in tort. See, e.g., Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518, 520, 531 (M.D.
Pa. 2014) (holding that natural gas drilling does not constitute an abnormally dangerous activity
because the “risks may be substantially reduced through the exercise of due care in this field”).
18
Objectors stated that the construction at the Porter Pad site was “noisy”
and “inconvenient[;]” voiced concern that their property may become “polluted[;]” and
opined that their property values would decrease. This Court has rejected this type of
evidence as insufficient to establish the requisite harm.
In Gorsline v. Board of Supervisors of Fairfield Township, 123 A.3d 1142(Pa. Cmwlth. 2015), reversed on other grounds, 186 A.3d 375 (Pa. 2018), a gas
company sought a conditional use permit to operate an oil and gas well.18 Neighboring
landowners objected, expressing concerns about their well water, the increase in truck
traffic, noise and light pollution. This Court found the objectors’ evidence lacked
probative value because it focused upon the truck deliveries during the construction
phase of the project. However, zoning “regulates the use of land and not the particulars
of development and construction.” Id. at 1153 (quoting In re Thompson, 896 A.2d 659,
671 (Pa. Cmwlth. 2006) (emphasis in original)). We further explained that the
objectors’ “expressed concerns” consisted of no more than “speculation of possible
harms[,]” which was “insufficient to show that the proposed natural gas well will be
detrimental to the health, safety and welfare of the neighborhood.” Gorsline, 123 A.3d
at 1153.
This Court reached the same conclusion in EQT Production Company v.
Borough of Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 2017), petition for allowance
of appeal granted in part, 179 A.3d 454 (Pa. 2018).19 In that case, the objectors
18
Gorsline involved a zoning ordinance that did not expressly address oil and gas wells. Using the
savings clause in the ordinance, the applicant gas company sought a conditional use permit on the
theory that a shale gas well was similar to other uses permitted in the residential agricultural zoning
district. On appeal from this Court’s decision, the Supreme Court held, in a split decision, that the
applicant did not meet its burden on similarity.
19
The Supreme Court limited its allowance of appeal in EQT Production Company to the following
issue:
19
presented evidence about the negative impacts oil and gas operations have caused in
other communities. This Court held that this evidence was insufficient to satisfy the
objectors’ burden of proof because their evidence was not specific to the well site at
issue. Nor did the objectors relate the experience of other communities to the well site
they challenged. Id. at 563.
The Zoning Board’s rejection of Objectors’ evidence as lacking probative
value is consistent with this Court’s precedent. Testimony that merely speculates on
possible harm lacks probative value.
Objectors next argue that an “industrial” use such as a natural gas well is
incompatible with and must be segregated from the other uses in the R-2 Zoning
District. 20 They argue that this Court’s holding in Robinson Township I, 52 A.3d 463,
supports this argument. We disagree.
Whether the Commonwealth Court erred as a matter of law by imposing a standard
upon the admissibility of objectors’ evidence that effectively eliminates the ability
to raise any objection to a land use application based on firsthand experience with
a similar use when the proposed use does not already appear within municipal
borders?
EQT Production Company, 179 A.3d at 454.
20
Objectors call oil and gas drilling “industrial” throughout their briefs. Objectors presented no
evidence to the Zoning Board on what they meant by “industrial” or the significance of that term. By
contrast, in Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board (Pa.
Cmwlth., Nos. 1229,1323 & 2609 C.D. 2015, filed June 7, 2017), vacated and remanded, 190 A.3d
1126 (Pa. 2018) (per curiam), the parties addressed the meaning of “industrial.” Relying on expert
testimony from R.E. Gas Development, LLC, the zoning hearing board found that oil and gas drilling
is not a heavy industrial use but “a use traditionally exercised in agricultural areas, containing
[temporary] components of an ‘industrial use.’” Id., slip op. at 14. Farming uses heavy machinery;
in this respect it also contains components of an “industrial use.”
Objectors may have adopted the term “industrial” from Robinson Township I, 52 A.3d at 484-
85, which stated that Act 13 used “industrial criteria” for regulating drilling operations and referred
to such operations as “industrial uses.” Robinson Township I arose from a facial challenge to Act 13
decided on an expedited basis on a motion for summary relief filed by the petitioners, cross-motions
for summary relief filed by the respondents and preliminary objections filed by the Commonwealth
20
In Robinson Township I, this Court held that Act 13 violated substantive
due process because it deprived municipalities of the ability to evaluate their own
territorial features and to decide, as a local matter, where oil and gas operations should
take place. We described Act 13’s encroachment on a municipality’s ability to
determine what uses to allow in a zoning district to constitute a type of illegal “spot
use.” See Robinson Township I, 52 A.3d at 485 n.23.
By contrast, here, the municipality has evaluated its landscape and has
chosen to allow oil and gas operations to take place in every zoning district, so long as
certain exacting standards are satisfied.21 This Court’s Robinson Township I
substantive due process analysis is not applicable here because it addressed Act 13’s
deprivation of a municipality’s ability to determine the placement of oil and gas
operations. By contrast, Zoning Ordinance 01-2010 expressed the will of the
Township’s residents by their elected Board of Supervisors.22
The Zoning Board held that Objectors failed to prove that Zoning
Ordinance 01-2010 violated substantive due process. It held, to the contrary, that
Zoning Ordinance 01-2010 preserves the protected “rights of property owners” to
and the Public Utility Commission. Robinson Township I, 52 A.3d at 468. There was no evidentiary
record in Robinson Township I, let alone findings of fact.
21
Objectors’ witness, Steven Victor, observed that the standards and conditions in Zoning Ordinance
01-2010 made the permitted use of oil and gas development more akin to a use permitted by special
exception. N.T. 9, 3/5/2015; R.R. 996a. “A special exception is not an exception to the zoning
ordinance, but rather a use to which the applicant is entitled provided the specific standards
enumerated in the ordinance for the special exception are met by the applicant.” In re Thompson, 896
A.2d 659, 670 (Pa. Cmwlth. 2006).
22
The dissent of Judge McCullough asserts that Zoning Ordinance 01-2010 “duplicates” the “flaw”
in Act 13 by permitting oil and gas operations in all zoning districts. The plurality in Robinson
Township II, 83 A.3d 901, did not conclude that oil and gas drilling must be excluded from some
zoning districts in order for the zoning ordinance to comply with the Environmental Rights
Amendment. The real flaw in Act 13 was that it deprived municipalities of the ability to legislate on
the location of oil and gas drilling in violation of substantive due process.
21
realize the value of their mineral deposits but without causing cognizable injury to their
neighbors. In re Realen Valley Forge, 838 A.2d at 728. Discerning no error in the
Zoning Board’s conclusion, we hold that Zoning Ordinance 01-2010 does not violate
substantive due process.
Environmental Rights Amendment
Objectors next argue that Zoning Ordinance 01-2010 violates the
Environmental Rights Amendment, which provides as follows:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of
the environment. Pennsylvania’s public natural resources are the
common property of all the people, including generations yet to
come. As trustee of these resources, the Commonwealth shall
preserve and maintain them for the benefit of all the people.
PA. CONST. art. I, §27. Objectors contend that placing a so-called “industrial” use,
such as an unconventional gas well, in agricultural areas “degrades the local
environment in which people live, work, and recreate, including the public natural
resources on which people rely.” Objectors’ Brief at 49.
Before the Zoning Board, Objectors relied upon the plurality decision in
Robinson Township II, 83 A.3d 901, to support their Article I, Section 27 claim. The
Zoning Board rejected Objectors’ claim that Robinson Township II required the
Township to undertake “an undefined pre-action environmental impact analysis”
before enacting Zoning Ordinance 01-2010. Board Decision at 44. Further, because
the Township had long allowed the development of oil and gas wells, the community’s
“settled expectations” included gas development as a “valid part of life in the
Township.” Id. at 52.
In Robinson Township II, a plurality of our Supreme Court held that the
Environmental Rights Amendment made the natural resources of the Commonwealth
22
the corpus of a public trust. The plurality explained that as a “trustee, the
Commonwealth is a fiduciary obligated to comply with the terms of the trust and with
standards governing a fiduciary’s conduct.” Id. at 957. The Commonwealth must,
first, refrain from allowing the degradation of environmental resources and, second, act
affirmatively to protect the environment. Nevertheless, these duties “do not require a
freeze of the existing public natural resource stock … [and] are tempered by legitimate
development tending to improve upon the lot of Pennsylvania’s citizenry, with the
evident goal of promoting sustainable development.” Id. at 958.
The plurality in Robinson Township II criticized Payne v. Kassab, 312
A.2d 86 (Pa. Cmwlth. 1973), affirmed, 361 A.2d 263 (Pa. 1976), which established a
three-part test to determine whether government action complied with the
Environmental Rights Amendment.23 Robinson Township II did not reverse Payne v.
Kassab, and this Court continued to apply the Payne test to analyze alleged violations
of the Environmental Rights Amendment. See, e.g., Funk v. Wolf, 144 A.3d 228, 234
(Pa. Cmwlth. 2016) (“The Payne test is particularly applicable in situations where a
person challenges a government decision or action.”).
However, in 2017, the Supreme Court overruled the Payne test in
Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911,
23
Under the so-called Payne test, a court reviewing governmental action considers:
(1) Was there compliance with all applicable statutes and regulations relevant to
the protection of the Commonwealth’s public natural resources? (2) Does the record
demonstrate a reasonable effort to reduce the environmental incursion to a
minimum? (3) Does the environmental harm which will result from the challenged
decision or action so clearly outweigh the benefits to be derived therefrom that to
proceed further would be an abuse of discretion?
Payne, 312 A.2d at 94. At issue in Payne was a decision of the Pennsylvania Department of
Transportation to encroach upon a park in the City of Wilkes-Barre to widen a state road. PennDOT’s
action was held not to offend the Environmental Rights Amendment.
23
930 (Pa. 2017) (Environmental Defense Foundation II). The ruling in Environmental
Defense Foundation II, as did the ruling in Payne, concerned publicly owned land, to
wit, the constitutionality of budget-related decisions that resulted in additional oil-and-
gas lease sales. As the Supreme Court observed, the former law on the subject provided
that all royalties from the leasing of public lands were deposited into an “Oil and Gas
Lease Fund” to be “‘exclusively used for conservation, recreation, dams, or flood
control or to match [related] Federal grants,’ 71 P.S. §1331….” Id. at 922. In 2009,
the General Assembly amended the Fiscal Code to permit the deposit of these royalties
into the General Fund, 72 P.S. §1602-E, and to limit the amount allocated to the
Department of Conservation and Natural Resources to $50,000,000. 72 P.S. §1603-
E.24 The Environmental Defense Foundation argued, inter alia, that these amendments
to the Fiscal Code violated the Environmental Rights Amendment.
Our Supreme Court rejected the Payne test as the “appropriate standard
for deciding Article I, Section 27 challenges.” Environmental Defense Foundation II,
161 A.3d at 930. It held that the Commonwealth acts as a “trustee of the environmental
trust created by the people of Pennsylvania.” Id. at 932.25 It held Sections 1602-E and
24
Sections 1602-E and 1603-E of the Fiscal Code were added by the Act of October 9, 2009, P.L.
537.
25
The Supreme Court explained the Commonwealth’s duty as a trustee of public natural resources as
follows:
Under Pennsylvania trust law, the duty of prudence requires a trustee to exercise
such care and skill as a man of ordinary prudence would exercise in dealing with
his own property…. The duty of loyalty imposes an obligation to manage the
corpus of the trust so as to accomplish the trust’s purposes for the benefit of the
trust’s beneficiaries…. The duty of impartiality requires the trustee to manage the
trust so as to give all of the beneficiaries due regard for their respective interests in
light of the purposes of the trust….
Environmental Defense Foundation II, 161 A.3d at 932-33 (internal quotations and citations omitted).
24
1603-E of the Fiscal Code to be unconstitutional because they did not allocate “the
royalties in a manner consistent with [the Commonwealth’s] Section 27 trustee duties.”
Environmental Defense Foundation II, 161 A.3d at 938. The Supreme Court explained
that the Commonwealth does not manage our public natural resources as a proprietor
but must “fulfill its role as a trustee.” Id. at 939.26
In their supplemental brief,27 Objectors contend that under Environmental
Defense Foundation II, the Township, as a trustee, has a duty to prevent environmental
degradation in the community and breached this duty in the enactment of Zoning
Ordinance 01-2010.28 The Payne test, inter alia, directed that where the environmental
harm “so clearly outweighs the benefits,” the governmental action violates the
Environmental Rights Amendment. Payne, 312 A.2d at 94. Objectors suggest that the
Zoning Board erred by applying this balancing test in rejecting Objectors’ challenge to
Zoning Ordinance 01-2010.29 They maintain that oil and gas development is not
compatible with rural and agricultural uses.
26
Additionally, the Supreme Court remanded the case to this Court because it was unclear from the
record whether payments made for rental of public land were part of the trust. The Court directed the
parties to “develop arguments” concerning the proper classification of such rental payments. Id. at
936.
27
On January 3, 2018, this Court ordered the parties to file supplemental briefs on whether
Environmental Defense Foundation II impacts the present case.
28
Specifically, Objectors contend that “[the] Township, through [its] irrational zoning scheme, has
intentionally acted as a proprietor, selling [its] incredible natural resources to the oil and gas industry
rather than conservatively preserving the integrity of the community for future generations.”
Objectors’ Supplemental Brief at 11.
29
In actuality, the Zoning Board did not apply the Payne test. In evaluating Objectors’ substantive
validity challenge, the Zoning Board noted that Zoning Ordinance 01-2010 balanced the interest of
private property owners with the public health, safety and welfare of the community. This balancing
of interests goes into the enactment of any land use regulation. The Zoning Board referred to the
Payne test but it did not employ it in its analysis of Objectors’ claim under the Environmental Rights
Amendment. Board Decision at 44, Conclusion of Law 13.
25
CNX argues that Environmental Defense Foundation II has no impact on
this case because its holding concerned the Commonwealth’s use of revenues generated
by natural gas drilling on public land held in trust for Pennsylvania’s citizens. The
zoning ordinance at issue here concerns, and restricts, the right of landowners to lease
their private land for a private activity. Aside from acknowledging that natural gas
development can coexist with the public use of state forests, CNX argues that
Environmental Defense Foundation II provides little guidance to our review of the
Zoning Board’s decision.
CNX observes that the focus of Environmental Defense Foundation II was
the Commonwealth’s obligations with respect to state parks and forests. The Supreme
Court stated as follows:
Because state parks and forests, including the oil and gas
minerals therein, are part of the corpus of Pennsylvania’s
environmental public trust, we hold that the Commonwealth, as
trustee, must manage them according to the plain language of
Section 27, which imposes fiduciary duties consistent with
Pennsylvania trust law.
Environmental Defense Foundation II, 161 A.3d at 916 (emphasis added).30 Local
zoning by municipalities was not an issue in the case. CNX further argues that the
Slikes’ farm is not part of the “corpus of Pennsylvania’s environmental trust.” Id. 31 It
is private land.
30
CNX points out that in William Penn School District v. Department of Education, 170 A.3d 414,
456 (Pa. 2017), the Supreme Court stated, inter alia, that the Environmental Rights Amendment
“imposes limitations … upon how the Commonwealth may dispose of the net proceeds of sale of
public natural resources.”
31
Notably, the second sentence of the Environmental Rights Amendment was amended to “include
the term ‘public’ to indicate that it did not apply to purely private property rights.” Environmental
Defense Foundation II, 161 A.3d at 931 n.22. “However, Representative Kury opined that the trust
26
In Environmental Defense Foundation II, the Supreme Court addressed
each of the three sentences in the Environmental Rights Amendment. It observed that
“the right of citizens to clean air and pure water, and to the preservation of natural,
scenic, historic values of the environment[ ]” set forth in sentence one “places a
limitation on the state’s power to act contrary to this right, and while the subject of this
right may be amenable to regulation, any laws that unreasonably impair the right are
unconstitutional.” Id. at 931 (citing Robinson Township II, 83 A.3d at 951). Also in
Robinson Township II, the plurality stated expressly that “the constitutional obligation
binds all government, state or local, concurrently.” Robinson Township II, 83 A.3d at
952 (citation omitted).
The precise duties imposed upon local governments by the first sentence
of the Environmental Rights Amendment are by no means clear. In the first case to
address the Environmental Rights Amendment, our Supreme Court observed that the
values protected in the first sentence are subject to interpretation:
“[C[lean air” and “pure water” require technical definitions,
since they depend, to some extent, on the technological state of
the science of purification. The other values, “the natural, scenic,
historic and esthetic values” of the environment are values which
have heretofore not been the concern of government.
Shapp v. National Gettysburg Battlefield Tower, Inc,. 311 A.2d 588, 593 (Pa. 1973).
The uncertainty posed by these values placed a property owner at risk of not knowing
to what use he could put his property, a result the Supreme Court described as “unjust.”
nevertheless applied to ‘resources owned by the Commonwealth and also to those resources not
owned by the Commonwealth, which involve a public interest.’” Id. (quoting Pa. L. Journal, 154th
General Assembly, No. 118, Reg. Sess., 2271–72 (1970) (statement by Rep. Kury)). Environmental
Defense Foundation II also adopted Robinson Township II’s statement that trustee obligations apply
to both state and local entities, which must act with prudence, loyalty and impartiality. Environmental
Defense Foundation II, 161 A.3d 932 n. 23.
27
Id. The Supreme Court cautioned that this lack of certainty raised “serious questions
under both the equal protection clause and the due process clause of the United States
Constitution.” Id.In Robinson Township II, the Supreme Court plurality acknowledged
these constitutional concerns. The plurality explained that the “Environmental Rights
Amendment does not call for a stagnant landscape” or “for the derailment of economic
or social development” or “for a sacrifice of other fundamental values.” Robinson
Township II, 83 A.3d at 953. The plurality further explained that
the first clause of Section 27 does not impose express duties on
the political branches to enact specific affirmative measures to
promote clean air, pure water, and the preservation of the
different values of our environment ….
Id. at 951 (emphasis added). Nevertheless, when the government acts, “it must
reasonably account for the environmental features of the affected locale….” Id.
(emphasis added).32 Judicial review of the government’s action requires an evidentiary
hearing to determine, first, whether the values in the first clause of the Environmental
Rights Amendment are implicated and, second, whether the governmental action
unreasonably impairs those values.
Zoning accounts for the “natural, scenic, historic and esthetic values of
the environment.” PA. CONST. art. I, §27. It does so by placing compatible uses in the
same zoning district; by establishing minimum lot sizes and dimensional requirements;
32
For example, a municipality might be said not “to account reasonably” for environmental features
should it exercise its eminent domain power to condemn an 18th century inn where George
Washington once slept in order to create a parking lot for a municipal building. In such a case, as in
all eminent domain cases, an evidentiary record and factual findings by the court of common pleas
would be required to answer the question.
28
providing parking and signage controls; and requiring landscape and screening
controls.33 This list goes on. It is axiomatic that a zoning ordinance must balance the
public interests of the community with the due process rights of private property
owners. Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 387-88 (1926);
National Gettysburg Battlefield Tower, Inc., 311 A.2d at 593-94. Further, as a creature
of statute, the Township can exercise only those powers that have been expressly
conferred upon it by the General Assembly in the MPC and in the Second Class
Township Code,34 by which the Township was created. When a municipality enacts a
zoning ordinance, it is bound by the Environmental Rights Amendment and by all the
rights protected in Article I of the Pennsylvania Constitution.35 All must be considered.
See Cavanaugh v. Davis, 440 A.2d 1380, 1382 (Pa. 1982) (“[B]ecause the Constitution
is an integrated whole, effect must be given to all of its provisions whenever
possible.”)36
33
These and other land use concerns are fully addressed in the Township’s zoning ordinance. See
ALLEGHENY TOWNSHIP ZONING ORDINANCE, §§250-1 to 250-155.
34
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701.
35
See Article I, Sections 1 to 28 of the Pennsylvania Constitution (listing the essential principles of
liberty and free government). Importantly, Article I, Section 1, titled “[i]nherent rights of mankind,”
establishes a constitutionally protected property right in the enjoyment of private property and
“governmental interference with this right is circumscribed by the due process provisions of the Fifth
and Fourteenth Amendments to the United States Constitution.” Township of Exeter v. Zoning
Hearing Board of Exeter Township, 962 A.2d 653, 659 (Pa. 2009) (quoting Hopewell Township
Board of Supervisors v. Galla, 452 A.2d 1337, 1341 (Pa. 1982)).
36
The dissent of Judge McCullough would require the Township to prove that Zoning Ordinance 01-
2010 “is narrowly tailored to effectuate its economic interests and that it reflects the least onerous
path that can be taken to achieve the objective without an unreasonable degradation of the
environment.” Dissenting Opinion at 12. She contends that courts must use strict scrutiny in
examining the Township’s zoning ordinance “in the same manner courts apply to other fundamental
rights.” Id. at 12.
First, the U.S. Constitution makes the protection of property a fundamental right. U.S.
CONST., amend. V (“No person shall … be deprived of life, liberty or property, without due process
29
Objectors assert the Township did not “genuinely consider” the
environment in the enactment of Zoning Ordinance 01-2010 or in the issuance of the
permit to CNX.37 Objectors’ Brief at 47. They presume, contrary to the plurality’s
of law”). The Slikes have a fundamental right to use their property interest in their farm’s mineral
estate. The dissent does not, however, suggest that the restrictions imposed upon that property interest
by various state regulatory laws and by Zoning Ordinance 01-2010 must be shown by the
Commonwealth and by the Township to be “narrowly tailored” to achieve their objectives.
Second, the dissent contends that where an “ordinance ‘burdens,’ ‘infringes,’ or ‘significantly
interferes’ with a fundamental constitutional right (in this case, the ERA), strict scrutiny analysis is
applicable, and the burden shifts to the government….” Dissenting Opinion at 13 n.11. Some
constitutional challenges require shifting burdens of persuasion to reach a determination. For
example, in a Second Amendment challenge, the challenger must present facts to show that the
presumptively-valid regulation burdens his Second Amendment right. If the burden is shown, then
the government must demonstrate that the burden is appropriate. Bindercup v. Attorney General, 836
F.3d 336, 346 (3d Cir. 2016) (en banc). There is no authority for the two-step review proposed by
the dissent for a challenge to a zoning ordinance brought under the Environmental Rights
Amendment. Even so, the Zoning Board found that Objectors’ evidence did not demonstrate a burden
on their rights under the Environmental Rights Amendment. The factual findings of the Zoning Board
are binding.
37
Judge McCullough agrees with Objectors’ assertion. She would remand to the Zoning Board to
take additional evidence “in order for the Township to establish that the novel and drastic measures”
it has taken comport with the Environmental Rights Amendment. Dissenting Opinion at 2. She would
require the Township to show “with competent evidence” that “oil and gas operations are compatible
in all its zoning districts” and prove “as a matter of scientific fact” that the existing oil and gas
operations in the R-2 Zoning District have not negatively affected the environment. Id. at 15, 16.
The only controversy in this appeal, however, concerns the single unconventional well that lies in the
R-2 Zoning District, which makes up 85% of the Township land. Whether unconventional wells
could even be placed in any of the other zoning districts is not of record. In any case, none of the
Objectors live or own property in those districts.
First, the Township does not have the burden of proof. Zoning ordinances are presumed to be
valid and constitutional. Plaxton v. Lycoming County Zoning Hearing Board, 986 A.3d 199 (Pa.
Cmwlth. 2009). “Therefore, one challenging the zoning ordinance has the heavy burden of
establishing its invalidity.” McGonigle v. Lower Heidelberg Township Zoning Hearing Board, 858
A.2d 663, 668 (Pa. Cmwlth. 2004). Objectors, not the Township, had the burden of proving that oil
and gas development was incompatible with other uses in the R-2 Zoning District. The dissent would
shift this burden to the Township.
Second, the dissent would require the Township to prove a negative, i.e., no harm to the
environment. This would violate the “well-recognized principle of evidence” that “[i]t is seldom, if
30
instruction in Robinson Township II, 83 A.3d at 952, that local governments must enact
“specific affirmative measures” to protect the environment that are duplicative of the
many state laws that regulate oil and gas operations in Pennsylvania.
Moreover, Robinson Township II did not give municipalities the power to
act beyond the bounds of their enabling legislation. Municipalities lack the power to
replicate the environmental oversight that the General Assembly has conferred upon
DEP and other state agencies.38 Neither Environmental Defense Foundation II nor
Robinson Township II has altered these fundamental principles of Pennsylvania’s
system of state and local governance.
ever, the duty of a litigant to prove a negative until his opponent has come forward to prove the
opposing positive.” Fazio v. Pittsburgh Rys Co., 182 A. 696, 698 (Pa. 1936). To require a party to
prove a negative is to impose an “impossible burden.” Commonwealth v. Buonopane, 599 A.2d 681,
683 n.2 (Pa. Super. 1991).
Third, the Zoning Board found, as fact, that oil and gas development has safely coexisted in
agricultural districts both in the Township and throughout Westmoreland County and is a compatible
use in the R-2 Zoning District. The Zoning Board also found that Objectors did not prove that this
kind of land use would harm the local environment. Objectors did not challenge any of the Zoning
Board’s findings of fact on appeal; they are binding. DiMattio, 147 A.3d 969.
The purpose of the dissent’s proposed remand for the Township to present evidence is opaque.
The dissent concedes that the Township supervisors are not required to explain their deliberations in
enacting Zoning Ordinance 01-2010. See, e.g., Nichols v. City of Corry, 417 A.2d 836 (Pa. Cmwlth.
1980) (the trial court properly excluded testimony of city council members about their intent in
passing an ordinance because “[i]t has long been settled, as a corollary to the rule that legislators are
generally immune from suit, that members of a legislative body are not subject to inquiry incident to
any challenge of its legislation.”). The dissent does not identify what evidence the Township must
present on remand.
The dissent assumes that the Township’s defense of Zoning Ordinance 01-2100 requires
evidence. In Delaware Riverkeeper Network, 190 A.3d 1126, the zoning hearing board evaluated the
ordinance challenged under the Environmental Rights Amendment on the basis of the language of the
ordinance. The Supreme Court’s per curiam order did not hold the zoning hearing board erred in this
respect. Rather, it was this Court that erred in its appellate review by using the Payne test.
38
The Zoning Board noted that Daniel Bitz offered extensive testimony on this oversight. Oil and
gas operators must complete a Natural Diversity Inventory for the Pennsylvania Department of
Conservation and Natural Resources; the Pennsylvania Game Commission; the Pennsylvania Fish
and Boat Commission; and the U.S. Fish and Wildlife Services. Board Decision at 14.
31
Section 3302 of the Oil and Gas Act specifically states that a municipality
lacks the power to regulate how gas wells operate. Section 3302 provides that “local
ordinances purporting to regulate oil and gas operating 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 that impose
conditions, requirements or limitations” on oil and gas operations regulated by the Oil
and Gas Act. 58 Pa. C.S. §3302. Although the last sentence of Section 3302 has been
declared unconstitutional, this preemption language was left intact.
In sum, a municipality may use its zoning powers only to regulate where
mineral extraction takes place. Hartley & Hartley v. Borough Council, 964 A.2d 855(Pa. 2009). A municipality does not regulate how the gas drilling will be done.
Objectors’ complaints about the purported harm to the environment from the operations
of the Porter Pad project should have been addressed to the state agencies that issued
CNX its operating permits.
In any case, the Zoning Board found that oil and gas development and
agricultural uses “have long safely coexisted within rural communities.” Board
Decision at 42. The only feature of the Porter Pad that will be visible from any of
Objectors’ homes is the portion of the drilling rig that rises over the treetops. Board
Decision at 37; Finding of Fact No. 69. Once drilling operations cease, the rig will be
removed during the pumping phase. When pumping ends, the land can be returned to
its original state. Id. at 40; Finding of Fact No. 97. In the meantime, oil and gas drilling
will support the agricultural use of land in the R-2 Zoning District. Objectors did not
challenge any of these factual findings.
32
Objectors did not prove that Zoning Ordinance 01-2010 is a law that
“unreasonably impairs” their rights under the Environmental Rights Amendment.39
Objectors did not prove that Zoning Ordinance 01-2010 does not reasonably account
for the natural, scenic, historic and esthetic values of the Township’s environment.
Indeed, the Zoning Board reached the contrary conclusion. It credited the testimony
of CNX’s expert, Professor Pifer, who stated that there is a long history of oil and gas
development safely coexisting with agricultural uses in the rural areas of the Township
and that unconventional gas development will actually help preserve farming in the
R-2 District. We hold that Zoning Ordinance 01-2010 does not violate the
Environmental Rights Amendment.40
39
The brief of amicus, the Pennsylvania Chamber of Business and Industry, argues that the Supreme
Court’s holding in Environmental Defense Foundation II is not germane because it addressed the
duties of a trustee with respect to public land. The Chamber notes that dicta are not binding. Chamber
Brief at 6. For purposes of this appeal, we have adopted the principle that “laws” adopted by local
government, may not “unreasonably impair” Article I, Section 27 rights.
40
In her dissent, Judge Ceisler would hold Zoning Ordinance 01-2010 facially unconstitutional under
the Environmental Rights Amendment. She contends that the ordinance’s conditions imposed upon
oil and gas drilling are insufficient, noting, for example, that the hours of operation should be shorter.
She further contends that the majority has not given sufficient weight to the plurality opinion in
Robinson Township II. She recognizes the weaknesses in Objectors’ evidence but considers those
weaknesses immaterial because she believes Zoning Ordinance 01-2010, on its face, violates the
Environmental Rights Amendment.
The plurality opinion in Robinson Township II has not been made binding authority. The
Supreme Court has approved “the statement of basic principles, thoughtfully developed” on the
contours of the Environment Rights Amendment set forth in Robinson Township II by the plurality.
Environmental Defense Foundation II, 161 A.3d at 930. The Supreme Court has not adopted each
and every statement in the scholarly and lengthy opinion of the plurality. The Supreme Court did
state that for purposes of the first sentence of the Environmental Rights Amendment, “laws that
unreasonably impair the right are unconstitutional.” Id. at 931 (citing Robinson Township II, 83 A.3d
at 951). The majority has followed that binding and guiding principle in this appeal.
Whether a zoning ordinance “unreasonably impairs” the rights protected by the first sentence
of the Environmental Rights Amendment will almost always require an evidentiary hearing and
findings of fact. A facial challenge is theoretically possible. A zoning ordinance might, for example,
33
Violations of the MPC, the Ordinance, and the Permit to CNX
require that unconventional gas drilling take place only in districts zoned for hospitals and schools
and require operators to burn their refuse on site. In almost every other case, including this one, there
will have to be a record made to determine whether the law in question “unreasonably impairs” the
people’s “right to clean air, pure water, and to the preservation of the natural, scenic, historic and
esthetic values of the environment.” PA. CONST. art. I, §27. Evidence is needed to establish, first,
that these enumerated values are at stake and, second, that they have been unreasonably impaired.
Judge Ceisler’s dissent also rejects the conditions imposed on drilling by Zoning Ordinance
01-2010 as inadequate. Objectors tried to establish this point with their witness, Steven Victor, who
opined that the ordinance conditions did not protect local water supply or adequately address noise
and light pollution. He had little knowledge of the Township’s water sources and could not offer
alternative standards for regulating noise and light pollution. The Zoning Board found him not
credible. Whether a zoning ordinance is wise or uses the best means to reach the desired result are
matters best left to the Township supervisors, not the courts. Khan v. State Board of Auctioneer
Examiners, 842 A.2d 936, 947 (Pa. 2004).
In Gorsline, 186 A.3d at 389, our Supreme court noted that its “decision should not be
construed as an indication that oil and gas development is never permitted in residential/agricultural
districts, or that it is fundamentally incompatible with residential or agricultural uses.” Here, the
Zoning Board also found, as fact, that Zoning Ordinance 01-2010 protects the environment and that
the Porter Pad project was a use compatible with other uses in the R-2 District. These findings are
binding in our consideration of whether Zoning Ordinance 01-2010 unreasonably impairs Objectors’
rights under the Environmental Rights Amendment.
34
Objectors next argue that Zoning Ordinance 01-2010 violates Sections
603(a),41 60442 and 60543 of the MPC. Objectors argue it violates Section 603 of the
41
Section 603(a) of the MPC states:
Zoning ordinances should reflect the policy goals of the statement of community
development objectives required in section 606[, 53 P.S. §10606], and give
consideration to the character of the municipality, the needs of the citizens and the
suitabilities and special nature of particular parts of the municipality.
53 P.S. §10603(a). The Township’s statement of community development objectives provides for
“the protection of the public health, safety and welfare of the residents[;]” the prevention of
“incompatible development or use of land[;]” and the “promotion of conservation of the
environment….” ZONING ORDINANCE §250-4 (A), (G) and (I); R.R. 7a-8a.
42
Section 604 of the MPC provides, in relevant part:
The provisions of zoning ordinances shall be designed:
(1) To promote, protect and facilitate any or all of the following: the
public health, safety, morals, and the general welfare; coordinated and
practical community development and proper density of population;
emergency management preparedness and operations, airports, and
national defense facilities, the provisions of adequate light and air, access
to incident solar energy, police protection, vehicle parking and loading
space, transportation, water, sewerage, schools, recreational facilities,
public grounds, the provision of a safe, reliable and adequate water supply
for domestic, commercial, agricultural or industrial use, and other public
requirements; as well as preservation of the natural, scenic and historic
values in the environment and preservation of forests, wetlands, aquifers
and floodplains.
(2) To prevent one or more of the following: overcrowding of land,
blight, danger and congestion in travel and transportation, loss of health,
life or property from fire, flood, panic or other dangers.
(3) To preserve prime agriculture and farmland considering topography,
soil type and classification, and present use.
53 P.S. §10604(1) – (3).
43
Section 605 of the MPC requires, in relevant part:
In any municipality, other than a county, which enacts a zoning ordinance, no part
of such municipality shall be left unzoned. The provisions of all zoning ordinances
may be classified so that different provisions may be applied to different classes of
situations, uses and structures and to such various districts of the municipality as
shall be described by a map made part of the zoning ordinance. Where zoning
35
MPC because “the ordinance is potentially detrimental to public health, safety, and
general welfare, as well as detrimental to a safe, reliable and adequate water supply
within [the R-2 Zoning District]” and, as such, is contrary to the statement of
community objectives set forth in the Zoning Ordinance. Objectors’ Brief at 51-52.
Objectors contend that Zoning Ordinance 01-2010 violates Section 604 of the MPC
because permitting unconventional gas well development in all zoning districts will, as
Dr. Stoltz testified, place “water sources and other environmental assets at risk[.]”
Objectors’ Brief at 52. Objectors assert that Zoning Ordinance 01-2010 violates
Section 605 of the MPC because it allows incompatible uses to take place within the
R-2 Zoning District.
CNX responds that Objectors’ alleged violations of the MPC reiterate the
same arguments they made in their substantive due process claim; their arguments
should fail for the same reasons discussed earlier in this opinion. We agree.
First, the Zoning Board held that Objectors’ claims that Zoning Ordinance
01-2010 will cause safety or environmental problems were not supported by evidence.
Objectors have not challenged any of the Zoning Board’s findings of fact or
conclusions of law on these points. Thus, they have not shown a violation under
Section 603 of the MPC.
districts are created, all provisions shall be uniform for each class of uses or
structures, within each district, except that additional classifications may be made
within any district:
(1) For the purpose of making transitional provisions at and near
the boundaries of districts.
(1.1) For the purpose of regulating nonconforming uses and
structures.
(2) For the regulation, restriction or prohibition of uses and
structures at, along or near [delineated areas].
53 P.S. §10605(1), (1.1) and (2).
36
Second, the Zoning Board rejected Dr. Stoltz as an expert and did not
credit his testimony. Thus, Objectors cannot rely on that evidence to support their
concerns under Section 604 of the MPC.
Third, the Zoning Board rejected Objectors’ assertion that natural gas
development is not a compatible use in the R-2 Zoning District. Again, Objectors have
not challenged the Zoning Board’s findings and point to no credited evidence that
would refute this conclusion. Objectors have presented only conclusory arguments
without reference to the enumerated uses allowed in the R-2 Zoning District and how
oil and gas drilling is incompatible with those uses. Notably, one use permitted by
special exception is mineral removal, which includes, inter alia, “removal of the
surface of the earth or exposure of the mineral or subsurface of the earth” to remove
“coal, lignite, limestone and dolomite, sand, gravel, rock, stone, earth, slag, ore,
vermiculate, clay and other mineral resources.” ZONING ORDINANCE §250-8 (definition
of “mineral removal”).
Under Section 607 of the MPC, the Township was required to notify the
public of its proposed zoning legislation on oil and gas extraction and invite public
participation. 53 P.S. §10607. The proposed zoning ordinance had to be advertised
and posted in a public location. Section 610 of the MPC, 53 P.S. §10610. The
Township was also required to hold a public hearing, pursuant to public notice, before
voting to enact the ordinance. Section 608 of the MPC, 53 P.S. §10608. Objectors do
not contend that the Township did not follow all of the procedures required by the MPC
to allow Township residents to participate in the enactment of Zoning Ordinance 01-
2010.
Nevertheless, Objectors claim that Robinson Township II, 83 A.3d 901,
required the Township to undertake pre-enactment environmental, health, and safety
37
studies in order to satisfy its duties under the Environmental Rights Amendment. The
Zoning Board noted that Objectors “presented no evidence on this issue” and, thus,
apparently “abandoned this claim.” Zoning Board Decision at 49, Conclusion of Law
No. 32. In any case, the Zoning Board reasoned that construing the Environmental
Rights Amendment to require some sort of “pre-action environmental impact analysis”
“is a novel construction without any foundation in Pennsylvania Law.” Id. We agree.44
Conclusion
A municipality balances the interest of landowners in the use and
enjoyment of their property with the public health, safety and welfare of the community
when it enacts land use regulation. In re Realen Valley Forge Greenes Associates, 838
A.2d 718, 727-28 (Pa. 2003). However, there is no obligation upon a municipality to
enact land use regulation.
That oil and gas drilling is authorized in every zoning district in the
Township does not mean that it will take place anywhere or everywhere. The setback
requirements in Act 13 remain in effect, Robinson Township IV, 147 A.3d at 542 n.3,
and they are significant. Section 3915(a) requires a minimum setback requirement of
500 feet from any building. 58 Pa. C.S. §3915(a). As noted by Chief Justice Saylor,
one acre is 208 feet by 208 feet, which limits unconventional wells to undeveloped
tracts or lots greater than two acres in size. Robinson Township II, 83 A.3d at 1101
(Saylor, C.J., dissenting). The Zoning Board specifically found the 500 foot buffer
44
As observed by the amicus curiae, Pennsylvania State Association of Township Supervisors, the
cost of an environmental impact analysis “could lead municipalities to decide not to engage in zoning
at all in order to save precious taxpayer resources….” Pennsylvania State Association of Township
Supervisors Brief at 11. If a requirement for environmental impact study can be read into the
Pennsylvania Constitution, then this requirement would apply to all legislation, state or local. It
would not be limited to one Article I right. Logically, legislative bodies would have to issue a
comparable report on each of the rights protected in Article I of the Pennsylvania Constitution.
38
from an existing building or well, alone, eliminated more than 50% of Township land
from unconventional gas well development. Board Decision at 37: Finding of Fact. 64.
Zoning Ordinance 01-2010 limits the constitutionally protected property
rights of Township residents, including the Slikes, by imposing conditions on the use
of their land for oil and gas development. We must presume that the Township’s Board
of Supervisors “investigated the question and ascertained what is best for … the good
of the people[ ]” when it enacted Zoning Ordinance 01-2010. Khan v. State Board of
Auctioneer Examiners, 842 A.2d 936, 947 (Pa. 2004). Whether Zoning Ordinance 01-
2010 “is wise or whether it is the best means to achieve the desired result are matters
left to the legislature, and not the courts.” Id. The Township did not have to enact
zoning regulation; a fortiori, it does not have a duty to enact a zoning ordinance that
imposes more restrictions upon the property rights of those with mineral estates to
develop.
As observed by the Zoning Board, it is the Commonwealth’s duty to
regulate “how” gas drilling is conducted to protect Pennsylvania’s waters and air from
degradation. Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 964
A.2d 855, 866 (Pa. 2009). By contrast, local governments regulate “where” oil and gas
operations will take place with zoning ordinances. In this regard, the choices made by
the Township in Zoning Ordinance 01-2010 must be affirmed unless clearly arbitrary
and unreasonable. Even where the question of reasonableness is “debatable, the
legislature’s judgment must control.” Boundary Drive Associates, 491 A.2d at 90.
Objectors’ proper recourse is to elect a different board of supervisors to achieve their
objective of keeping oil and gas drilling out of the R-2 Zoning District.45
45
Of course, zoning restrictions cannot forbid a lawful use entirely. Exclusionary zoning is
prohibited. Hanson Aggregates Pennsylvania, Inc. v. College Township Council, 911 A.2d 592, 595
(Pa. Cmwlth. 2006).
39
Objectors’ objectives in this litigation are confounding. Were they to
succeed in invalidating Zoning Ordinance 01-2010, then they release oil and gas
operators from the ordinance conditions that relate to noise, lighting, hours, security
and dust. Absent Zoning Ordinance 01-2010, CNX’s permit could be invalidated.
However, CNX would no longer need a “zoning compliance permit” to operate the
Porter Pad.
Objectors have failed to demonstrate that the trial court erred in affirming
the Zoning Board. In every respect, the Zoning Board’s conclusion that CNX complied
with the standards in Zoning Ordinance 01-2010 is fully consonant with the evidence.
Likewise, Objectors did not specify how the standards and conditions in Zoning
Ordinance 01-2010 violated the Environmental Rights Amendment of the
Pennsylvania Constitution or deprived them of substantive due process. Finally, they
did not demonstrate that Zoning Ordinance 01-2010 violates the MPC. Accordingly,
the order of the trial court affirming the order of the Zoning Board will be affirmed.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Judge Fizzano Cannon did not participate in the decision in this case.
40
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dolores Frederick, Patricia Hagaman, :
and Beverly Taylor, :
Appellants :
:
v. :
:
Allegheny Township Zoning Hearing :
Board :
:
v. :
:
CNX Gas Company, LLC :
:
v. :
:
Allegheny Township :
:
v. :
:
John H. Slike and Anne E. Slike, :
Northmoreland Farms LP :
:
v. : No. 2295 C.D. 2015
:
Michael Golembeiwski and Lisa :
Golembeiwski, John P. :
Brunner, II, Esq., Jeffrey and Sheila :
Brunner, Miller Niksic, Joanne Resh, :
Richard and Patricia Trumble, :
Michael and Jacalyn Schumaker :
ORDER
AND NOW, this 26th day of October, 2018, the order of the Court of
Common Pleas of Westmoreland County, dated October 21, 2015, in the above-
captioned matter is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dolores Frederick, Patricia Hagaman, :
and Beverly Taylor, :
Appellants :
:
v. :
:
Allegheny Township Zoning Hearing :
Board :
: No. 2295 C.D. 2015
v. :
: Argued: February 7, 2018
CNX Gas Company, LLC :
:
v. :
:
Allegheny Township :
:
v. :
:
John H. Slike and Anne E. Slike, :
Northmoreland Farms LP :
:
v. :
:
Michael Golembeiwski and Lisa :
Golembeiwski, John P. :
Brunner, II, Esq., Jeffrey and Sheila :
Brunner, Miller Niksic, Joanne Resh, :
Richard and Patricia Trumble, :
Michael and Jacalyn Schumaker :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: October 26, 2018
While the Township of Allegheny (Township) undoubtedly has a
legitimate interest in sustainable development, I would vacate the order of the Court
of Common Pleas of Westmoreland County (trial court) and direct a remand to the
Zoning Hearing Board (Board) to receive additional evidence in order for the
Township to establish that the novel and drastic measures that it has taken are
compatible with article I, section 27 of the Pennsylvania Constitution, Pa. Const. art.
I, §27, known as the Environmental Rights Amendment (ERA).1
It is without dispute that landowners are entitled to make use of their
property and possess the right to “lease” the subterranean portion to third parties for
oil and gas exploration and extraction.2 For the farmers in the Township and in the
Commonwealth, it is often necessary that they receive income from other sources to
maintain a way of life, and this need is unquestioned. But there are also cases of
neighboring property owners who do not receive a direct benefit from the leases and
have alleged injury to their persons or property as a result of oil and gas operations.3
1
On October 6, 2014, the Township’s Board of Supervisors (Supervisors) issued CNX Gas
Company, LLC (CNX) a zoning compliance permit to install and operate an unconventional gas
well on property located on a 330-acre parcel of land owned by John H. Slike and Anne E. Slike,
known as the “Porter Pad.” Nonetheless, the Porter Pad is located only 730 feet from the residence
of Beverly Taylor, 960 feet from the residence of Dolores Fredrick, and 1,200 feet from the
residence of Patricia Hagaman. The distance from the Porter Pad to the homes of these neighbors
is significantly closer than it is to the home of the Slikes. (Reproduced Record (R.R.) at 388a,
791a-92a, 899a, 903a.)
“An oil and gas lease is considered a conveyance of a property interest.” Shedden v.
2
Anadarko E.&P. Co., L.P., 136 A.3d 485, 490 n.4 (Pa. 2016).
3
See, e.g., Kiskadden v. Pennsylvania Department of Environmental Protection, 149 A.3d
380, 382-85 (Pa. Cmwlth. 2016); Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518, 519 (M.D.
PAM - 2
Nonetheless, the overall value or importance of oil and gas drilling has been
documented in commentary and by the courts and the activity has its place in the
history and tradition of the Commonwealth.4
Here, however, the legislative body of the Township ventured into
uncharted, choppy waters when it enacted Ordinance 01-2010 (Ordinance) and
authorized oil and gas drilling—literally, anywhere and everywhere within its
borders—in an apparent attempt to obtain and turn the tides toward an optimal profit
margin. Given the current state of the record, the Township has not adduced
sufficient evidence to support such an extreme measure. Apart from this basis, a
remand is further necessitated in light of our Supreme Court’s relatively recent
decision in Pennsylvania Environmental Defense Foundation v. Commonwealth,
161 A.3d 911 (Pa. 2017) (PEDF), where the Court reaffirmed the legal principles
pronounced in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013)
Pa. 2014); see generally Megan S. Haines, Hydraulic Fracturing And Related Activities As Giving
Rise To Classic Tort Claims In Pennsylvania, 87 PA. B. ASS’N Q. 103, 103-04 (2016).
4
See, e.g., Hite v. Falcon Partners, 13 A.3d 942, 946 (Pa. Super. 2011) (“[W]e acknowledge
that the parties’ dispute is but one of many in a long line of cases involving the oil and gas industry in
Pennsylvania—a fact which is hardly surprising, since the very first commercial oil well in the United
States was drilled in Crawford County, Pennsylvania, in 1859.”); Ely, 38 F. Supp. 3d at 524 (“The
MSETC 2009 Report found that the economic impact of Marcellus Shale development during
2009 ranged between 23,385 and 23,884 jobs, and $3.1 and $3.2 billion in that year, including $1.2
billion in labor income, and almost $1.9 billion added to the Commonwealth’s economy. The
MSETC 2009 Report also found that this significant economic impact was likely to continue into
future years, and that much of the economic benefit was being felt in small counties.”); see
generally Alison Peck, Identity-Based Conflicts in Public Policy: The Case of Hydraulic
Fracturing Policy in Pennsylvania, 79 U. PITT L. REV. 437, 441 (2017) (“[T]he Article focuses on
Pennsylvania, which is often held up in other jurisdictions, nationally and globally, as the poster
child for fracking impacts, both positive and negative.”); Joel R. Burcat, The Ten Rules of
Construction for Cases Involving Title Disputes under Pennsylvania Oil and Gas Law, 87 PA. B.
ASS’N Q. 171, 171-72 (2016).
PAM - 3
(plurality)—principles which the Board failed to consider5 and the trial court
dismissed as non-binding and inapplicable.6
Hence, I respectfully dissent.
Dolores Frederick, Patricia Hagaman, and Beverly Taylor (collectively,
Landowners) challenge the zoning compliance permit issued to CNX to develop an
unconventional gas well, the “Porter Pad,” in the Township’s
Agricultural/Residential District. Among other avenues, the Landowners attack the
source of authority for the permit, the Ordinance, in its broad and global sense, and
assert that it tramples on the rights guaranteed by the ERA. This constitutional
proviso provides:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic
values of the environment. Pennsylvania’s public natural
resources are the common property of all the people,
including generations yet to come. As trustee of these
resources, the Commonwealth shall preserve and maintain
them for the benefit of all the people.
Pa. Const. art. I, §27.
In PEDF, the Pennsylvania Supreme Court overruled the three-fold test
developed in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973) (en banc), which
the Board seemingly applied in this case,7 as being “unrelated to the text of Section
5
See Board’s Conclusions of Law (COL) Nos. 32-34.
6
See Trial court op. at 3.
7
See Board’s COL Nos. 8, 13-14, 25, 39; Findings of Fact (F.F.) Nos. 8, 13-14, 25, 51-54.
In Payne, this Court formulated a three-prong test for analyzing claims under the ERA,
focusing on the following: (1) whether there has been compliance with all applicable statutes and
regulations relevant to the protection of the Commonwealth’s public natural resources, (2) whether
the record demonstrates a reasonable effort to reduce the environmental incursion to a minimum,
PAM - 4
27 and the trust principles animating it.” 161 A.3d at 930. Relying upon and
officially adopting the rationale of the lead opinion in Robinson Township, the
Supreme Court determined that the proper standard of judicial review lies in the
words of the ERA itself, as well as the underlying principles of Pennsylvania trust
law in effect at the time of the enactment.
Pertinent here, and as noted by our Supreme Court, the third sentence
of the ERA “establishes a public trust, pursuant to which the natural resources are
the corpus of the trust, the Commonwealth is the trustee, and the people are the
named beneficiaries.” Id. at 931-32. “Trustee obligations are not vested exclusively
in any single branch of Pennsylvania’s government, and instead all agencies and
entities of the Commonwealth government, both statewide and local, have a
fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality.”
Id. at 931 n.23 (emphasis added). Under the ERA, “the concept of public natural
and (3) whether the environmental harm which will result from the challenged decision or action
so clearly outweighs the benefits to be derived therefrom that to proceed further would be an abuse
of discretion.
Notably, on August 3, 2018, the Supreme Court vacated an unpublished panel decision
from this Court, Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board
(Pa. Cmwlth., No. 1229 C.D. 2015, filed June 7, 2017) (Delaware Riverkeeper Network), and
remanded for reconsideration in light of PEDF. See __ A.3d __ (Pa., No. 270 WAL 2017, filed
August 3, 2018) (per curiam order). In Delaware Riverkeeper Network, we applied the Payne test
to the landowners’ assertion that the township contravened the ERA by permitting oil and gas
operations in residential/agricultural districts and concluded that the claim failed. Delaware
Riverkeeper Network, slip op. at 30-34.
The Supreme Court also vacated Delaware Riverkeeper Network and remanded for us to
reconsider the relevance of its 4-3 decision in Gorsline v. Board of Supervisors of Fairfield
Township (Pa., No. 270 WAL 2017, filed August 3, 2018). However, I do not find Gorsline to be
instructive in this particular case because the ordinance in Gorsline did not allow oil and gas
operations as a permitted use in any zoning district; the applicant sought a conditional use pursuant
to a “savings clause” and the Court did not address a claim under the ERA.
PAM - 5
resources includes not only state-owned lands, waterways, and mineral reserves, but
also resources that implicate the public interest, such as ambient air, surface and
ground water, wild flora, and fauna (including fish) that are outside the scope of
purely private property.” Robinson Township, 83 A.3d at 955.
As a trustee, the Township has a duty to administer the trust with
prudence, which involves consideration of the purposes and circumstances of the
trust and requires the exercise of reasonable care, skill, and caution when dealing
with the corpus of the trust. PEDF, 161 A.3d at 932 & n.24. More specifically, the
ERA imposes upon the Township “a duty to prohibit the degradation, diminution,
and depletion of our public natural resources, whether these harms might result
from direct state action or from the actions of private parties.” Id. at 933 (emphasis
added). Indeed, the duties of a trustee are not limited to refraining from action that
results in degradation or depletion of natural resources, but includes the affirmative
duty to enact “legislation that adequately restrains actions of private parties likely to
cause harm to protected aspects of our environment.” Robinson Township, 83 A.3d
at 979; see id. at 963. In this case, the drilling operations that occur on the Slikes’
property are not inherently innocuous and the effects of such activity are not
confined to private property interests. To the contrary, it is commonly known and
understood that oil and gas operations, at least to a palpable extent, inevitably inflict
“environmental and habitability costs” such as “air, water, and soil pollution;
persistent noise, lighting, and heavy vehicle traffic.” Robinson Township, 83 A.3d
at 979.
Importantly, the Township “may not act as a mere proprietor, pursuant
to which it deals at arms’ length with its citizens, measuring its gains by the balance
PAM - 6
sheet profits and appreciation it realizes from its resources operations.” Id. at 932
(internal quotations marks and alterations omitted).
Here, the Township amended the zoning ordinance to allow “Oil and
Gas Development,” including drilling, hydraulic fracturing, and pipeline
installation, in each and every one of the Township’s 10 zoning districts (to the
exclusion of none), making oil and gas operations a permitted principal use as of
right in a variety of places that have a multitude of purposes. (R.R. at 203a-12a; see
F.F. Nos. 5-6.)8 These districts include all the districts that are residential and
8
Single-Family Residential District—the “purpose of this district is to provide for higher-
density residential development in areas which have public water or public sewers or a community
sewage disposal system.” (R.R.) at 36a.)
Agricultural/Residential District—the “purpose of this district is to provide for agricultural uses
and low-density residential development in rural areas.” (R.R. at 39a.)
General Residential District—the “purpose of this district is to provide opportunities for
establishing mobile home parks in appropriate locations in the Township and allowing for a mix
of single-family and two-family dwellings.” (R.R. at 43a.)
Planned Shopping Center District—the “purpose of this district is to provide retail shopping and
service facilities to serve residents of the region.” (R.R. at 47a.)
Neighborhood Business District—the “purpose of this district is to provide retail shopping service
facilities to serve immediate household needs which are of a limited type and size appropriate to
smaller properties.” (R.R. at 50a.)
Highway Commercial District—the “purpose of this district is to provide for retail and service
facilities which serve the needs of the general community and which are located in high volume
traffic corridors.” (R.R. at 53a.)
Light Industrial District—the “purpose of this district is to provide for light industrial uses in
appropriate locations.” (R.R. at 57a.)
Manufacturing District—the “purpose of this district is to provide for heavy industrial use in
appropriate locations which have access to river and rail transportation.” (R.R. at 61a.)
PAM - 7
agricultural in nature, namely the Single-Family Residential District, the
Agricultural/Residential District, the General Residential District, and, also, all the
districts that are commercial in nature, e.g., the Planned Shopping Center District,
the Neighborhood Business District, and the Highway Commercial District. In fact,
the Ordinance is so astonishing in its reach that it even authorizes Oil and Gas
Development in the Riverfront Conservation District, the purpose of which is to
“encourage public enjoyment of the riverfront and promote recreation and protection
of the environment along the riverfront,” (R.R. at 64a), and the Town Center District,
which is described as “the heart of the community” and designed to provide “a sense
of place, pedestrian-oriented development and community-oriented living.” (R.R.
at 89a.)
In its decision, the Board issued the following pertinent findings of fact:
59. Approximately 12,000 of the 20,000 total acres in
the Township are leased to oil and gas operators. This
represents more than 60 [percent] of the land mass of the
Township.
60. In the R-2 District [i.e., the
Agricultural/Residential District], approximately 75
[percent] of the land mass is leased to oil and gas
operators.
* * *
Riverfront Conservation District—the “purpose of this district is to provide for a variety of uses
which encourage public enjoyment of the riverfront and promote recreation and protection of the
environment along the riverfront.” (R.R. at 64a.)
Town Center—one of the purposes of this district is to “create a mixed-use zoning district designed
to be the heart of the community that provides a sense of place, pedestrian-oriented development
and community-oriented living.” (R.R. at 89a.)
PAM - 8
85. John Slike testified that in the event he was unable
to receive royalties from the gas well sites and the
proposed Porter Pad, he would suffer financial hardship
and substantial financial loss. He further testified that in
the event he is not able to receive royalties from the
proposed Porter Pad, he would not have enough income to
actively farm the property and keep his ground as open
space.
* * *
90. Approximately 240 shallow gas wells are currently
operating in all zoning districts within the Township.
* * *
92. Gas well drilling provides farmers and owners with
income to sustain their businesses and way of life.
93. Traditionally, farmers have used the income from
gas wells to sustain the farm.
94. The development of oil and gas is an essential part
of the business plan of many small farmers.
95. Leasing already has brought in excess of
$12,000,000 in lease rentals to landowners of the
Township in 2014.
96. Drilling and production of the newly-leased
properties alone will add an estimated additional $60—90
million in income.
(Board’s Findings of Fact (F.F.) Nos. 59, 60, 85, 90, 92-96.)
Based upon these facts, and after determining that residents will be able
to keep their farms and that the Township will continue to receive prominent income
as a result of oil and gas development, (Board’s COL Nos. 10-11), the Board made
the following conclusion of law:
PAM - 9
21. Here, the Township acted within its constitutional
police power in enacting the [Ordinance] to further the
general welfare of its citizens by permitting them to
benefit economically from oil and gas resources and
royalties, in order to help their livelihood and way of life.
(Board’s COL No. 21) (emphasis added).
Conceptually, the ERA is designed to be proactive rather than reactive,
and may be “invoked to provide anticipatory and preventative protection against
unreasonable degradation of natural resources.” Robinson Township, 83 A.3d at 953
(citing and parenthetically describing Montana Environmental Information Center
v. Department of Environmental Quality, 988 P.2d 1236, 1249 (Mont. 1999)
(MEIC)). Under this standard, the Landowners’ ERA claim is cognizable and
worthy of relief, “even absent a demonstration that public health is threatened or that
current [] quality standards are affected to such an extent that a significant impact
has been had” on the environment. MEIC, 988 P.2d at 1249.9 The fact that the
Board issued the permit (and therefore the green light) to CNX to install and operate
the Porter Pad on property located in the Agricultural/Residential District, in
conjunction with the record as it currently stands, is enough to prove a violation of
the ERA and shift the burden of proof and persuasion to the Township. See id.; cf.
Northern Plains Resource Council, Inc. v. Montana Board of Land Commissioners,
9
In interpreting the state’s constitutional environmental rights provision, the Supreme
Court of Montana stated: “The delegates did not intend to merely prohibit that degree of
environmental degradation which can be conclusively linked to ill health or physical
endangerment. Our constitution does not require that dead fish float on the surface of our state’s
rivers and streams before its farsighted environmental protections can be invoked.” MEIC, 988
P.2d at 1249; accord Robinson Township, 83 A.3d at 963 (“The drafters and the citizens of the
Commonwealth who ratified the [ERA], aware of this history, articulated the people’s rights and
the government’s duties to the people in broad and flexible terms that would permit not only
reactive but also anticipatory protection of the environment for the benefit of current and future
generations.”). Apparently, the Majority employs a different approach. See Maj. Op. at 33.
PAM - 10
288 P.3d 169, 174-75 (Mont. 2012); see also Robinson Township, 83 A.3d at 975,
979.
On its face, it is readily apparent that, just like section 3304 of Act 13,10
which the Supreme Court found to be unconstitutional in Robinson Township, “the
purpose of the [Ordinance] is to provide a maximally favorable environment for
industry operators to exploit Pennsylvania’s oil and natural gas resources.” Id. at
975. Notably, our Supreme Court has already observed:
The public natural resources implicated by the “optimal”
accommodation of industry here are resources essential to
life, health, and liberty: surface and ground water,
ambient air, and aspects of the natural environment in
which the public has an interest . . . . [D]evelopment of
the natural gas industry in the Commonwealth
unquestionably has and will have a lasting, and undeniably
detrimental, impact on the quality of these core aspects of
Pennsylvania’s environment, which are part of the public
trust.
Id. As applied, the Ordinance is the means by which the Township has thus far
devoted more than half of its surface area to oil and gas development; three-fourths
of the Residential/Agricultural District is saturated with oil and gas leases; and both
the Township and its residents have received significant sums of income. (F.F. Nos.
59-60, 95-96.)
However, the Township “may not act as a mere proprietor,” PEDF, 161
A.3d at 931, and the Ordinance cannot allow or encourage the degradation or
depletion of public natural resources. Id. at 933; Robinson Township, 83 A.3d at
975. In one vital respect, the Ordinance functions the same way as section 3304 of
Act 13 did in Robinson Township, a state statute that “introduce[d] heavy-duty
industrial uses—natural gas development and processing []—into all existing zoning
10
58 Pa.C.S. §3304.
PAM - 11
districts as of right, including residential, agricultural, and commercial.” 161 A.3d
at 937. Focusing on this feature of section 3304, the Supreme Court in Robinson
Township noted that the statute’s “primary [] purpose is not to effectuate the
constitutional obligation to protect and preserve Pennsylvania’s natural
environment,” id. at 975, and said that “permitting industrial uses as a matter of right
in every type of [] zoning district is incapable of conserving or maintaining the
constitutionally-protected aspects of the public environment and of a certain quality
of life.” Id. at 979. Ultimately, the Court determined that section 3304 “degrades
the corpus of the trust,” id. at 980, and discarded the statute as flouting the ERA,
specifically as an “unauthorized use of the public trust assets,” and did so assuming
that the trustee has acted “solely and in good faith to advance the economic interests
of the beneficiaries.” Id. at 982.
Given its monumental breadth, over-inclusiveness, and the practical
results it has created, the Ordinance, which was passed into law prior to section 3304
of Act 13, (F.F. No. 42), is nonetheless a microcosm of section 3304, duplicating a
critical flaw of the statute—i.e., permitting oil and gas operations in all districts—
and clearly jeopardizing the “inherent and indefeasible” rights guaranteed by the
ERA. PEDF, 161 A.3d at 931. Consequently, the Ordinance should be subjected
to strict scrutiny and analysis in the same manner that courts provide to other
fundamental rights, see MEIC, 988 P.2d at 1245-46, and the Township should be
obligated to prove that the Ordinance is narrowly tailored to effectuate its economic
interests and that it reflects the least onerous path that can be taken to achieve the
PAM - 12
objective without an unreasonable degradation of the environment. See also
Robinson Township, 83 A.3d at 954.11
11
The general rule is that the moving party carries the burden of proving that an ordinance
is unconstitutional. See, e.g., In re Bartkowski Investment Group, Inc., 106 A.3d 230, 238 (Pa.
Cmwlth. 2014). However, when an ordinance “burdens,” “infringes,” or “significantly interferes”
with a fundamental constitutional right (in this case, the ERA), strict scrutiny analysis is applicable,
and the burden shifts to the government to prove that the ordinance “furthers a compelling interest
and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, ___ U.S. ___, 135 S.
Ct. 2218, 2231 (2015); see, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310,
312 (2010) (“Laws that burden political speech are subject to strict scrutiny, which requires the
Government to prove that the restriction furthers a compelling interest and is narrowly tailored to
achieve that interest.”); Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (“When a statutory
classification significantly interferes with the exercise of a fundamental right, it cannot be upheld
unless it is supported by sufficiently important state interests and is closely tailored to effectuate
only those interests.”); Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa. 2003) (“Where laws
infringe upon certain rights considered fundamental, such as the right to privacy, the right to marry,
and the right to procreate, courts apply a strict scrutiny test. Under that test, a law may only be
deemed constitutional if it is narrowly tailored to a compelling state interest.”); cf. Towery v.
Brewer, 672 F.3d 650, 659-60 (9th Cir. 2012) (rejecting “a distinction between state action that
violates a fundamental right and state action that merely burdens a fundamental right.”) (emphasis
in original).
As noted above, the ERA contains “fundamental rights reserved to the people in Article I
of our Constitution” and is one of our “inherent and indefeasible” rights. PEDF, 161 A.3d at 930-
31. The Supreme Court of Montana in MEIC, a case cited in Robinson Township, held: “[W]e
conclude that the right to a clean and healthful environment is a fundamental right because it is
guaranteed by the Declaration of Rights found [in] Montana’s Constitution, and that any statute or
rule which implicates that right must be strictly scrutinized.” See Robinson Township, 83 A.3d at
962 (“The decision to affirm the people’s environmental rights in a Declaration or Bill of Rights,
alongside political rights, is relatively rare in American constitutional law. In addition to
Pennsylvania, Montana and Rhode Island are the only other states of the Union to do so.”).
Pursuant to this standard, the Landowners must first demonstrate that the language of the
Ordinance, and/or the evidence of record shows that the Ordinance, has the effect of burdening,
infringing, or sufficiently implicating the rights of the ERA. See Washington v. Glucksberg, 521
U.S. 702, 722 (1997) (reiterating the “threshold requirement—that a challenged state action
implicate a fundamental right—before requiring more than a reasonable relation to a legitimate
state interest to justify the action.”); Tunstall v. Bergeson, 5 P.3d 691, 704 (Wash. 2000) (“[W]e
must first find that a fundamental right is being infringed [because] infringement of a fundamental
PAM - 13
First, aside from the deficiency noted above, section 3304 of Act 13
also contained an infirmity because it commandeered municipalities and deprived
them of the ability to pick and choose which districts within its realm are suitable
for oil and gas operations based on “environmental and habitability burdens.”
Robinson Township, 83 A.3d at 980. However, there is nothing in the record or
Ordinance to positively and substantively indicate that the Township made any kind
of exclusionary choice or engaged in any meaningful and individualized assessment
of its districts’ particular characteristics.
To the contrary, the “requirements” for a zoning compliance permit
apply uniformly to all the districts. Significantly, some of these obligations do not
appear to be mandatory and are instead left to the discretion of the oil and gas
operator; e.g., “[o]perator shall strive to consider location of its temporary and
permanent operations, where prudent and possible, so as to minimize interference
right is a legal requirement to applying strict scrutiny review . . . . In other words, finding an
infringement of the fundamental right is a necessary predicate to determining whether that right
was impermissibly infringed.”) (emphasis in original).
For the reasons discussed above, and further elaborated upon below, I would conclude that
Landowners have met this initial burden, and that the Township should therefore shoulder the
burden of demonstrating that the Ordinance is narrowly tailored to a compelling state interest.
Notably, the Township would have to “establish a close fit between the challenged zoning
regulations and the actual public benefits they serve . . . with actual evidence, not just assertion,”
and would have to adduce evidence that fairly support the rationale for the Ordinance. Ezell v.
City of Chicago, 846 F.3d 888, 894 & 896 (7th Cir. 2017). If the Township could sustain this
burden, then regardless of the degree to which the Ordinance burdens the rights conferred by the
ERA, the Ordinance would be deemed to be constitutional. See Boy Scouts of America v. Dale,
530 U.S. 640, 648 (2000) (“But the freedom of expressive association, like many freedoms, is not
absolute. We have held that the freedom could be overridden by regulations adopted to serve
compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through
means significantly less restrictive of associational freedoms.”) (internal quotation marks omitted);
Binderup v. Attorney General, 836 F.3d 336, 344 (3d Cir. 2016) (en banc).
PAM - 14
with Township residents’ enjoyment of their property”; and “[o]perator shall take
steps, to the extent practicable to direct lighting downward and inward.” (R.R. at
206a) (emphasis added). Further, an oil and gas operator is mandated to install a
chain link fence and warning signs, secure the presence of a security guard when the
location of the well is within 1,000 feet of a “Protected Structure,” such as an
occupied residence, commercial business, or school, and provide courtesy
information to residents located within 1,000 feet of the well. (R.R. at 204a, 206a-
08a.) However, the Ordinance does not contain a setback requirement and entrusts
this determination to state agencies and/or the shifting sands of the legislation of our
General Assembly, as evidenced by what was formerly the Oil and Gas Act12 and is
now known as Act 13. See F.F. No. 64; R.R. at 207a; Robinson Township v.
Commonwealth, 52 A.3d 463, 468 (Pa. Cmwlth. 2012) (en banc), aff’d in part and
rev’d in part other grounds by 83 A.3d 901 (Pa. 2013). Notably, the Oil and Gas
Act was in effect when the Ordinance was passed but was later repealed and replaced
by Act 13; and, even assuming the Ordinance could incorporate the setback distances
contained in future legislation, the distance requirements in Act 13 have been
declared unconstitutional or non-severable from the portions of Act 13 that are
unconstitutional.13 So, as it now stands, the Ordinance technically does not have
any minimal setback distance requirements at all. None.
12
Act of December 19, 1984, P.L. 1140, as amended, formerly 58 P.S. §§601.101-601.605,
repealed by the Act of February 14, 2002, P.L. 87.
13
See Robinson Township v. Commonwealth, 147 A.3d 536, 565-66 (Pa. 2016) (“Given
the absence of those statutory provisions, municipalities may again, as they did prior to the passage
of Act 13, regulate the environmental impact, setback distances, and the siting of oil and gas wells
in land use districts through local ordinances.”).
PAM - 15
Hence, with respect to potential environmental concerns, it appears that
the Ordinance delegates (or rather, punts) any consideration of these matters to the
Department of Environmental Protection and other state agencies during the
permitting process. (F.F. Nos. 9, 24; R.R. at 207a.) In fact, the Ordinance is so
devoid and wanting, as explained herein, it does not even have any setback distance
requirements and essentially defers to the oil and gas company’s choice of location.
The Township’s failure to consider the environment in an adequate fashion renders
the Supreme Court’s decision in Robinson Township on par with the facts and
circumstances of this case. Because the Township must “reasonably account for the
environmental features of the affected locale,” Robinson Township, 83 A.3d at 953,
and the record is insufficient to prove that it has, the Township, as a threshold matter,
should have to demonstrate with competent evidence that oil and gas operations are
compatible in all of its zoning districts given the districts’ unique characteristics and
permitted uses.14, 15
14
To an extent, this portion of an ERA claim based on a trustee theory seems to have
substantial overlap with a claim grounded “in the first initial, prohibitory clause of Section 27—[]
the declared ‘right’ of citizens to clean air and pure water, and to the preservation of natural, scenic,
historic and esthetic values of the environment.” Robinson Township, 83 A.3d at 951; see id. at
952 (“The corollary of the people’s Section 27 reservation of right to an environment of quality is
an obligation on the government’s behalf to refrain from unduly infringing upon or violating the
right, including by legislative enactment or executive action. Clause one of Section 27 requires
each branch of government to consider in advance of proceeding the environmental effect of any
proposed action on the constitutionally protected features.” (emphasis added)), and compare with
id. at 963.
15
The Majority notes that none of the Landowners live on or own property in districts other
than the R-2 District. Maj. Op. at 30 n.38. However, the Landowners presented a global challenge
to the Ordinance, contesting its constitutionality, in large part, by emphasizing that the Ordinance
permits oil and gas operations in all the zoning districts. It does not appear that the Township
contested the Landowners’ standing in this regard; accordingly, the Majority not only raises a non-
issue but it does so sua sponte. See In re Paulmier, 937 A.2d 364, 368 n.1 (Pa. 2007) (reciting
PAM - 16
Second, assuming the Township can satisfy the above standard, the
Township should further demonstrate that it is indispensably necessary for all of its
zoning districts to be open to oil and gas development to attain the economic well-
being of all its citizenry. See PEDF, 161 A.3d at 932. This is especially warranted
in view of the fact that “farms” are a permitted use in only the
Agricultural/Residential District, and the Township, as trustee, has a duty to
maintain impartiality and to treat all beneficiaries equally and without favoritism.
See In re Estate of Weiss, 309 A.2d 793, 799 (Pa. 1973). In more precise terms, if
the Township relies on the financial benefit the Ordinance confers upon the farmers
as its stated objective for—and compelling interest to support—the Ordinance, the
Township should provide adequate justification for the differential treatment among
its citizens and prove that oil and gas operations in the districts other than the
Residential/Agricultural District will substantially further the business interest of the
farmers. Otherwise, if the Township asserts that its objective for and compelling
interest in the Ordinance resides in the financial benefit the law bestows upon the
citizenry as a whole, the Township should have to prove that inclusion of
commercial districts actually furthers or has the potential to further that interest. The
Township has not satisfied these criteria, and hence, the Ordinance cannot be
deemed to be the least restrictive means and fails strict scrutiny.
Third, and irrespective of the above, the facts of this case create cause
for grave concern for the Agricultural/Residential District in particular, which now
must be close to being fully occupied by oil and gas producers. Under trust law, a
trustee possesses a duty to the beneficiaries to keep an accurate account of the affairs
that challenges to standing are waivable); Hertzberg v. Zoning Board of Adjustment of the City of
Pittsburgh, 721 A.2d 43, 46 n.6 (Pa. 1998) (“Because the question of standing is not an issue of
subject matter jurisdiction, we cannot raise it sua sponte.”).
PAM - 17
of the trust and its corpus, In re Estate of Nesbitt, 533 A.2d 1015, 1021 (Pa. Super.
1987), and a “beneficiary may by a proper proceeding compel the trustee to render
to the proper court an account of the administration of the trust.” Restatement
(Second) Trusts, §172, cmt. c. (Am. Law Inst. 1959). At this point in time, the
Township should have to account for the public resources it holds in trust and
establish that the oil and gas operations in the Agricultural/Residential District have
not resulted in a negative effect on the environment as a matter of scientific fact.16
Because the Township has not made the evidentiary showings just
outlined, I would vacate the order below and remand to the to the trail court to
remand to the Board to provide the Township with the opportunity to satisfy its
burden and for the Landowners to present any rebuttal evidence.17 The Majority
glosses over the Landowners’ ERA claim and dismisses it in short thrift. I cannot.
Accordingly, I respectfully dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
16
This would not require, as the Majority contends, that the Township prove a negative.
Maj. Op. at 31 n.38. Rather, it merely places the burden on the Township, in light of the
deficiencies and overarching reach of the Ordinance, to carry its rebuttal burden of demonstrating
through scientific evidence that no unreasonable harm has occurred to the environment. Of course,
such evidence is obtainable and readily available.
17
I do not suggest that, on remand, the parties engage in a fishing expedition in an attempt
to unearth evidence regarding the deliberations or intentions of the Supervisors in enacting the
Ordinance. Aside from the fact that these issues are irrelevant for purposes of the present ERA
challenge, it would be ill-conceived to think that the Supervisors’ true intent in enacting the
Ordinance was to decimate the environment and obliterate the rights of the ERA.
PAM - 18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dolores Frederick, Patricia Hagaman, :
and Beverly Taylor, :
Appellants :
:
v. :
:
Allegheny Township Zoning Hearing :
Board :
:
v. : No. 2295 C.D. 2015
: ARGUED: February 7, 2018
CNX Gas Company, LLC :
:
v. :
:
Allegheny Township :
:
v. :
:
John H. Slike and Anne E. Slike, :
Northmoreland Farms LP :
:
v. :
:
Michael Golembeiwski and Lisa :
Golembeiwski, John P. Brunner, II, :
Esq., Jeffrey and Sheila Brunner, :
Miller Niksic, Joanne Resh, Richard :
and Patricia Trumble, Michael and :
Jacalyn Schumaker :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
DISSENTING OPINION
BY JUDGE CEISLER FILED: October 26, 2018
While I agree with much of the majority’s reasoning, I take issue with its
conclusion that Zoning Ordinance 01-2010 does not violate the Environmental
Rights Amendment and, therefore, respectfully register my dissent. The
Environmental Rights Amendment reads as follows:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic
values of the environment. Pennsylvania's public natural
resources are the common property of all the people,
including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and
maintain them for the benefit of all the people.
PA. CONST. art. I, §27.
This constitutional provision grants two separate rights to
the people of this Commonwealth. The first right is
contained in the first sentence, which is a prohibitory
clause declaring the right of citizens to clean air and pure
water, and to the preservation of natural, scenic, historic
and esthetic values of the environment. This clause places
a limitation on the state’s power to act contrary to this
right, and while the subject of this right may be amenable
to regulation, any laws that unreasonably impair the right
are unconstitutional. Id.
The second right reserved by [the Environmental Rights
Amendment], set forth in its second sentence, is the
common ownership by the people, including future
generations, of Pennsylvania's public natural resources.
...
The third clause of [the Environmental Rights
Amendment] establishes a public trust, pursuant to which
the natural resources are the corpus of the trust, the
Commonwealth is the trustee, and the people are the
named beneficiaries.
Pennsylvania Envtl. Def. Found. v. Com. (PEDF II), 161 A.3d 911, 931-32 (Pa.
2017) (citations and footnote omitted). Thus, the Commonwealth, as trustee, has a
fiduciary obligation:
to comply with the terms of the trust and with standards
governing a fiduciary's conduct. The explicit terms of the
trust require the government to “conserve and maintain”
the corpus of the trust. See PA. CONST. ART. I, § 27. The
plain meaning of the terms conserve and maintain
implicates a duty to prevent and remedy the degradation,
diminution, or depletion of our public natural resources.
As a fiduciary, the Commonwealth has a duty to act
toward the corpus of the trust—the public natural
resources—with prudence, loyalty, and impartiality.
Id. at 932 (quoting Robinson Twp., Washington Cty. v. Com., 83 A.3d 901, 956-7
(Pa. 2013)). The term “Commonwealth,” as used here, “encompasses all agencies
and entities of the Commonwealth government, both statewide and local,” meaning
that each one has “a fiduciary duty to act toward the corpus with prudence, loyalty,
and impartiality.” Id. at 928 n.23.
Our Supreme Court, referencing Pennsylvania trust law, has interpreted the
Environmental Rights Amendment to
impose[ ] two basic duties on the Commonwealth as the
trustee. First, the Commonwealth has a duty to prohibit the
degradation, diminution, and depletion of our public
natural resources, whether these harms might result from
direct state action or from the actions of private parties.
Second, the Commonwealth must act affirmatively via
legislative action to protect the environment. Although a
trustee is empowered to exercise discretion with respect to
the proper treatment of the corpus of the trust, that
discretion is limited by the purpose of the trust and the
trustee’s fiduciary duties, and does not equate to mere
subjective judgment.
Id. at 932-33. Consequently, the Township, as a local component of our
Commonwealth’s government, must act in accordance with these duties as trustee
of the environment and the public natural resources within its domain. Furthermore,
the Township must pursue “not only reactive but also anticipatory protection of the
environment [and public natural resources] for the benefit of current and future
EC - 2
generations.” Id. at 919 (quoting Robinson Twp., 83 A.3d at 963); see id. at 931
(“The second right reserved by [the Environmental Rights Amendment], set forth in
its second sentence, is the common ownership by the people, including future
generations, of Pennsylvania’s public natural resources.”); Robinson Twp., 83 A.3d
at 959.1
While the majority opines that the Slikes’ property is neither public in nature,
nor held in trust by the Township, I believe this misses the point and incorrectly
narrows the scope of the Township’s environmental trustee duties. As former Chief
Justice Castille noted in his Robinson Township plurality opinion,
[a]t present, the concept of public natural resources
includes not only state-owned lands, waterways, and
mineral reserves, but also resources that implicate the
public interest, such as ambient air, surface and ground
water, wild flora, and fauna (including fish) that are
outside the scope of purely private property.
Robinson Twp., 83 A.3d at 955 (citing numerous statutory provisions). Thus, the
Township has an affirmative duty to ensure that these kinds of resources are properly
conserved and protected, regardless of whether they are found on private or public
land, and whether the harm or threat thereto comes from private entities or an
apparatus of the Commonwealth government itself. In short, the fact that the Porter
Pad sits on private land does not halt the Environmental Rights Amendment’s
applicability, or the Township’s trustee responsibilities, at the Slikes’ property line.2
1
“Within the public trust paradigm of [the Environmental Rights Amendment], the
beneficiaries of the trust are ‘all the people’ of Pennsylvania, including generations yet to come.
The trust’s beneficiary designation has two obvious implications: first, the trustee has an obligation
to deal impartially with all beneficiaries and, second, the trustee has an obligation to balance the
interests of present and future beneficiaries.” Robinson Twp., 83 A.3d at 959.
2
Our Court has, in the past, expressed a clear desire to limit the Robinson Township
plurality’s persuasive power as much as possible. See Pennsylvania Envtl. Def. Found. v. Com.,
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The majority also concludes that Appellants failed to meet their evidentiary
burden in the context of their Environmental Rights Amendment-based argument. I
share the majority’s concerns regarding Appellants’ proffered evidence and
recognize that the Zoning Board was the fact-finder in this matter, with exclusive
authority to both weigh evidence and make credibility determinations. Hellam Twp.
v. Hellam Twp. Zoning Hearing Bd., 941 A.2d 746, 749 (Pa. Cmwlth. 2008).
However, I believe focusing on these points puts the cart before the horse, skipping
over the very reason for my dissent: Zoning Ordinance 01-2010 facially violates the
Environmental Rights Amendment.3
Our Commonwealth’s history, the Environmental Rights Amendment’s
purpose, and the very nature of the challenged Ordinance compel this conclusion.
It is not a historical accident that the Pennsylvania
Constitution now places citizens’ environmental rights on
par with their political rights . . . [for our Commonwealth]
has a notable history of what appears retrospectively to
have been a shortsighted exploitation of its bounteous
environment, affecting its minerals, its water, its air, its
flora and fauna, and its people. The lessons learned from
that history led directly to the Environmental Rights
Amendment, a measure which received overwhelming
108 A.3d 140, 156 (Pa. Cmwlth. 2015), rev’d in part, vacated in part sub nom. PEDF II, 161 A.3d
911 (“For our purposes, we find the [Robinson Township] plurality’s construction of [the
Environmental Rights Amendment] persuasive only to the extent it is consistent with binding
precedent from this Court and the Supreme Court on the same subject.”). However, given the
Supreme Court’s PEDF II opinion, in which the majority liberally quotes and repeatedly cites
Robinson Township, see PEDF II, 161 A.3d at 916-19, 929-38, & n.20, 21, & 23, I believe we
must now recognize that authority of former Chief Justice Castille’s plurality opinion has been
greatly enhanced.
3
“A strong presumption of validity and constitutionality attaches to any lawfully enacted
zoning ordinance and a heavy burden is on the [challenger] to prove facial invalidity of such
ordinance. In order to overcome this burden, the [challenger] must prove that the ordinance is
clearly, palpably, and plainly unconstitutional.” Atl. Ref. & Mktg. Corp. v. Bd. of Comm’rs of York
Twp., 608 A.2d 592, 594 (Pa. Cmwlth. 1992) (internal citation omitted).
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support from legislators and the voters alike. When coal
was “King,” there was no Environmental Rights
Amendment to constrain exploitation of the resource, to
protect the people and the environment, or to impose the
sort of specific duty as trustee upon the Commonwealth as
is found in the Amendment. Pennsylvania’s very real and
mixed past is visible today to anyone travelling across
Pennsylvania’s spectacular, rolling, varied terrain. The
forests may not be primordial, but they have returned and
are beautiful nonetheless; the mountains and valleys
remain; the riverways remain, too, not as pure as when
William Penn first laid eyes upon his colonial charter, but
cleaner and better than they were in a relatively recent
past, when the citizenry was less attuned to the
environmental effects of the exploitation of subsurface
natural resources. But, the landscape bears visible scars,
too, as reminders of the past efforts of man to exploit
Pennsylvania’s natural assets. Pennsylvania’s past is the
necessary prologue here: the reserved rights, and the
concomitant duties and constraints, embraced by the
Environmental Rights Amendment, are a product of our
unique history. . . .
[H]istory[, however,] seem[s] to [be] repeat[ing] itself: an
industry, offering the very real prospect of jobs and other
important economic benefits, seeks to exploit a
Pennsylvania resource, to supply an energy source much
in demand. . . . By any responsible account, the
exploitation of the Marcellus Shale Formation will
produce a detrimental effect on the environment, on the
people, their children, and future generations, and
potentially on the public purse, perhaps rivaling the
environmental effects of coal extraction. The litigation
response was not available in the nineteenth century, since
there was no Environmental Rights Amendment. The
response is available now.
Robinson Twp., 83 A.3d at 960, 976 (emphasis added). In essence, the recent
hydrocarbon extraction boom, which is occurring throughout portions of this
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Commonwealth that overlay the Marcellus Shale Formation,4 stands ready to wreak
havoc of similar class and character as those booms which stripped our forests bare,
hunted our wildlife to near-or-actual extinction, and poisoned or scarred our air,
land, and water. It is incumbent upon all levels of Commonwealth government, by
virtue of the trustee responsibilities imposed by the Environmental Rights
Amendment, to ensure that this potential does not become a reality.
Here, Appellants claim that Zoning Ordinance 01-2010
permits industrial and environmentally intensive
unconventional development in all zoning districts, by
right without public hearing or the attachment of tailored
conditions, and with very little to any local health, safety,
and welfare regulations. Given this zoning structure, it is
obvious that the Township cannot consider in advance of
proceeding the environmental effect of any proposed
action when granting zoning approval of any particular
unconventional development as permission is simply
given as of right. . . . How [can the] Township carry[ ] out
its trustee duty to act affirmatively to protect the
environment, via legislative action, given [that Zoning
Ordinance 01-2010] permit[s] this environmentally
intensive use everywhere [throughout the Township]?
Appellants’ Brief at 47-48 (quotation marks omitted). How indeed. This Ordinance
allows “Oil and Gas Development,” which is defined so as to encompass a vast
4
See Dr. Olga Popova, Marcellus Shale Play: Geology Review at 2-4, U.S. ENERGY
INFORMATION ADMINISTRATION (January 2017), available at
https://www.eia.gov/maps/pdf/MarcellusPlayUpdate_Jan2017.pdf discussing and illustrating
geographic area covered by Marcellus Shale Formation); Ellen M. Gilmer, ‘Topsy-turvy’ legal
landscape in aftermath of nixed Pa. drilling law, E&E NEWS (November 25, 2014),
https://www.eenews.net/stories/1060009504/print (last visited August 6, 2018) (“Allegheny
Township sits atop the Marcellus Shale formation, where hydraulic fracturing and horizontal
drilling have sparked a nationwide gas boom.”).
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universe of activities,5 anywhere in the Township by-right and subject mainly to only
open-ended and vaguely worded conditions. See Zoning Ordinance 01-2010 §§ 3,
3(2)-3(4), 3(7)-3(9), 3(14)-3(15), 3(18) (general strictures for by-right Oil and Gas
Development in the Township pertaining to brush, tree, and tree stump disposal; dust
control; effects of such development upon other properties; lighting; noise; road
safety; sanitation; and time of day during which pre-drilling construction activity is
allowed). Furthermore, it is silent regarding when or for how long drilling may take
place (theoretically allowing round-the-clock activities in perpetuity once
construction has been completed), offers no mechanism by which Township
residents or other interested parties might offer their input during the permitting
process, and is completely devoid of language addressing the long-term primary,
secondary, or tertiary effects of such development. Given this state of affairs, it is
simply impossible for the Township, when considering an Oil and Gas Development
permit request, to appropriately weigh the interests of the property owner and of the
broader Township community, or those of present Township residents and of
generations-to-come, or protect the environment and preserve public interest-
5
Oil and Gas Development or Development. The well site
preparation, well site construction, drilling, hydraulic fracturing,
and/or site restoration associated with an Oil and Gas well of any
depth; water and other fluid storage, impoundment and
transportation used for such activities; and the installation and use
of all associated equipment, including tanks, meters, and other
equipment and structures whether permanent or temporary; and the
site preparation, construction, installation, maintenance and repair
of Oil and Gas pipelines and associated equipment and other
equipment and activities associated with the exploration for,
production and transportation of Oil and Gas other than Natural Gas
Compressor Stations and Natural Gas Processing Plants or facilities
performing the equivalent functions that operate as midstream
facilities.
Zoning Ordinance 01-2010 § 2 (emphasis in original).
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implicating natural resources over both the short term and the long haul. Therefore,
I believe Zoning Ordinance 01-2010 clearly, palpably, and plainly violates the
Environmental Rights Amendment, as the Ordinance manifestly fails to comport
with the Township’s duties as environmental trustee of all the public natural
resources within its domain, and would grant this appeal on that basis.
__________________________________
ELLEN CEISLER, Judge
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