Protect PT v. Penn Twp. ZHB & Olympus Energy LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Protect PT, :
:
Appellant :
:
v. : No. 575 C.D. 2019
: Argued: February 13, 2020
Penn Township Zoning Hearing :
Board and Olympus Energy LLC :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 6, 2020
Protect PT (Objector) appeals the order of the Westmoreland County
Court of Common Pleas (trial court) denying its appeal, and upholding the decision
of the Penn Township Zoning Hearing Board (Board), that granted the special
exception application of Olympus Energy LLC (Applicant)1 to develop oil and gas
operations (unconventional gas wells)2 at Applicant’s Gaia Well Pad in Penn
1
At the time of application, Applicant was Huntley & Huntley Energy Exploration, LLC
(Huntley). However, by October 15, 2019 order, this Court granted Applicant’s application to
amend the caption of this appeal because Huntley changed its name to Olympus Energy LLC
effective September 25, 2019.
2
Section 190-202 of the Penn Township Zoning Ordinance Number 912-2016 (Zoning
Ordinance) defines “Oil and Gas Operations (unconventional gas wells),” in pertinent part, as
including “[w]ater and other fluid storage or impoundment areas used exclusively for . . . gas
operations.” Section 190-202 also defines “Wastewater (Unconventional Well)” as “[t]he post-
drilling liquids or fluids used in the fracking or extraction process.”
Township (Township), Westmoreland County, subject to a number of conditions.
We affirm.
In 2017, Applicant filed an application for a special exception to
develop unconventional gas wells on its 53.5-acre property located at 2002
Denmark Manor Road in the Township. The parcel is located in a Mineral
Extraction Overlay (MEO) Zoning District3 of the Township’s Rural Resource
Section 190-407(A) of the Township’s Zoning Ordinance defines the purpose of the
3
MEO Zoning District as follows:
The purpose of the MEO [] District is to provide areas for the
extraction of minerals as defined by the Commonwealth, where the
population density is low and significant development is not
projected for the near future. Uses permitted in the MEO District
shall comply with the provisions of §190-635, Performance
Standards, and §190-641, [Oil and Gas Operations
(Unconventional Gas Wells),] as well as with the “Surface Mining
Conservation and Reclamation Act,” [Act of May 31, 1945, P.L.
1198, as amended, 52 P.S. §§1396.1-1396.31,] the “Noncoal
Surface Mining Conservation and Reclamation Act,” [Act of
December 19, 1984, P.L. 1093, as amended, 52 P.S. §§3301-
3326,] the “Oil and Gas Act,” [58 Pa. C.S. §§3201–3274], and the
“Bituminous Mine Subsidence and Land Conservation Act,” [Act
of April 27, 1966, P.L. 31, as amended, 52 P.S. §§1406.1-
1406.21].
Additionally, Section 190-202 defines “Special Exception” as “[a] use which is subject to
approval by the [Board] when there is a specific provision for such special exception made in
this chapter.” Section 190-407(E) specifically provides for “[o]il and natural gas drilling
(unconventional)” as a permitted use by special exception in the MEO Zoning District.
Further, Section 190-407(G)(3), (4), and (9) provides:
G. Development standards: In addition to the applicable
performance standards in §190-635, any permitted . . . special
exception . . . shall be subject to the following:
***
(Footnote continued on next page…)
2
(continued…)
(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 effluent produced shall be provided
that cannot be treated on-site[, which] shall not be
permitted to accumulate and shall be disposed of on a
regular basis as required.
***
(4) 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.
***
(9) Air quality: Air-contaminant emissions shall comply
with all municipal, county, commonwealth and federal
regulations, and all applicable regulations for smoke, ash,
dust, fumes, gases, odors and vapors.
Section 190-641(A), (C)(1), and (D) of the Township’s Zoning Ordinance provides, in
pertinent part:
A. Oil and gas operations, which include the drilling of . . . natural
gas wells in the MEO [] District, . . . shall be reviewed and
approved by the [Board] as a special exception prior to the
issuance of any required Township permits.
***
C. Where such oil and gas operations are classified as a special
exception . . . the following review procedure and submittal
information shall be provided and development standards met:
(1) An application for a special exception approval for a[]
. . . gas operation which involves a[] . . . natural gas well,
(Footnote continued on next page…)
3
(continued…)
. . . shall be filed with the Director of Community
Development along with the required administrative fee
and such application shall include information as outlined
and processed as follows:
***
(c) Disclose the special exception for which the
application is being made, and show how the
property, as it may be improved, meets the
standards and criteria required for approval.
(d) Upon receipt of such application for special
exception, the Director of Community
Development shall forthwith refer the same to the
[Board]. The application for special exception shall
be processed as per the provisions of [Section 913.2
of] the Pennsylvania Municipalities Planning Code
[(MPC), Act of July 31, 1968, P.L. 805, as
amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §10913.2,] and §190-906 of this
chapter.
***
(f) The [Board] may authorize a special exception
pursuant to express standards and criteria specified
in this chapter for said uses and may attach such
additional conditions and safeguards as it may deem
necessary where such conditions and safeguards are
not pre-empted by [the Oil and Gas Act] as
determined by Pennsylvania courts.
D. 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[icle] 1, Sec[tion] 27, of the
Pennsylvania Constitution[.] The applicant shall have the burden
to demonstrate that its operations will not affect the health, safety
or welfare of the citizens of Penn Township or any other
(Footnote continued on next page…)
4
(RR) Zoning District.4 The following facts were found by the Board following a
number of hearings on the application for a special exception.
The development will cover approximately 20.7 acres of the parcel
and the Gaia Well Pad will be 350 feet by 500 feet. The Gaia Well Pad will be
located on the northern portion in accordance with the setback requirements. The
well site will be reached by taking U.S. Route 22 south on Harrison City-Export
Road for 1.8 miles, then left on Denmark Manor Road to an 820-foot access road
from Denmark Manor Road. Harrison City-Export Road is a Westmoreland
County-maintained road for the portion located in the Township and is maintained
by the Municipality of Murrysville for a short distance from the Township line to
U.S. Route 22. Denmark Manor Road is maintained by the Pennsylvania
Department of Transportation (PennDOT).
Applicant intends to drill 7 unconventional gas wells at the site in an
initial 6- to 10-month development period. Construction operations will occur
during daylight hours with heavy equipment remaining on site during that period.
(continued…)
potentially affected landowner. The application submitted shall
include reports from qualified environmental 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.
4
Section 190-402 of the Township’s Zoning Ordinance defines the purpose of the RR
Zoning District as, “to provide land for continuing agricultural operations, resource management,
timber harvesting, outdoor recreation, public and private conservation areas, low-density single-
family residential, and compatible support uses.”
5
Approximately 7 to 10 truckloads of stone will be brought to the site per hour to
construct the access road and the pad over a 7- to 10-day period.
The drilling phase will take 20 to 25 days per well over a 3- to 5-
month period of time for 24 hours a day. The initial drilling phase will involve a
short-term, several-day increase in heavy traffic volume, which will peak at
approximately 10 vehicles per hour. Once the wells are open, the fracking segment
of the completion phase will cause a second increase in heavy vehicle traffic to
bring the necessary equipment to the site. This will involve sand truck traffic at 25
vehicles per day for the 7- to 10-day fracking period for each well. Applicant
intends to introduce a dust control protocol to dispense fracking sand that will
involve the creation of vacuums to minimize the accidental release of sand or dust
generated by the process. Truck trips to the site will reduce significantly during
the actual drilling operations, primarily involving vehicles transporting well
casings and cement trucks used for the casing installation.
The chemicals stored onsite will include drilling mud, friction
reducer, and the chemicals used in the fracking process, which will be protected
with secondary containment in addition to their primary containers. The chemicals
will be removed from the site once the drilling and completion phases are over.
Wastewater, also known as “flowback” or “produced” water, will be
collected during the completion phase in a 500-barrel “lay-down” tank. No
wastewater treatment will occur on site and it will be removed by trucks to be
reused at other well sites or transported to an approved treatment facility.
Produced water removal will require 15 to 20 trucks per day for approximately 30
days after which the volume required for disposal will decrease to a few trips per
day and then to a few per month during the production life of the site.
6
Applicant submitted Air and Hydrogeologic Reports prepared by
Morris Knowles, Civil Engineering Consultants, and Trinity Consulting, regarding
accidental releases of fluids and accompanying emissions with respect to the
constitutional requirements referenced in Section 190-641(D) of the Township’s
Zoning Ordinance governing the Township citizens’ right to clean air and water.
See Reproduced Record (R.R.) at 563a-637a, 638a-665a. The Board accepted
Nathan Garlitz of Morris Knowles and Thomas Walsh of Trinity Consulting as
experts. Garlitz and Walsh completed the Reports and each study presumed a
catastrophic failure of containment on the site, which is a rare event, and indicated
the pathways such a release would follow. Their studies found that no reasonable
groundwater pathways for a spill or release of fluid at the site would generate a risk
of toxic exposure to the surrounding area including groundwater sources.
Applicant also offered the testimony of Jennifer Hoffman, its Vice
President of Health, Safety and Regulatory Procedures. She testified that the
flowback water and produced water are regulated liquids that DEP classifies as
“Residual Waste” as provided in the Solid Waste Management Act (SWMA).5 She
stated that these fluids are not considered to be “hazardous wastes” as defined in
Section 103 of the SWMA,6 and are consistent with brine or saltwater. Likewise,
5
Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003.
6
35 P.S. §6018.103. Section 103 of the SWMA defines “Residual Waste,” in relevant
part, as “[a]ny garbage, refuse, other discarded material or other waste including solid, liquid,
semisolid, or contained gaseous materials resulting from industrial, mining and agricultural
operations.” In turn, Section 103 defines “Hazardous Waste,” in pertinent part, as:
Any . . . discarded material including solid, liquid, semisolid or
contained gaseous material resulting from . . . commercial,
industrial, [or] mining . . . operations, . . . which because of its
(Footnote continued on next page…)
7
Walsh, of Trinity Consulting, stated that a release of wastewater would act no
differently than a similar volume of freshwater.
Applicant also offered the testimony of Ian Donaldson (Donaldson) of
Trinity Consulting, who was accepted by the Board as an expert in air dispersion
modeling. He conducted air dispersion modeling using the United States
Environmental Protection Agency (EPA) AERSCREEN model, a single-source
model using a wide array of meteorological data and downwind receptors. He
determined that the evaporative emission rates associated with the several onsite
liquids were less than any short-term benchmarks indicating a hazard to public
health, safety, or welfare.
Finally, Applicant offered the testimony and report of Dr. Christopher
Long (Long), a Board Diplomate toxicologist with doctoral degrees in Chemistry,
Environmental Engineering, and Environmental Health. He was accepted by the
Board as an expert in these fields, and testified that he routinely prepares analyses
and renders opinions regarding human health risks in his position with Gradient, an
environmental consulting firm. He testified regarding the potential health effects
from unconventional gas wells, basing his opinion on peer-approved studies,
(continued…)
quantity, concentration, or physical [or] chemical ...
characteristics may:
(1) cause or significantly contribute to an increase in
mortality or an increase in morbidity in either an individual
or the total population; or
(2) pose a substantial present or potential hazard to human
health or the environment when improperly treated, stored,
transported, disposed of or otherwise managed.
8
empirical government datasets, government reports, and commissioned studies
regarding air quality impacts in the Marcellus Shale region, including air
monitoring data collected near oil and gas drilling operations in the region. See
R.R. at 808a-921a. He testified, within a reasonable degree of scientific certainty,
that the data compiled in a large body of monitoring studies concerning air quality
and the potential for harm from unconventional gas well drilling does not support
claims that public health concerns exist through normal and typical operations.
Objector presented the testimony of Dr. Walter Tsou (Tsou), an M.D.
with a bachelor’s degree in Chemistry and a master’s degree in Public Health, who
is the Executive Director of Physicians for Social Responsibility, as an expert in
public health issues. See R.R. at 501a-522a. Tsou was the author of a resolution
adopted by the Pennsylvania Medical Society urging a moratorium on
unconventional gas and oil development in the Commonwealth. He expressed
general concerns regarding the lack of baseline information that would assist in
determining the public health impact generated by unconventional gas drilling
based on his review of surveys analyzing information that was primarily self-
reported by individuals near unconventional gas well sites.
Objector also presented the testimony of Dr. Lawrence Irr, who has a
doctoral degree in Chemistry, and has completed post-doctoral work in engineering
and was accepted by the Board as an expert in Chemistry and the safe handling of
chemical substances. He expressed concerns regarding the manner of storage of
hazardous chemicals at the site, the lack of information regarding the materials
used to construct storage vessels and the containment protocol for the Gaia Well
Pad site. See R.R. at 494a-500a.
9
Several residents also testified, outlining their concerns regarding
truck traffic, hazards to well water, the lighting and vibrational impacts, and other
concerns. Other residents testified in favor of the special exception application to
undertake unconventional gas drilling at the Gaia Well Pad, and in general
throughout the Township.
On April 12, 2018, the Board issued a decision disposing of the
application for a special exception to develop unconventional gas wells at the Gaia
Well Pad. See R.R. at 471a-492a. Contrary to Objector’s assertion, the Board
concluded that “[t]he accumulation and temporary storage of wastewater, which
includes flowback and produced water, at the site throughout all phases of
development, including the long-term production phase, does not violate the
provisions of Section 190-635 [of the Zoning Ordinance] precluding the
unenclosed storage of flammable, hazardous or toxic fluids of more than 500
gallons.” Id. at 488a-489a. The Board also concluded, “Applicant, in its
application and through evidence submitted at the time of hearing . . . has satisfied
the conditions of Article VI, §190-641(B),” and “has provided an adequate
description of the property location, proposed use of the site and met other
requirements as set forth in Article VI, §190-641(C).” Id. at 489a.
Further, the Board concluded:
The normal operations associated with the proposed use,
while presumed consistent with health, safety and
welfare, also create issues of excessive lighting, noise
and some air quality issues, especially during the period
of 24-hour periods of operation that have been
demonstrated to interfere with the general welfare of the
surrounding residents, requiring the imposition of certain
conditions.
10
R.R. at 489a. Nevertheless, the Board concluded, “Applicant has produced
evidence to show that its operation, subject to certain conditions, will satisfy the
requirements of Article VI, §190-641(D) of the Ordinance and Article I, Section 27
of the Pennsylvania Constitution,” and that Objector “failed to establish sufficient,
credible evidence that if [] Applicant has been found to have met the Ordinance
requirements and the application is granted, with conditions, that the said use
would create a high probability that an adverse, abnormal or detrimental effect will
occur to public health, safety and welfare.” Id.
Accordingly, the Board issued the decision granting the application
for a special exception subject to a number of conditions. R.R. at 490a-492a.7
7
Specifically, the Board imposed the following conditions:
1. The Applicant shall submit its [DEP-]approved Radiation
Action Monitoring Plan to the appropriate Township department
prior to the issuance of any permit.
2. The Applicant shall provide all third-party permits to the
Township prior to the construction and drilling of the well site.
3. The Applicant shall construct and maintain standard physical
barrier[s], commonly referred to as “sound walls” on all sides of
the Pad which will provide for the absorption and mitigation of
sound, light and airborne materials, if present, emanating from the
drilling, completion and onsite pipeline connection of
[unconventional] gas wells. Such barriers will be assembled and
constructed on the Pad following construction and vegetation of
the Pad, and will remain in place during the mobilization, drilling,
completion and demobilization activities taking place on the Pad.
Following commencement of gas production, the barriers may be
removed by the Applicant. In the event that the Applicant engages
in the separate and non-consecutive drilling, completion or turn-to-
sales activity, it may disassemble the barriers between each
activity, but must reassemble the barriers prior to the
commencement of each activity.
(Footnote continued on next page…)
11
(continued…)
4. The Applicant shall participate in and pay for third-party noise
monitoring during the construction, drilling and completion stages
of development. Thirty (30) days prior to the commencement of
construction of the Gaia [Well] Pad, the Applicant and the
Township shall select an industry-accepted noise specialist from a
list of five qualified industry experts developed by the Applicant.
The selected noise specialist shall take baseline measurements for
the Gaia [Well] Pad. During construction, drilling and completion
of the Pad, the noise specialist shall conduct active monitoring at
the property line nearest the Applicant’s limit of disturbance once
every three (3) days. The Township may contact the noise
specialist and direct the noise specialist as to the specific time for
the active monitoring in each three-day interval. The results of the
monitoring shall be available upon the Township’s request. The
noise specialist shall notify the Applicant and the Township if the
monitoring shows results attributable to the Applicant’s oil and gas
operations above any applicable performance standard. The
parties agree that the temporary movement of vehicle to and from
the site shall not be included in the noise monitoring. The
Applicant shall also maintain a log of on-site monitoring
conducted for [the Occupational Safety and Health Administration
(OSHA) of the federal Department of Labor] purposes and shall
notify the Township of any reading beyond the sound barriers
showing the Applicant’s operations above 90 decibels for a period
in excess of two (2) hours.
5. To the extent permitted by Pennsylvania laws and regulations as
defined by the DEP, the Applicant shall plant and vegetate the
Gaia [Well] Pad in consultation with the Township to provide for
the visual enhancement of the Pad in concert with surrounding
vegetation.
6. The Applicant shall establish and maintain a 24-hour
emergency hotline telephone number to be used by the Township
representatives, employees, contractors and the volunteer fire
companies to directly contact employees and contractors of the
Applicant in the event of an emergency.
(Footnote continued on next page…)
12
(continued…)
7. The Applicant shall participate with or agree to the monitoring
of air quality emissions and particulate content during drilling and
completion activities. The 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 Gaia [Well] Pad. The expert shall engage in active
monitoring twice a week on the Pad. 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 the Applicant’s established limit of disturbance shall
be situated at the access road entrance. No other air monitoring
equipment will be located within the Applicant’s limit of
disturbance including, but not limited to, the Pad or associated
stormwater or erosion and sedimentation control facilities. The
Applicant will notify the Township if any monitoring for OSHA
emissions requirements at the site exceed OSHA standards. In the
event that a DEP[-]reportable spill or any spill that is reported to
the DEP by the Applicant occurs at the Pad site, the Township may
require immediate air monitoring until the spill is abated or
remediated. Other than in emergency situations, the Applicant will
not flare or incinerate natural gas at the Poseidon Pad during
completion or flowback operations and the Applicant will comply
with all state and federal regulations applicable to emissions
relating to its operations on the Pad. This condition shall
conclusively establish compliance with §190-407(G)(9) and also
show compliance with §190-641(D).
8. In conjunction with the aforementioned physical barriers, the
Applicant shall mitigate direction or deflection of light sources off
the Gaia [Well] Pad, including b[ut] not limited to [the] use of low-
glare lighting sources, light shields and low vertical profile lighting
equipment. Upon request by the Township, the Applicant will
meet with the Township to take steps to further mitigate special
instances of complaints regarding the Applicant’s light sources. In
all circumstances, the Applicant will have the right to take any and
all steps to ensure that work surfaces will be proper[ly] lit to
provide for a safe workspace for its workers and contractors.
(Footnote continued on next page…)
13
Objector appealed the Board’s decision to the trial court, which denied the appeal
and affirmed the Board’s decision without taking additional evidence. Objector
then filed the instant appeal of the trial court’s order.8
I.
As a preliminary matter, this Court has recently stated the following in
a similar case involving the same Objector appealing the same Board’s grant of the
special exception applications of another company to develop a number of other
unconventional gas well sites in the Township:
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 health, safety and welfare of the
(continued…)
9. The Applicant shall take all necessary steps to ensure that no
trucks or construction vehicles will be staged or queued on any
public roads within the Township. The Applicant will consult with
the local School District to coordinate and minimize truck traffic
during regularly scheduled school bus stops. The Applicant will
follow the requirements of the Diesel-Powered Motor Vehicle
Idling Act[ (Vehicle Idling Act), Act of October 9, 2008, P.L.
1511, 35 P.S. §§4601-4610,] to minimize unnecessary idling on
the Pad. The Applicant will inspect and ensure that all vehicles
utilized on the Gaia [Well] Pad will maintain all required
certifications and permits applicable to such vehicles.
R.R. at 490a-492a.
8
Because the parties presented no additional evidence to the trial court, our review is
limited to determining whether the Board committed an abuse of discretion or an error of law.
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 n.1 (Pa. Cmwlth.
2005) (citation omitted).
14
community. Further, as [the author of a treatise]
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.
An applicant for a special exception has both the
duty of presenting evidence and the burden of persuading
the [Board] that its proposed use satisfies the objective
requirements of the zoning ordinance for the grant of the
special exception. 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. The burden then
normally shifts to the objectors to present evidence and
persuade the [Board] that the proposed use will have a
generally detrimental effect on health, safety and welfare.
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 the community.
Further, this Court [has] 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.
15
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.
[We have] 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.” This rule means the
applicant must bring the proposal 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.
16
Protect PT v. Penn Township Zoning Hearing Board and Apex Energy (PA), LLC
(Pa. Cmwlth., Nos. 39-42 C.D. 2018, filed November 8, 2018) (Apex), slip op. at
7-9 (citations omitted and emphasis in original).9
II.
On appeal, Objector first claims that the Board erred in determining
that development of the Gaia Well Pad would not create a high probability of
adverse, abnormal, or detrimental effects on public health, safety, and welfare
based on related increased traffic and air emissions during its development and
operation. Specifically, Objector contends that in its decision, the Board
concluded that operations at the Gaia Well Pad will “create issues of excessive
lighting, noise and some air quality issues, especially during the period of 24-hour
[] operation[s], [which] have been demonstrated to interfere with the general
welfare of the surrounding residents.” R.R. at 489a. Nevertheless, the Board
granted the special exception application even though Applicant’s evidence
demonstrates the alarming number of vehicle trips that will be associated with the
construction and operation of the Gaia Well Pad.
The evidence shows that vehicle traffic for the Gaia and Metis Well
Pads will use the same truck route along Harrison City-Export Road. R.R. at 146a.
Over the period of development (475 days), the total traffic includes 3,295 Class 3
vehicle trips, 11,091 Class 6 and 7 vehicle trips, and 6,445 Class 10 vehicle trips.
Id. at 540a. This heavy traffic will return every time Applicant returns to the site
9
See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may also cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).
17
to drill new wells. Thus, the increase in traffic associated with the proposed use
bears a substantial relation to the health and safety of the community and there is a
high degree of probability that this traffic will affect the health and safety of the
community. Because Objector pointed to evidence of traffic counts and hazardous
road conditions, it met its burden of proving that the proposed use will generate
traffic that threatens health and safety. One of its members testified regarding the
unsafe road conditions. See R.R. at 31a-32a. Objector asserts that the Board
capriciously disregarded this evidence in concluding otherwise.
Additionally, Objector claims that as a result of the close proximity of
the well pad to residences, less than one kilometer, the community will suffer
detrimental health effects due to air emissions emanating from the Gaia Well Pad.
Dr. Tsou testified that its construction and operation will result in air emissions and
significantly increased exposure to volatile organic compounds such as ozone and
particulate matter that is not usually experienced in the Township. R.R. at 320a-
321a. He testified that all individuals and businesses within this proximity will be
adversely impacted by the development. Id. at 370a. He also testified that children
are much more prone to the effects of environmental toxins. Id. at 268a-269a.
Applicant’s expert, Dr. Long, did not attempt to estimate, quantify, or model the
emissions from the sources at the Gaia Well Pad and admitted that he could not say
which pollutants would be emitted at the site or at what rate or duration they may
be emitted. Notes of Testimony (N.T.) 2/8/18 at 134:23-135:22. In contrast, Dr.
Tsou presented specific evidence regarding the potential negative public impacts of
air emissions from the Gaia Well Pad operations that the Board did not address and
again capriciously disregarded.
However, as we have previously stated:
18
[T]his Court may not substitute its interpretation of the
evidence for that of the [B]oard. It is the function of [the
Board] to weigh the evidence before it. The [B]oard is
the sole judge of the credibility of witnesses and the
weight afforded their testimony. Assuming the record
contains substantial evidence, we are bound by the
[B]oard’s findings that result from resolutions of
credibility and conflicting testimony rather than a
capricious disregard of evidence.
[The Board] is free to reject even uncontradicted
testimony it finds lacking in credibility, including
testimony offered by an expert witness. It does not abuse
its discretion by choosing to believe the opinion of one
expert over that offered by another.
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa.
Cmwlth. 2005) (citations omitted).
As in Apex, in this case the Board found that Objector has “failed to
establish sufficient, credible evidence that if . . . the application is granted, with
conditions, that the said use would create a high probability that an adverse,
abnormal or detrimental effect will occur to public health.” R.R. at 489a. The
Board “did not credit Objector’s expert or lay testimony regarding the purported
adverse impacts occasioned by Applicant’s proposed uses, and this Court cannot
revisit the [Board’s] determinations as to credibility and evidentiary weight on
appeal.” Apex, slip op. at 27-28 (citation omitted).
As noted above, with respect to the increased traffic, the Board found
as fact: (1) “the proposed traffic route proceeds from U.S. Route 22 south on
Harrison City-Export Road 1.8 miles then left on to Denmark Manor Road until
[the] site access road is reached;” (2) “Harrison-City Export Road is county
maintained for the portion located in [the Township] and maintained by the
Municipality of Murrysville for the short distance from the Township line to U.S.
19
Route 22;” (3) “Denmark Manor Road is a state maintained road;” (4) “Applicant
will enter into any required access maintenance agreements, including appropriate
bonding as may be required, with the Township and PennDOT;” (5) “[t]he initial
portion of the drilling phase will involve the transport and erection of drilling
equipment requiring a short-term, several-day increase in heavy truck traffic which
will peak at approximately 10 vehicles per hour;” (6) “[t]ruck trips for the site will
be reduced significantly during the actual drilling operations, primarily vehicles
carrying well casing and cement trucks used for the casing installation;” (7)
“Applicant will maintain a maintenance program for the Gaia [Well Pad] access
route including the watering of roadways to minimize dust production,
coordination of vehicle movement with the school district and prevent the stacking
or queuing of vehicles on public roadways;” (8) “Applicant intends to hold
monthly meetings with vendors and subcontractors to insure compliance with the
vehicle plans and determine logistics or implementation, including routes and
timing;” and (9) “Special meetings with these groups will be called on an as
needed basis and quarterly reviews will take place with individual vendors.” R.R.
at 473a, 474a-475a, 477a-478a.10
10
Objector does not argue that the Board’s findings are not supported by substantial
evidence; rather, Objector points to the evidence submitted in opposition to the application and
asserts that the Board capriciously disregarded it. However, as indicated above, the uncontested
Board findings are binding on appeal to this Court. Taliaferro, 873 A.2d at 811. See also
Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 688 (Pa. Cmwlth.
2018), appeal denied, 208 A.3d 462 (Pa. 2019) (“Objectors do not assert that the [] Board’s
findings of fact are not supported by substantial evidence; they do not challenge its factual
findings on any ground. They are binding on this Court.”); Apex, slip op. at 27-28 (“The [Board]
did not credit Objector’s expert or lay testimony regarding the purported adverse impacts
occasioned by Applicant’s proposed uses, and this Court cannot revisit the [Board’s]
determinations as to credibility and evidentiary weight on appeal.”) (citation omitted.) Further:
(Footnote continued on next page…)
20
Moreover, as outlined above, the Board imposed the following
condition in its approval:
[]Applicant shall take all necessary steps to ensure that
no trucks or construction vehicles will be staged or
queued on any public roads within the Township.
[]Applicant will consult with the local School District to
coordinate and minimize truck traffic during regularly
scheduled school bus stops. []Applicant will follow the
requirements of the [Vehicle Idling Act] to minimize
unnecessary idling on the Pad. []Applicant will inspect
and ensure that all vehicles utilized on the Gaia [Well]
Pad will maintain all required certifications and permits
applicable to such vehicles.
R.R. at 492a.
The evidence that Objector relies on relating to the Gaia Well Pad
development is not a basis upon which to deny the special exception application.
See Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 689
(Pa. Cmwlth. 2018), appeal denied, 208 A.3d 462 (Pa. 2019) (“[Z]oning ‘regulates
the use of land and not the particulars of development and construction.’”)
(emphasis in original and citations omitted). Further, with respect to the purported
traffic during site operations, as we explained in Apex, “‘[a]n increase in traffic is
(continued…)
[A]pplication of the capricious disregard standard here does not
warrant reversal. The Board’s decision plainly demonstrates it did
not deliberately ignore the testimony of Objectors’ experts as
evidenced by its express summation of their testimony. Rather, the
Board considered their testimony, and chose to reject it. The
express consideration and rejection of this evidence, by its
definition, is not capricious disregard.
Taliafarro, 873 A.2d at 815-16 (citations omitted).
21
generally not grounds for denial . . . 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,’” and “[h]ere, Objector did not present
sufficient evidence to meet its burden on this issue.” Id., slip op. at 28, 29
(emphasis in original and citations omitted). In sum, Objector failed to present
sufficient credible evidence to the Board that the proposed use while the Gaia Well
Pad is in operation “will generate traffic not normally generated by that type of
use” and, as a result, the Board did not err in granting the application on this basis.
Id.With respect to the purported air quality issues, the Board summarized
Donaldson’s testimony as follows:
[]Donaldson and his firm conducted air dispersion
modeling using the [EPA] AERSCREEN model, a
single[-]source model that uses a wide array of
meteorological data and downwind receptors and other
data sources to determine that the evaporative emission
rates associated with the several different onsite liquids
[are] less tha[n] any short-term benchmarks that would
indicate a hazard to public health, safety or welfare.
R.R. at 479a-480a.
In addition, the Board summarized Long’s testimony as follows:
[]Long testified, within a reasonable degree of scientific
certainty, that based upon a large body of monitoring
studies concerning air quality and potential for harm
from the normal and typical operations required for
unconventional gas well drilling, that the data compiled
from these studies and reports does not support claims
that public health concerns exist through the normal and
typical operations.
R.R. at 481a.
22
Moreover, as outlined above, the Board imposed the following
condition in its approval of the application:
[]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 Gaia [Well] Pad. The expert
shall engage in active monitoring twice a week on the
Pad. . . . []Applicant will notify the Township if any
monitoring for OSHA emissions requirements at the site
exceed OSHA standards. In the event that a DEP[-
]reportable spill or any spill that is reported to the DEP
by []Applicant occurs at the Pad site, the Township may
require immediate air monitoring until the spill is abated
or remediated. . . . Applicant will comply with all state
and federal regulations applicable to emissions relating to
its operations on the Pad. This condition shall
conclusively establish compliance with §190-407(G)(9)
and also show compliance with §190-641(D).
R.R. at 491a. Further, the Board required Applicant to “establish and maintain a
24-hour emergency hotline telephone number to be used by the Township
representatives, employees, contractors and the volunteer fire companies to directly
contact . . . Applicant in the event of an emergency.” Id.
Again, as we explained in Apex:
Unlike in those cases where the fact-finders credited
evidence that the proposed uses would adversely impact
the public health, safety, and welfare, the [Board] 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.
Further, as explained above, the [Board’s]
supported determinations reveal that Applicant satisfied
23
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 landowner). And, as
stated above, in granting the . . . requested special
exception[], the [Board] 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 use[]. The [Board] 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.
Id., slip op. at 29-30 (emphasis in original and citations omitted). In sum, Objector
failed to present sufficient credible evidence to the Board that the proposed use
while the Gaia Well Pad is in operation will generate air emissions creating a high
probability of adverse, abnormal, or detrimental effects on the public health, safety
and welfare not associated with the approved use and, as a result, the Board did not
err in granting the application on this basis. Id.
III.
Objector next claims that the Board erred in determining that
development of the Gaia Well Pad would not create a high probability of adverse,
abnormal, or detrimental effects on public health, safety, and welfare or change the
character of the community based on the cumulative impacts of its development in
close proximity and time to other well pads in the community. Objector presented
a map to visually track all of the unconventional wells and their proximity to
schools, day care centers, and recreational facilities, which shows that the Gaia
Well Pad is in the heart of a largely residential area. See R.R. at 8a-9a, 11a, 493a.
Objector also contends that Applicant failed to present an explicit
schedule for development of the well at the site so the Board could not sufficiently
24
evaluate the aggregate impact of multiple developers constructing and using
multiple wells in the Township. Tsou testified that “the cumulative effect of the
increasing number of well pads is only going to compound the health impact from
each of the well pads.” R.R. at 270a. The community will be detrimentally
impacted by the changing character of the neighborhood from residential use to
heavy industrial use. A witness testified that Applicant may develop 15 to 18 wells
at the site of the Gaia Well Pad, that there will be multiple trips over time to
develop them, and that Applicant hopes that the well will stay in production for 30
to 50 years. Id. at 147a, 149a, 156a. Two of Objector’s members testified as to the
residential nature of their community and the changes that would result from
Applicant’s well activities. N.T. 11/9/17 at 36:20-37:5; R.R. at 23a. Thus,
Objector contends, it presented evidence regarding how the proposed development
of the Gaia Well Pad would significantly alter the neighborhood’s character and
the detrimental effects that would ensue thereby meeting its burden of proof, and
asserts that the Board again capriciously disregarded this evidence.
However, Objector bases its argument in this regard on evidence that,
as outlined above, the Board specifically rejected as not credible, and ignores the
Board’s determination that “Object[or] ha[s] failed to establish sufficient, credible
evidence that if [] Applicant has been found to have met the Ordinance
requirements and the application is granted, with conditions, that the said use
would create a high probability that an adverse, abnormal or detrimental effect will
occur to public health, safety and welfare.” R.R. at 489a.11 In rejecting this claim
below, the trial court explained:
11
Again, the uncontested Board findings are binding on appeal to this Court, and the
Board’s credibility determination regarding Objector’s evidence does not constitute a capricious
(Footnote continued on next page…)
25
Looking to [Objector’s] assertion that the
community will be detrimentally affected by the
cumulative effects of multiple unconventional natural gas
wells in close proximity, [Objector] points to a map
submitted at the hearing which plots out all
unconventional natural gas wells planned in [the]
Township, along with points of interest such as schools
and homes of [its] members. [Objector] points out that
Dr. Tsou testified that “the cumulative effect of the
increasing number of well pads is only going to
compound the health impact from each of the well pads.”
[R.R. at 270a]. [Objector] initially notes that the Gaia
well pad is located in what it considers a highly
residential area.
[Applicant] points out, and this Court agrees, that
[Objector] failed to provide any non-speculative evidence
that the proposed well pads will produce adverse impacts
“not normally generated by this type of use.” As such,
[Objector] has failed to meet the burden of proof required
to show a detriment caused by the proximity of various
unconventional natural gas wells, as is required. No
capricious disregard of any evidence regarding proximity
of wells is apparent here.
Trial Court 4/9/19 Opinion at 11.12 We discern no trial court error in this regard.
(continued…)
disregard of the evidence that was presented by the parties. Frederick, 196 A.3d at 688;
Taliaferro, 873 A.2d at 815-16; Apex, slip op. at 27-28.
12
Like the trial court, we rejected a similar argument that Objector raised in Apex and
distinguished the authority Objector cites herein stating, in relevant part:
[T]he [Board’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
(Footnote continued on next page…)
26
In Marr Development Mifflinville, LLC v. Mifflin Township Zoning
Hearing Board, 166 A.3d 479 (Pa. Cmwlth. 2017), the owner of a 5.85-acre parcel
of property in Mifflin Township’s Suburban Residential (RS) Zoning District
applied for a special exception to subdivide the parcel into 12 lots to construct
duplexes on 11 of the lots with an existing single-family dwelling on the remaining
lot. There were 17 existing detached single-family dwelling units on the property,
so the proposed development would double the number of dwelling units on the
parcel. Under the relevant zoning ordinance, the purpose of the RS Zoning District
was “‘to promote and encourage a suitable and safe environment for family life by
providing only for single[-]family residences and residential support land uses.’”
Id. at 481. The ordinance provided for single-family detached dwellings as a
permitted use while attached dwellings were limited to two dwelling units and
were only permitted by special exception. Ultimately, the zoning hearing board
determined that the objectors had met their burden of proving that “‘the proposed
use presents a project which is not consistent or compatible with the existing and
adjoining land uses that were and have been developed for single family residential
structures and not duplex units.’” Id. at 482. On appeal, the common pleas court
affirmed the board’s decision.
(continued…)
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 [Board] 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.
Id., slip op. at 29 (emphasis in original).
27
On further appeal, this Court reversed stating, in pertinent part:
The Board also claimed the project would double
the number of existing units in a one-block area and,
therefore, is “more intense.” This conclusion improperly
concentrates solely on the impact on the immediate one-
block area, without regard for the “community at large”
or any of the other factors expressed in [the relevant
section] of the Ordinance. It also does not address that
across the street from the proposed project are an
operating mill, a fire hall, a cemetery, and a 20–unit
apartment complex. Moreover, the Board’s contention
that the proposed use is “more intense” is undercut by the
fact that the 12 proposed lots all meet the setback and lot
dimension requirements. In a[nother] case involving the
same Board, we reversed its denial of a special exception
for a mobile home court. Like here, we said the force of
the Board’s and objectors’ density concerns was
“weakened” by the fact that the application complied
with the Ordinance’s requirements.
The Ordinance is silent as to density. Similarly,
the Ordinance places no limit on the number of duplexes
permitted. Yet, the Board is attempting to write in a
density provision to bar this project from moving
forward. While the Board claims the proposed use is
inconsistent with the character of the neighborhood,
duplexes, a form of single-family residences, are
permitted by special exception in the RS District.
“[T]here is a ‘presumption’ that the use is a
‘conditionally permitted use,’ legislatively allowed if the
[objective] standards are met.” The objectors failed to
present sufficient evidence to rebut this presumption.
Id. at 484-85 (citations and footnotes omitted).
As outlined above, Section 190-402 of the Township’s Zoning
Ordinance defines the purpose of the RR Zoning District, “to provide land for
continuing agricultural operations, resource management, timber harvesting,
outdoor recreation, public and private conservation areas, low-density single-family
28
residential, and compatible support uses.” (Emphasis added.) In turn, Section
190-407(A) of the Township’s Zoning Ordinance states, “The purpose of the MEO
[] District is to provide areas for the extraction of minerals as defined by the
Commonwealth, where the population density is low and significant development
is not projected for the near future.” (Emphasis added.)
In Protect PT v. Penn Township Zoning Hearing Board, 220 A.3d
1174, 1195-96 (Pa. Cmwlth. 2019), in which we rejected Objector’s substantive
validity challenge to the relevant provisions of the Township’s Zoning Ordinance,
we stated the following, in relevant part:
Notably, the [RR] District primarily addresses
resource management, not residential development. In
addition, the MEO District does not blanket the [RR]
District. Rather, the MEO District specifically excludes
areas of dense residential and commercial activity. The
MEO District also increases some of the state-imposed
setbacks. As a result of the increased setbacks,
[unconventional gas drilling (UNGD)] is limited to less
than 10% of the Township.
The 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 Township 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, 389
(Pa. 2018) (Gorsline II)], our Supreme Court determined
29
that municipalities are empowered to permit oil and gas
development in any or all of its zoning districts. The
Gorsline II 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. As discussed above, in
Frederick we upheld the [board’s] determination that the
objectors failed to prove that the zoning ordinance
(which allowed UNGD in every zoning district) violated
substantive due process. Regardless of the zoning
district, we observed in Frederick that UNGD must
satisfy exacting standards designed to protect
neighboring property owners from cognizable injury.[13]
13
See Frederick, 196 A.3d at 690 n.20 (“Objectors call oil and gas drilling ‘industrial’
throughout their briefs. Objectors presented no evidence to the Board on what they meant by
‘industrial’ or the significance of that term. . . . Farming uses heavy machinery; in this respect it
also contains components of an ‘industrial use.’”). See also Delaware Riverkeeper Network v.
Middlesex Township Zoning Hearing Board (Pa. Cmwlth., No. 2609 C.D. 2015, filed June 26,
2019), slip op. at 18 n.16, appeal denied, 222 A.3d 385 (Pa. 2019), in which we explained:
The General Assembly has also recognized the compatibility
between agricultural and oil and gas development uses in other
contexts. See Section 14.1(c)(6)(i) of the Agricultural Area
Security Law, Act of June 30, 1981, P.L. 128, as amended, added
by Act of December 14, 1988, P.L. 1202, 3 P.S. §914.1(c)(6)(i)
(“An agricultural conservation easement [purchased by the State
Agricultural Land Preservation Board] shall not prevent . . . [t]he
granting of leases . . . or the issuing of permits . . . for the
exploration, development, storage or removal of . . . oil and gas by
the owner of the subject land or the owner of the underlying . . . oil
and gas or the owner of the rights to develop the underlying . . . oil
and gas, or the development of appurtenant facilities related to . . .
oil or gas development or activities incident to the removal or
development of such minerals.”); Section 6(c.1)(1) of the
Pennsylvania Farmland and Forest Land Assessment Act of 1974,
Act of December 19, 1974, P.L. 973, as amended, 72 P.S.
§5490.6(c.1)(1) (“Land subject to preferential assessment may be
leased or otherwise devoted to the exploration for and removal of
gas and oil, including the extraction of coal bed methane, and the
development of appurtenant facilities, including new roads and
(Footnote continued on next page…)
30
Here, unlike Frederick, UNGD is permitted only
in the MEO District, and only by special exception. As
noted above, the trial court determined that UNGD is
compatible with, and even beneficial to, the rural uses
permitted in the [RR] District. Although low-density
residential properties are permitted in the [RR] District,
resource development uses are also permitted. [Objector]
failed to present any credible evidence indicating UNGD
would be harmful to the health, safety or welfare of
properties neighboring UNGD operations. [(Emphasis in
original and citation omitted).]
In sum, Objector failed to present sufficient credible evidence to rebut
the Board’s conclusion that “Applicant has produced evidence to show that its
operation, subject to certain conditions, will satisfy the requirements of Article VI,
§190-641(D) of the Ordinance and Article I, Section 27 of the Pennsylvania
Constitution.” R.R. at 489a. Because the Board found that the proposed
development meets the objective requirements of the Ordinance based on the
substantial and uncontested evidence, and because Objector did not present
credible evidence rebutting this determination, the Board did not err in rejecting
Objector’s claim that the application for a special exception should be denied
based on the purported cumulative negative impact of the proposed oil and gas
development at the Gaia Well Pad site. Marr Development Mifflinville, LLC.
IV.
Finally, Objector claims that the conditions that the Board imposed in
granting the application do not comport with its mandate under Article I, Section
(continued…)
bridges, pipelines and other buildings or structures, related to
exploration for and removal of gas and oil and the extraction of
coal bed methane.”). (Citation omitted.)
31
27 of the Pennsylvania Constitution14 to prohibit the degradation, diminution, and
depletion of the public natural resources. However, we note that Objector’s
Statement of Questions Involved portion of its appellate brief states:
Did the Board err as a matter of law or abuse its
discretion when it determined that objecting parties failed
to establish sufficient credible evidence that if the
proposed use is granted it would create a high probability
of an adverse, abnormal or detrimental effect to the
public health, safety and welfare.
Appellant’s Brief in Support of Appeal at 4.
Pa. R.A.P. 2111(a)(4) provides, in pertinent part that “[t]he brief of
the appellant . . . shall consist of the following matters, separately and distinctly
entitled and in the following order: . . . Statement of the questions involved.” In
turn, Pa. R.A.P. 2116(a) states, in relevant part:
The statement of the questions involved must state
concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without
unnecessary detail. The statement will be deemed to
include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated
in the statement of questions involved or is fairly
suggested thereby.
As outlined above, Objector did not raise a constitutional challenge to
the Board’s action in this matter in the Statement of Questions Involved portion of
14
Pa. Const. art. I, §27. Article I, Section 27 states:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of
the environment. Pennsylvania’s public natural resources are the
common property of all the people, including generations yet to
come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
32
its appellate brief. As a result, any claim regarding a purported violation of Article
I, Section 27 of the Pennsylvania Constitution has been waived for purposes of
appeal. Pa. R.A.P. 2116(a).15
Moreover, assuming that Objector has properly preserved this claim
for our review, we specifically rejected the identical argument in Apex stating, in
relevant part:
[]Objector maintains the [Board] 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.2d 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 No.
13 of February 14, 2012, P.L. 87], amending the [Oil and
Gas Act]). 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 [Board’s] application of the
15
See also Robinson Township v. Commonwealth, 147 A.3d 536, 585 n.60 (Pa. 2016)
(“[B]efore our Court, Citizens did not preserve a discrete claim based on Section 204(a) [of the
Eminent Domain Code, 26 Pa. C.S. §204(a),] in their statement of the questions involved in their
brief, nor pursue it in their argument; hence, we deem the question of the applicability of Section
204(a) waived for purposes of this appeal.”); Commonwealth v. Lynn, 71 A.3d 247 (Pa. 2013)
(“Respondent did not appeal the careless driving conviction to the Superior Court by raising it
. . . in his Statement of Questions Involved in his brief; therefore, the issue was waived and was
not properly before that court. Pa. R.A.P. . . . 2116(a) (no question will be considered unless
stated in statement of questions involved or fairly suggested thereby).”).
33
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 [Development Group, Inc. v. Zoning
Hearing Board of Lower Heidelberg Township, 918 A.2d
181, 188 (Pa. Cmwlth. 2007)]. 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
[Board] 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.
Id., slip op. at 30-31 (emphasis in original).16 As a result, Objector’s claim of a
purported constitutional violation is likewise without merit.
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
16
See also Protect PT, 220 A.3d at 1197-98 (“By failing to show with credible evidence
that UNGD would adversely affect neighboring property owners in the [RR] District, [Objector]
failed to establish that the Zoning Ordinance ‘unreasonably impairs’ the rights of Township
residents under [Article I, Section 27]. See Frederick, 196 A.3d at 697 (emphasis added).”).
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Protect PT, :
:
Appellant :
:
v. : No. 575 C.D. 2019
:
Penn Township Zoning Hearing :
Board and Olympus Energy LLC :
ORDER
AND NOW, this 6th day of July, 2020, the order of the Westmoreland
County Court of Common Pleas dated April 9, 2019, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Protect PT, :
Appellant :
: No. 575 C.D. 2019
v. :
: Argued: February 13, 2020
Penn Township Zoning Hearing :
Board and Olympus Energy LLC :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION
BY JUDGE McCULLOUGH FILED: July 6, 2020
I concur in the result reached by the Majority because faithful
adherence to our prevailing precedent compels it. See generally Protect PT v. Penn
Township Zoning Hearing Board, 220 A.3d 1174 (Pa. Cmwlth. 2019); Frederick v.
Allegheny Township Zoning Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018) (en
banc), appeal denied, 208 A.3d 462 (Pa. 2019). I do so reluctantly, though, based
upon the reasoning that I have previously expressed with regard to the fundamental
issues, underlying premises, and legal conclusions that constitute that prevailing
precedent.
Overall, the oil and gas industry is a longstanding, integral, and
important business to the residents of Pennsylvania. My concern, however, is that
judicial review in matters such as the one presently before the Court has been
severely reduced to a point where this Court functions merely to ascertain whether
a zoning hearing board found the objector’s evidence credible. Here, Protect PT
(Objector) presented both layperson and expert testimony. Most significantly, one
expert based his opinion on peer review literature and an analysis of the specific
details of the Gia Well Pad construction and its capabilities and opined that the
Township and its residents would suffer detrimental harm. See Reproduced Record
(R.R.) at 501a-09a.
I do not in any way—and I emphasize any—suggest that the Penn
Township Zoning Hearing Board (or any board) has not, cannot, and will not assume
and fulfill their tremendous responsibility as a fact finder in the most honorable and
principled manner. My concern, instead, lies in the legal framework employed to
address, analyze, and dispose of the issues discussed above.
Having made these observations, I respectfully concur in the result
reached by the Majority.
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PATRICIA A. McCULLOUGH, Judge
PAM-2