Protect PT v. Penn Twp. ZHB and Apex Energy (PA), LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Protect PT, :
Appellant :
:
v. : No. 39-42 C.D. 2018
: Argued: October 16, 2018
Penn Township Zoning Hearing :
Board and Apex Energy (PA), LLC :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: November 8, 2018
In these four consolidated zoning appeals, Protect PT (Objector)
challenges the order of the Court of Common Pleas of Westmoreland County (trial
court) that affirmed the decisions of the Penn Township Zoning Hearing Board
(ZHB) granting the four special exception applications filed by Apex Energy (PA),
LLC (Applicant) for its oil and gas operations (unconventional gas wells), subject
to conditions attached by the ZHB. Objector asserts the ZHB erred in granting the
special exceptions where: (1) the record lacks substantial evidence that Applicant’s
proposal satisfies Section 190-635(D)(1) of the Zoning Ordinance of Penn
Township (zoning ordinance) relating to the storage of toxic-produced water; (2)
the record lacks substantial evidence that Applicant’s proposal satisfies Section
190-641(D) of the zoning ordinance relating to the protection of citizens’
environmental rights; and (3) the record contains substantial evidence that shows
Applicant’s proposal would create a high probability of an adverse, abnormal or
detrimental effect to the public health, safety, and welfare. Upon review, we
affirm.
I. Background
At the outset of its opinion, the trial court noted that the parties agreed
on the procedural and factual background of the special exception applications at
issue here.
In the fall of 2015, Applicant filed seven special exception
applications with the Penn Township (Township) Zoning Office for oil and gas
operations (unconventional gas wells). Applicant proposed to develop well pads
on parcels located in the Township’s Rural Resource zoning district, which also lie
in the Township’s Mineral Extraction Overlay District (MEO).
After hearings and decisions denying three of the applications in
2016, Applicant filed suit in federal court against the ZHB, the Township and the
Township’s Board of Commissioners. The federal suit concluded with an
agreement of the parties, which a federal trial court approved and incorporated into
a stipulation for entry of consent judgment. The trial court here noted that,
although the parties disagreed on the proper interpretation of the consent judgment,
it effectively required Applicant to agree to implement a set of conditions on the
well pads in exchange for the Township, the ZHB, and the Board of
Commissioners agreeing to be bound by certain interpretations of the zoning
ordinance and Article I, Section 27 of the Pennsylvania Constitution (the
Environmental Rights Amendment). Under the federal trial court’s consent order,
the Township was directed to provide all permitting for the three denied special
2
exception applications. Hearings ensued before the ZHB on Applicant’s remaining
four special exception applications.1
1
The following additional background is helpful. In June 2014, Applicant’s
representatives met with the Township’s staff to present a drilling plan consisting of seven
proposed unconventional natural gas well pad sites, including the Numis, Backus, Deutsch, and
Drakulic well pads, which are the four well pads at issue in these consolidated appeals. At that
time, the Township permitted drilling in all zoning districts through a savings clause requiring an
applicant to obtain special exception approval subject to four objective criteria. After receiving
information regarding Applicant’s plans, in October 2014, the Township Commissioners enacted
Resolution No. 85/2014. Through Resolution No. 85/2014, the Township Commissioners
directed that all zoning applications be reviewed in accordance with a proposed “amended,
revised, updated, codified, and recodified Zoning Ordinance and Zoning Map” (Pending
Ordinance). Reproduced Record (R.R.) at 1553a. The Pending Ordinance limited “Oil and Gas
Operations” to the MEO District--a district comprised of the Industrial Commerce District and
the Rural Resource District--by conditional use. No public hearing occurred on the Pending
Ordinance. R.R. at 3183a.
Thereafter, in December 2014, following discussions with the Township, Applicant
prepared and submitted applications for conditional use and land development plan approval for
the Quest Central Pad-7. In response, the Township amended the Pending Ordinance by
approving Resolution 33/2015. R.R. at 1546a-48a. Resolution 33/2015 modified the permitting
procedures to require applicants to seek a special exception for oil and gas operations in the
MEO District.
Applicant proceeded with its application for the Quest Central Pad-7 in the MEO District,
and the ZHB approved that application. In 2015, Applicant constructed and placed the Quest
Central Pad-7 into production. Having placed the Quest Central Pad-7 into production,
Applicant submitted seven additional applications for special exception approval to the ZHB.
All seven applications sought to construct well pads in the MEO District under the Pending
Ordinance and were consistent with the materials submitted for the Quest Central Pad-7. After
several hearings, the ZHB denied three of the special exception applications. Applicant then
filed its federal suit challenging, among other things, the denial of its applications under what it
alleged was the unconstitutionally vague Pending Ordinance. At approximately the same time,
in June 2016, the Township published the fifth “Penn Township Pending Ordinance” revision
(Fifth Revision) on the Township website. R.R. at 631a-32a. The Township held a hearing on
the Fifth Revision and ultimately adopted the Fifth Revision as its comprehensive zoning
ordinance in September 2016 (Current Ordinance). R.R. at 1403a-70a.
Ultimately, Applicant, the Township, the ZHB, and the Township Commissioners entered
into an agreement to resolve the federal suit, which the federal trial court approved by order.
Under the consent order, the Township was directed to provide all permitting for the three denied
special exception applications. The parties further agreed that the remaining four special
exception applications for the Numis, Backus, Deutsch, and Drakulic well pads would proceed
before the ZHB.
3
Specifically, in September and October 2016, the ZHB held hearings
on Applicant’s request for a special exception to conduct unconventional gas
drilling on property owned by Top Shop Manufacturing, known as the Backus well
pad. The ZHB subsequently continued the hearings pending the outcome of
Applicant’s federal suit. After entry of the consent judgment, the ZHB held
hearings in January 2017. Ultimately, the ZHB issued a decision granting the
special exception for the Backus well pad subject to various conditions.
In addition, in January 2017, the ZHB held a hearing on Applicant’s
request for a special exception for unconventional gas drilling on property owned
by the Numis Corporation (Numis well pad). After the hearing, the ZHB issued a
decision granting the special exception for the Numis well pad subject to various
conditions.
Also in January 2017, the ZHB held hearings on Applicant’s request
for a special exception for unconventional gas drilling on property owned by
Melvin and Susan Deutsch (Deutsch well pad). The ZHB subsequently issued a
decision granting the special exception for the Deutsch well pad subject to various
conditions.
Finally, the ZHB also held a hearing in January 2017 on Applicant’s
request for a special exception for unconventional gas drilling on property owned
by John and Mildred Drakulic (Drakulic well pad). At that time, by agreement of
the parties, testimony from the prior hearings on the special exception applications
was introduced and incorporated into the record. The ZHB subsequently issued a
4
decision granting the special exception for the Drakulic well pad subject to various
conditions. Objector fully participated in the ZHB hearings.
Objector appealed the ZHB’s decisions granting Applicant’s four
special exception applications. Without taking additional evidence, the trial court
affirmed.
In an opinion in support of its order, the trial court first rejected
Applicant’s argument that Objector lacked standing to pursue its appeals. 2 As to
the merits, the trial court rejected Objector’s assertions that Applicant did not
prove its proposed uses complied with Sections 190-635(D)(1) and 190-641(D) of
the zoning ordinance. To that end, the trial court determined that, in its four
detailed decisions, the ZHB carefully considered the evidence and correctly
applied all relevant special exception requirements, including Sections 190-
635(D)(1) and 190-641(D) of the zoning ordinance. Additionally, the trial court
determined the ZHB did not err in determining Applicant’s proposed oil and gas
operations (unconventional gas wells) would not adversely impact the community.
Objector now appeals to this Court.
II. Issues
On appeal,3 Objector raises three issues. Specifically, it argues the
ZHB erred in granting the four requested special exceptions where: (1) the record
2
The issue of whether Objector has standing is not raised in these consolidated appeals.
3
Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
(Footnote continued on next page…)
5
lacks substantial evidence that Applicant’s proposal satisfies Section 190-
635(D)(1) of the zoning ordinance (relating to the storage of toxic-produced
water); (2) the record lacks substantial evidence that Applicant’s proposal satisfies
Section 190-641(D) of the zoning ordinance (relating to the protection of citizens’
environmental rights); and (3) the record contains substantial evidence that shows
Applicant’s proposal would create a high probability of an adverse, abnormal or
detrimental effect to public health, safety, and welfare.
III. Discussion
A. Applicant’s Compliance with §190-635(D)(1) of the Zoning Ordinance
1. Contentions
Objector first argues4 that the ZHB lacked substantial evidence to find
that Applicant complied with Section 190-635(D)(1) of the zoning ordinance,
which relates to the storage of toxic-produced water. Objector asserts that
Applicant proposed to store toxic-produced water on-site, above ground and
outdoors in quantities greater than permitted by the zoning ordinance. Objector
contends that the ZHB did not make a specific finding regarding Applicant’s
compliance with Section 190-635(D)(1) of the zoning ordinance. As a result,
Objector maintains, the ZHB lacked substantial evidence to find compliance with
Section 190-635(D)(1).
(continued…)
of law. Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118(Pa. Cmwlth. 2017).
4
Objector filed identical briefs for each of the four consolidated appeals. Additionally,
the briefs filed by Applicant and the ZHB in each of the four consolidated appeals are
substantially similar. Therefore, we address the ZHB’s grant of the four special exception
applications together.
6
2. Analysis
The ZHB is the sole judge of the credibility of witnesses and the
weight afforded their testimony. Tri-County Landfill, Inc. v. Pine Twp. Zoning
Hearing Bd., 83 A.3d 488 (Pa. Cmwlth. 2014). It is the function of the ZHB to
weigh the evidence before it. Id. This Court may not substitute its interpretation
of the evidence for that of the ZHB. Id. Assuming the record contains substantial
evidence, we are bound by the ZHB’s findings that result from resolutions of
credibility and conflicting testimony rather than a capricious disregard of evidence.
Id.Further, a ZHB is free to reject even uncontradicted testimony it finds
lacking in credibility, including testimony offered by an expert witness. Id. A
ZHB does not abuse its discretion by choosing to believe the opinion of one expert
over that offered by another. Id.When performing a substantial evidence analysis, courts must view
the evidence in the light most favorable to the party that prevailed before the fact-
finder. Liberties Lofts LLC v. Zoning Bd. of Adjustment, 182 A.3d 513 (Pa.
Cmwlth. 2018). It is irrelevant whether the record contains evidence to support
findings other than those made by the fact finder; the critical inquiry is whether
there is evidence to support the findings actually made. Id. If there is, an appellate
court may not disturb the ZHB’s findings. Id.A special exception is neither special nor an exception, but rather a
use expressly contemplated that evidences a legislative decision that the particular
type of use is consistent with the zoning plan and presumptively consistent with the
7
health, safety and welfare of the community. Greth Dev. Grp., Inc. v. Zoning
Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007). Further, as
Robert S. Ryan explains:
Zoning boards often hear protestants argue that an
applicant for a special exception should be required to
observe the law as set forth in the zoning ordinance.
That argument is appropriate in an application for a
variance, but not in a case involving a special exception.
The applicant for an exception is following the zoning
ordinance. His application is one envisioned by the
ordinance and, if the standards established by the
ordinance are met, his use is one permitted by its express
terms.
Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE, §5.1.1 (2001)
(emphasis in original).
An applicant for a special exception has both the duty of presenting
evidence and the burden of persuading the ZHB that its proposed use satisfies the
objective requirements of the zoning ordinance for the grant of the special
exception. Manor HealthCare Corp. v. L. Moreland Twp. Zoning Hearing Bd., 590
A.2d 65 (Pa. Cmwlth. 1991). Once the applicant meets its burdens of proof and
persuasion, a presumption arises that the proposed use is consistent with the health,
safety and general welfare of the community. Id. The burden then normally shifts
to the objectors to present evidence and persuade the ZHB that the proposed use
will have a generally detrimental effect on health, safety and welfare. Id. The
evidence presented by the objectors must show, to a high degree of probability,
that the use will generate adverse impacts not normally generated by this type of
use and that these impacts will pose a substantial threat to the health and safety of
8
the community. Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa.
Cmwlth. 2002).
Further, in Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa.
Cmwlth. 1980), this Court outlined the rules regarding the “initial evidence
presentation duty (duty) and persuasion burden (burden) in special exception
cases” as follows:
Specific requirements, e.g., categorical definition of the
special exception as a use type or other matter, and
objective standards governing such matter as a special
exception and generally:
The applicant has both the duty and the burden.
General detrimental effect, e.g., to the health, safety and
welfare of the neighborhood:
Objectors have both the duty and the burden; the
ordinance terms can place the burden on the applicant but
cannot shift the duty.
General policy concern, e.g., as to harmony with the
spirit, intent or purpose of the ordinance:
Objectors have both the duty and the burden; the
ordinance terms cannot place the burden on the applicant
or shift the duty to the applicant.
Id. at 912-13 (underlined emphasis added).
In Bray, we further explained the requirement that an applicant bears
the burden of both persuasion and the initial duty to present evidence “to show that
the proposal complies with the ‘terms of the ordinance’ which expressly govern
such a grant.” Id. at 910. This rule means the applicant must bring the proposal
9
within the specific requirements expressed in the ordinance for the use (or area,
bulk, parking or other approval) sought as a special exception. Those specific
requirements, standards or “conditions” can be classified as follows:
1. The kind of use (or area, bulk, parking or other
approval)—i.e., the threshold definition of what is
authorized as a special exception;
2. Specific requirements or standards applicable to the
special exception—e.g., special setbacks, size limitations;
and
3. Specific requirements applicable to such kind of use
even when not a special exception—e.g., setback limits
or size maximums or parking requirements applicable to
that type of use whenever allowed, as a permitted use or
otherwise.
Id. at 911.
The interpretation of a zoning ordinance is a question of law. THW
Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330 (Pa. Cmwlth. 2014). As
with statutes, the primary objective of interpreting ordinances is to determine the
intent of the legislative body that enacted the ordinance. Id. In pursuing that end,
we are mindful that a statute’s plain language generally provides the best
indication of legislative intent. Id. Thus, statutory construction begins with an
examination of the text itself. Id.In reading the plain language of a statute, “[w]ords and phrases shall
be construed according to rules of grammar and according to their common and
approved usage.” 1 Pa. C.S. §1903(a). Further, every statute shall be construed, if
possible, to give effect to all its provisions so that no provision is “mere
10
surplusage.” 1 Pa. C.S. §1921(a). Where the words in an ordinance are free from
all ambiguity, the letter of the ordinance may not be disregarded under the pretext
of pursuing its spirit. 1 Pa. C.S. §1921; see also 1 Pa. C.S. §1903 (words and
phrases in a statute shall be construed in accordance with their common and
accepted usage).
Also, where a court needs to define an undefined term, it may consult
dictionary definitions for guidance, although such definitions are not controlling.
THW Grp.
In addition, zoning ordinances must be construed expansively so as to
afford the landowner the broadest possible use and enjoyment of his land. Id.
Further,
a [ZHB] is the entity charged with the interpretation and
application of the zoning ordinance. It is well settled that
a [ZHB’s] interpretation of its own zoning ordinance is
entitled to great weight and deference from a reviewing
court. This principle is also codified in Section
1921(c)(8) of the Statutory Construction Act of 1972, 1
Pa. C.S. § 1921(c)(8). The basis for the judicial
deference is the knowledge and expertise that a [ZHB]
possesses to interpret the ordinance that it is charged with
administering.
Tri-County, 83 A.3d at 510 (citation omitted).
Here, Objector asserts Applicant did not prove compliance with
Section 190-635(D)(1) of the zoning ordinance. Section 190-635 sets forth
11
“Performance Standards” for “[a]ll uses in all districts[.]” Subsection (D)(1) of
that provision states:
D. Storage and waste disposal.
(1) No highly flammable, explosive or toxic liquids,
solids or gases shall be stored in bulk (over 500 gallons),
above ground, except in an enclosed building and except
new tanks or drums of fuel connected directly with
energy devices or heating appliances located and
operated on the same lot as the tanks or drums of fuel.
In all four of its decisions approving Applicant’s special exception
applications, the ZHB explicitly determined that Applicant met the performance
standards set forth in Section 190-635 of the zoning ordinance. ZHB Op.
(Drakulic Site), Findings of Fact (F.F.) No. 90, Concls. of Law Nos. 134, 138;
ZHB Op. (Numis Site), F.F. No. 74, Concl. of Law No. 107; ZHB Op. (Backus
Site), F.F. No. 92, Concl. of Law 139; ZHB Op. (Deutsch Site), F.F. No. 92,
Concl. of Law No. 140. Additionally, in none of its four decisions approving
Applicant’s special exception requests did the ZHB determine Applicant’s
proposed uses involved the storage of toxic liquids so as to implicate Section 190-
635(D)(1) of the zoning ordinance.
Nevertheless, Objector argues that wastewater associated with
Applicant’s proposed uses is “toxic,” is produced in quantities over 500 gallons,
and is stored on-site while the wells are in production in violation of Section 190-
635(D)(1) of the zoning ordinance. We reject this argument.
12
The zoning ordinance does not define the term “toxic.” However, it
states,“[i]n the absence of a specific definition in [Section] 190-202 [(of the zoning
ordinance) (“Definitions”)], any word used in this Chapter shall have its customary
dictionary definition as contained in the most recent edition of Webster’s
Collegiate Dictionary.” Section 190-201(B) of the zoning ordinance.
In turn, Merriam-Webster’s Collegiate Dictionary defines “toxic” as
“containing or being poisonous material especially when capable of causing death
or serious debilitation[.]”5
In support of its argument that the wastewater associated with
Applicant’s proposed uses is “toxic,” Objector points to the cross-examination
testimony of Ed Long, Applicant’s Chief Operations Officer. Contrary to
Objector’s argument, Long testified that the “wastewater” Applicant would store
here is “brine,” which is “water with salt.” Reproduced Record (R.R.) at 760a.
Long testified the wastewater is not explosive or flammable. R.R. at 759a.
Further, although Long testified, “you probably don’t want to drink [the
wastewater][,]” contrary to Objector’s assertions, he did not testify the wastewater
is “toxic” as that term is defined in the dictionary. Indeed, Long indicated he could
not answer whether the wastewater was, in fact, toxic. Id. Thus, contrary to
Objector’s assertions, Long’s testimony on cross-examination does not establish
that the wastewater constitutes a toxic liquid as contemplated by Section 190-
635(D)(1) of the zoning ordinance.
5
https://iklearn.com/en/home/?r=dictionary/collegiate/toxic (last visited October 18,
2018).
13
In addition, Objector’s attempt to characterize “wastewater” as a
“toxic liquid” is not supported by the applicable provisions of the zoning
ordinance. The zoning ordinance defines “Oil and Gas Operations (unconventional
gas wells),” the uses at issue here, as including, among other things: “Water and
other fluid storage or impoundment areas used exclusively for oil and gas
operations[.]” Section 190-202 of the zoning ordinance. Further, the zoning
ordinance defines the term “wastewater (unconventional well)” as: “The post-
drilling liquids or fluids used in the fracking or extraction process.” Id. Therefore,
contrary to Objector’s assertions, the zoning ordinance classifies and expressly
defines wastewater distinctly from the “toxic liquids” referred to in Section 190-
635(D)(1) of the zoning ordinance.
Our review of the more specific zoning ordinance provisions
governing the MEO District, the overlay district in which the properties at issue lie,
discloses further support for this conclusion. See Section 190-407 of the zoning
ordinance. Section 190-407(E) of the zoning ordinance permits Applicant’s
proposed “Oil and natural gas drilling (unconventional gas well)” uses by special
exception. Further, Section 190-407(G), which contains “Development standards”
for uses in the MEO district, states:
(3) Wastewater: Copies of all required Pennsylvania
[Department of Environmental Protection (DEP)] permits
or permits from the Municipal Authority with jurisdiction
agreeing to accept any affluent produced shall be
provided that cannot be treated on-site shall not be
permitted to accumulate and shall be disposed of on a
regular basis as required.
(a) In no case shall wastewater be dumped or permitted
as flow or seep into a stream or drainage way.
14
(b) Wastewater that cannot be treated on-site shall not be
permitted to accumulate and shall be disposed on a
regular basis as required.
Section 190-407(G)(3) of the zoning ordinance.
In the subsection that immediately follows these wastewater
standards, the zoning ordinance sets forth standards for “Hazardous or toxic
waste.” Section 190-407(G)(4) of the zoning ordinance (“Hazardous or toxic
waste: Hazardous or toxic waste shall not be permitted to accumulate on any
property, and disposal shall be in compliance with applicable Commonwealth of
Pennsylvania hazardous or toxic waste handling regulations.”). By setting forth
separate standards for wastewater and toxic waste, it appears clear that the
Township’s governing body intended to classify wastewater separately from
“toxic” materials. Id. This distinction is consistent with DEP’s classification of
wastewater as “residual waste” rather than “hazardous residual waste.” R.R. at
1169a (emphasis added). Moreover, in each of its four decisions, the ZHB
expressly determined that Applicant complied with the development standards set
forth in Section 190-407 of the zoning ordinance, which includes the wastewater
standards quoted above.6
6
More particularly, the ZHB made the following findings regarding wastewater
generated by Applicant’s proposed uses:
72. Wastewater recovered from the fracking operation will be
temporarily stored as recovered in mobile tanks on site and
removed from the site on a regular basis.
73. The mobile tanks contain a barrier that includes an
impermeable Kevlar liner underneath.
(Footnote continued on next page…)
15
For all these reasons, Objector’s argument that Applicant did not
prove compliance with Section 190-635(D)(1) of the zoning ordinance fails.
B. Applicant’s Compliance with §190-641(D) of the Zoning Ordinance
1. Contentions
Objector next argues that the ZHB lacked substantial evidence to find
that Applicant complied with Section 190-641(D) of the zoning ordinance, which
(continued…)
74. Wastewater recovered from the fracking operation will be
approximately 15-20% of the freshwater amounts injected into
wells at the site.
75. Adequate containment is to be provided to protect from
accidental wastewater release.
76. No wastewater treatment will occur on site.
77. No wastewater will be injected into any injection wells as a
method of disposal.
****
80. Clean up will take approximately thirty days requiring the
removal of fracking equipment, temporary wastewater and
freshwater storage tanks, residential trailers and other related
equipment.
81. Final site clean-up and securing will require the presence of
four to five individuals once the equipment has been removed from
the site.
82. Post-completion visits to producing site will involve two
pickup trucks per day and water removal trucks one to two times
per month.
ZHB Op. (Drakulic Site), F.F. Nos. 72-77, 80-82; ZHB Op. (Numis Site) F.F. Nos. 62-65, 68-70;
ZHB Op. (Backus Site), F.F. Nos. 73-78, 82-83; ZHB Op. (Deutsch Site), F.F. Nos. 72-77, 81-
83.
16
relates to the protection of environmental rights. Objector asserts Section 190-
641(D) requires a site-specific pre-action analysis to show that the proposed
activities will not harm or degrade the community’s environmental rights. Here,
Objector contends there is no evidence to show: (1) how normal operation of the
well pads during the construction, drilling, completion and production stages
would impact air quality and health; or (2) how a subsurface release of fluid may
impact water resources. Objector maintains that Applicant failed to quantify air
emissions from each stage of its operations and failed to identify subsurface
pathways that a release of fluid may follow. Objector further argues that the
federal consent judgment conditions do not constitute a pre-action analysis. Thus,
Objector argues, the ZHB lacked substantial evidence to find that Applicant
complied with Section 190-641(D) of the zoning ordinance.
2. Analysis
As indicated above, the various burdens in special exception cases can
be summarized as follows:
[A]s to specific requirements of the zoning ordinance, the
applicant has the persuasion burden, as well as the initial
evidence presentation burden. The objectors have the
initial evidence presentation duty with respect to the
general matter of detriment to health, safety and general
welfare, even if the ordinance has expressly placed the
persuasion burden upon the applicant, where it remains if
detriment is identified ….
Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d
1202, 1213 (Pa. Cmwlth. 2014) (quoting Bray 410 A.2d at 912) (emphasis added).
As we summarized in Williams (with emphasis added):
17
Thus, if a requirement is interpreted as one upon which
the burden is placed on an applicant, but the requirement
is nonobjective or too vague to afford the applicant
knowledge of the means by which to comply, the
requirement is either one that is not enforceable ..., or, if
it relates to public detriment, the burden shifts to an
objector, who must demonstrate that the applicant’s
proposed use would constitute such a detriment.
Id.
Section 190-641(D) of the zoning ordinance states:
The applicant shall demonstrate that the drill site
operations will not violate the citizens of Penn
Township’s right to clean air and pure water as set forth
in Art. 1 Sec. 27 of the Pennsylvania Constitution (The
Environmental Rights Amendment). The applicant shall
have the burden to demonstrate that its operations will
not affect the health, safety or welfare of the citizens of
[the] Township or any other potentially affected land
owner. The application submitted shall include reports
from qualified [e]nvironmental individuals attesting that
the proposed location will not negatively impact the
Township residents’ Environmental Rights; and, will
include air modelling and hydrogeological studies as
potential pathways that a spill or release of fluid may
follow.
Thus, the plain language of this criterion: (1) requires an applicant to
show that drill site operations will not violate the Township citizens’ right to clean
air and pure water as set forth in Article I, Section 27 of the Pennsylvania
Constitution; (2) places the burden on an applicant to show its operations will not
affect the health, safety or welfare of the Township’s citizens; and (3) requires an
applicant to submit reports from qualified environmental individuals attesting that
the proposed location will not negatively impact the Township residents’
18
environmental rights and include air modelling and hydrogeological studies as
potential pathways that a spill or release of fluid may follow.
The first two components of this criterion relate to general detrimental
effects. As such, although the zoning ordinance can (and here does) place the
burden of persuasion on Applicant, it cannot shift the initial evidence presentation
duty. Williams; Bray. And, as set forth in greater detail below, in our analysis of
Objector’s third issue, the ZHB here determined that Objector did not present
sufficient, credible evidence, to show to a high degree of probability, that
Applicant’s use would generate adverse impacts not normally generated by this
type of use and that these impacts would pose a substantial threat to the health and
safety of the community.
As to the third component of this criterion, requiring submission of
environmental reports, Applicant bore both the initial evidence presentation duty
and the persuasion burden.
Regardless of which party bore the initial evidence presentation duty
and persuasion burden, the ZHB determined that Applicant provided sufficient,
satisfactory information to satisfy Section 190-641(D) of the zoning ordinance in
each of its four decisions approving Applicant’s special exception applications.
More particularly, the ZHB made the following determinations
regarding Applicant’s submissions:
10. Pursuant to a Stipulation and Consent Order dated
December 16, 2016 in the matter of [Apex Energy v.
19
Penn Township], in the United States District Court for
the Western District of Pennsylvania at case 16-cv-769
(‘Stipulation’), [Applicant] has agreed to several
conditions concerning sound wall containment, noise
monitoring, air quality monitoring, permit submission,
traffic coordination and control and other matters, said
conditions to be included in the Decision of the [ZHB].
[See] Applicant Exhibits 4 & 5.
11. [Applicant] has received approval and an ESCGP-2
[(Erosion and Sediment Control General Permit-2)]
permit from [DEP] for development of the site. [See]
Apex Exhibit 3A.
12. [Applicant] has received the required [DEP] permit
for the drilling of one well at the site. [See] Apex Exhibit
3B.
13. Pursuant to the terms of the [Stipulation,] [Applicant]
will be required to provide all necessary third party
permits to the Township prior to initiation of
development activity at the Drakulic site.
****
41. The pad area will be protected by three barriers
consisting of alternating layers of liners and wooden
board mats with polyurethane sealant coating surrounded
by an eight-inch high containment barrier to handle
potential spills of liquids during the operations.
****
44. [Applicant] outlined a casing and cementing regimen
that must be [DEP-approved] involving five casing
strings that will protect the well bores.
45. All five casings protect the groundwater in the area.
****
85. Pursuant to the [Stipulation,] [Applicant] has agreed,
as part of the proposed air quality monitoring plan, that
20
the Township will be provided immediate notice of any
[DEP] reportable spills at the site with the Township
having the option to request air quality sampling and
monitoring of the spill and its remediation period.
****
87. Per the Stipulation, [Applicant] will be required to
monitor air quality and noise production through
independent third party contractors during the
construction, drilling and completion phases of the
development.
****
89. [Applicant] submitted Air and Hydrogeologic
Assessment Reports prepared by Environmental
Resources Management (ERM), prepared under the
supervision of Brian Sterner, who holds a Bachelor of
Science Degree and is certified in a variety of
environmental disciplines.
90. ERM’s report was multi-disciplinary and prepared in
response to the provisions [sic] Section 190-641(D)
regarding the requirements that applicants demonstrate
oil and gas drilling operations will not violate citizens’
right to clean air and water as guaranteed by Article I, §
27 of the Pennsylvania Constitution.
91. The ERM report reviewed and analyzed the risks
presented by ‘accidental’ release of materials at the
Drakulic pad and set forth categorization of the nature
and context of those risks.
92. ERM used formulas and procedures designed to
include industry risk assessment standards that identified
chemicals and other stored materials, [Applicant’s] prior
… operational history including site operations, industry
standards for those operations, topography, hydrology,
geology and barriers and controls proposed for the site in
terms of the redundancy of those barriers and their
mitigation effects.
21
93. The preparation of the evaluation also took into
consideration the location of receptors, such as
residences or waterways, incorporating that information
into formulas that looked to the frequency and severity of
potential events.
94. Contributors to the report included a geologist and air
quality specialist.
95. The ERM air risk calculation study established that
the potential risk for hazardous emissions from an
accidental or inadvertent spill at the Drakulic Pad would
be low, although the report did not include any air
dispersion modeling.
96. The report further indicated that there was a low
chance of off-site migration of such emissions.
97. The ERM study also indicated that the risk for
exposure to water sources as a result of a spill at the
Drakulic Pad to be low to moderate.
98. The moderate risk assessment resulted from the
acknowledged, though rare, possible catastrophic failure
of the closed wastewater storage vessels onsite.
99. No review of subsurface contamination potential was
conducted by ERM as part of its studies.
100. ERM air modeling studies and review related to the
volatilization of chemicals if spilled or released.
101. ERM employed receptor-based air modeling to
reach it conclusions on the low risk air assessment[.]
102. Mr. Sterner testified that receptor[-]based modeling
is one of three approved methodologies endorsed by the
federal Environmental Protection Agency (EPA).
103. [Applicant’s] proposed use is presently subject to
Exemption 38, a delegation of authority from the EPA to
the [DEP] that outlines certain exemptions applicable to
unconventional gas wells from air permitting sources.
22
104. This exemption requires that the operator perform
calculations with respect to anticipated total emissions
and file ongoing information to demonstrate compliance
with the Exemption’s requirements.
105. ERM’s analysis of the site characteristics along with
the anticipated development operations indicated that the
likelihood of an event occurring that would give rise to a
moderate risk is remote.
****
138. [Applicant’s] agreement to abide by the terms and
conditions of the [Stipulation], along with the ERM Air
& Hydrogeologic study, provides sufficient satisfactory
information to demonstrate that requirements of Section
190-641(D) have been satisfied.
ZHB Op. (Drakulic Site), F.F. Nos. 10-13, 41, 44-45, 85, 87, 89-105, 138; see also
ZHB Op. (Backus Site), F.F. Nos. 12-14, 41, 45-46, 87, 89, 91-106; ZHB Op.
(Deutsch Site), F.F. Nos. 10-13, 41, 44-45, 86, 88, 91-107; ZHB Op. (Numis Site)
F.F. Nos. 7, 11-12, 31, 36, 55, 73-81. The record supports the ZHB’s findings.
R.R. at 718a-19a; 725a-26a; 788a; 943a-44a; 949a-951a; 953a; 989a; 990a;
1185a; 1300a-01a; 1305a; 1309a; R.R. at 1318a; 1682a-1719a (Numis Well Pad
Air and Hydrogeologic Report, Township of Penn, Westmoreland County, PA);
R.R. at 1720a-1749a; 1750a-52a; R.R. at 1781a-2096a (Backus Well Pad Air and
Hydrogeologic Report, Township of Penn, Westmoreland County, PA); R.R. at
2121a-2137a; 2138a-2140a; R.R. at 2552a-2801a (Deutsch Well Pad Air and
Hydrogeologic Report, Township of Penn, Westmoreland County, PA); R.R. at
2802a-2827a; R.R. at 2828a-2830a; R.R. at 2848a-3145a (Drakulic Well Pad Air
and Hydrogeologic Report, Township of Penn, Westmoreland County, PA); R.R.
at 3146a-3170a; R.R. at 3171a-3174a; R.R. at 3175a-3200a (Federal Consent
Judgment).
23
Further, while Objector challenges the sufficiency of Applicant’s
ERM Report’s air modelling and hydrogeology studies generally, Section 190-
641 of the zoning ordinance only requires that the report “include air modelling
and hydrogeological studies as potential pathways that a spill or release of fluid
may follow.” Id. (emphasis added). Here, the ZHB’s supported determinations
reveal that Applicant’s ERM Report satisfied that requirement.
In addition, the ZHB attached several detailed conditions to its grant
of the requested special exceptions aimed at mitigating and monitoring any
potential adverse impacts. Of relevance here, the ZHB attached the following
condition to its grant of all four requested special exceptions (with emphasis
added):
[Applicant] shall participate with or agree to the
monitoring of air quality emissions and particulate
content during drilling and completion activities.
[Applicant] will agree to pay for third-party monitoring
and testing from a mutually acceptable expert with
experience in this industry. The expert shall take
baseline readings at the [well pads]. The expert shall
engage in active monitoring twice a week on the [pads].
Testing locations shall be established on relevant parcel
or leasehold boundaries but, in all events, the only
location that will be used for air monitoring located
within [Applicant’s] established limit of disturbance shall
be situated at the access road entrance. No other air
monitoring equipment will be located within
[Applicant’s] limit of disturbance including, but not
limited to, the [pads] or associated stormwater or erosion
and sedimentation control facilities. [Applicant] will
notify the Township if any monitoring for OSHA
[(Occupational Safety and Health Administration)]
emissions requirements at the site exceed OSHA
standards. In the event that a DEP reportable spill or any
spill that is reported to [DEP] by [Applicant] occurs at
24
the [p]ad site[s], the Township may require immediate air
monitoring until the spill is abated or remediated. Other
than in emergency situations, [Applicant] will not flare or
incinerate natural gas at the [well pads] during
completion or flowback operations and [Applicant] will
comply with all state and federal regulations applicable
to emissions relating to its operations on the [p]ad[s].
This condition shall conclusively establish compliance
with Section 190-407(G)(9) and also show compliance
with Section 190-641(D).
ZHB Op. (Drakulic Site) at 19 (condition 6); ZHB Op. (Backus Site) at 19
(condition 6); ZHB Op. (Deutsch Site) at 19 (condition 6); ZHB Op. (Numis Site)
at 16 (condition 6).
Further, while Objector relies on the testimony of its expert, Dr. Ron
Sahu, in support of its assertions that Applicant did not perform an adequate site-
specific pre-action analysis, the ZHB did not accept the testimony of Objector’s
expert. In declining to accept his testimony, the ZHB found that, while Objector’s
expert criticized Applicant for using data and values from the Texas Commission
on Environmental Quality (TCEQ), “Applicant offered uncontroverted testimony
that the TCEQ provided the best available data and is routinely accepted by state
and federal regulatory agencies.” ZHB Op. (Drakulic Site), F.F. No. 110; ZHB
Op. (Backus Site) F.F. No. 111; ZHB Op. (Deutsch Site) F.F. No. 112. We cannot
disturb the ZHB’s determinations regarding credibility and evidentiary weight.
Tri-County.
In addition, although Objector asserts that Applicant experienced a
mechanical malfunction at one of its other sites (referred to as the Quest well pad,
which is not one of the four well pads at issue in this appeal) that resulted in a spill
25
of an odorant, the ZHB here expressly found that, in response to this incident:
“[Applicant] has undertaken remedial measures on its equipment to further
minimize the risk of release if this would occur again.” F.F. No. 58 (Numis Site)
(emphasis added). Objector does not dispute this finding.
Objector also maintains that, at a minimum, Section 190-641(D) of
the zoning ordinance requires an applicant to show its proposal will comply with
DEP regulations intended to protect environmental resources. In support, it cites
an Environmental Hearing Board opinion concerning the application of Article I,
Section 27 of the Pennsylvania Constitution. See Ctr. for Coalfield Justice &
Sierra Club v. Dep’t of Envtl. Prot.7 Contrary to Objector’s assertions, our review
of Section 190-641(D) discloses no requirement that an applicant prove
compliance with DEP statutory or regulatory requirements as part of its burden to
obtain a special exception for oil and gas operations (unconventional gas wells).
Moreover, such issues fall within the jurisdiction of DEP, not the ZHB.
For these reasons, we reject Objector’s argument that Applicant did
not prove compliance with Section 190-641(D) of the zoning ordinance.
7
(EHB Dkt. Nos. 2014-072-B, 2014-083-B, 2015-051-B, filed Aug. 15, 2017), 2017 WL
3842580. In its reply brief, Objector also cites the Environmental Hearing Board’s analysis of
Article I, Section 27 of the Pennsylvania Constitution as set forth in The Delaware Riverkeeper
Network v. Department of Environmental Protection (EHB Dkt. Nos. 2014-142-B, 2015-157-B,
filed May 11, 2018), 2018 WL 2294492.
26
C. Alleged Adverse Impacts
1. Contentions
As a final issue, Objector argues it presented substantial evidence that
well pad development would cause detrimental impacts to the community.
Objector asserts it presented evidence that the well pads would result in risks to
health and safety, including harmful air emissions that would impact nearby
residents and students at Level Green Elementary School. Objector contends it
also presented evidence that the well pads would harm the use and enjoyment of
private property, including disrupting normal activities and harming property
values. Objector maintains it also presented evidence that the well pads would
forever alter the character of the quiet residential neighborhoods where they are
proposed by turning the area over to continued heavy industrial activity. In
granting special exception approval, Objector argues, the ZHB failed to uphold its
constitutional duty under Article I, Section 27 of the Pennsylvania Constitution to
protect the citizens’ environmental rights. Objector asserts the weight of evidence
showed that Applicant’s proposal would not comply with the zoning ordinance’s
criteria and would, in fact, degrade the community’s environmental rights.
2. Analysis
Here, in each of its four decisions granting the requested special
exceptions, the ZHB found: “Objecting parties have failed to establish sufficient,
credible evidence … that [Applicant’s proposed] use would create a high
probability of an adverse, abnormal or detrimental effect [on] public health, safety
and welfare.” ZHB Op. (Drakulic Site), F.F. No. 139 (emphasis added); ZHB Op.
(Backus Site), F.F. No. 140; ZHB Op. (Deutsch Site), F.F. No. 141; ZHB Op.
(Numis Site), F.F. No. 108. The ZHB did not credit Objector’s expert or lay
27
testimony regarding the purported adverse impacts occasioned by Applicant’s
proposed uses, and this Court cannot revisit the ZHB’s determinations as to
credibility and evidentiary weight on appeal. Tri-County.
Further, to the extent Objector raised concerns over property values,
general testimony regarding aesthetic concerns and a potential decrease in property
values was not sufficient to satisfy Objector’s burden of proof. See, e.g.,
Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d
1118 (Pa. Cmwlth. 2017). Additionally, as to Objector’s concerns over increased
traffic, this Court previously explained:
‘[A]n increase in traffic is generally not grounds for
denial of a [special exception] unless there is a high
probability that the proposed use will generate traffic not
normally generated by that type of use and that the
abnormal traffic threatens safety.’ Accelerated Enters.,
Inc. v. The Hazle Twp. Zoning Hearing Bd., 773 A.2d
824, 827 (Pa. Cmwlth. 2001).
Marquise Inv., Inc. v. City of Pittsburgh, 11 A.3d 607, 617 (Pa. Cmwlth. 2010).
Moreover, our Supreme Court has stated:
The anticipated increase in traffic must be of such
character that it bears a substantial relation to the health
and safety of the community. A prevision of the effect of
such an increase in traffic must indicate that not only is
there a likelihood but a high degree of probability that it
will affect the safety and health of the community, and
such prevision must be based on evidence sufficient for
the purpose. Until such strong degree of probability is
evidenced by legally sufficient testimony no court should
act in such a way as to deprive a landowner of the
otherwise legitimate use of his land.
28
Appeal of O’Hara, 131 A.2d 587, 596 (Pa. 1957) (emphasis in original).
When what is presented by objectors is a mere ‘speculation of
possible harms,’ the objectors have failed to meet their burden. Marquise Inv., 11
A.3d at 617-18.
Thus, an application may be denied on traffic grounds only: (1) where
there is a high probability that the proposed use will generate traffic not normally
generated by the type of use; and (2) where the abnormal traffic threatens safety.
Bailey v. U. Southampton Twp., 690 A.2d 1324 (Pa. Cmwlth. 1997). Proof of
abnormal and hazardous traffic effects usually requires evidence in the form of
traffic counts, accident records and expert evidence. In Re Brickstone Realty
Corp., 789 A.2d 333 (Pa. Cmwlth. 2001). Here, Objector did not present sufficient
evidence to meet its burden on this issue. Marquise Inv.
In addition, the ZHB’s findings that Objector did not prove that
Applicant’s proposed uses would adversely impact public health, safety, and
welfare, contrast this case with Hogan, Lepore & Hogan v. Pequea Township
Zoning Board, 638 A.2d 364 (Pa. Cmwlth. 1994), disapproved of on other grounds
by Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board, 925 A.2d 768(Pa. 2007) and Blair v. Board of Adjustment of Borough of Hatboro, 169 A.2d 49(Pa. 1961), cited by Objector. Unlike in those cases where the fact-finders credited
evidence that the proposed uses would adversely impact the public health, safety,
and welfare, the ZHB here found that Objector did not prove that Applicant’s
proposed uses would create a high probability of an adverse, abnormal or
detrimental effect to public health, safety and welfare. ZHB Op. (Drakulic Site),
29
F.F. No. 139; ZHB Op. (Backus Site), F.F. No. 140; ZHB Op. (Deutsch Site), F.F.
No. 141; ZHB Op. (Numis Site), F.F. No. 108.
Further, as explained above, the ZHB’s supported determinations
reveal that Applicant satisfied Section 190-641(D) of the zoning ordinance
(relating to the health, safety and welfare of the Township’s citizens or any other
potentially affected land owner). And, as stated above, in granting the four
requested special exceptions, the ZHB attached several detailed conditions aimed
at mitigating Objector’s concerns over potential adverse effects, such as noise,
lighting, air quality, and truck traffic, associated with Applicant’s proposed uses.
The ZHB also attached a condition that requires Applicant to establish and
maintain a 24-hour emergency hotline telephone number to allow for reporting of
any emergencies that may occur.
Nevertheless, Objector maintains the ZHB did not uphold its
constitutional duty to protect the environmental rights of the Township’s residents
as required by Article I, Section 27 of the Pennsylvania Constitution. In support, it
references our Supreme Court’s decisions in Pennsylvania Environmental Defense
Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (declaratory judgment suit
brought by environmental advocacy entity, challenging constitutionality of
statutory enactments relating to funds generated from leasing of state forest and
park lands for oil and gas exploration and extraction) and Robinson Township v.
Commonwealth, 83 A.3d 901 (Pa. 2013) (suit for declaratory and injunctive relief
challenging constitutionality of Act 13 of 2012,8 amending the Pennsylvania Oil
8
Act No. 13 of February 14, 2012, P.L. 87.
30
and Gas Act, 58 Pa. C.S. §§2301-3504). Clearly, those cases, which involved
constitutional challenges, are distinguishable in that this case does not involve a
constitutional or substantive validity challenge. Rather, this case involves
applications for uses permitted by special exception, and appellate review of the
ZHB’s application of the zoning ordinance’s special exception criteria to the facts
presented.
Moreover, contrary to Objector’s assertions, Applicant’s proposed
unconventional gas well operations are permitted by special exception in the MEO
District, which evidences a legislative decision that the uses are consistent with the
zoning plan and presumptively consistent with the health, safety and welfare of the
community. Greth Dev. Grp. In light of the fact that Objector presented no
credible evidence of harm, Objector’s claims are unsupported by the accepted
evidence of record. Further, as explained above, the ZHB attached several detailed
conditions to the grant of the special exceptions in order to mitigate adverse effects
associated with Applicant’s proposed unconventional gas drilling uses.
IV. Conclusion
In sum, no error is apparent in the ZHB’s grant of Applicant’s four
special exception applications for its proposed unconventional gas wells, subject to
detailed conditions aimed at mitigating the adverse impacts associated with the
proposed uses. Accordingly, we affirm.
ROBERT SIMPSON, Judge
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Protect PT, :
Appellant :
:
v. : No. 39-42 C.D. 2018
:
Penn Township Zoning Hearing :
Board and Apex Energy (PA), LLC :
ORDER
AND NOW, this 8th day of November, 2018, the order of the Court of
Common Pleas of Westmoreland County is AFFIRMED.
ROBERT SIMPSON, Judge