Murrysville Watch Committee v. Municipality of Murrysville ZHB & Municipality of Murrysville v. Olympus Energy LLC v. D. & C. Gesuale

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Murrysville Watch Committee, :
Appellant :
:
v. :
:
Municipality of Murrysville Zoning :
Hearing Board and Municipality of :
Murrysville :
: No. 579 C.D. 2020
v. :
: Argued: May 10, 2021
Olympus Energy LLC :
:
v. :
:
David and Cindy Gesuale, Douglas :
and David Geiger, Barry and Pamela :
Paulisick, Free Gospel Church, Inc., :
Doris and Jurgen Ekbert, and Samuel :
and Regina Staymates :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge1
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 24, 2022
1
This case was argued before a panel of the Court that included former Judge Crompton.
Because Judge Crompton recused himself in this matter after argument, this matter was submitted
on briefs to Judge Ceisler as a member of the argument panel. Judge Crompton’s service on the
Court ended December 31, 2021.
The Murrysville Watch Committee (MWC), on behalf of itself and
several individual members (Objectors),2 appeals from the May 13, 2020 order of the
Court of Common Pleas of Westmoreland County (trial court), affirming the decision
of the Murrysville Zoning Hearing Board (Board) that denied its substantive validity
challenge to current section 220-31(CC) of the Municipality of Murrysville’s
(Municipality) Zoning Ordinance (Ordinance),3 which permits unconventional oil and
gas drilling and operations as a conditional use in the Municipality’s Oil and Gas
Recovery Overlay District (Overlay District). The Overlay District is located within
residential districts in the Municipality (R Districts), including a portion of the rural
residential district (R-R District).
Background
On May 3, 2017, the Municipality adopted Oil and Gas Ordinance 930-
15, which repealed and replaced former section 220-31(CC) of the Ordinance (2017
Amendment). (Reproduced Record (R.R.) at 467a-83a.) Among other challenges,
the MWC contends that the 2017 Amendment violates substantive due process under
article I, section 1 of the Pennsylvania Constitution, Pa. Const. art. I, §1, runs afoul of
article I, section 27 of the Pennsylvania Constitution, Pa. Const. art. I, §27, known as
the Environmental Rights Amendment (ERA), violates article III, section 32 of the
Pennsylvania Constitution, Pa. Const. art. III, §32, relating to special legislation and
equal protection, constitutes illegal spot zoning, and contravenes various provisions
2
The Objectors are Dominique Ponko, Barbara Sims, Debra Borowiec, Joe Evans, Judy
Evans, Susan Stewart-Bayne, and Jean Martin.
3
Municipality of Murrysville, Pennsylvania, Ordinance §220-31(CC) (2017).
2
of the Pennsylvania Municipalities Planning Code (MPC).4 The MWC further asserts
that the Board committed evidentiary-based errors, particularly with regard to its
request for an adverse inference, the admission of testimony by a purported expert,
and the denial of its request to subpoena members of the Municipality’s Council
(Council).
The parties to the instant case are the MWC, the Board, and the
Municipality, as well as Intervenor Olympus Energy LLC (Olympus), an energy
development company with a pending unconventional natural gas well site in the
Municipality, and a group of Intervenor landowners who have entered into natural
gas leases with oil and gas operators (Landowners).5 By way of background,
the initial [O]rdinance regulating oil and gas development
in the Municipality was adopted in 1965, allowing oil and
gas wells as permitted uses with minimal additional
requirements in all zoning districts. Municipality
Ordinance No. 680-05 was adopted in 2005, and it
permitted oil and gas extraction in all zoning districts in the
Municipality as a conditional use. The Ordinance was
amended to provide additional restrictions on development
in 2011, creating an [Overlay District] comprising
approximately 37% of the [M]unicipality and imposing
many additional regulations. The Overlay District allows
for unconventional oil and gas development only in certain
zoning districts, including portions of the [R-R District].
The Ordinance was further limited and amended by [the
2017 Amendment], which imposed stricter setbacks and
additional requirements.
In its present form, as codified in the Municipality[’s] Code
of Ordinances as [s]ection 220-31(CC)[, the 2017
4
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
5
Landowners are David and Cindy Gesuale, Douglas and David Geiger, Barry and Pamela
Paulisick, Free Gospel Church, Inc., Doris and Jurgen Ekbert, and Samuel and Regina Staymates.
3
Amendment,] requires a comprehensive application by any
potential unconventional oil and natural gas developer,
which includes all relevant permits, a detailed survey[,] and
property owner authorizations. The sites are subject to
750[-]foot setbacks from all protected structures. The [oil
and gas producer] is [also] required to comply with
stringent traffic regulations, fencing and impoundment
guidelines, hours of operations limitations, inspections by
the Municipality[,] and aesthetic integration standards,
among other requirements.
(Trial court op. at 2-3.)
In 2018, Huntley and Huntley Energy Exploration, LLC (HHEX)
submitted a conditional use application for the construction of an unconventional well
pad (the Titan Pad) in a part of the R-R District that is located within the Overlay
District. On October 29, 2018, the MWC filed a substantive validity challenge to the
2017 Amendment. The Board thereafter held multiple hearings and summarized the
testimony presented at those hearings, in pertinent part, as follows:
Jim Morrison testified on behalf of the Municipality []. Mr.
Morrison is employed as the Chief Administrator of the
Municipality . . . and is responsible for the day to day
supervision of municipal operations[,] including [the]
development of Ordinances [and] managing the planning,
staff[ing], and dealing with land developments generally
within the [M]unicipality. Mr. Morrison testified regarding
the enactment of [the 2017 Amendment]. Mr. Morrison
testified that in his estimate, thousands of hours by staff and
volunteers, [b]oroughs[,] and elected officials culminated in
the adoption of said Ordinance. Mr. Morrison testified that
[the Municipality] has a history of gas development;
namely, with conventional wells as a conditional use in [3]
of the [4] residential districts in the community as governed
essentially by the [former] Pennsylvania State Oil and Gas
Act [Oil and Gas Act of 1984][6]; namely, the R-R District,
6
Act of December 19, 1984, P.L. 1140, as amended, formerly 58 P.S. §§601.101-601.605,
repealed by the Act of February 14, 2002, P.L. 87.
4
R-1 District and R-2 District. Mr. Morrison [also] testified
as to the creation of a [T]ask [F]orce . . . to create a detailed
study, as authorized by [the Council], with regard to oil and
gas development in the [M]unicipality. He testified that
Ordinance 833-11 was the first unconventional well
Ordinance [and was] adopted in 2012. Mr. Morrison then
testified as to the time and efforts involved in following gas
and oil development law in the Commonwealth and
discussed the numerous meetings conducted by the [T]ask
[F]orce[,] which was the [way] that the Municipality []
approached [] unconventional drilling. Mr. Morrison
indicated . . . that the work of the [T]ask [F]orce was
completed over a [6]-year period in the development of []
Ordinance[] 833-11 and [the 2017 Amendment]. Mr.
Morrison’s extensive testimony presented [] the [Board
with] the timeline, the background[,] and other factors that
went into the drafting of [the 2017 Amendment].
Following extensive examination, cross-examination and
re-direct examination[,] and re-cross of Mr. Morrison, his
substantial testimony of 283 transcript pages was
considered by the Board.
Dennis Skeers testified for the [MWC]. Mr. Skeers testified
that he is a resident of Murry Highland Circle in
Murrysville. He further indicated that he is [the] President
of the [MWC], which is a group of citizens from the
Municipality [] and nearby surroundings, developed over
the years, [and] working and advocating for what they
consider to be a sound Ordinance. . . .
Mr. Skeers testified as to his recollection of the meeting
process of the [T]ask [F]orce, enabled by the Municipality
[], which culminated in the presentation of a report to the
Council []. Mr. Skeers testified that the [T]ask [F]orce
meetings were not open to the public. Mr. Skeers testified
as to his [legal] position and that of his organization with
regard to the work of the [T]ask [F]orce and the findings
thereof.
Lori Statam testified on behalf of the [MWC]. Ms. Statam
testified that she is a resident of Hilty Road, in Export,
adjacent to the proposed well site. Ms. Statam testified that
5
she operates a horse farm with Friesian horses imported
from Holland. Ms. Statam testified that her property is
situated adjacent to the proposed well site on Bollinger
Road, which she described as being on the upper level. Ms.
Statam testified that the road winds around to Hilty Road
and has identified her location as downwind to the east of
the proposed well site. She expressed concern with regard
to the [6] to [10] baby horses produced each year and the
possible impact upon them including the fertility of mares
and stallions; namely, as a result of benzine. Ms. Statam
presented testimony with regard to her concern involving
the [water] wells that service her property, the risks
presented to her by the well drilling companies[,] and [the]
private testing that she had performed upon the water
servicing her property.
Jason Gehringer testified for [HHEX]. Mr. Gehringer
testified as a [geographic information systems (GIS)]
analyst for [HHEX] describing his work as spaciously
analyzing, creating[,] and maintaining data for the
enterprise data base for the various departments and
employees of HHEX. It is specifically noted that Mr.
Gehringer was not called as an expert witness but was
called as a fact witness to plot existing information that is
available in public and other data bases. Mr. Gehringer
testified with regard to distances from various properties to
the edge of the well pad and location of the hall route.
Cynthia Gesuale testified as an intervenor [Landowner].
Ms. Gesuale testified that she is a resident of Hoy Farm
Court located within the Municipality [] but with an Export
mailing address. Ms. Gesuale testified that she owns
approximately 57 acres of land with her husband, David,
having owned the same since 1995. She testified that the
property is subject to an oil and gas lease with [HHEX].
Ms. Gesuale testified that she attended all but one of the
informational meetings, during [which] the subject of oil
and gas amendments were debated or discussed in [the
Municipality], and also attended informational meetings at
which representatives of the Pennsylvania Department of
Environmental Protection [(DEP)] presented information to
[the Municipality].
6
(Board’s decision at 1-2.)
Following the hearings, the Board denied MWC’s substantive validity
challenge. In so doing, the Board issued 167 findings of fact, and the following
findings represent those that are most critical to the legal issues presented in this
appeal:
29. The Municipality has a history of gas development
and had permitted conventional wells as a conditional use in
three of the four residential zoning districts (R-R, R-1, and
R-2). Drilling [was] governed by the [former] Pennsylvania
Oil and Gas Act of 1984 and the Municipality’s
[Ordinance].
30. The only residential district where conventional gas
wells were not permitted was in the Municipality’s least
restrictive and most dense zoning district, the R-3 District,
which contains smaller lot sizes.
31. The [] Ordinance continues to permit conventional
gas wells as a conditional use in the R-R, R-1, and R-2
zoning districts, but does not permit them in the R-3 district.
....
34. In 2010, the [Council] created a [T]ask [F]orce
comprised of residents, public officials, and experts in the
field to investigate unconventional wells as a use in the
Municipality and to begin the process of creating an
ordinance to address unconventional wells [].
....
39. The Municipality began to review the 2011
Amendment [to the Ordinance] after the Pennsylvania
Supreme Court’s Robinson Township decision in 2013.[7]
7
Robinson Township v. Commonwealth, 83 A.3d 901, 954 (Pa. 2013) (plurality).
7
Murrysville was one of the municipalities that supported the
filing of the action opposing Act 13.[8]
40. [The] Council determined that it would be in the best
interest of the community to reconvene the Task Force to
review the 2011 Amendment to see what, if anything,
should be updated. In March 2014, [the] Council
authorized revising the 2011 Amendment and reconvened
the Task Force to review the ordinance in light of the
Robinson Township decision.
41. Between March 2014 and May 2015, the Task Force
met nine times to review the 2011 Amendment and
provided three briefing reports to [the] Council. From April
2014 to May 2017, the Municipality held four public
hearings, four public educational sessions, and five
Planning Commission meetings to discuss potential options
to determine appropriate locations for unconventional oil
and gas drilling sites. The subject of oil and gas also
appeared 23 times on [the] Council’s agenda during that
same time period.
....
47. Preparation of the revised ordinance was done in
conjunction with the Municipality’s review of other
municipal oil and gas ordinances and research on oil and
gas regulation in Pennsylvania and other states.
....
49. During [the] development of the [2017 Amendment],
the Municipality was also updating its Comprehensive Plan.
As part of the Comprehensive Plan update, the Municipality
prepared a map that identified potential future development
areas for the next 10 years, the next 10 to 20 years, and
beyond 20 years.
....
8
58 Pa.C.S. §§2301-3504.
8
51. Because the Municipality is primarily a residential
community, with 93[%] of the community being zoned
residential, one of the guiding principles in developing the
[2017 Amendment] was to minimize the impact of
unconventional drilling to the greatest extent possible on the
existing population.
....
53. Approximately five percent of the Municipality is in
the B-1 Business District. The Municipality does not have
an industrial zoning district. The Municipality concluded
that the B-1 District would not be suitable for
unconventional drilling based upon the density of the
district and the availability of open space within the district.
....
60. While reviewing the 600-foot setback requirement of
the 2011 Amendment and taking into consideration the
Supreme Court’s Robinson Township decision, Mr.
Morrison indicated that the Task Force’s goal was to
increase setbacks if possible. In considering increasing the
setback distance, the Task Force tried to balance residents’
property rights while appropriately providing for
unconventional gas drilling. The Task Force attempted to
provide the maximum protection to residents and minimize
potential impacts on community property values, while at
the same time providing for unconventional gas drilling.
....
63. The Task Force looked at well pad sizes on permitted
well sites in neighboring municipalities. Mr. Morrison
reviewed a chart he prepared that provided a comparison of
assumed setback acreage available in the Municipality
when applying factors such as setback distances and slope
percentages.
64. Based on its review, the Task Force concluded that
the minimum well pad size was approximately 3 1/2 acres.
The Task Force used this acreage as its basis for the
preparation of the zoning map.
9
65. The Task Force determined that any parcel exceeding
3 1/2 acres but approaching [5] acres could be considered
for well pad development.
....
71. The bulk of the Overlay District created by the 2011
Amendment was in the R-R District.
72. There were no material changes in the Overlay
District between the 2011 Amendment and the [2017
Amendment].
73. The [2017 Amendment] increased the required
setback [distance] to 750 feet from the edge of the well pad
to a protected structure and reduced the areas available for
oil and gas development. The actual wellbore is typically in
or around the middle of a well pad, so there would be
additional distance from the edge of the well pad to the
wellbore. By comparison, the Act 13 setback [was] 500 feet
from the wellbore, not from the edge of the well pad as
required by the 2017 Amendment.
....
75. The [2017 Amendment] contains 17 pages of
requirements with which an oil and gas operator must
comply in order to perform unconventional drilling in the
Municipality.
....
79. The Municipality’s Environmental Advisory Council
([]EAC[]) also reviews conditional use applications at
advertised meetings, which the public is invited to attend.
As of the date of Mr. Morrison’s testimony, the EAC had
reviewed the Titan Pad conditional use application at two of
its meetings.
80. Once the EAC and [the] Planning Commission have
completed their respective reviews of the Titan Pad
conditional use application, the conditional use application
10
is referred to [the] Council. [The] Council advertises and
holds a public hearing, and at the conclusion of the public
hearing, publicly votes on the conditional use application.
....
84. Under the MPC and the Municipality’s [Subdivision
and Land Development Ordinance (SALDO)], [the]
Council may impose conditions on the Titan Pad land
development application to the extent set forth in the
SALDO.
85. The Municipality has additional requirements related
to the approval of the Titan Pad, including road bonding for
excess weight vehicles using posted Municipal roads, a
driveway permit for construction of the access road, and a
grading permit.
86. None of the individual Objectors testified at the
public hearing on the [substantive] [v]alidity [c]hallenge.
87. Mr. Skeers is the President of the MWC and lives in
the Municipality. . . . He has lived at this address for 16
years.
....
101. It is Mr. Skeers’ position that unconventional gas
drilling should be in an industrial zoning district, and not in
a residential district. Mr. Skeers would not have any
objections if unconventional drilling was placed into an
industrial zoning district, even if that district did not have
enough acreage and effectively banned the use from the
Municipality.
....
106. Ms. Statam identified herself as a supporter of the
MWC. She has lived in the Municipality . . . for 12 years.
Ms. Statam stated that she lives across the street from the
proposed Titan Pad.
....
11
117. Ms. Statam expressed concerns about benzene and its
impact on the fertility of the mares and stallions that are
kept on her farm due to the proximity of her property to the
proposed Titan Pad. She also expressed concerns about
potential mining subsidence on her property based on past
mining in the Municipality.
118. Ms. Statam stated that large triaxle trucks visit her
property from time to time to place extra gravel on her road.
119. Ms. Statam indicated that larger sized trucks, such as
concrete trucks, drive past her property a couple of times a
week, not to visit her property but to go elsewhere. She
stated that these larger size trucks are noisy. These trucks
come closer than 750 feet to her home and horse farm.
120. Mr. Gehringer serves as a [GIS] analyst for HHEX.
Mr. Gehringer’s primary responsibilities are to spatially
analyze, create, and maintain data for the enterprise
geodatabase for the various departments and employees of
HHEX. In addition, he handles all mapping requests. This
includes taking public and other regularly generated data
and plotting it out on maps.
....
122. Mr. Gehringer prepared a map denoting the “no drill
zones” in the Municipality, i.e., those areas located outside
the Overlay District. The map also illustrated the Overlay
District, and the location of the Titan Pad within it, along
with the proposed truck route. The map showed the
distances from the edge of [] Objectors’ properties to the
edge of the Titan Pad. [] Objectors’ homes are located a
greater distance from the Titan Pad than the edges of their
property lines.
123. The distance from the edge of Objector Dominique
Ponko’s property to the edge of the Titan Pad is 3,304 feet.
124. The distance from the edge of Objector Barbara
Sims’s property to the edge of the Titan pad is 10,007 feet.
12
125. The distance from the edge of Objectors Joe and Judy
Evans’ property to the edge of the Titan pad is 10,160 feet.
126. The distance from the edge of Objector Susan
Stewart-Bayne’s property to the edge of the Titan Pad is
15,969 feet.
127. The distance from the edge of Objector Jean Martin’s
property to the edge of the Titan Pad is 5,510 feet.
....
135. There are 148 active conventional shallow wells in
the Municipality.
....
140. [] Objectors’ properties are all located closer to
existing oil and gas facilities, gas transmission lines, or gas
wells than they are to the Titan Pad.
141. The total acreage of the Municipality subject to oil
and gas leases is 11,613 acres, which is approximately
49.3[%] of the Municipality’s land mass.
142. Of the total leased acreage in the Municipality, 7,000
acres are located within the Overlay District, which is
76.8[%] of Overlay District’s land mass.
143. 4,613 acres are leased outside the Overlay District,
which is 23.2[%] of the land mass outside the Overlay
District.
....
146. Since 1965, the levels of Muncipal regulation of, and
limitations on, oil and gas development have become
increasingly stricter . . . .
(Board’s Findings of Fact (F.F.) at Nos. 29-31, 34, 39-41, 47, 49, 51, 53, 60, 63-65,
71-73, 75, 79-80, 84-87, 101, 106, 117-20, 122-27, 135, 140-43, 146) (citations to the
record omitted).
13
On further appeal, the trial court, without receiving additional evidence,
affirmed the Board’s decision denying the MWC’s substantive validity challenge to
the 2017 Amendment. In so doing, the trial court concluded that this Court’s
decisions in Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677(Pa. Cmwlth. 2018) (en banc), Delaware Riverkeeper Network v. Middlesex
Township Zoning Hearing Board (Pa. Cmwlth., No. 2609 C.D. 2015, filed June 16,
2019) (unreported), and Protect PT v. Penn Township Zoning Hearing Board, 220
A.3d 1174 (Pa. Cmwlth. 2019), effectively foreclosed the MWC’s constitutional and
statutory challenges. In notable part, the trial court succinctly concluded:
A review of the record shows that the [MWC] set forth no
evidence that would differentiate the [2017 Amendment] in
the present case from any of the ordinances which were
upheld on appeal [to this Court] and discussed supra; in fact
the [2017 Amendment] is more protective of the citizens of
[the Municipality] than the above-cited cases. . . . The
[Board] was not acting arbitrarily in finding [the MWC’s]
contention that unconventional well development is
incompatible with the R-R District to be unsupported by
any evidence and contrary to precedent[ial] law.
(Trial court op. at 7.)
The MWC appealed to this Court.
Discussion
As mentioned previously, the MWC mounts various constitutional and
statutory challenges to the 2017 Amendment. The MWC also asserts that the Board
committed evidentiary-related errors during the proceedings.
14
I. Substantive Due Process/Spot Zoning
The MWC contends that the 2017 Amendment violates substantive due
process because unconventional oil and gas drilling is an industrial land use and is
incompatible with the stated purpose of the R-R District. The MWC asserts that the
Overlay District imposed upon the R-R District was created “merely . . . to allow for
the profiting from the emerging shale gas energy boom, not for the legislative and
required police power purpose of protecting the public health.” (MWC’s Br. at 22.)
Somewhat similarly, the MWC states that the 2017 Amendment, by “[a]llowing oil
and gas drilling and waste water impoundments into the R-R zoning district[,]
constitutes an unconstitutional ‘spot zone,’ as the surrounding residential uses and
purpose of the district are incompatible with the use as further evidenced by some
areas in the R-R zoning district being excluded from the overlay.” (MWC’s Br. at
26.)
Initially, we recognize that “[a] zoning ordinance is presumed to be
valid. Therefore, one challenging the zoning ordinance has the heavy burden of
establishing its invalidity. Where the validity of the zoning ordinance is debatable,
the legislative judgment of the governing body must control.” Woll v. Monaghan
Township, 948 A.2d 933, 938 (Pa. Cmwlth. 2008). “In Pennsylvania, the
constitutionality of a zoning ordinance is reviewed under a substantive due process
analysis.” Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 204
(Pa. Cmwlth. 2009). “Under such analysis, the party challenging the validity of
provisions of the zoning ordinance must establish that they are arbitrary and
unreasonable and have no substantial relationship to promoting the public health,
safety, and welfare.” Id. Further, “the exercise of judgment in regard to zoning
regulations will not be interfered with except where there is obviously no relation to
15
health, safety, morals or general welfare.” Ethan-Michael, Inc. v. Board of
Supervisors of Union Township, 918 A.2d 203, 210 (Pa. Cmwlth. 2007).
Further, under Pennsylvania law, “spot zoning is the unreasonable or
arbitrary zoning classification of a small parcel of land, dissected or set apart from
surrounding properties, with no reasonable basis for the differential zoning.” Penn
Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114, 1120
(Pa. Cmwlth. 2014). “The most determinative factor in an analysis of a spot zoning
question is whether the parcel in question is being treated unjustifiably different from
similar surrounding land, thus creating an ‘island’ having no relevant differences
from its neighbors.” Id. at 1121 (citation omitted).
In its decision, the Board addressed these issues in the following
findings of fact:
45. The Council acted within its constitutional police
power in adopting the [the 2017 Amendment] to further the
general welfare of its citizens by permitting them to benefit
economically from unconventional natural gas resources
and royalties, in order to help their livelihood and way of
life. At the same time, [the Council] took into account the
interests of the general public by adopting an extensive
regulatory regime, far beyond that imposed on any other
use, addressing issues such as required yards, setbacks,
water withdrawal, wastewater disposal, erosion and
sediment control, public notice, traffic impact, noise
management, emergency response[,] and roadway
maintenance and repair. The [2017 Amendment] also
requires applicants for unconventional natural gas drilling
to proceed through the public conditional use and land
development processes, which can result in the imposition
of numerous additional requirements and limitations.
....
47. The [2017 Amendment] promotes the public health,
safety, and welfare of the community by requiring that
16
unconventional natural gas development comply with
rigorous state and federal permitting requirements, and by
supplementing those requirements with additional standards
and criteria aimed at mitigating local impact. . . .
48. In summary, applying the substantive due process
balancing test, the Board concludes that the Council did not
violate Objectors’ due process rights in adopting the Zoning
Ordinance.
(Board’s F.F. at Nos. 45, 47-48) (internal citations omitted).
In sum, the Board concluded:
63. The Overlay District constitutes rational planning and
balancing of interests as evidenced by: (i) the area within
the Overlay District has limited public infrastructure; (ii)
the area within the Overlay District has the least density of
structures, thereby limiting unconventional oil and gas
operations to less dense residential and agricultural areas;
and (iii) only [5%] of the Overlay District is useable for
unconventional oil and gas wells when the 2017 Ordinance
setback and the steep slope regulations are taken into
account.
(Board’s Conclusion of Law (C.O.L.) at No. 63.)
In addressing the MWC’s substantive due process challenge on appeal,
the trial court determined:
That the [Board] in this case took into consideration the
health, safety and welfare of the Municipality’s residents is
supported by the record. Taking into account all of the
[2017 Amendment’s] requirements, the [Board] found that
only 5% of the [O]verlay [D]istrict is actually [and
presently] usable for drilling and development. The
[Board] additionally set out detailed findings regarding the
rigorous and transparent process of deliberation,
information gathering and development that the
Municipality engaged in over a period of years in enacting
the Ordinance in view of the health and safety of the
community. The [Board] also noted that [the MWC] failed
to meet its burden of showing that the challenged Ordinance
17
is “arbitrary, unreasonable and unrelated to the public
health, safety, morals and general welfare,” because it did
not present any scientific or expert testimony in support of
this contention, as analogous to the situation in Frederick,
196 A.3d [at] 687[.]
(Trial court op. at 6-7) (some internal citations omitted).
With respect to the MWC’s assertion that the 2017 Amendment
constituted illegal spot zoning, the trial court opined:
[The MWC] attempts to liken the Overlay District to
impermissible “spot zoning” . . . . On the contrary, the
[Board] found by competent evidence that the Overlay
District is a sizable area that was chosen, not arbitrarily, but
based on factors such as population density and locations of
infrastructure.
(Trial court op. at 12.)
In Frederick, this Court rejected a substantive due process challenge to
an ordinance that permitted unconventional oil and gas drilling as a permitted use by
right in all of the municipality’s zoning districts, subject to numerous standards or
conditions, which, inter alia, related to road safety; the clearing of brush and trees;
emergency planning; dust, noise, and lighting controls; and security measures. The
objectors in that case contended that the oil and gas ordinance contravened
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) ensure that an individual’s use of his property will not
infringe upon the property rights of neighboring property owners. The objectors
further asserted that unconventional oil and gas development is incompatible with the
uses allowed in the township’s residential districts and that the township failed to
designate uses within the same district that are compatible with each other and, thus,
engaged in impermissible “spot zoning.”
18
An en banc panel of this Court disagreed, reasoning, in relevant part, as
follows:
Here, the [z]oning [b]oard found that oil and gas operations
have long existed in the R-2 [z]oning [d]istrict and provide
needed income to [t]ownship residents, particularly farmers,
so that they can maintain “their livelihood and way of life.”
Notably, in Robinson Township[], 83 A.3d at 954, the
plurality recognized “that development promoting the
economic well[]being of the citizenry obviously is a
legitimate state interest.” The [z]oning [b]oard found, as
fact, that oil and gas operations, including shale gas
development, have compatibly coexisted with other uses in
the [t]ownship’s rural areas for many years . . . .
Frederick, 196 A.3d at 688 (some internal citations omitted).
Although the objectors in Frederick presented expert testimony as to the
adverse effects of unconventional drilling on the environment and public health, the
zoning board found that testimony to be not credible. As such, this Court upheld the
zoning board’s determination that the objectors “did not present credible, substantial
evidence” that the oil and gas pad “will, in fact, have any adverse effect on public
health, safety, welfare or the environment.” Id. We stated that, instead, the
“[o]bjectors presume, without any supporting evidence, that oil and gas operations,
by their very nature, adversely affect property rights,” and rejected this assumption
because “[m]ere speculation is insufficient to establish a real possibility of concrete
harm to their property rights.” Id. at 688-89. In passing, we noted that “a gas well
operator engaged in hydraulic fracturing and drilling operations is not subject to strict
liability in tort” because “natural gas drilling does not constitute an abnormally
dangerous activity” and the “risks may be substantially reduced through the exercise
of due care in this field.” Id. at 689 n.17 (citing and quoting Ely v. Cabot Oil & Gas
Corp., 38 F. Supp. 3d 518, 520, 531 (M.D. Pa. 2014)).
19
This Court in Frederick then addressed the objectors’ argument “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 [z]oning [d]istrict.” Id. at 690. We noted
that the “[o]bjectors call[ed] oil and gas drilling ‘industrial’ throughout their briefs,”
but “presented no evidence to the [z]oning [b]oard on what they meant by ‘industrial’
or the significance of that term.” Id. at 690 n.20. Reviewing the record, this Court
determined that the objectors failed to establish that unconventional gas drilling was a
use that was incompatible with residential districts, or any zoning district for that
matter, and determined that the evidence instead showed that “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.” Id. at 691.
For these reasons, the Frederick Court concluded that the township’s oil
and gas ordinance did not violate substantive due process and did not constitute
illegal spot zoning.
In Protect PT, the objectors challenged the constitutionality of a
township’s Mineral Extraction Overlay (MEO) District to the extent that it permitted
unconventional natural gas development (UNGD) in the Resource District, which
consisted of low-density residential properties. The objectors contended that the
Resource District was essentially a growing suburban community and that UNGD is a
heavy industrial activity that is incompatible with residential use and the preservation
of the environment. Relying on Frederick to find no merit in the objectors’
substantive due process claim, this Court stated:
Similarly here, the fact-finding trial court held that the
[t]ownship, in determining that UNGD is a proper use in the
MEO District overlaying sparsely populated areas of the
Resource District, engaged in lengthy proceedings before
enacting the [z]oning [o]rdinance. The question of what
20
best serves the public interest is primarily a question for the
appropriate legislative body in a given situation. During
these proceedings, the [t]ownship carefully and
appropriately balanced its obligation to provide for property
owners’ development and management of minerals with its
obligation to protect the health, safety and welfare of
neighboring Resource District property owners. Based on
our review of the record, we conclude the trial court’s
determinations are supported by substantial evidence.
220 A.3d at 1192.
Upon review of the record and proceedings below, we concur in the trial
court’s conclusions that the 2017 Amendment does not violate substantive due
process or constitute unlawful spot zoning. It is apparent that the Overlay District
was enacted to encourage greater economic development, via unconventional oil and
gas drilling, which is a legitimate state interest. See Robinson Township, 83 A.3d at
954. As in Frederick and Protect PT, the Municipality has a long history of oil and
gas development, beginning in 1965, when it permitted conventional oil and gas
extraction in all zoning districts as a conditional use. (Trial court op. at 2-3.)
Importantly, the MWC failed to introduce evidence to establish that oil and gas
drilling, as authorized in the Overlay District, was incompatible with the uses or
overall character of the three residential zoning districts in which the Overlay District
is located. The MWC also failed to adduce competent evidence that the 2017
Amendment was unreasonable and unrelated to the public health, safety, morals, and
general welfare.
To the contrary, the record demonstrates that the Municipality carefully
and appropriately balanced the goal of economic development with its obligation to
protect the health, safety, and welfare of property owners in the Overlay District. For
instance, the Municipality created a Task Force, which “attempted to provide []
maximum protection to its residents and minimize potential impacts on community
21
property values,” (Board’s F.F. at No. 60), and the 2017 Amendment “contains 17
pages of requirements with which an oil and gas operator must comply in order to
perform unconventional gas drilling.” (Board’s F.F. at No. 75). Specifically, akin to
the ordinances in Frederick and Protect PT, the 2017 Amendment requires, among
other things, that an oil and gas producer submit a comprehensive application,
including all relevant permits and a detailed survey; the well sites are subject to 750-
foot setbacks from all protected structures; and the proposed development is required
to comply with stringent traffic regulations, fencing and impoundment guidelines,
hours of operations limitations, inspections by the Municipality, and aesthetic
integration standards. (Trial court op. at 2-3.) Further, the 2017 Amendment
imposes requirements related to “required yards, setbacks, water withdrawal,
wastewater disposal, erosion and sediment control, public notice, traffic impact, noise
management, emergency response[,] and roadway maintenance and repair.” (Board’s
F.F. at No. 45.) In addition, the EAC reviews conditional use applications, and the
Council may impose additional conditions on the oil and gas project as set forth in the
SALDO. (Board’s F.F. at Nos. 83-84.) Significantly, the MWC does not challenge
any of the Board’s specific findings of fact, and it is well settled that “[u]ndisputed
findings of fact are binding on this Court.” West Perry School District v.
Pennsylvania Labor Relations Board, 752 A.2d 461, 463 n.5 (Pa. Cmwlth. 2000).
Therefore, we conclude that the MWC failed to establish that the 2017
Amendment runs afoul of substantive due process or constitutes unlawful spot
zoning.
22
II. The ERA
The MWC asserts that the 2017 Amendment violates the ERA9 because
it failed to adequately consider the effect of unconventional oil and gas drilling on the
environment and the citizens’ constitutional rights to clean air and water. The MWC
claims that the 2017 Amendment was designed solely to ensure that more drilling
would occur, but the legislative body of the Municipality failed to review any public
health evidence when enacting the 2017 Amendment. In this light, the MWC
suggests, without any supporting evidence, that a setback distance of 750 feet is
woefully inadequate.
At its core, the ERA “protects the people from governmental action that
unreasonably causes actual or likely deterioration” of public natural resources.
Robinson Township, 83 A.3d at 953. Stated in somewhat different terms, “to achieve
recognition of the[] rights enumerated in the first clause of [the ERA] as ‘inviolate’
necessarily implies that economic development cannot take place at the expense of an
unreasonable degradation of [public natural resources].” Id. at 954. Instead, “when
government acts, the action must, on balance, reasonably account for the
environmental features of the affected locale.” Id. at 953. Recently, in Frederick,
this Court formulated the test to be used under the ERA. We concluded that judicial
9
This constitutional provision provides:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of the
environment. Pennsylvania’s public natural resources are the common
property of all the people, including generations yet to come. As
trustee of these resources, the Commonwealth shall preserve and
maintain them for the benefit of all the people.
Pa. Const. art. I, §27.
23
review of governmental action entails a two-step inquiry “to determine, first, whether
the values in the first clause of the [ERA] are implicated and, second, whether the
governmental action unreasonably impairs those values.” 196 A.3d at 695.
Here, the Board’s conclusions of law relevant to the MWC’s ERA
challenge are as follows:
65. [The MWC] presented no scientific or expert
testimony supporting [its] contention that an unconventional
oil and gas operation produces unreasonable amounts of air
pollution, water pollution, noise pollution, truck traffic or is
generally hazardous to the residents of [the Municipality]
and its adjacent neighbors.
66. [The MWC] presented no scientific or expert
testimony supporting [its] contention that the 750[-]feet
setback from the edge of the well pad to any protected
structures is insufficient to protect [its members’] property,
the environment or the public health, safety or welfare of
the residents of [the Municipality].
....
72. [The MWC] failed to meet [its] burden of proving
that the [2017 Amendment] will adversely impact or harm
[its members’] property rights, the environment or the
public health, safety and welfare.
73. [The MWC] failed to meet [its] burden of proving
that the [2017 Amendment] unreasonably impairs the rights
of the residents of [the Municipality] to clean air and pure
water.
74. [The MWC] failed to meet [its] burden of proving
that the [2017 Amendment] does not reasonably account for
the natural, scenic, historic and esthetic values of [the
Municipality’s] environment.
(Board’s C.O.L. at Nos. 65-66, 72-74.)
24
In disposing of the MWC’s ERA claim, the trial court offered the
following rationale:
[The MWC’s] argument here largely mirrors its argument
with regard to substantive due process, discussed above.
Again, it is clear that the Municipality did take into
consideration environmental impacts of the Ordinance, as
indicated by the exhaustive recitation in the [Board’s]
[d]ecision of the [2017 Amendment’s] pre-adoption
procedure. The [Board] notes that far less restrictive
ordinances have been upheld by Pennsylvania Appellate
Courts under an ERA analysis, and that [the MWC’s]
argument with regard to compliance with Pennsylvania’s
ERA must fail.
(Trial court op. at 10-11) (internal citation omitted).
In Frederick, this Court dismissed the objectors’ ERA claim and
employed the following rationale:
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. . . .
[The] [o]bjectors assert the [t]ownship did not “genuinely
consider” the environment in the enactment of Zoning
Ordinance 01-2010 or in the issuance of the permit to [the
oil and gas operator]. They presume, contrary to the
plurality’s instruction in Robinson Township[], 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. . . .
25
In sum, a municipality may use its zoning powers only to
regulate where mineral extraction takes place. A
municipality does not regulate how the gas drilling will be
done. [The objectors’] complaints about the purported
harm to the environment from the operations of the [well]
[p]ad project should have been addressed to the state
agencies that issued [the oil and gas operator] its operating
permits. . . .
[The objectors] did not prove that [the] [z]oning [o]rdinance
[ ] is a law that “unreasonably impairs” their rights under
the [ERA]. [The objectors] did not prove that [the] [z]oning
[o]rdinance [ ] does not reasonably account for the natural,
scenic, historic and esthetic values of the [t]ownship’s
environment. Indeed, [the board] reached the contrary
conclusion. It credited the testimony of [the oil and gas
operator’s] expert . . . who stated that there is a long history
of oil and gas development safely coexisting with
agricultural uses in the rural areas of the [t]ownship and that
unconventional gas development will actually help preserve
farming in the R-2 District. We hold that [the] [z]oning
[o]rdinance [ ] does not violate the [ERA].
Frederick, 196 A.3d at 692-98 (footnotes omitted and emphasis in original).
Importantly, this Court in Frederick determined “that construing the [ERA] to require
some sort of ‘pre-action environmental impact analysis’ is a novel construction
without any foundation in Pennsylvania Law” and declined to impose a burden on a
municipality to prove that it engaged in such an analysis. Id. at 700.
In Protect PT, the objectors asserted that, although the township held
many meetings prior to enacting the zoning ordinance, there was no evidence in the
record that the township “actually identified or evaluated the environmental impacts
of its decision-making in creating the MEO District,” and, as such, the township
“failed to consider the environmental impacts of its decision.” 220 A.3d at 1197. In
addition, the objectors argued that “the [t]ownship succumbed to the pressure of the
[oil and gas industry’s] interests looking to conduct UNGD in the [t]ownship” by
26
“imposing industry-preferred standards” in the ordinance. Id. Thus, according to the
objectors, “the [t]ownship’s enactment of the MEO District violate[d] the ERA and
[would] result in unreasonable environmental degradation in the [t]ownship.” Id.
We disagreed with these contentions and dismissed the objectors’ ERA
claim. Initially, this Court noted that the zoning ordinance stated that an applicant
for a permit must establish that its oil and gas project will comply with the ERA and
will not violate the citizens’ rights thereunder. More specifically, the ordinance
obligated the applicant for a permit to include in the application reports from
qualified environmental individuals attesting that the proposed location will not
negatively impact the township residents’ environmental rights. The ordinance also
required an applicant to submit air modelling and hydrogeological studies relating to
potential pathways in an event a spill or release of fluid would occur. This Court in
Protect PT then stated:
As reflected by . . . the [z]oning [o]rdinance, the [t]ownship
did consider its residents’ rights under the ERA. . . .
In Frederick, we reviewed a similar situation elsewhere in
Westmoreland County where the objectors argued that the
zoning ordinance violated the ERA by placing UNGD, an
alleged industrial use, in agricultural areas. The objectors
maintained that the UNGD well would degrade the local
environment in which people live, work[,] and recreate,
including the public natural resources on which people rely.
The objectors in Frederick advanced arguments nearly
identical to those raised here. In rejecting these arguments,
the fact-finder in Frederick relied on [expert] testimony that
oil and gas development safely coexisted with agricultural
uses in the rural areas of the township. We noted in
Frederick that the ERA does not call for a stagnant
landscape or a derailment of economic development.
27
By failing to show with credible evidence that UNGD
would adversely affect neighboring property owners in the
Resource District, [the objectors] failed to establish that the
Zoning Ordinance “unreasonably impairs” the rights of
Township residents under the ERA. See Frederick, 196
A.3d at 697[.]
Further, the plurality in Robinson [Township] stated that the
ERA does not impose express duties on municipalities to
enact specific affirmative measures to promote clean air,
pure water and the preservation of different values of our
environment. As we recognized in Frederick,
municipalities lack the authority to replicate the
environmental oversight that the General Assembly
conferred upon DEP and other state agencies. . . . Rather, a
zoning ordinance must balance the public interests of the
community with the due process rights of private property
owners. . . .
In sum, the trial court did not err or abuse its discretion by
failing to find that the [z]oning [o]rdinance violated
[t]ownship residents’ rights under the ERA.
220 A.3d at 1197-98.
Following and applying our decisions in Frederick and Protect PT and
incorporating by reference our prior analysis set forth above, we agree with the trial
court’s conclusions that the 2017 Amendment does not violate the ERA. Quite
simply, on the current record, the MWC did not prove that the 2017 Amendment
“unreasonably impairs” the Municipality’s citizens’ rights under the ERA. Notably,
as reflected in our case law, the Municipality was not obligated to conduct a “pre-
action environmental impact analysis” and, in enacting an unconventional oil and gas
well ordinance, a municipality need only demonstrate, through the ordinance’s design
or some other form of evidence, that it considered the citizens’ rights under the ERA.
Here, the Municipality carefully crafted the Overlay District as the place where
unconventional oil and gas may be permitted via a conditional use. In so doing, the
28
Municipality decided that it was appropriate for wells to be located in the R-R, R-1,
and R-2 Districts, but not the R-3 District or the B-1 Business District, because these
districts were more dense, population-wise, and/or contained smaller lot sizes.
(Board’s F.F. at Nos. 29-31, 53.) Moreover, after the Supreme Court issued
Robinson Township in 2013, the Municipality reconvened the Task Force and
reassessed the appropriate locations for unconventional oil and gas drilling sites in an
attempt to minimize the impact of unconventional drilling to the greatest extent
possible on the existing population. See Board’s F.F. at Nos. 40-41, 47, 51, 60, 63,
64, 65.
Therefore, we conclude that the MWC did not carry its burden of
proving that the 2017 Amendment violated the ERA.
III. The MPC
The MWC asserts that the 2017 Amendment violates various provisions
of the MPC because it permits a heavy and industrial use—oil and gas
development—in the R-R District and fails to protect the public health and provide a
safe and reliable water supply. The MWC further argues that the 2017 Amendment
does not comport with the MPC because, “[r]ather than creating uniform classes
within each zoning district,” the 2017 Amendment “singles out unconventional
drilling for special treatment.” (MWC’s Br. at 47.) According to the MWC, this
“necessarily lead[s] to the anomaly that unconventional drilling is permitted in the R-
R [D]istrict whether the other uses are compatible or not and[,] due to the overlay[,]
not all residents in the R-R district have ‘uniform provisions.’” (MWC’s Br. at 47.)
Section 604 of the MPC provides, in part, that zoning ordinances shall
be designed “[t]o promote, protect and facilitate any or all of the following: the
29
public health, safety, morals, and the general welfare; coordinated and practical
community development and proper density of population . . . .” 53 P.S. §10604.
The MPC further provides:
Zoning ordinances enacted after the effective date of this
act should reflect the policy goals of the municipality as
listed in a statement of community development objectives,
recognizing that circumstances can necessitate the adoption
and timely pursuit of new goals and the enactment of new
zoning ordinances which may neither require nor allow for
the completion of a new comprehensive plan and approval
of new community development objectives.
Section 606 of the MPC, 53 P.S. §10606.
The policy goals set forth in the Municipality’s Community
Development Objectives track those laid out in the MPC and are as follows:
A. To promote, protect and facilitate one or more of the
following: the public health, safety and general welfare;
coordinated and practical community development; proper
density of population; civil defense; disaster evacuation; the
provision of recreation, open space and harmonious design;
the provision of adequate light and air, police protection,
vehicle parking and loading space, transportation, water,
sewerage, schools, public grounds and other public
requirements; and
B. To prevent one or more of the following: overcrowding
of land; blight; danger and congestion in travel and
transportation; and loss of health, life or property from fire,
panic or other dangers.
Ordinance, §201-3.
On review, the trial court provided the following recitation and legal
analysis:
In rendering its decision, the [Board] directly addressed [the
MWC’s] argument, relying on the Commonwealth Court’s
holding in Frederick which addressed and rejected similar
30
arguments regarding compliance with the MPC on the same
basis that [the] objectors’ substantive due process argument
was rejected, as discussed above. Frederick, 196 A.3d at
698-700. The [Board] additionally made specific findings
that the regulations and requirements in the [2017
Amendment] are protective of the welfare and safety of the
community and environment, and that [the MWC] failed to
set forth any evidence which would tend to show
incompatibility of unconventional oil and gas development
with the aims of the Community Development Plan. The
[Board] thus did not abuse its discretion or commit an error
of law in finding that the [2017 Amendment] is in
compliance with the MPC.
(Trial court op. at 9-10) (some internal citations omitted).
As noted above by the trial court, in Frederick, this Court addressed
arguments that are substantially similar to those presented by the MWC here and
concluded that they lacked merit:
[The objectors] next argue that [the] [z]oning [o]rdinance . .
. violates [s]ections 603(a), 604 and 605 of the MPC. [The
objectors] argue it violates [s]ection 603 of the MPC
because “the ordinance is potentially detrimental to public
health, safety, and general welfare, as well as detrimental to
a safe, reliable and adequate water supply within [the R-2
Zoning District]” and, as such, is contrary to the statement
of community objectives set forth in the [z]oning
[o]rdinance. [The objectors] contend that [the] [z]oning
[o]rdinance [] violates [s]ection 604 of the MPC because
permitting unconventional gas well development in all
zoning districts will . . . place “water sources and other
environmental assets at risk[.]” [The objectors] assert that
[the] [z]oning [o]rdinance . . . violates [s]ection 605 of the
MPC because it allows incompatible uses to take place
within the R-2 [z]oning [d]istrict.
[The oil and gas operator] responds that [the objectors’]
alleged violations of the MPC reiterate the same arguments
they made in their substantive due process claim; their
arguments should fail for the same reasons discussed earlier
in this opinion. We agree.
31
First, the [z]oning [b]oard held that [the objectors’] claims
that [z]oning [o]rdinance 01-2010 will cause safety or
environmental problems were not supported by evidence.
[The o]bjectors have not challenged any of the [z]oning
[b]oard’s findings of fact or conclusions of law on these
points. Thus, they have not shown a violation under
[s]ection 603 of the MPC.
Second, the [z]oning [b]oard rejected [the objectors’] expert
and did not credit his testimony. Thus, [the objectors]
cannot rely on that evidence to support their concerns under
[s]ection 604 of the MPC.
Third, the [z]oning [b]oard rejected [the objectors’]
assertion that natural gas development is not a compatible
use in the R-2 [z]oning [d]istrict. Again, [the objectors]
have not challenged the [z]oning [b]oard’s findings and
point to no credited evidence that would refute this
conclusion. [The objectors] have presented only conclusory
arguments without reference to the enumerated uses
allowed in the R-2 [z]oning [d]istrict and how oil and gas
drilling is incompatible with those uses.
196 A.3d at 699-700 (internal citations omitted).
Notably, in Delaware Riverkeeper Network, this Court reiterated that,
absent competent proof, an objector’s assertion of incompatibility in land uses lacks
merit. This is because, without supporting proof, the argument is based “on the
faulty premise that unconventional gas drilling is a fundamentally incompatible
industrial use as a matter of law in the relevant zoning district.” Id., slip op. at n.16.
Here, we affirm the trial court’s conclusions that the 2017 Amendment
does not violate the MPC. In so doing, we incorporate by reference our preceding
analyses addressing the MWC’s constitutional arguments, finding that it adequately
disposes of the MWC’s MPC claims, which are overwhelmingly duplicative of their
constitutional claims. In short, we conclude that the MWC failed to demonstrate that
32
unconventional well drilling is a use that is incompatible with the Overlay District as
a whole or the R-R District, to the extent that it is located within the Overlay District.
IV. Special Legislation/Equal Protection
The MWC asserts that the 2017 Amendment violates the equal
protection analysis embodied within article III, section 32 of the Pennsylvania
Constitution because the Overlay District is a special law that is designed to favor the
oil and gas industry. The MWC claims “that only the oil and gas industry was
granted an overlay in various residential districts”; since oil and gas operations are
not permitted in all of the R-R District, the “citizens that live in [the Municipality’s]
R-R District are not treated equally”; and, thus, “some residents were given greater
protections than others despite the uniform purpose of the R-R District applying
evenly to all citizens.” (MWC’s Br. at 54.)
The MWC further contends that its members “cannot use their property
in any manner they please, but there is no reciprocal restriction on the oil and gas
industry, which may use whatever land it sees fit in the R-R [] District for intensive,
heavy industrial activities . . . simply because a determination has been made to favor
that particular industry.” (MWC’s Br. at 53.) According to the MWC, the 2017
Amendment “readily removed the expectations and safeguards provided for and
relied upon by the citizen inhabitants of the R-R District to favor corporate oil and
gas interests,” (MWC’s Br. at 54), and the Municipality, recognizing the harm that oil
and gas operations create, “sought to protect the majority of its citizens[] to the
detriment of the minority of citizens.” (MWC’s Br. at 56.)
With respect to claims under article III, section 32, our Supreme Court
has “repeatedly held that the underlying purpose of this section is analogous to the
33
equal protection clause of the federal constitution and that our analysis and
interpretation of the clause should be guided by the same principles that apply in
interpretation of federal equal protection.” DeFazio v. Civil Service Commission of
Allegheny County, 756 A.2d 1103, 1105 (Pa. 2000).
Equal protection principles do not, however, vitiate the
Legislature’s power to classify, which necessarily flows
from its general power to enact regulations for the health,
safety, and welfare of the community. Nor do they prohibit
differential treatment of persons having different
needs, provided the classifications at issue bear a reasonable
relationship to a legitimate state purpose. In this regard, a
classification, though discriminatory, will be deemed
reasonable if any state of facts reasonably can be conceived
to sustain it. However, a classification will be struck down
if it is based upon artificial or irrelevant distinctions used
for the purpose of evading the constitutional prohibition. In
undertaking its analysis, a reviewing court is free to
hypothesize reasons the Legislature might have had for the
classification.
Harrisburg School District v. Zogby, 828 A.2d 1079, 1088-89 (Pa. 2003) (internal
citations omitted).
Addressing the equal protection issue advanced by the MWC, the trial
court concluded:
Looking to the decision of the [Board], it is clear that the
[Board] made specific findings and conclusions that the
classifications set out in the Ordinance are reasonable as
opposed to arbitrary. The [] MPC specifically mandates
that “[z]oning ordinances shall provide for the reasonable
development of minerals in each municipality.” 53 P.S.
§10603. The [Board] found that the Overlay District
provided a reasonable and specific balancing of the rights of
the citizens while still allowing for unconventional oil and
natural gas development.
(Trial court op. at 12) (internal citations omitted).
34
Upon review, we concur in the trial court’s conclusions that the 2017
Amendment does not violate principles of equal protection. Our analyses set forth
above in the preceding sections of this opinion, at least to a large degree, severely
undermine the MWC’s contentions and demonstrate that the Municipality crafted the
2017 Amendment in order to promote oil and gas development in the Overlay
District. Contrary to the MWC’s assertion, a municipality may create zoning districts
that are specifically designed for business and industry purposes, and the distinction
between business uses and residential uses is a differentiation that is rationally related
to the goal of promoting economic development. To the extent the MWC asserts that
the Overlay District violates equal protection because part of the R-R District is not
located within the Overlay District, the Municipality had a rational basis for such an
exclusion. Specifically, the Municipality devised the Overlay District based on
available acreage size and could have reasonably determined that a portion of the R-R
District was too dense, geographically speaking, to be included within the Overlay
District. See Board’s F.F. at Nos. 64-65, 71-72. Therefore, we agree with the
tribunals below and conclude that the MWC failed to establish that the 2017
Amendment is unlawful special legislation or violates the principles of equal
protection of the law.
V. Overlay District and Comprehensive Plan
The MWC asserts that the 2017 Amendment designs the Overlay
District in an unlawful manner. The MWC states that the 2017 Amendment “unduly
disturbs the expectations created by the existing R-R [] District, as overlay essentially
supersedes the rural and residential nature of the R-R [] District.” (MWC’s Br. at
58.) In addition, the MWC contends that the 2017 Amendment violates the
35
requirement that a zoning ordinance must be generally consistent with the
comprehensive plan.
“An overlay district creates a framework for conservation or
development allowing for a new type of development or imposing restrictions that is
superimposed over the zoning districts on all or part of a municipality.” Main Street
Development Group, Inc. v. Tinicum Township Board of Supervisors, 19 A.3d 21, 28
(Pa. Cmwlth. 2011) (en banc). “The purpose of an overlay district is to create
specific and targeted provisions that conserve natural resources or realize
development objectives without unduly disturbing the expectations created by the
existing zoning ordinance.” Id. (emphasis omitted). “In other words, overlay
districts supplement existing zoning districts; they do not supersede them either in
fact or practice.” Id.First and foremost, this Court observes our holding that, “in accord with
[s]ection 303(c) of the MPC, no action by the governing body of a municipality shall
be invalid or be subject to challenge on appeal on the basis that such action is
inconsistent with, or fails to comply with the provisions of a comprehensive plan. 53
P.S. §10303(c).” Protect PT, 220 A.3d 1194-95. To a large extent, this legal
proposition refutes the MCW’s argument that the 2017 Amendment contravenes the
Municipality’s Comprehensive Plan.
Regardless, and in any event, the Board determined that
there is nothing inconsistent between the Zoning Ordinance
and the Comprehensive Plan. The Comprehensive Plan
specifically anticipated that the Municipality would embark
on a continuing evaluation of its regulation of oil and gas
development, which is precisely what it did. The
Comprehensive Plan did not state that oil and gas
development was incompatible with any specific area of the
Municipality, and recommended that the Municipality
36
“strive to have a regional cohesiveness in the preservation
of the environment and the development of energy
resources.” In fact, as Mr. Morrison testified, the Overlay
District in the [] Ordinance was drawn to approximately
follow the outline of the areas identified in the
Comprehensive Plan future development map as lacking the
infrastructure to support residential and other development.
(Board’s C.O.L. at No. 54.)
Moreover, in Protect PT, this Court explained that
[t]he purpose of an overlay district is to craft provisions that
conserve natural resources or realize development
objectives without unduly disturbing the expectations
created by the existing zoning district. The MEO District
meets those objectives by providing for the preservation of
agricultural operations and development opportunities for
owners of mineral resources. In creating the MEO District,
the [t]ownship properly balanced the rights of property
owners seeking to develop their mineral resources with the
need to ensure the health, safety and welfare of neighboring
community members and property owners.
Furthermore, in the MEO District, 77.9% of the land is
under oil and gas leases. In [Gorsline v. Board of
Supervisors of Fairfield Township, 186 A.3d 375 (Pa.
2018)], our Supreme Court determined that municipalities
are empowered to permit oil and gas development in any or
all of its zoning districts. The Gorsline [] Court, rather than
relegating UNGD solely to industrial zones, instead noted
that its decision should not be misconstrued as an indication
that UNGD was fundamentally incompatible with
agricultural and residential zoning districts.
Id. at 1195 (emphasis in original).
Here, we agree with the trial court that the 2017 Amendment does not
violate the legal concepts of an overlay district. As explained above in our prior
analyses, the record demonstrates that the Municipality properly balanced the rights
of property owners to lease their lands for unconventional gas well drilling with the
37
need to protect the environment and to ensure the health, safety, and welfare of the
neighboring citizens and the Municipality as a whole. Further, akin to the situation in
Protect PT, here, “[o]f the total leased acreage in the Municipality, 7,000 acres are
located within the Overlay District, which is 76.8[%] of the Overly District’s land
mass.” (Board’s F.F. at No. 142.) See Frederick, 196 A.3d at 684 (stating that
approximately 75% of the land mass in the R-2 district is leased to oil and gas
operators). However, as in Protect PT, this fact does not prove that the Municipality
violated the MPC because municipalities are empowered to permit oil and gas
development in any or all of its zoning districts. It was the MWC’s burden to prove
incompatibly of uses. However, the MWC failed to establish that unconventional
drilling is a use that is incompatible with the residential uses permitted in the R
Districts.
Accordingly, we find no merit in the MWC’s arguments challenging the
nature and zoning designations of the Overlay District or the Comprehensive Plan.
VI. Judicial Estoppel
The MWC contends that the Municipality is judicially estopped from
denying that unconventional well drilling is an industrial use that is incompatible with
residential districts because it advanced this position in its amicus brief in Robinson
Township.
Our Supreme Court has described judicial estoppel as “an equitable,
judicially-created doctrine designed to protect the integrity of the courts by
preventing litigants from ‘playing fast and loose’ with the judicial system by adopting
whatever position suits the moment.” Sunbeam Corp. v. Liberty Mutual Insurance
Co., 781 A.2d 1189, 1192 (Pa. 2001) (citation omitted). Under the doctrine of
38
judicial estoppel, “a party to an action is estopped from assuming a position
inconsistent with [its] assertion in a previous action, if [its] contention was
successfully maintained.” Bienert v. Bienert, 168 A.3d 248, 255 (Pa. Super. 2017)
(citations omitted).
We find no merit in the MWC’s argument that judicial estoppel is
applicable in this case. In Robinson Township, the Supreme Court struck down
section 3304 of Act 13—a state statute—in overwhelming part because it
commandeered municipalities, permitting oil and gas operations as a use “of right” in
every zoning district throughout the Commonwealth, and deprived the municipalities
of the ability to pick and choose which districts within its realm are suitable for oil
and gas operations based on “environmental and habitability burdens.” Robinson
Township, 83 A.3d at 980. Thus, the Municipality’s legal position in that case was
made in an attempt to rule Act 13 unconstitutional in order to restore its ability, on
the local level, to create and define zoning districts in general, including those in
which unconventional oil and gas drilling should be permitted to occur and under
what conditions. That legal position is markedly different than the Municipality’s
position in this case, which seeks to uphold the 2017 Amendment and its legislative
decision to allow unconventional oil and gas drilling in the Overlay District.
Therefore, we conclude that the Municipality was not judicially estopped with respect
to the characterization, nature, and/or effect of unconventional drilling or its
suitability in certain zoning districts within its borders.
VII. Expert Witness
The MWC maintains that the Board erred in permitting Gehringer to
testify as an expert when the Intervenor Olympus, Intervenor landowners, and/or
39
HHEX failed to list or otherwise disclose his identity as an expert and/or an expert
report as required by the Board’s order. The MWC asserts that it was prejudiced
because it could not discern Gehringer’s methodology prior to the hearings and,
therefore, its ability to examine his testimony was severely hampered.
Here, the Board stated in its decision: “It is specifically noted that Mr.
Gehringer was not called as an expert witness but was called as a fact witness to plot
existing information that is available in public and other data bases. Mr. Gehringer
testified with regard to distances from various properties to the edge of the well pad
and location of the hall route.” (Board’s decision at 1-2.)
The trial court opined:
Looking to the factual record, Mr. Gehringer’s testimony
consisted of viewing maps and pointing out on those maps
locations relative to one another, including the area of the
municipality that allows drilling, various well sites and
storage facilities, the at-issue well site and [Objectors’]
properties. He noted that all information was publicly
available and easily obtainable. [The MWC] notes the
standard for determining expert versus lay testimony as set
out by the Superior Court as follows: “[T]he proffered
expert testimony must point to, rely on or cite some
scientific authority-whether facts, empirical studies, or the
expert’s own research that the expert has applied to the facts
at hand and which supports the expert’s ultimate
conclusion.” Nobles v. Staples, Inc., 150 A.3d 110, 115
(Pa. Super. 2016). . . . Mr. Gehringer’s testimony does not
rise to this level, because he was merely presenting the
“facts at hand” in this case[,] the mapped locations and
distances[,] without the addition of any scientific authority
and reasoning to arrive at an expert opinion.
[Intervenor] Olympus additionally notes that a computer[-
]generated map is “not scientific evidence and therefore the
test for its admissibility should be whether it accurately
represents what it purports to represent.” Department of
Environmental Resources v. Al Hamilton Contracting Co.,
40
665 A.2d 849, 852 (Pa. Cmwlth. 1995). Mr. Gehringer
merely reiterated the locations and distances on properly
admitted maps through his testimony, providing factual
evidence to the trier of fact, the [Board]. As such, the
[Board] was not in error in accepting Mr. Gehringer’s
testimony as lay witness testimony for the purpose of
conducting its substantive validity challenge.
(Trial court op. at 8-9.)
In Al Hamilton Contracting Co., a case involving issues in connection
with a surface mining permit, the Department of Environmental Resources
(Department), now Department of Environmental Protection, sought to introduce an
exhibit into evidence that was prepared by a hydrogeologist. Specifically, the exhibit
“was a composite map of the mine site and the surrounding area created from a
photocopy of a map [and] also contained several additional markings made by [the
hydrogeologist] which represented the location of the various discharge areas and
computer-generated structure contour lines.” 665 A.2d at 850. The administrative
board concluded that the exhibit did not satisfy the test for the admissibility of
scientific, expert testimony under Frye v. United States, 293 F.2d 1013 (D.C. Cir.
1923), finding “that the Department had not introduced any evidence indicating that
the use of a computer program that converts locations and depths into a topographical
contour model has gained general acceptance in the field of hydrogeology.” 665
A.2d at 852. On appeal, this Court determined that the Frye test was inapplicable
because the exhibit “[was] not scientific evidence and therefore the test for its
admissibility should [have been] whether it accurately represents what it purports to
represent.” Id. In other cases, courts have generally held that when a witness creates
a computer-generated map showing locations and distances and offers testimony with
regard to that map, the testimony does not constitute expert testimony; thus, the rules
of evidence pertaining to expert testimony do not apply, and the witness need only
41
offer foundational testimony that the map is an accurate depiction in order for the
map to be admissible. See Albig v. Municipal Authority of Westmoreland County,
502 A.2d 658, 665 (Pa. Super. 1985) (“Unofficial maps are admissible as evidence
when verified by the testimony of a witness who has personal knowledge of their
accuracy.”); State v. Franklin, 843 N.E.2d 1267, 1269-71 (Ohio App. 3d 2005)
(holding that the testimony of a GIS specialist with regard to measurements and
distances generated from a computer software program did not constitute expert
testimony requiring expert qualification but, instead, concerned “the knowledge or
experience possessed by most lay persons”).
Moreover, even if Gehringer rendered expert testimony, Olympus argues
that “the [Board] gave [the] MWC’s counsel the opportunity to continue the hearing
to prepare for cross-examination of Gehringer or to present rebuttal testimony and he
declined, thus waiving the objection.” (Olympus’ Br. at 37-38.) Olympus adds that
the Board’s invitation was adequate to alleviate any prejudice because “[t]he purpose
of an expert report is to provide notice of the expert’s expected testimony. Having
Gehringer’s actual testimony in hand, with the opportunity to cross-examine him at a
later date, is far better notice.” (Olympus’ Br. at 39 & n.21.)
Upon review, we conclude that the Board did not commit prejudicial
evidentiary error. First, Gehringer did not provide expert testimony because he did
not issue an expert opinion in the typical sense, e.g., an opinion pertaining to the
breach of the standard of care or causation, and testified only to factual situations,
i.e., the distance between geographic points of reference. Second, even if Gehringer
rendered expert testimony, and the MWC was not placed on sufficient notice of that
testimony, the Board provided the MWC with the opportunity and time to alleviate
and cure any such error. However, the MWC declined to take advantage of the
42
Board’s offer and cannot now assert that it was prejudiced. See United States v.
Harris, 498 F.2d 1164, 1170 (3d Cir. 1974) (“[The defendant] should have taken this
course when he learned of the errors, but failed to do so. A defendant may not sit idly
by in the face of obvious error and later take advantage of a situation which by his
inaction he has helped to create.”) (internal quotation marks omitted). “To constitute
reversible error, an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.
Super. 2012). Consequently, we conclude that the MWC is not entitled to relief on its
assertions of error with regard to the admissibility of Gehringer’s testimony.
VIII. Adverse Inference
The MWC contends that it is entitled to an adverse inference because
Morrison was asked why the Council did not consider the
Task Force’s recommendation concerning setback distances
of 1000’ based on public health and their impact on their
citizens’ rights to clean air and pure water when it reduced
the setback to 750’. Following an objection by the
Municipality’s Counsel, [Morrison] was directed to provide
[] an answer by the [Board], yet he refused to answer.
Despite the [Board] overruling the objection, [the
Municipality’s] Counsel took the unusual step of silencing
the witness contrary to the Board’s ruling, saying “I’m
directing you not to answer.” Counsel for the [MWC]
responded, “I would ask for an adverse inference then, that
the [B]oard has ruled and the witness is not acting
consistent with the ruling.”
Here, [] Morrison failed to testify regarding the Council’s
consideration of key information on whether its reduced
setback is actually consistent with the public health, safety
and welfare, but these facts would be well within his
knowledge as he was called as a witness by [the
Municipality] to recap the ordinance process and what
Council did. His unwillingness to testify should be
43
understood to [imply] that the [MWC’s] argument that [the
Municipality] blatantly ignored this information and did not
consider the public health, safety and welfare in violation of
its police powers, when minimizing the Task Force’s
recommended setback from a well site from 1000’ to 750’
is indeed factually correct, and should further be used to
discredit any testimony made to the contrary throughout the
course of [] Morrison’s testimony. . . .
This inference . . . should be viewed as adverse admissions
against interest made by [the Municipality], and as proof of
[its] violation of citizens’ constitutional rights.
(MWC’s Br. at 48-51) (internal citations omitted).
A party’s failure to testify can support an adverse inference that
whatever testimony he would have given would have been unfavorable to him.
Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz), 31 A.3d
325, 328 (Pa. Cmwlth. 2011). This adverse inference serves to corroborate evidence
produced by the opposing party. Id. An adverse inference, however, does not
constitute evidence and it cannot alone serve as substantial evidence to support a
finding of fact. Id. at 328-29 (emphasis added). Stated differently,
the inference created when a party refuses to testify is not
considered evidence established by the party with the
burden of proof, and therefore does not count in calculating
whether a party has met its burden in introducing
substantial evidence. Rather, the inference is directed to the
credibility of the evidence presented by the party with the
burden.
Id. at 329.
In addition, as explained in Intervenor Olympus’ brief, “Council’s
decision to adopt a 750-foot setback instead of the 1,000-foot setback recommended
by the Task Force” is essentially irrelevant because “[t]he recommendation of an
advisory body has no binding effect on the governing body.” (Olympus’ Br. at 27.)
44
This contention is well taken and finds strong support in the case law. Indeed, “this
Court previously stated [that] a planning commission is no more than an advisory
body whose recommendations have no binding effect on the governing body.”
Atherton Development Co. v. Township of Ferguson, 29 A.3d 1197, 1213 (Pa.
Cmwlth. 2011). See Cleaver v. Board of Adjustment of Tredyffrin Township, 200
A.2d 408, 413 (Pa. 1964) (“The final decision in zoning matters rests in the
legislative body and not in a planning commission, and a township or borough or
county or city may adopt or modify or reject any comprehensive or master plan which
is prepared by a planning commission.”).
For three reasons, we find that the Board’s alleged failure to draw an
adverse inference from Morrison’s counseled decision not to explain or otherwise
discuss the Council’s consideration, or deliberative process, in not following the
recommendation of the Task Force lacks merit. First, despite the Board’s ruling, the
sought-after testimony is legally irrelevant and possesses no probative value to the
legal issues in this case. Second, and alternatively, the MWC did not adduce any
competent evidence in support of its constitutional and statutory claims, and an
adverse inference is insufficient to carry its burden of proof on those claims. Third,
as discussed below, the Council’s state of mind in making the decision has no impact
on the constitutionality or statutory validity of the 2017 Amendment. Therefore, we
conclude that even if the Board was obligated, as fact-finder, to draw an adverse
inference, such an inference would be legally insufficient to carry the MWC’s
evidentiary burden and establish that the 2017 Amendment was unconstitutional or
contravened a statute.
45
IX. Subpoena
Citing Council’s duties as trustees under the ERA, the MWC asserts that
[i]n essence, the trust obligation imposes a burden upon the
trustee to “show your work” and provide the decision-
making roadmap. This burden fell squarely upon [the]
Council to substantiate both how and why its ordinance was
appropriately protective of the municipality’s [ERA] trust
obligations and its beneficiaries’ rights. Yet, during the
hearing, [the] Council was shielded from any inquiry
relating to their trustee obligation. When [the MWC]
attempted to subpoena Council members to obtain
testimony regarding their trustee obligations, these efforts
were denied.
(MWC’s Br. at 60-61.)
Under Pennsylvania law, this Court has “held that the courts have no
authority to pass upon the motives of a legislative body in enacting a statute or an
ordinance.” East Lampeter Township v. County of Lancaster, 744 A.2d 359, 365 n.9
(Pa. Cmwlth. 2000). Indeed, “members of a legislative body are not subject to
inquiry incident to any challenge of its legislation so that they may have absolute
freedom to act in legislative matters for the public welfare, without fear of being
called on for vindication or explanation, leaving to the courts the function of
determining whether such acts transgress the fundamental law.” Id. (emphasis in
original; internal citation omitted). Put simply, “the state of mind of the legislative
body in enacting a zoning ordinance is irrelevant to a determination of its validity;
rather, the legislation must stand or fall on its own terms.” Id. (internal citation
omitted). Somewhat similarly, a legislative body need not articulate its reasoning at
the moment a particular decision is made, and a legislative choice may be based on
rational speculation unsupported by evidence or empirical data. See Adams Outdoor
Advertising, LP v. Zoning Hearing Board of Smithfield Township, 909 A.2d 469, 478
46
(Pa. Cmwlth. 2006); Corteal v. Department of Transportation, 821 A.2d 173, 177
(Pa. Cmwlth. 2003).
Applying the above case law, we conclude that the Board did not err in
denying the MWC’s request to subpoena Council members because the proffered
testimony sought to be obtained was inadmissible and irrelevant to the MWC’s
constitutional and statutory claims.
Conclusion
Given this Court’s decisions in Frederick and Protect PT, the MWC’s
constitutional and statutory claims necessarily fail. Notably, as previously
mentioned, the MWC does not challenge any of the Board’s specific findings of fact
and, as a result, they are binding on this Court. Further, the only evidence submitted
by the MWC was entirely speculative in nature. None of Objectors testified; Skeers,
the President of MWC, simply voiced his position that unconventional gas drilling
should be in an industrial zoning district, and not a residential district; and Statam
merely stated that she was worried about the potential effect that the drilling would
have on her horses and that unidentified, large trucks drive past her house creating
noise. (F.F. Nos. 86, 101, 117-19.) See Frederick, 196 A.3d at 689 (stating that the
objectors’ “expressed concerns” consisted of no more than “speculation of possible
harms[,]” which was “insufficient to show that the proposed natural gas well will be
detrimental to the health, safety and welfare of the neighborhood”). Although the
MWC could have introduced expert testimony regarding the adverse effects of
unconventional oil and gas drilling, or even layperson testimony based on first-hand
experiences with gas wells, see generally EQT Production Company v. Borough of
Jefferson Hills, 208 A.3d 1010 (Pa. 2019), it did not. Consequently, the MWC
47
essentially advances constitutional challenges to the 2017 Amendment on its face,
rather than as applied. However, there is nothing inherently illegal about
unconventional oil and gas drilling, and this Court has rejected any presumption that
the activity will have an adverse effect on the environment or the population or that it
is incompatible with residential zoning districts. Finally, the MWC’s arguments that
are evidentiary in nature are devoid of merit.
Accordingly, and for the above-stated reasons, we affirm the trial court’s
order, which affirmed the Board’s order denying the MWC’s legal challenges to the
validity of the 2017 Amendment.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Crompton did not participate in this decision.
48
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Murrysville Watch Committee, :
Appellant :
:
v. :
:
Municipality of Murrysville Zoning :
Hearing Board and Municipality of :
Murrysville :
: No. 579 C.D. 2020
v. :
:
Olympus Energy LLC :
:
v. :
:
David and Cindy Gesuale, Douglas :
and David Geiger, Barry and Pamela :
Paulisick, Free Gospel Church, Inc., :
Doris and Jurgen Ekbert, and Samuel :
and Regina Staymates :
ORDER
AND NOW, this 24th day of January, 2022, the May 13, 2020 order of
the Court of Common Pleas of Westmoreland County is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge