J. Worthington v. Mount Pleasant Twp. , 212 A.3d 582 ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jane Worthington, :
Appellant :
:
v. :
:
Mount Pleasant Township and Kathleen :
W. Yonker, George H. Yonker, Yonker :
Family Industries, LLP, Zenith :
Management, LLC and Range Resources - : No. 1149 C.D. 2018
Appalachia, LLC : Argued: May 7, 2019
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: June 6, 2019
Jane Worthington (Worthington) appeals from the Washington County
Common Pleas Court’s (trial court) July 17, 2018 order (docketed July 25, 2018)
dismissing her appeal from the Mount Pleasant Township (Township) Board of
Supervisors’ (Board) decision granting Range Resources - Appalachia, LLC’s (Range
Resources) conditional use application (Application) for a proposed unconventional
natural gas development well and well pad (Well Site). Worthington presents two
issues for this Court’s review: (1) whether the trial court erred by upholding the
Board’s decision denying Worthington party status; and (2) whether the Board’s
denial violated Worthington’s due process rights, thereby rendering the Board’s
decision void ab initio.
On April 18, 2016, Range Resources submitted the Application to the
Board for approval of the Well Site and accessory access on two tracts of land located
along Baker Road in the Township’s Rural Residential (R-1) Zoning District, which
“is now or formerly owned by Kathleen W. Yonker, George H. Yonker, Yonker
Family Industries, LLP, and Zenith Management, LLC (collectively, the Yonkers).”1
Yonker Br. at 2 n.1. Range Resources proposed to commence work by upgrading
Baker Road in October/November 2016. See Reproduced Record (R.R.) at 43a.
After the Township’s Planning Commission reviewed and approved the Application,
the Board conducted a public hearing on August 22, 2016.2
As the Board hearing commenced, the Township’s solicitor (Solicitor)
explained conditional use standards, and notified the attendees that they could seek
standing to be a party, as follows:
Legal standing is a term under common law and under the
[Pennsylvania Municipalities Planning Code (MPC)3] that
requires that in order to be a technical party with full rights
of cross-examination of witnesses and whatnot [sic], and
the right to appeal adversely [sic] to the [trial court] from an
adverse decision, that you must prove that you are affected
1
Section 200-22.B(c) of the Township’s Zoning Ordinance (Ordinance) expressly
authorizes oil and gas wells as conditional uses in the Township’s R-1 Zoning District. See
Ordinance § 200-22.B(c), Reproduced Record (R.R.) at 427a, 489a-492a.
[T]he existence of a conditional use provision in a zoning ordinance
indicates legislative acceptance that the use is consistent with the
zoning plan and a use application should only be denied where the
adverse impact on the public interest exceeds that which might be
expected in normal circumstances. An applicant for a conditional use
has the initial burden of proving compliance with the specific criteria
set forth in a zoning ordinance. Once the applicant shows compliance
with the ordinance, the conditional use application must be granted
unless objectors present sufficient evidence that the proposed use has
a detrimental effect on the public health, safety and welfare.
In re McGlynn, 974 A.2d 525, 537 (Pa. Cmwlth. 2009) (citations omitted). “A permitted use must
be afforded the broadest interpretation so that a landowner may have the benefit of the least
restrictive use and enjoyment of his land.” Allegheny Valley Sch. v. Zoning Hearing Bd. of Slippery
Rock Borough, 517 A.2d 1385, 1387 (Pa. Cmwlth. 1986).
2
Also on August 22, 2016, the trial court preliminarily enjoined the Board from issuing its
decision on the Application, but dissolved the injunction on August 29, 2016. See R.R. at 592a-
601a. In addition, simultaneously with this action, the Township’s zoning hearing board was
considering Citizens for Pennsylvania’s Future’s validity challenge to the Township’s Zoning
Ordinance, which was denied on March 27, 2017. See R.R. at 603a-638a.
3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
2
by the application in the sense that you have -- that you are
arguably adversely, directly, immediately and substantively
affected by potentially aggrieved [sic] by the decision in
ways different from the general populous.
One way to show that is if you live in close proximity to the
subject property and, in addition to that, can show adverse
impact because of that proximity, you may have standing
and, therefore, the ability to fully participate in the sense of
being able to cross-examination and whatnot [sic] in the
proceedings.
Again, if you don’t wish to assert that or you don’t have
that standing and you’re a resident, we’re certainly still
going to allow you to direct comments to the Board, which
then in turn may be formulated into questions or otherwise
taken into consideration.
Does anybody wish to assert themselves as a party having
standing in the matter?
R.R. at 79a.
The Board afforded Worthington the opportunity to state why she should
be granted legal standing in the action. Worthington represented that she resides at
405 Fourth Street in McDonald, which she admitted is more than three miles from the
Well Site.4 See R.R. at 80a-81a. However, Worthington declared that she was
4
“An objector who is located in close proximity to the land involved in a zoning application
normally has standing to contest the application.” In re Broad Mountain Dev. Co., LLC, 17 A.3d
434, 440 (Pa. Cmwlth. 2011). This Court has ruled:
[P]roperty that is adjacent to or abuts the zoning area in question is in
close proximity for standing purposes. We have also held that the
owner of [a] property that is within 400 to 600 feet of the challenged
zoning district is also within close proximity and has standing.
However, the owners of property one-half mile and one mile or
more away from the challenged zoning area have been deemed to
not be in close proximity in order to confer standing . . . .
Laughman v. Zoning Hearing Bd. of Newberry Twp., 964 A.2d 19, 22-23 (Pa. Cmwlth. 2009)
(citations omitted; emphasis added) (wherein the court held that the objector whose properties were
located 8/10, one and two miles from the subject property was not a landowner in close proximity
and, thus, lacked standing).
3
“representing her daughter,[5] who is 12 years old, [and] who is benzene exposed. . . .
She’s a student at Fort Cherry Elementary School [(School)6]. . . . [a]nd we are being
advised to keep her away from . . . any activities that would agitate her exposure.”
R.R. at 80a; see also R.R. at 111a. Worthington claimed that the Well Site was
proposed to be located less than one mile from the School.7 See R.R. at 81a; see also
R.R. at 111a.
The Board denied Worthington party status,8 see R.R. at 87a, but
nevertheless permitted her to comment later in the hearing regarding her concerns.
Worthington stated to the Board that wind could carry benzene from the Well Site to
the School and negatively affect her granddaughter’s already poor health. See R.R. at
111a-112a. Worthington read from literature regarding potential health hazards,
declared that she had a baseline and medical records, and asked the Board to move
the proposed Well Site another approximate 1,400 extra feet, so it is at least one mile
from the School.9 See R.R. at 111a-112a.
On September 28, 2016, the Board approved the Application subject to
60 conditions. See R.R. at 10a-33a. Range Resources requested clarification on the
5
According to her brief, Worthington was in fact representing her “granddaughter.”
Worthington Br. at 14.
6
The hearing witnesses interchangeably referred to the School as: the School, Fort Cherry
School District and the Fort Cherry School. In its decision, the Board referred to it as the “Fort
Cherry School District’s complex.” Board Dec. at 7; R.R. at 43a. According to the record, the Fort
Cherry Elementary School and the Fort Cherry Junior/Senior High School are in the same complex.
7
According to the undisputed record evidence, the distance “[f]rom the nearest well to the
[S]chool” is approximately 3,840 feet. R.R. at 85a, 96a. This Court takes judicial notice that there
are 5,280 feet in a mile.
8
Range Resources objected to the standing requests of all individuals who did not live
within one-half mile from the Well Site, and to a standing request on the School’s behalf, since the
School is three-quarters of a mile away and did not participate at the hearing. See R.R. at 85a-86a.
Range Resources also presented a memorandum of law on standing. See R.R. at 85a, 575a-590a.
9
Range Resources’ Civil and Environmental Engineering Manager Karl Matz testified
concerning the Well Site’s proposed location, stating there are “west by northwest prevailing winds.
So, [the Well Site] would be downwind of the [S]chool.” R.R. at 96a.
4
conditions on October 10, 2016. Thereafter, the Board issued a modified decision.
See R.R. at 36a-61a. Therein, the Board made a finding that “numerous members of
the public . . . were provided a full and fair opportunity to make public comment
regarding the Application . . . , which the Board received and took into consideration
in rendering its [d]ecision herein.” Board Dec. at 4; R.R. 40a. The Board also found:
The proposed [Well Site] is located approximately 3,840
feet from Fort Cherry School District’s complex; will not be
visible from the School property; will not likely produce
sounds that are excessive or otherwise readily audible from
the School property; and the direction of the prevailing
winds are such that the [Well Site] is said to be ‘downwind’
with prevailing air currents flowing generally from the
direction of the School toward the direction of the proposed
[Well Site].
Board Dec. at 7; R.R. 43a.
On October 28, 2016, Worthington appealed from the Board’s denial of
her party status to the trial court. See R.R. at 3a. Range Resources and the Yonkers
intervened. See R.R. at 3a. On February 1, 2018, Worthington requested the trial
court to hold a status conference.10 See R.R. at 3a. After a March 1, 2018 status
conference, the trial court issued a briefing and argument schedule. The trial court
heard argument on May 7, 2018. In the July 17, 2018 order, the trial court affirmed
the Board’s decision denying Worthington standing. On August 15, 2018,
Worthington appealed to this Court.11
10
According to Range Resources, during the intervening months between October 28, 2016
and February 1, 2018, “in accordance with the schedule set forth in the Application and consistent
with the conditions imposed by the Board, Range [Resources] commenced and completed all
required road upgrades, construction, drilling, and hydraulic fracturing of the gas wells. These
wells are in production.” Range Resources Br. at 10. The record does not disclose the reason
Worthington did not move this matter forward.
11
Where, as here, the trial court did not take additional evidence, this
Court’s review is limited to determining whether the board of
supervisors committed an error of law or manifest abuse of discretion.
The board abuses its discretion if its findings are not supported by
5
Standing
Worthington argues that the trial court erred by upholding the Board’s
decision denying her party status. Worthington specifically asserts that the trial court
confused procedural standing (party to the hearing) with substantive standing (party
to the case on appeal), and erred by agreeing with the Board that she was not an
aggrieved party.
Initially, “[m]unicipal corporations may do those things that the
legislature expressly or by necessary implication has placed within their power to
do.” K. Hovnanian Pa. Acquisitions, LLC v. Newtown Twp. Bd. of Supervisors, 954
A.2d 718, 723 (Pa. Cmwlth. 2008). Section 909.1(b)(3) of the MPC12 provides that
the governing body shall have exclusive jurisdiction to hear and render final
adjudications regarding “[a]pplications for conditional use under the express
provisions of the zoning ordinance pursuant to [S]ection 603(c)(2) [of the MPC, 53
P.S. § 10603(c)(2) (relating to conditional use ordinance provisions)].” 53 P.S. §
10909.1(b)(3). Accordingly, the Board, as the Township’s governing body, has the
authority to permit conditional uses according to the standards and criteria set forth in
the Township’s Zoning Ordinance (Ordinance) enacted by the Board to regulate
Township land use. See Ordinance § 200-77, R.R. at 456a-458a.
Regarding conditional use approval procedures, Section 200-77.A(4) of
the Ordinance directs that the Board shall conduct hearings, at which objectors may
appear and “present[] . . . their opposition to the application[.]” Ordinance § 200-
77.A(4), R.R. at 457a. Both Section 913.2(b)(3) of the MPC (relating to conditional
substantial evidence, i.e., such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209, 1215 n.3 (Pa. Cmwlth. 2011)
(citations omitted).
12
Section 909.1 of the MPC was added by Section 87 of the Act of December 21, 1988, P.L.
1329.
6
use hearings) and Section 200-77.A(6) of the Ordinance state: “Nothing in this
subsection shall prejudice the right of any party opposing the application to appeal
the decision to a court of competent jurisdiction.”13 53 P.S. § 10913.2(b)(3)14
(emphasis added); Ordinance § 200-77.A(6), R.R. at 457a (emphasis added).
Nonparties are not expressly afforded similar rights.
The MPC and the Ordinance are silent as to who is a party in
conditional use cases.15 However, the law is well established that appeals from
13
Because this party appeal language is contained only within the conditional use deemed
approval provision of the Ordinance, it arguably applies only where there has been a deemed
approval. See Ordinance § 200-77.A(6), R.R. at 457a.
14
Added by Section 93 of the Act of December 21, 1988, P.L. 1329.
15
All of the parties and the trial court cite to Section 908(3) of the MPC as the statutory
provision governing party status in this appeal. See Worthington Br. at 5, 8, 10-11; Range
Resources Br. at 14-15; Yonker Br. at 10-11; Township Br. at 1 (joining Yonker Brief); Trial Ct.
Op. at 2. However, Section 908(3) of the MPC states:
The board shall conduct hearings and make decisions in accordance
with the following requirements:
....
The parties to the hearing shall be the municipality, any person
affected by the application who has made timely appearance of record
before the board, and any other person including civic or community
organizations permitted to appear by the board. The board shall have
[the] power to require that all persons who wish to be considered
parties enter appearances in writing on forms provided by the board
for that purpose.
53 P.S. § 10908(3) (emphasis added). “Where a statute or ordinance defines a word or phrase
therein the court is bound thereby although such definitions may be different from ordinary usage.”
Appeal of Neshaminy Auto Villa Ltd., 358 A.2d 433, 435 (Pa. Cmwlth. 1976). Section 901 of the
MPC declares that “the term ‘board’ [as used in Section 908 of the MPC] shall refer to [the
municipality’s] zoning hearing board.” 53 P.S. § 10901 (emphasis omitted).
The instant Application is for a conditional use. The MPC prescribes that boards of
supervisors decide conditional use applications, see 53 P.S. § 10909.1(b)(3), while zoning hearing
boards decide special exception applications. See Section 909.1(a)(6) of the MPC, 53 P.S. §
10909.1(a)(6). Despite that this Court has generally held that “[a] conditional use is nothing more
than a special exception which falls within the jurisdiction of the municipal governing body rather
than the zoning hearing board[,]” In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006); see also
EQT Prod. Co. v. Borough of Jefferson Hills, 162 A.2d 554 (Pa. Cmwlth. 2017); Williams Holding
7
governing bodies’ decisions rendered in their adjudicatory (rather than legislative)
capacities are taken to trial courts pursuant to the Local Agency Law.16 See Giant
Food Stores, LLC v. Penn Twp., 167 A.3d 252 (Pa. Cmwlth. 2017) (township’s denial
of an intramunicipal liquor license transfer); see also Money v. Bd. of Supervisors of
the Twp. of Westtown, 89 A.3d 308 (Pa. Cmwlth. 2014) (board of supervisors’
approval of sign landscape and maintenance agreement); Butler v. Indian Lake
Borough, 14 A.3d 185, 188 (Pa. Cmwlth. 2011) (borough council’s grant of
commercial boat dock easement); Consumer Inv. Fund v. Supervisors of Smithfield
Twp., 532 A.2d 543 (Pa. Cmwlth. 1987) (board of supervisors’ denial of a holding
tank permit).
Relative to standing, Section 752 of the Local Agency Law provides that
“[a]ny person aggrieved by an adjudication of a local agency who has a direct
interest in such adjudication shall have the right to appeal therefrom to the court
vested with jurisdiction of such appeals . . . .” 2 Pa.C.S. § 752 (emphasis added).
However, this Court has held that more than just a direct interest is necessary. 17 In
Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202 (Pa. Cmwlth. 2014); Bailey v.
Upper Southampton Twp., 690 A.2d 1324 (Pa. Cmwlth. 1997), based upon the MPC’s definition of
“board,” Section 908(3) of the MPC expressly applies only to zoning hearing boards.
Moreover, although case law has applied some other subsections of Section 908 of the MPC
to conditional use applications, this Court found no case law wherein Section 908(3) of the MPC
was held to govern conditional use applications. Accordingly, Section 908(3) of the MPC is not the
statutory provision governing this conditional use application appeal.
16
2 Pa.C.S. §§ 551-555, 751-754. The Board is a local agency. Section 101 of the Local
Agency Law defines “local agency” as “[a] government agency other than a Commonwealth
agency.” 2 Pa.C.S. § 101. “Government agency” is defined, in pertinent part, as “any political
subdivision or municipal or other local authority[.]” Id.; see also Miravich v. Twp. of Exeter, 6
A.3d 1076 (Pa. Cmwlth. 2010).
17
This Court acknowledges that East Rockhill Township differs from this instant matter in
that it involved a board’s right to appeal from the deemed approval of a conditional use. It is
nevertheless persuasive here, particularly since there is no other case law in which this Court
applied Section 908(3) of the MPC to a conditional use hearing to determine who the General
Assembly intended were parties thereto.
8
Whitehall Manor, Inc. v. Planning Commission of the City of Allentown, 79 A.3d 720(Pa. Cmwlth. 2013), this Court summarized:
Neither the MPC nor the [city’s subdivision and land
development ordinance (SALDO)] define the term ‘person
aggrieved.’ However, our Supreme Court explain[ed]:
‘Aggrieved person’ has acquired a particular
meaning in the law. In William Penn [Parking
Garage, Inc. v. City of Pittsburgh, 346 A.2d 269(Pa. 1975)], we explained that the core concept of
standing was that a party had to be ‘aggrieved.’ [Id.
at] 280-81. And, ‘aggrieved’ when used in terms of
standing is generally understood to mean that the
person ‘has a substantial, direct and immediate
interest in the claim sought to be litigated’ as set
forth in William Penn. See, e.g., Hosp[.] & Health
System Ass’n of Penn. v. Dep’t of Pub[.] Welfare, . .
. 888 A.2d 601 (Pa. 2005) (explaining that under
William Penn ‘where a person is not adversely
affected in any way by the matter challenged, he is
not aggrieved and thus has no standing to obtain a
judicial resolution of that challenge.’); Bergdoll v.
Kane, . . . 731 A.2d 1261, 1269 ([Pa.] 1999); see
also Sparacino v. Phila[.] Zoning Bd. of Adjustment,
728 A.2d 445, 448 (Pa. Cmwlth. 1999) (explaining
that [Section 752 of the Local Agency Law,] 2
Pa.C.S. § 752, which provides that ‘any person
aggrieved’ by an adjudication of a local agency,
means that the person must establish standing
under William Penn). . . .
Spahn v. Zoning Bd. of Adjustment, . . . 977 A.2d 1132,
1149-50 ([Pa.] 2009).
Whitehall Manor, 79 A.3d at 725-26 (footnotes omitted) (emphasis added).
Accordingly, all three William Penn standing requirements apply here, which the
parties do not dispute, and Worthington must show that she has a substantial, direct
and immediate interest in the Board’s decision on the Application.
9
Moreover, this Court has ruled that, to be a party to a zoning hearing,
one must have procedural standing (e.g., asserted her right to participate sufficiently
early) and substantive standing (e.g., “sufficient interest in the outcome of the
litigation to be allowed to participate. . . . – . . . an interest that is direct, immediate
and substantial[.]”). Miravich, 6 A.3d 1076, 1078 (Pa. Cmwlth. 2010). Substantive
standing “is required at all levels of proceedings[.]” Id.In response to Solicitor’s invitation to give standing testimony,
Worthington acknowledged that she lives more than three miles from the Well Site,
but stated:
[] WORTHINGTON: Yes. I’m representing my
[grand]daughter, who is 12 years old, who is benzene
exposed.
SOLICITOR []: Anything else?
[] WORTHINGTON: No. She’s a student at Fort Cherry
Elementary and she’ll be entering high school this year.
We’ve sent medical evidence to the [Board]. We’ve sent it
through email and we’ve sent it personally -
SOLICITOR []: I don’t want to take substantive testimony.
[] WORTHINGTON: Okay.
SOLICITOR []: Okay. Thank you.
[] WORTHINGTON: But we have established a medical
case with several doctors. And we are being advised to
keep her away from these types of activities -
SOLICITOR []: Again –
[] WORTHINGTON: Okay.
SOLICITOR []: I’m sorry, could you – I’m sorry, I cut you
off in that sentence.
[] WORTHINGTON: Okay.
SOLICITOR []: You were advised what?
10
[] WORTHINGTON: To keep her away from any activities
that would agitate her exposure.
SOLICITOR []: Thank you. Do you have anything else,
ma’am?
[] WORTHINGTON: No.
R.R. at 80a-82a.
When the Board denied Worthington and others standing at the hearing,
Solicitor announced:
[A]ny of the folks that the Board has ruled do not have
technical party standing, you are going to have an
opportunity to make comment, as other residents in the
community will. You don’t have the right to engage in
cross-examination of the witnesses directly. However, you
can direct your comments to the [Board] Chair[man] in a
fashion that may lead to [the Board] taking those into
consideration and/or reformulating them into questions or
leading [Range Resources] on [its] own accord to comment
in response to those.
R.R. at 87a.
Worthington offered the following comment on the Application:
[] WORTHINGTON: . . . I don’t believe that we are fear []
mongers. I don’t believe that children do not get sick. . . .
But I do believe in responsible energy development. . . .
But I would like you to go home tonight and truly become
responsible. I would like you to look up some of the things
that do happen near and on well sites. This is backed up by
fact.
I’m going to quote from a paper from the physicians,
scientists and engineers, which I believe that all of the
[Board members] got a copy of this at some point. It came
in your emails and it came in your boxes. I’m going to
quote what these physicians and engineers have said. This
is not for your fear. This is for your education.
. . . I’m asking for a condition . . . , allowing this pad to be
developed, but one mile away from the [S]chool. I’m
asking for approximately 1,400 extra feet. I don’t know
11
where that would land it. But it would land it a mile away
from my [granddaughter].
....
I’m asking as a condition to move this back a mile. Even
though there are no evidences on what a significant safe
distance is, a mile has become the kind of yardstick for it.[18]
Everybody in Pennsylvania is talking about the mile for a
smile. Move it back a mile and maybe the mom[]s will
smile.
....
And now we have air monitoring that is coming to the
[S]chool. The school district, to clear the air, has sent a
letter, and I would like to know, have you received it, that
the school board does not approve of this [Well Site]?
Have you not received that letter as a [sic] Township?
[BOARD] CHAIRMAN []: We’ve received it.[19]
[] WORTHINGTON: You have?
18
In her brief to this Court, Worthington cited to Grant v. Zoning Hearing Board of the
Township of Penn, 776 A.2d 356 (Pa. Cmwlth. 2001) and to then-President Judge Pellegrini’s
concurring opinion in Armstead v. Zoning Board of Adjustment of the City of Philadelphia, 115
A.3d 390 (Pa. Cmwlth. 2015), to support her claim that the School’s proximity within one mile of
the Well Site gives her standing. In Armstead, then-President Judge Pellegrini stated:
[W]here the use has been intensive and its effect emanates off the
property, we have held that property owners who live well over a mile
away have standing. Grant . . . (holding, in part, that landowners had
standing by virtue of living within 6,600 feet of proposed electric
generation facility).
Id. at 403. The Grant Court ruled: “[The petitioners] are [] aggrieved in that they have a direct,
immediate, pecuniary and substantial interest in this matter because their property is 6[,]600 feet
from the proposed site and wind and sound from the proposed site flow to their land.” Id. at 359.
Thus, there appears to have been evidence which the zoning hearing board admitted in Grant that
wind and sound would flow to the Grants’ land. No such evidence was presented in the instant
case. Moreover, unlike in the case now before this Court, no one timely objected to the Grants’
standing. A party’s failure to object to one’s standing waives the issue on appeal. Thompson v.
Zoning Hearing Bd. of Horsham Twp., 963 A.2d 622 (Pa. Cmwlth. 2009). For these reasons, Grant
and Armstead are distinguishable from the case at bar.
19
The basis for the School’s purported objection to the Well Site (i.e., specifically, whether
it included student health concerns) is not evident on this record.
12
As people here in this room believe that the [S]chool is not
behind this, the school board has sent a letter. They’ve said
that they don’t approve of the site. Nobody feels secure
with this when it comes to a vulnerable population such as
children.
....
I want this [W]ell [S]ite moved back to one mile because
I’m truly the one person in the room that is looking for
responsible development.
R.R. at 111a-112a.
Substantial Interest
“A substantial interest is one in which there is some discernable adverse
effect to some interest other than an abstract interest that all citizens have.” Friends
of Lackawanna v. Dunmore Borough Zoning Hearing Bd., 186 A.3d 525, 532 (Pa.
Cmwlth. 2018). Here, Worthington’s standing claim is based on her having custody
of her granddaughter and the School’s close proximity to the Well Site. In her brief
to this Court, Worthington specified that she is her granddaughter’s “custodian and
sole caretaker.” Worthington Br. at 14. However, there is no record evidence of her
granddaughter’s legal custodial status or proof of her full-time residence with
Worthington.20 For the first time in her brief to this Court, Worthington implies that
she is acting in loco parentis for her granddaughter, such that their relationship is
essentially parent and child. See Worthington Br. at 14 n.2. The record before the
Board and this Court contain nothing more than Worthington’s representations, and
grandparent standing is not automatic. See M.W. v. S.T., 196 A.3d 1065 (Pa. Super.
2018) (grandmother lacked standing to pursue custody action); D.G. v. D.B., 91 A.3d
706 (Pa. Super. 2014) (grandmother lacked in loco parentis standing in custody
action); In re L.C., II, 900 A.2d 378 (Pa. Super. 2006) (grandmother lacked standing
20
Worthington did, however, produce evidence that she has legal custody of her grandson.
13
to participate in dependency proceeding). Because there is no record proof that
Worthington is her granddaughter’s legal guardian, or is otherwise responsible for her
well-being, she failed to show “some discernable adverse effect to some interest other
than an abstract interest that all citizens have.”21 Friends of Lackawanna, 186 A.3d at
532. Accordingly, this Court holds that Worthington failed to satisfy the substantial
interest requirement for standing.
Direct Interest
This Court has held that
[a] person has a direct interest in the adjudication of a
governmental agency if the person is able to show that the
adjudication causes harm to an interest of the person, i.e.,
that the claimed harm to the interest can be said to have
resulted in some concretely demonstrable way from the
adjudication.
Butler, 14 A.3d at 188 (italics emphasis added).
Here, Worthington asserts that her interest is direct because the Well
Site, which is less than a mile from the School her granddaughter attends, will emit
benzene, “the very same chemical that has made her granddaughter severely ill and
can worsen her symptoms.” Worthington Br. at 15 (emphasis added).
However, because an oil and gas well is a permitted conditional use in
the Township, the Board has already legislatively determined that it “is consistent
with the zoning plan and a use application should only be denied where the adverse
impact on the public interest exceeds that which might be expected in normal
circumstances.” In re McGlynn, 974 A.2d 525, 537 (Pa. Cmwlth. 2009). Further, the
Board took Worthington’s public comments into consideration in rendering its
21
Whether the School, or parents of students who attend the School, would have a greater
interest than the general citizenry to object based on student health concerns is not before the Court
and is a question left for another case.
14
decision. See R.R. at 40a. Finally, the Board’s conditions included requirements that
the Well Site’s operations shall at all times comply with applicable federal and state
laws and regulations and that, as provided in Range Resources’ Application
submissions, Range Resources will “take all necessary precautions . . . to monitor,
control, and minimize to the extent possible[,] emissions into the air and environment
caused by, during or as a result of any drilling, fracturing, completion, and production
operations[.]” See R.R. at 20a.
Worthington’s statements that benzene emissions from the Well Site
could reach her granddaughter at the School and possibly worsen her condition, and
she “do[es]n’t want to take that chance[,]” R.R. at 112a (emphasis added), do not
“show that the adjudication causes harm to [her] interest [(i.e., a causal connection
between the two).]” Butler, 14 A.3d at 188. Accordingly, this Court holds that
Worthington did not satisfy the direct interest requirement for standing.
Immediate Interest
“An immediate interest requires that the interest be something more than
a remote consequence.” Friends of Lackawanna, 186 A.3d at 532. Worthington
contends that her interest is immediate and not remote because the Well Site is less
than one mile from the School where her granddaughter could be further exposed.
However, because Worthington’s statements that benzene emissions from the Well
Site could reach her granddaughter at the School and possibly worsen her condition,
and she “do[es]n’t want to take that chance[,]” R.R. at 112a, represent “a remote
consequence[,]” Friends of Lackawanna, 186 A.3d at 532, this Court holds that
Worthington did not satisfy the immediate interest requirement for standing.
Although this Court sympathizes with Worthington’s concerns regarding
her granddaughter’s health, based upon the information Worthington supplied to the
Board, those theoretical concerns do not satisfy the legal requirement that she have a
15
substantial, direct and immediate interest to have standing.22 Accordingly, the trial
court properly affirmed the Board’s conclusion that Worthington is not a party to this
litigation.
Based on the foregoing, this Court affirms the trial court’s order.
___________________________
ANNE E. COVEY, Judge
22
In light of this Court’s conclusion that the Board properly determined that Worthington
did not have standing, we need not address whether the Board’s decision was void ab initio. “[T]he
void ab initio doctrine applies where a township fails to comply with statutory procedural
requirements.” Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033, 1043 (Pa.
2006).
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jane Worthington, :
Appellant :
:
v. :
:
Mount Pleasant Township and Kathleen :
W. Yonker, George H. Yonker, Yonker :
Family Industries, LLP, Zenith :
Management, LLC and Range Resources - : No. 1149 C.D. 2018
Appalachia, LLC :
ORDER
AND NOW, this 6th day of June, 2019, the Washington County
Common Pleas Court’s July 17, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge