Delaware Riverkeeper Network v. Middlesex Twp. ZHB v. PennEnergy Resources, LLC ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delaware Riverkeeper Network, :
Clean Air Council, David Denk, :
Jennifer Chomicki, and Joann Groman, :
:
Appellants :
:
v. : No. 2609 C.D. 2015
: Argued: June 6, 2019
Middlesex Township Zoning :
Hearing Board :
:
v. :
:
PennEnergy Resources, LLC, :
Middlesex Township, and :
Robert G. Geyer :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 26, 2019
This is an appeal by Objectors1 from the order of the Butler County
Court of Common Pleas (trial court) denying their appeal of the Middlesex
Township (Township) Zoning Hearing Board’s (Board) decision that denied their
substantive challenge to the Township’s Ordinance 127 and denied their appeal of
1
The Objectors are the Delaware Riverkeeper Network (DRKN), the Clean Air Council
(CAC), and David Denk, Jennifer Chomicki, and Joann Groman, landowners in Weatherburn
Heights Planned Residential Development in Middlesex Township near the well site.
the zoning permit that the Township issued to R.E. Gas Development, LLC (Rex).2
Initially, this Court affirmed the Board’s decision. See Delaware Riverkeeper
Network v. R.E. Gas Development, LLC (Pa. Cmwlth. Nos. 1229 C.D. 2015, 1323
C.D. 2015, 2609 C.D. 2015, filed June 7, 2017) (Delaware Riverkeeper I).3
The matter returns to this Court on remand from the Pennsylvania
Supreme Court pursuant to the following order:
AND NOW, this 3rd day of August, 2018, the
Petition for Allowance of Appeal is GRANTED. The
Order of the Commonwealth Court is VACATED and
this matter is REMANDED to Commonwealth Court for
reconsideration of its decision in light of Pa. Envtl. Def.
Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017)
[(PEDF II)]. In addition, in light of the amendments
contained in Middlesex Township Ordinance 127, which
expressly include gas well development as a permitted
use in the subject R-AG zone, and our decision in
Gorsline v. Bd. of Sup. of Fairfield Twp., [186 A.3d 375
(Pa. 2018) (Gorsline II)] wherein we noted “this decision
should not be misconstrued 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,” we direct Commonwealth Court to
reconsider the relevance of Gorsline to its analysis of the
issues on appeal in this case.
2
By January 25, 2019 order, we granted the application of PennEnergy Resources, LLC
(PennEnergy) to be substituted as appellee for Rex. Nevertheless, for the sake of clarity, we will
continue to refer to the relevant appellee as Rex rather than PennEnergy.
3
We also dismissed as moot stay orders issued by the trial court in our prior
memorandum opinion and order in Delaware Riverkeeper I, which are not at issue in the instant
remand proceedings.
2
Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board,
190 A.3d 1126-27 (Pa. 2018) (Delaware Riverkeeper II) (emphasis in original).4
Upon reconsideration, we again affirm the Board’s order.
I.
The facts of this case, as outlined in Delaware Riverkeeper I, are as
follows. Robert G. Geyer (Geyer) owns farm property along the south side of the
east-west Route 228 corridor in the Township near its boundary with Adams
Township, which is near the Weatherburn Heights (Weatherburn) Planned
Residential Development (PRD). In November 2012, the Township’s Board of
Supervisors enacted Ordinance 125 creating an R-AG Residential Agriculture
Zoning District, a mixed-use district, to limit suburban growth and the location of
PRD developments from a majority of the zoning districts in the Township. 5 The
4
As this Court has explained:
“[I]t has long been the law in Pennsylvania that following remand,
a lower court is permitted to proceed only in accordance with the
remand order.” Commonwealth v. Sepulveda, [144 A.3d 1270,
1280 n.19 (Pa. 2016)]. In Levy v. Senate of Pennsylvania, 94 A.3d
436 (Pa. Cmwlth.), appeal denied, [] 106 A.3d 727 (Pa. 2014),
which the Supreme Court cited with approval in Sepulveda, this
Court explained: “Where a case is remanded for a specific and
limited purpose, ‘issues not encompassed within the remand order’
may not be decided on remand. A remand does not permit a
litigant a ‘proverbial second bite at the apple.’” Levy, 94 A.3d at
442 (quoting In re Indep. Sch. Dist. Consisting of the Borough of
Wheatland, 912 A.2d 903, 908 (Pa. Cmwlth. 2006)).
Marshall v. Commonwealth, 197 A.3d 294, 306 (Pa. Cmwlth. 2018).
5
Ordinance 125 added Section 175-243 to the Township’s Zoning Ordinance, which
states that the purpose of the R-AG Zoning District “is to provide for agricultural uses, low-
(Footnote continued on next page…)
3
Geyer farm is located in the R-AG Residential Agriculture District and Rex has
leased the oil and gas underlying Geyer’s property.
In August 2014, the Township’s Board of Supervisors enacted
Ordinance 127, over the objection of the Township’s Planning Commission.
Ordinance 127 states that the “Township Zoning Ordinance as currently written
does not expressly provide for the use or regulation of oil and gas operations,” and
the “Township Board of Supervisors desires to expressly provide for the use and
regulation of oil and gas operations within the Township.” Reproduced Record
(R.R.) at 34a. Ordinance 127 allows for “oil and gas well site development” as a
permitted principal and accessory use in the AG-A Rural Residential District;6 AG-
(continued…)
density residential development and planned higher density development in areas where the
general character is defined by rural areas which are in close proximity to major roads,
infrastructure and areas near existing concentrated residential development and to provide for
compatible public, semipublic and accessory uses as conditional uses or uses by special
exception.” Reproduced Record (R.R.) at 1760a. Ordinance 125 also added Section 175-
244(A)(1) to the Zoning Ordinance that provided the following permitted principal uses in the R-
AG Residential Agriculture District: farms; greenhouse or tree nursery; single-family dwellings;
two-family dwellings; government buildings; municipal firehouses; schools; public utilities,
except buildings; and municipal recreation. Id.
6
Ordinance 127 added the definition of “oil and gas well site development” to Section
175-8 of the Township’s Zoning Ordinance, which is defined as “well location assessment,
including seismic operations, well site preparation, construction, drilling, water or fluid storage
operations, hydraulic fracturing and site restoration associated with an oil and gas well of any
depth,” “includ[ing] conventional (vertical) and non-conventional (horizontal) methods of
drilling.” R.R. at 35a. Ordinance 127 also added Section 175-155.2 to the Zoning Ordinance
which imposes a number of restrictions and requirements with respect to oil and gas well site
development including: a 10-acre minimum lot size; compliance with state and federal
regulations; access roads; traffic safety; dust control measures; noise standards; light restrictions;
water storage requirements; limits to times of operation; signage and site identification; and any
other restrictions necessary for the grant of a conditional use. See R.R. at 38a-45a.
4
B Agricultural District; I-1 Restricted Industrial District; and the R-AG Residential
Agriculture District; and as a conditional use in the C-2 Highway Commercial
District; TC Town Center District; and C-3 Regional Commerce District.
Ordinance 127 provides natural gas compressor stations as a permitted use in the I-
1 Restricted Industrial District and as a conditional use in the AG-A Rural
Residential District; AG-B Agricultural District; C-2 Highway Commercial
District; TC Town Center District; and C-3 Regional Commerce District. The
ordinance also provides natural gas processing plants as a conditional use in the I-1
Restricted Industrial and C-3 Regional Commerce Districts. See R.R. at 48a.
In September 2014, the Pennsylvania Department of Environmental
Protection (DEP) issued well permits for drilling on the Geyer farm (Geyer site).
The Township also granted Rex’s application for a zoning permit for the drilling.
In October 2014, Objectors filed a substantive validity challenge to
Ordinance 127 and an appeal of the zoning permit, which the Board consolidated
for disposition.7 In the substantive validity challenge, Objectors claimed that
Ordinance 127: (1) violates Article 1, Section 1 of the Pennsylvania Constitution8
because it was not designed to protect the health, safety, morals, and public welfare
of its citizens and, therefore, is not a valid exercise of the Township’s police
power; (2) violates Article 1, Section 1 by injecting incompatible industrial uses
into a non-industrial zoning district in violation of the Township’s Comprehensive
7
Rex and MarkWest Liberty Midstream & Resources (MarkWest), a natural gas
gathering, processing and transportation company, intervened in the proceedings.
8
Article 1, Section 1 states, in relevant part, that “[a]ll men . . . have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property . . . and of pursuing their own happiness.” Pa.
Const. art. I, §1.
5
Plan thereby making the ordinance irrational; and (3) unreasonably infringes on
their rights under Article 1, Section 27 of the Pennsylvania Constitution
(Environmental Rights Amendment)9 to clean air, pure water, and a healthy local
environment in which to live, work, recreate, and raise their children.10
The Board held nine public hearings at which the parties presented
expert and lay testimony and evidence. Development at the Geyer site was stayed
during the proceedings.
David Denk, one of the Objectors and a member of DRKN and CAC,
testified that he lives in Weatherburn with his wife and two children approximately
1200 feet from the Geyer site. He stated that he did not expect industrial activity
from a well pad at the Geyer site when he purchased his house and he did not
check with the Township to see if a well site was a permitted use. He said that he
had retained the mineral rights in his property, but that he had concerns about the
9
Article 1, Section 27 states:
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.
10
In their appeal of the zoning permit issuance, Objectors raised similar claims, asserting
that the Township’s approval of the Geyer site well pad development: (1) violates their rights
under Article 1, Section 1 by injecting an incompatible industrial use with industrial standards
into a zoning district where there is no expectation of industrial activity and where it will cause a
nuisance; (2) violates their rights under Article 1, Section 27 to a healthy community in which to
live; and (3) breached the Township’s obligations as trustee under Article 1, Section 27.
6
health impact of fracking activities if they take place nearby. The Board accepted
Denk’s testimony as credible.
Robert Zaccari, a member of DRKN and CAC, testified that in 2011,
he purchased his house in Weatherburn and understood that the area is zoned for
residential and agricultural uses. He acknowledged that residential construction in
Weatherburn has been ongoing since he moved there, but that well pad
construction is more intense. He stated that he did not know that the Township has
a noise ordinance and that he refused to lease his subsurface rights to Rex. He said
that he is concerned that well pad activity will impact the future value of his home,
but he did not know to what extent. The Board accepted Zaccari’s testimony as
credible.
Kathleen Wagner lives on Denny Road in the Township and is
opposed to the well pad at the Geyer site. However, she stated that she signed a
gas lease with Rex under which she was paid by Rex. As a result, the Board found
the remainder of her testimony to be not credible.
Henrich Hartge testified that he resides in Weatherburn with his wife
and daughter and that he is most worried about an explosion from fracking
activities. The Board found that his concern, although not entirely outside the
realm of possibility, was exaggerated for purposes of the hearing and not credible.
Crystal Yost testified that she lives with her husband and children
approximately 1300 feet from an operating Rex fracking facility, the Reno well.
The Board found that her testimony was not credible because she substantially
exaggerated her testimony and was evasive.
Melissa Brown testified that she resides with her husband and
daughter on Forsyth Road adjacent to an oil and gas pipeline. She stated that she
7
has concerns about the pipeline near the rear of her property contaminating the
environment, her water well and her trees. However, she signed a subsurface gas
lease with Rex and the Board found her testimony to be not credible.
Michael Endler, Rex’s vice president and regional manager, testified
regarding the construction activities and the timetable for the construction of a well
pad. However, the Board found that his testimony was not credible because he
was combative and evasive on cross-examination.
Jane Hawkins Peterson testified that she lives in the Township with
her husband and is a part owner of a farm property that is leased to Rex and also to
MarkWest for a pipeline. She stated that leasing the land for oil and gas
financially helps her property remain agricultural, as opposed to being developed
for residential uses. The Board accepted her testimony as credible.
Catherine Morely testified that she resides in the Township and her
father’s farm is the site of an existing Rex well pad, the Ferree well site. She stated
that she lives 1900 feet from the Reno well site and 1900 feet from the Ferree well
site. She said that her family’s farming operations continue around the Ferree well
site and the intrusion of the well pad drilling and construction was minimal. The
Board accepted her testimony as credible.
Janice Kennedy testified that she lives adjacent to Weatherburn and
would be approximately 1,015 feet from the Geyer well pad, the closest residence
to the pad. She said that she began residing in the area before residential
construction in Weatherburn, and that there has been ongoing construction from
2010. She stated that she considers the residential development to be a greater
concern than the Geyer well pad due to increased lighting, ongoing construction,
and denser population. She acknowledged that she has a subsurface lease with Rex
8
and that she has no objection to the construction of the well pad and fracking for
gas and oil at the Geyer site. The Board accepted her testimony as credible.
Scott Fodi (Fodi), the Township’s manager and zoning officer,
testified that the Township’s Zoning Ordinance was silent as to oil and gas
facilities prior to the enactment of Ordinance 127 so the Township was at risk for
such facilities being permitted in every district due to exclusionary zoning. He
stated that oil and gas leasing reached a peak in intensity in the Township around
the time the General Assembly enacted the Pennsylvania Oil and Gas Act (Act 13),
58 Pa. C.S. §§2301-3504, and that 80% of the properties in the Township are now
leased for oil and gas development. He said that after this Court held that the
zoning provisions in Act 13 were invalid in Robinson Township v. Commonwealth,
52 A.3d 463 (Pa. Cmwlth. 2012) (Robinson I), aff’d in part and rev’d in part, 83
A.3d 901 (Pa. 2013) (Robinson II), the Township’s Board of Supervisors directed
him to develop an oil and gas development zoning ordinance for the Township. He
testified that he submitted the draft ordinance to the Township’s Planning
Commission in June 2014. He stated that, in July 2014, the Planning Commission
voted to request the Board of Supervisors to postpone a vote on the draft ordinance
for one month, but that the Board enacted Ordinance 127 in August 2014,
nonetheless. The Board accepted his testimony as credible.
Thomas Daniels (Daniels), Objectors’ land use expert, asserted that
Ordinance 127 is not valid because it is not consistent with the Township’s current
joint Comprehensive Plan with Richland Township.11 He calculated that
11
Objectors also offered Jay Parrish as an expert in geology and geography. However,
the Board found that “Dr. Parrish’s methodology is not generally accepted in the relevant field”
and that “he admitted that the opinion he was offering is not supported by any scholarly support
and is indeed ‘novel.’ [R.R. at 1911a].” Id. at 1773a. As a result, the Board determined that
(Footnote continued on next page…)
9
Ordinance 127 opens up 90.2% of the Township to oil and gas development, but he
did not provide a basis for this calculation. He opined that oil and gas operations
constitute a heavy industrial use associated with noise, odor, dust, pollution, fires
and evacuations, which is inconsistent with the residential and agricultural uses in
the R-AG Zoning District.
Attorney William Sittig (Sittig), the Township’s and Rex’s land use
expert,12 asserted that oil and gas operations include industrial components but
cannot be characterized as a heavy industrial use. He opined that Daniels only
focused on a temporary period of industrial development and did not consider the
entire lifespan of a well pad during drilling operations and the post-reclamation
period. He disputed Daniels’ assertion regarding breadth of development, stating
that less than 30% of the land in the Township can be drilled pursuant to Ordinance
127. With respect to the Township’s Comprehensive Plan, Sittig asserted that the
issue is whether Ordinance 127 is a valid exercise of Township power and not
(continued…)
“[Objectors] failed to lay a proper foundation to establish the acceptance of [] Parrish’s methods
and conclusions,” “decline[d] to accept [] Parrish as an expert,” and “rejected [his testimony] in
toto.” Id.
12
The Board noted that Sittig “has a Bachelor’s Degree in mechanical engineering as
well as a Juris Doctor[],” that “[h]e has extensive experience in land use planning issues as
counsel for both municipalities and developers,” and that “[h]is methodology is generally
accepted in the field.” R.R. at 1773a. The Board stated that “[t]he issue with Mr. Sittig is
whether he can ‘bring to the table’ specialized knowledge beyond the scope of a layperson” and
that “[a]s a general rule, expert testimony on questions of law is not permitted.” Id. (citations
omitted). Nevertheless, the Board accepted Sittig as an expert explaining that “during closing,
counsel for [CAC] relied on, in large part, the testimony of Attorney Sittig in support of its own
case, thereby waiving its objection,” and “reserve[d] to itself . . . any decision as to questions of
law.” Id. at 1774a.
10
whether it fell within the plan’s framework. The Board accepted Sittig’s testimony
as credible.
Daniel Carpenter (Carpenter), Objectors’ public health expert, opined
that there is a public risk for significant contamination by pollutants within a two-
mile radius of a well pad based on his examination of studies relevant to fracking.
However, the Board found that his opinion is based on flawed data and failed to
take into account contrary studies.
Julie Panko (Panko), Rex’s expert in human health risk assessments,
conducted a study of the fracking operations at Fort Cherry High School in
Washington County, from which she determined that the release of chemical
pollutants into the air during fracking and flaring do not significantly exceed the
background concentrations or health-based exposure limits. She opined that the oil
and gas production authorized by Ordinance 127 does not constitute a risk to
public health or neighboring residents, contradicting Carpenter’s opinion.
However, the Board found that her studies did not consider a number of emission
sources and failed to include a variety of pollutants caused by gas development
including contaminant volatile organic chemicals.
Dana Bowen (Bowen), Objectors’ expert in noise assessment,
prepared a study in which she concluded that the predicted noise levels would be
65 to 75 dBa at the Geyer site and would not reach 60 dBa for a distance of 3,200
feet from the site. She opined that sound mitigation techniques such as barriers
would not effectively mitigate the noise. However, the Board found that she did
not undertake any noise measurements at the Geyer site, did not accurately locate
the position of the proposed well pad, and assumed that all equipment would be
running simultaneously from the same spot and not arrayed across the site.
11
Ultimately, the Board rejected the expert testimony of Carpenter,
Panko, and Bowen, stating that “[i]t is apparent from cross-examination that of
these three scientific expert witnesses, each failed to take into account underlying
data that did not support their conclusions, chose to take shortcuts in their research
by only utilizing favorable data and overlooked or substantially downplayed
inconvenient data.” R.R. at 1784a-1785a. As a result, the Board found that “Dr.
Carpenter, Ms. Panko and Ms. Bowen are not credible witnesses.” Id. at 1785a.
In disposing of Objectors’ claims, the Board initially explained that
the Township’s Board of Supervisors is granted the authority to amend its Zoning
Ordinance under Section 601 of the Municipalities Planning Code (MPC)13 and
that Section 603(i) provides that “zoning ordinances shall provide for the
reasonable development of minerals in each municipality.” 53 P.S. §10603(i). In
turn, Section 107 of the MPC defines “minerals” as including “crude oil and
natural gas.” 53 P.S. §10107. The Board also stated that under Section 603(g) and
(h) and Section 604(5) of the MPC, “[z]oning ordinances must protect ‘prime
agricultural land’ and encourage the continuity, development and viability of
agricultural operations while also accommodating reasonable overall community
growth. 53 P.S. §§10603(g) and (h), 10604(5).” R.R. at 1789a. The Board
rejected “Daniels’ view that oil and gas operations should be limited to industrial
districts” because “it views residential as the preeminent use, to which all other
uses are subordinate.” Id. Rather, the Board found Sittig’s testimony to be more
persuasive and credible that “the need to balance interests and uses is a far better
13
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10601. Section 601 states that
“[t]he governing body of each municipality . . . may enact, amend and repeal zoning ordinances
to implement comprehensive plans and to accomplish any of the purposes of this act.”
12
view of a mixed-use zoning district, [which is] one of the aims of the MPC and
indeed the balance spoken of in Article 1, Section 27 of the Pennsylvania
Constitution.” Id.
The Board explained:
The Township Supervisors, through the passage of
Ordinance 127, view oil and gas drilling activities as a
way to help preserve agricultural activity. Their view is
supported by the competent expert testimony of [] Sittig
and the lay testimony of [] Morley and [] Hawkins
Peterson. The Supervisors also view unchecked
suburban growth as being associated with air and water
pollution, traffic issues, and sewer and water costs.
Where [Objectors] view agriculture and residential to be
nearly synonymous, with a perspective that favors
residential, the Supervisors do not, instead viewing
residential and agricultural as distinct and different uses
in a mixed-use district that must be balanced. The
[Board] finds the Supervisors’ view, espoused through
the passage of Ordinance 127, to be credible.
R.R. at 1789a-1790a.
The Board found that “[t]he answer to whether the temporary
industrial use poses a danger to the health, safety and welfare of the residents of
[the] Township remains unanswered by the woefully inadequate scientific expert
testimony presented in this case.” R.R. at 1790a. The Board concluded that
Objectors “failed to prove a health hazard to the community by their use of
woefully inadequate scientific testimony” and, “[t]o the extent [that they] seek to
limit oil and gas operations to a traditional industrial zone, the net effect would be
to engage in the exclusionary zoning of oil and gas.” Id.
The Board rejected Objectors’ assertion that Ordinance 127 conflicts
with the Township’s Comprehensive Plan, concluding that “oil and gas operations
are not specifically mentioned within the Comprehensive Plan” and that it “does
13
not refer to the evaluation and development of [an] approval process for the
production of natural resources.” R.R. at 1791a. To the extent that they are
inconsistent, the Board asserted that “a comprehensive plan is an abstract
recommendation as to land utilization” so that “inconsistency with a
comprehensive plan . . . cannot be a basis for a substantive challenge to a zoning
ordinance.” Id. (citations omitted). The Board stated that it “does not view
Robinson, supra, [sic] as reversing prior case law on this issue” or “to require
absolute adherence to an adopted comprehensive plan.” Id.
Regarding Article 1, Sections 1 and 27, the Board explained that
“[t]he substantive due process inquiry requires a balancing of [landowners’] rights
and the public interest to be protected by the exercise of the police power” and that
“[t]his balancing of interests is the same inquiry that must be made to determine
whether an ordinance meets [the] requirements of Trustee [under Section 27].”
R.R. at 1792a. The Board found that “[t]he totality of oil and gas drilling on a site,
such as the Geyer [site], is not an industrial use, but it is instead a use traditionally
exercised in agricultural areas, containing [temporary] components of an industrial
use” and that “[t]o limit oil and gas drilling activities to a traditionally zoned
industrial district based on their industrial incidents, is irrational.” Id. at 1793a.
The Board explained that the Township’s Supervisors “balanced the
community’s costs and benefits of oil and gas production as evidenced by, on one
hand, Ordinance 127’s exclusion of oil and gas activity from ‘purely’ residential
zones, such as R-1, R-2 and PRD districts, to on the other hand, viewing oil and
gas drilling as part and parcel of an agricultural district.” R.R. at 1792a. 14 The
14
The Board determined that Ordinance 127 properly balanced these interests:
(Footnote continued on next page…)
14
Board noted the PRD overlay located in the R-AG Residential Agriculture District
and that “[m]ixed use districts, and even seemingly incompatible mixed-use
districts with crowded residential areas, have been recognized as an acceptable
planning tool.” Id. (citation omitted). The Board stated:
In mixed use districts of residential and
agricultural districts, such as the epicenter R-AG district,
it is rational to preserve agricultural districts to maintain
a check on the growth of residential districts. Oil and gas
drilling provides a financial mechanism by which the free
market can preserve agriculture. Ordinance 127
therefore bears a substantial relationship to public health,
safety and welfare as well as a balancing of interests.
Id. at 1793a-1794a.
The Board found that the burden was on Objectors and that they
“failed to meet their burden that oil and gas drilling pads will injure their
neighbors.” R.R. at 1794a. The Board stated that the Township’s Supervisors
“acted in their role as trustee for future generations, as required by Article 1,
§27 . . . by helping to preserve agricultural resources for future generations.” Id.
(continued…)
Oil and gas activities are specifically excluded by
Ordinance 127 from exclusively zoned residential districts, be it R-
1, R-2 or within any PRD overlay district. The exclusion
encompasses the three components of oil and gas drilling – well
pads, processing plants and compressor stations. In addition,
compressor stations and processing plants are not permitted in the
R-AG district. The only oil and gas activity permitted in the R-AG
mixed use district is an oil and gas well pad and its temporary
industrial components. All of these limitations on oil and gas use
evidence rational planning and a balancing of interests.
R.R. at 1793a.
15
The Board concluded that “the effect of Ordinance 127 constitutes a balancing of
the benefits of preserving agriculture including utilizing oil and gas use upon
agricultural areas encompassing no more than 30% of the Township, and, by
limiting suburban growth.” Id. As a result, the Board denied Objectors’
substantive challenge to Ordinance 127 and their appeal of the zoning permit.
Objectors appealed the Board’s decision to the trial court, and Rex,
Geyer, and the Township intervened in Objectors’ zoning appeal. The trial court
ultimately affirmed the Board’s decision without taking additional evidence.
Objectors, the Township, Rex, and Geyer then filed the instant appeals of the trial
court’s affirmance of the Board’s decision.15
II.
We previously summarized Objectors’ substantive due process claims
as follows:
Objectors first claim that the trial court erred in
failing to correctly apply a substantive due process
analysis under Article 1, Section 1 because Ordinance
127 was not a valid exercise of the Township’s police
powers and places an incompatible industrial use in the
R-AG Residential Agriculture District in violation of the
MPC. Specifically, Objectors assert that Ordinance 127
has substantially similar problems to Act 13’s zoning
scheme that was held to be invalid by this Court in
Robinson I wherein this Court determined that the
15
“In an appeal from a trial court’s order affirming a decision of a zoning hearing board,
where the trial court takes no additional evidence, our review is limited to considering whether
the zoning hearing board abused its discretion or erred as a matter of law. The zoning hearing
board abuses its discretion when it issues findings of fact that are not supported by substantial
record evidence[.]” In re Bartkowski Investment Group, 106 A.3d 230, 237 (Pa. Cmwlth. 2014)
(citation omitted).
16
placement of industrial uses in districts set aside for non-
industrial uses makes zoning schemes irrational and
unconstitutional. See Robinson I, 52 A.3d at 484 n.21,
485 n.23. They contend that Ordinance 127 is illogical,
arbitrary, and discriminatory by permitting oil and gas
development by right in agricultural and
residential/agricultural zones and that it unduly disturbs
their established expectations regarding their property
rights, including public health, safety, and welfare.
Likewise, Objectors submit that the trial court erred in its
analysis of their MPC claims because Section 603
requires consistency with the Comprehensive Plan and
protection of natural and historic features and resources,
and Section 604 requires that ordinances be designed to
provide adequate land for housing and to promote proper
emergency response and to prevent the loss of health, life
or property from fire, flood, panic or other dangers.
Delaware Riverkeeper I, slip op. at 17-18 (footnotes omitted).
This Court’s opinion in Frederick v. Allegheny Township Zoning
Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018), appeal denied, ___ A.3d ___
(Pa., No. 449 WAL 2018, filed May 14, 2019), controls the disposition of the
foregoing constitutional claim16 rather than our prior analysis under Gorsline I. In
16
Objectors claim that Frederick is not controlling with respect to the claims raised
herein because Frederick is factually distinguishable, and the legal analysis therein is merely
dicta because this Court found the undisputed facts in that case to be dispositive. See Remand
Brief of Appellants at 54-57. We reject this assertion. In support, Objectors rely on evidence
specifically rejected by the Board as not credible and continue to base their claims on the faulty
premise that unconventional gas drilling is a fundamentally incompatible industrial use as a
matter of law in the relevant zoning district. See id. In short, we will not accede to Objectors’
request to reweigh the evidence, see Frederick, 196 A.3d at 688 (“[The board] ‘as the fact finder,
is the ultimate judge of credibility and resolves all conflicts of evidence’ [and] ‘has the power to
reject even uncontradicted testimony if [it] finds the testimony lacking in credibility.’”) (citations
omitted); we are bound by the Board’s findings that are supported by substantial record
evidence, see id. (“Where [the board’s] findings of fact are supported by substantial evidence,
‘those findings of fact are binding upon this Court for purposes of appellate review.’”) (citation
omitted); and unconventional gas drilling does not constitute an incompatible industrial use in a
residential/agricultural zoning district per se as a matter of law. See Gorsline II, 186 A.3d at 389
(Footnote continued on next page…)
17
Frederick, Allegheny Township enacted a zoning ordinance that established oil
and gas development as a permitted use in all township zoning districts so long as a
number of standards relating to public health, safety, and welfare were met, such as
road safety, land clearing, security measures, emergency planning, and noise and
(continued…)
(“[T]his decision should not be misconstrued 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[.]”). See also Delaware Riverkeeper I, slip op. at 25-26 n.22 in
which we stated:
The General Assembly has also recognized the compatibility
between agricultural and oil and gas development uses in other
contexts. See Section 14.1(c)(6)(i) of the Agricultural Area
Security Law, Act of June 30, 1981, P.L. 128, as amended, added
by Act of December 14, 1988, P.L. 1202, 3 P.S. §914.1(c)(6)(i)
(“An agricultural conservation easement [purchased by the State
Agricultural Land Preservation Board] shall not prevent . . . [t]he
granting of leases . . . or the issuing of permits . . . for the
exploration, development, storage or removal of . . . oil and gas by
the owner of the subject land or the owner of the underlying . . . oil
and gas or the owner of the rights to develop the underlying . . . oil
and gas, or the development of appurtenant facilities related to . . .
oil or gas development or activities incident to the removal or
development of such minerals.”); Section 6(c.1)(1) of the
Pennsylvania Farmland and Forest Land Assessment Act of 1974,
Act of December 19, 1974, P.L. 973, as amended, 72 P.S.
§5490.6(c.1)(1) (“Land subject to preferential assessment may be
leased or otherwise devoted to the exploration for and removal of
gas and oil, including the extraction of coal bed methane, and the
development of appurtenant facilities, including new roads and
bridges, pipelines and other buildings or structures, related to
exploration for and removal of gas and oil and the extraction of
coal bed methane.”).
As a result, we find the extensive and exhaustive legal analyses contained in Frederick to be
dispositive with respect to the identical constitutional claims raised herein.
18
light controls. The zoning ordinance also required operators to meet all state and
federal permitting requirements. Allegheny Township issued a “zoning
compliance permit” to CNX Gas Company (CNX) to develop an unconventional
gas well on property owned by Northmoreland Farms, LP (the Porter Pad) located
in the R-2 Zoning District, which permits agricultural and residential uses.
As in the instant matter, a number of neighboring landowners
(Neighbors) filed a validity challenge to the zoning ordinance with the Allegheny
Township Zoning Hearing Board (ZHB) arguing:
[The] Zoning Ordinance [] contravenes substantive due
process because the Township failed to (1) consider the
public interest of 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. [Neighbors] contend that the Township
has failed to designate uses within the same district that
are compatible and, thus, has engaged in impermissible
“spot zoning.”
Frederick, 196 A.3d at 687.
Initially, we outlined the standards by which we are to analyze these
claims:
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,
19
morals and general welfare. . . . Where their validity is
debatable, the legislature’s judgment must control. . . .
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.
[Additionally, w]here 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.”
Id. at 687-88 (citations omitted and emphasis in original).
In rejecting Neighbors’ substantive due process claims, we stated the
following, in relevant part:
Here, [ZHB] 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.” 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 legitimate state interest.” [ZHB] 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
20
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), [aff’d, 161 A.3d 949 (Pa. 2017)]
(discussing DEP’s permitting process for unconventional
gas wells). In accordance with these findings, [ZHB]
concluded that [the] Zoning Ordinance [] represented an
appropriate exercise of the police power.
Relying on the testimony of Dr. Stoltz and Steven
Victor, [Neighbors] contend that unconventional gas
wells will have a negative impact on the surrounding
community. However, [ZHB] 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, [ZHB]
determined that [Neighbors] “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.” [ZHB]’s reasons for this
determination are fully explained and supported by the
record.
***
[Neighbors] 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. They argue that this Court's holding in
Robinson Township I, 52 A.3d 463, supports this
argument. We disagree.
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
21
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. 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, [the]
Zoning Ordinance [] expressed the will of the
Township’s residents by their elected Board of
Supervisors.
[ZHB] held that [Neighbors] failed to prove that
[the] Zoning Ordinance [] violated substantive due
process. It held, to the contrary, that [the] Zoning
Ordinance [] preserves the protected “rights of property
owners” to realize the value of their mineral deposits but
without causing cognizable injury to their neighbors. In
re Realen Valley Forge [Greenes Associates, 838 A.2d
718, 728 (Pa. 2003)]. Discerning no error in [ZHB]’s
conclusion, we hold that [the] Zoning Ordinance [] does
not violate substantive due process.
Id. at 688, 690-91 (citations and footnotes omitted).
Likewise, in the case sub judice, the Board found that the
“Township’s history is steeped in the production of oil and gas from agricultural
properties since the mid-nineteenth century to the present,” and that the Township
“has experienced residential growth as an exurb of the City of Pittsburgh.” R.R. at
1778a (citations omitted). The Board also found that “Mr. Fodi, in drafting
Ordinance 127 under [the] supervision of the Township Supervisors, viewed oil
and gas activity as an integral part of agriculture and agricultural preservation,”
22
and that “[a]s drafted, Ordinance 127 balances between benefiting agricultural
preservation and limiting sprawl.” Id. at 1785a.
As the Board explained:
Although the Township Supervisors’ view, that oil
and gas production is part and parcel of an agricultural
use, is contrary to the conclusion asserted by [Objectors]
that oil and gas production is not part and parcel of an
agricultural use, the contrary conclusions do not make the
Supervisors’ conclusion wrong. Instead their view is
merely different. The Township Supervisors, through the
passage of Ordinance 127, view oil and gas drilling
activities as a way to help preserve agricultural activity.
Their view is supported by the competent expert
testimony of Attorney Sittig and the lay testimony of Ms.
Morley and Ms. Hawkins Peterson. The Supervisors also
view unchecked suburban growth as being associated
with air and water pollution, traffic issues, and sewer and
water costs. Where [Objectors] view agriculture and
residential to be nearly synonymous, with a perspective
that favors residential, the Supervisors do not, instead
viewing residential and agricultural as distinct and
different uses in a mixed-use district that must be
balanced. The [Board] finds the Supervisors’ view,
espoused through the passage of Ordinance 127, to be
credible.
R.R. at 1786a.
The Board further found, “The Township Supervisors and Mr. Fodi in
preparing Ordinance 127 acted as trustees for the benefit of future generations of
Middlesex Township residents by weighing the necessity of oil and gas production
in farm areas versus the containment of residential growth in farm areas,” and that
23
“[t]he Township Supervisors, in enacting Ordinance 127, properly exercised their
legislative function.” Id.17
As we stated in our prior opinion in this matter:
[T]here is substantial evidence supporting the Board’s
determination that the “oil and gas well site
development” use is compatible with the other permitted
agricultural and residential uses and that it will limit
sprawl and protect agricultural land. R.R. at 2188a,
2193a, 2194a, 2207a- 2208a, 2214a, 2231a. See also id.
at 693a-694a, 703a-705a, 2574a-2576a, 2581a-2582a.
This is consistent with the stated general purposes of
Ordinance 127 and the R-AG Residential Agriculture
District created by Ordinance 125. Id. at 34a, 1760a. As
the Board explained, the Township’s Supervisors
“balanced the community’s costs and benefits of oil and
gas production as evidenced by, on one hand, Ordinance
127’s exclusion of oil and gas activity from ‘purely’
residential zones, such as R-1, R-2 and PRD districts, to
on the other hand, viewing oil and gas drilling as part and
parcel of an agricultural district.” R.R. at 1792a.
Moreover, Objectors failed to sustain their burden
of demonstrating by credible testimony that the
presumptively valid Ordinance 127 is “arbitrary,
unreasonable and unrelated to the public health, safety,
morals and general welfare.” Boundary Drive Associates
[v. Shrewsbury Township Board of Supervisors, 491 A.2d
86, 90 (Pa. 1985)]. As noted above, the Board found that
“[t]he answer to whether the temporary industrial use
poses a danger to the health, safety and welfare of the
residents of [the] Township remains unanswered by the
woefully inadequate scientific expert testimony presented
in this case,” and concluded that Objectors “failed to
17
See also R.R. at 1793a-1794a (“In mixed use districts of residential and agricultural
districts, such as the epicenter R-AG district, it is rational to preserve agricultural districts to
maintain a check on the growth of residential districts. Oil and gas drilling provides a financial
mechanism by which the free market can preserve agriculture. Ordinance 127 therefore bears a
substantial relationship to public health, safety and welfare as well as a balancing of interests.”).
24
prove a health hazard to the community by their use of
woefully inadequate scientific testimony.” R.R. at
1790a. See, e.g., Christman v. Zoning Hearing Board of
the Township of Windsor, 854 A.2d 629, 635 (Pa.
Cmwlth. 2004) (“It was Landowners’ burden to establish
the zoning map amendment was arbitrary and
unreasonable. As discussed hereafter, the ZHB was
unpersuaded by Landowners’ vague proof on the issue,
and it found Landowners offered no credible evidence
that the Ordinance was arbitrary and unreasonable. As
the ZHB concluded Landowners failed to meet their
burden based on credibility findings, no error is
evident.”) (citations omitted).
Delaware Riverkeeper I, slip op. at 27-28 (footnote omitted).
As in Frederick, the Board’s findings in the instant matter are not
subject to our review because they are based on substantial evidence, and amply
support its determination that the enactment of Ordinance 127 was an appropriate
result of the Township Board of Supervisors’ exercise of its legislative function of
weighing the foregoing competing interests. As a result, Objectors have not
presented a cognizable substantive due process claim with respect to the enactment
of Ordinance 127.
Additionally, as in Frederick, we have properly rejected Objectors’
“spot use” claim in our prior opinion in this matter:
Objectors’ reference to “spot use” in Robinson I,
52 A.3d at 484 n.21, 485 n.23, was in the context of the
statewide mandate of the invalid provisions of Act 13. In
contrast, the “oil and gas well site development” use in
Ordinance 127 is permitted in mixed-use districts in the
Township. As noted above, the Board found that natural
gas compressor stations are permitted uses in non-
residential I-1, AG-A, AG-B, and C-3 Zoning Districts,
but are not permitted in the R-AG Agriculture
Residential District because it is within the Township’s
PRD district. R.R. at 1780a, 1793a. The Board properly
concluded that “[t]he only oil and gas activity permitted
25
in the R-AG mixed use district is an oil and gas well pad
and its temporary industrial components. All of these
limitations on oil and gas use evidence rational planning
and a balancing of interests.” Id. at 1793a. This is not an
impermissible “spot use.” See Plaxton v. Lycoming
County Zoning Hearing Board, 986 A.2d 199, 211 (Pa.
Cmwlth. 2009), appeal denied, 8 A.3d 900 (Pa. 2010)
(“Here, Objectors’ spot zoning and/or special legislation
claims are unavailing. To that end, we observe that the
property upon which [the lessee] proposes to construct its
wind energy facility was not rezoned in a manner so as to
subject it to unjustifiably different treatment from similar
surrounding land. Indeed, the ordinance amendments did
not rezone the property at issue at all; rather, the effect of
the amendments is simply to permit, by right, wind
energy facilities in all of the County’s Agricultural,
Countryside and RP zoning districts. Therefore,
Objectors’ spot zoning claim fails here.”).
Delaware Riverkeeper I, slip op. at 26 n.23.
Finally, as in Frederick, we have properly rejected Objectors’ claims
of purported MPC violations:
Section 603(g)(1), (h) and (i) of the MPC states that
“ordinances shall protect prime agricultural land,” “shall
encourage the continuity, development and viability of
agricultural operations,” and “shall provide for the
reasonable development of minerals.” 53 P.S.
§§10603(g)(1), (h), (i). In turn, Section 107 of the MPC
defines “minerals” as including “crude oil and natural
gas.” 53 P.S. §10107. Likewise, Section 604(3) and (5)
states that “[t]he provisions of zoning ordinances shall be
designed . . . to preserve prime agriculture and farmland”
while “accommodat[ing] reasonable overall community
growth.” 53 P.S. §10604(3), (5). The substantial
evidence demonstrates that Ordinance 127 accomplishes
the foregoing while limiting oil and gas development to
certain zoning districts in the Township. The fact that
such a use may conflict with the Township’s
Comprehensive Plan is not a basis upon which the Board
may invalidate Ordinance 127. See Section 303(c) of the
MPC, 53 P.S. §10303(c) (“[N]o action by the governing
26
body of a municipality shall be invalid nor shall the same
be subject to challenge or appeal on the basis that such
action is inconsistent with, or fails to comply with, the
provision of a comprehensive plan.”).
Delaware Riverkeeper I, slip op. at 28-29.
In sum, we again conclude that “[b]ased on the foregoing, the Board
did not err in rejecting Objectors’ substantive challenge to Ordinance 127 as
violative of Article 1, Section 1 of the Pennsylvania Constitution and the trial court
did not err in affirming this determination.” Id. at 29.
III.
We previously summarized Objectors’ claims regarding the
Environmental Rights Amendment as follows:
Objectors next claim that the trial court also failed
to apply the relevant constitutional analysis for their
Article 1, Section 27 claims. They argue that the
Township failed to assess whether the ordinance would
cause unreasonable “actual or likely degradation” of air
or water quality. See Robinson II, 83 A.3d at 951-55.
They contend that the Township also violated its
fiduciary duty as trustee under Section 27 by issuing the
permit without first considering the environmental effect
of the action on the constitutionally protected features;
failing to exercise prudence respecting the environment;
treating all beneficiaries of the trust equally; and
protecting the natural environment over development and
disturbance. Robinson II, 83 A.3d at 952, 957-58, 959,
973 n.55.
Objectors argue that Ordinance 127 suffers from
the same infirmity of Act 13 that was stricken in
Robinson II, i.e., that it permits “industrial” oil and gas
development in non-industrial zoning districts.
27
Delaware Riverkeeper I, slip op. at 29-30. We again find that Frederick controls
our analysis and disposition of this claim.
With respect to the Township’s duty under the Environmental Rights
Amendment, in Frederick we explained:
The plurality in Robinson Township II criticized
Payne v. Kassab, [312 A.2d 86 (Pa. Cmwlth. 1973),
aff’d, 361 A.2d 263 (Pa. 1976)], which established a
three-part test to determine whether government action
complied with the Environmental Rights Amendment.
Robinson Township II did not reverse [Payne], 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 [PEDF II]. . . .
In [PEDF 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.” [161
A.3d] 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,
28
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.” 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). 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,
29
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; providing parking and signage
controls; and requiring landscape and screening controls.
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,[18] 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.
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.”).
Objectors assert the Township did not “genuinely
consider” the environment in the enactment of [the]
Zoning Ordinance [] or in the issuance of the permit to
CNX. Objectors’ Brief at 47. They presume, contrary to
the plurality’s 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.
18
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701. Like the township
in Frederick, the Township in the case sub judice is a Second Class Township. See 123 The
Pennsylvania Manual 6-122 (2017); Emert v. Larami Corporation, 200 A.2d 901, 902 n.1 (Pa.
1964) (“Courts will take judicial notice of geographical facts such as the county in which a town
or city is located.”) (citations omitted).
30
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. Neither [PEDF II] nor Robinson Township II
has altered these fundamental principles of
Pennsylvania’s system of state and local governance.
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[19] 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.
Huntley & Huntley 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, [ZHB] 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
19
Act of October 4, 1978, P.L. 851, 32 P.S. §§679.101–679.601.
31
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.
Objectors did not prove that [the] Zoning
Ordinance [] is a law that “unreasonably impairs” their
rights under the Environmental Rights Amendment.
Objectors did not prove that [the] Zoning Ordinance []
does not reasonably account for the natural, scenic,
historic and esthetic values of the Township’s
environment. Indeed, [ZHB] 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 [the]
Zoning Ordinance [] does not violate the Environmental
Rights Amendment.
Frederick, 196 A.3d at 692-98 (footnotes omitted and emphasis in original).
Likewise, in the case sub judice, the Board credited Fodi’s testimony
that the “Township’s history is steeped in the production of oil and gas from
agricultural properties since the mid-nineteenth century to the present,” and that
“in drafting Ordinance 127 under the supervision of the Township Supervisors,
viewed oil and gas activity as an integral part of agriculture and agricultural
preservation.” R.R. at 1777a, 1778a, 1785a, 2138a. Again, as stated in our prior
opinion in this matter:
[T]here is substantial evidence supporting the Board’s
determination that the “oil and gas well site
development” use is compatible with the other permitted
agricultural and residential uses and that it will limit
sprawl and protect agricultural land. R.R. at 2188a,
2193a, 2194a, 2207a- 2208a, 2214a, 2231a. See also id.
32
at 693a-694a, 703a-705a, 2574a-2576a, 2581a-2582a.
This is consistent with the stated general purposes of
Ordinance 127 and the R-AG Residential Agriculture
District created by Ordinance 125. Id. at 34a, 1760a. As
the Board explained, the Township’s Supervisors
“balanced the community’s costs and benefits of oil and
gas production as evidenced by, on one hand, Ordinance
127’s exclusion of oil and gas activity from ‘purely’
residential zones, such as R-1, R-2 and PRD districts, to
on the other hand, viewing oil and gas drilling as part and
parcel of an agricultural district.” R.R. at 1792a.
Delaware Riverkeeper I, slip op. at 27-28.
Based upon their findings of fact, the Board properly concluded:
[] The Township Supervisors’ view that the totality
of oil and gas production, both during drilling and after
reclamation, is compatible with an agricultural district is
rational. First, that has been the history of Middlesex
Township, both in the very long term and in its more
recent experience with the three prior unchallenged oil
and gas well pads. Second, competent testimony was
provided that oil and gas production helps support
agricultural activity and preservation, which in turn helps
keep suburban growth in check. Third, to limit oil and
gas drilling to a traditional industrial zone, or to subject a
well pad to a two-mile exclusion zone, as advocated by
the experts for the [Objectors] would constitute
exclusionary zoning.
[] The totality of oil and gas drilling on a site, such
as the Geyer farm, is not an industrial use, but it is
instead a use traditionally exercised in agricultural areas,
containing components of an industrial use. The
industrial use components, although of a great impact,
are temporary in nature and largely cease after
reclamation. To limit oil and gas drilling activities to a
traditionally zoned industrial district based on their
industrial incidents[, as in “connected with” and not as in
“accidents,”] is irrational.
33
[] Oil and gas activities are specifically excluded
by Ordinance 127 from exclusively zoned residential
districts, be it R-1, R-2 or within any PRD overlay
district. This exclusion encompasses the three
components of oil and gas drilling – well pads,
processing plants and compressor stations. In addition,
compressor stations and processing plants are not
permitted in the R-AG district. The only oil and gas
activity permitted in the R-AG mixed use district is an oil
and gas well pad and its temporary industrial
components. All of these limitations on oil and gas use
evidence rational planning and a balancing of interests.
[] In mixed use districts of residential and
agricultural districts, such as the epicenter R-AG district,
it is rational to preserve agricultural districts to maintain
a check on the growth of residential districts. Oil and gas
drilling provides a financial mechanism by which the free
market can preserve agriculture. Ordinance 127
therefore bears a substantial relationship to public health,
safety, and welfare as well as a balancing of interests.
[] As previously stated, [Objectors] have failed to
meet their burden that oil and gas drilling pads will injure
their neighbors. Admittedly, the oil company has not
established that no harm will occur. The concerns of the
credible witnesses are reasonable. But, the burden of
proof lies upon [Objectors] and the evidence they
presented was woefully inadequate and did no justice to
their local constituents.
[] The Township Supervisors, as set forth above,
have acted in their role as trustee for future generations,
as required by Article I, §27 of the Pennsylvania
Constitution, by helping to preserve agricultural
resources for future generations. They did not act in a
vacuum, they did not act with due disregard for the
residents of [the] Township. Instead the effect of
Ordinance 127 constitutes a balancing of the benefits of
preserving agriculture including utilizing oil and gas use
upon agricultural areas encompassing no more than 30%
of the Township, and by limiting suburban growth.
34
R.R. at 1792a-1794a (footnote omitted). Based on the foregoing and based on our
analysis in Frederick applying the Supreme Court’s opinion in PEDF II, we hold
that Ordinance 127 does not violate the Environmental Rights Amendment to the
Pennsylvania Constitution.
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
35
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delaware Riverkeeper Network, :
Clean Air Council, David Denk, :
Jennifer Chomicki, and Joann Groman, :
:
Appellants :
:
v. : No. 2609 C.D. 2015
:
Middlesex Township Zoning :
Hearing Board :
:
v. :
:
PennEnergy Resources, LLC, :
Middlesex Township, and :
Robert G. Geyer :
ORDER
AND NOW, this 26th day of June, 2019, the order of the Butler
County Court of Common Pleas dated November 19, 2015, at No. 15-10429, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge