“When an ordinance regulates the operations of a surface mine, it goes beyond the purview of traditional land use controls.”
How later courts described this case
- “When an ordinance regulates the operations of a surface mine, it goes beyond the purview of traditional land use controls.”
- an appellant waives issues not properly developed in his brief
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Spear Products, Inc., Spear Holdings, :
LLC, Kyle Fliszar, Harold and Ellen :
Yerkes, Gerald and Mary Anne Claire, :
and Clean Air Council, :
Appellants :
:
v. :
:
Springfield Township, H&K Group, :
Inc., and Springfield Township Board : No. 1627 C.D. 2024
of Supervisors : Argued: October 7, 2025
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 19, 2025
Spear Products, Inc. (Spear Products), Spear Holdings, LLC (Spear
Holdings), Kyle Fliszar (Fliszar), Harold and Ellen Yerkes (the Yerkes), Gerald and
Mary Anne Claire (the Claires), and the Clean Air Council1 (collectively, Objectors)
appeals from the Bucks County Common Pleas Court’s (trial court) November 6,
2024 order affirming the Springfield Township (Township)2 Board of Supervisors’
(Board) decision that approved H&K Group, Inc.’s (Applicant) application for a
conditional use (Application) and dismissing Objectors’ appeal (Decision).
Objectors present five issues for this Court’s review: whether the trial court erred or
abused its discretion by: (1) finding that Applicant met its burden of proving
1
The Clean Air Council is a tax-exempt non-profit organization started in 1967 in
Pennsylvania, with a mission to protect citizen rights to clean air and a healthy environment. It
has members throughout Bucks County, including Fliszar, who lives on the perimeter of the
proposed quarry site.
2
The Township is a Second Class Township.
compliance with the specific, objective criteria of the Springfield Township Zoning
Ordinance (Ordinance);3 (2) upholding the Board’s determination that the Noncoal
Surface Mining Conservation and Reclamation Act4 (Mining Act) preempts
numerous Ordinance provisions; (3) affirming the Board’s grant of conditional use
approval, which relies upon preemption of numerous provisions of the Ordinance
while, at the same time, imposing conditions directly implicating the subject matter
of the Ordinance provisions claimed to have been preempted; (4) overlooking the
Board’s arbitrary and capricious disregard of competent evidence that the proposed
use poses a threat to the health, safety, and general welfare of the community in a
way not normally expected from that type of use; and (5) affirming the Board’s grant
of conditional use approval in a manner inconsistent with its duties as trustee under
the Environmental Rights Amendment of the Pennsylvania Constitution (ERA), PA.
CONST. art. I, § 27. After review, this Court affirms.
Background
On or about March 13, 2020, Applicant filed the Application with the
Board seeking approval to construct the Center Valley Materials Quarry on property
located at 2320 Township Road, Quakertown, in the Township’s Planned Industrial
(PI) Zoning District (Property), where a quarry is permitted as a conditional use.5
The Property consists of 194.204 acres and, except for a 7.6 acre stoned area
currently used to park tractor trailers and two overhead utility rights-of-way, the site
3
Springfield Twp., Pa., Code of Ordinances (2007), http://
codelibrary.amlegal.com/codes/springfieldpa/latest/springfieldt_pa/0-0-0-
4755#JD_Ch.154AppendixA (last visited Nov. 18, 2025).
4
Act of December 19, 1984, P.L. 1093, as amended, 52 P.S. §§ 3301-3326.
5
The Property consists of Tax Map Parcel Nos. 42-004-075, 42-004-076, 42-004-106, and
42-004-107. At that time, Liberty Home Development Corporation, Ltd. (Liberty Home) owned
the Property and leased it to Applicant to conduct noncoal surface mining. On November 14,
2022, Liberty Home transferred ownership of the Property to Applicant.
2
consists predominantly of wooded land.6 The Property has some wetlands/regulated
waters, including an unnamed tributary of the Tohickon Creek that traverses the
central portion of the Property. Applicant proposed to mine 19.43 acres in the
Property’s South Extraction Area of the Property for approximately 16 to 20 years,7
then cease active mining operations there and commence mining 20.84 acres in the
Property’s North Extraction Area, subject to permitting from the Pennsylvania
Department of Environmental Protection (DEP).8 Applicant owns and operates
Coopersburg Materials, an asphalt batching plant across the street from the entrance
to the proposed quarry.
After reviewing the Application, Township engineer Timothy Fulmer,
P.E. (Fulmer), informed the Township’s Planning Commission (Planning
Commission) by June 9, 2020 letter listing issues to be resolved when considering
the Application. Fulmer recommended that the Planning Commission deny the
Application unless those issues are resolved to the Township’s satisfaction. See
Reproduced Record (R.R.) at 1633a-1637a. By letter dated June 29, 2020, Applicant
responded to Fulmer’s concerns, resubmitted its Overall Site Plan (prepared March
13, 2020; revised June 29, 2020), see Ex. A-2, and included a June 2020
Transportation Impact Study for the Proposed Center Valley Materials Quarry (TIS).
6
The Property is bounded to the north by industrial uses along Springfield Street, to the
east by residential uses along Salem Road, to the south by residential uses along Mine Road, and
to the west by the Upper Bucks Rail Trail (under construction) and commercial and industrial uses
along Route 309.
7
Applicant stated that, based on the size of the proposed operation, the quarry would
probably produce approximately 500,000 tons of material per year. See Original Record (O.R.),
10/13/2020 Notes of Testimony (N.T.), at 85; see also O.R., 11/10/2020 N.T. at 82; O.R., 2/9/2021
N.T. at 32-33; O.R., 3/9/2021 N.T. at 77-86. Also, as a condition for approval, Applicant agreed
to “limit its overall outside sales of materials obtained from the site to 500,000 tons per year.
Should the Applicant need to exceed this limit, Applicant shall obtain approval from the
Township.” Condition No. 33 (Reproduced Record at 33a).
8
Applicant will undertake reclamation of the extraction areas upon completion of its
mining activities in such a way as to support a post-mining land use of unmanaged natural habitat
with a water-filled impoundment or a future land use permitted in the PI Zoning District.
3
See R.R. at 769a-1102a; see also Exs. A-1 (6/29/2020 Letter), A-2 (Revised Overall
Site Plan), A-3 (TIS). By July 10, 2020 letter, the Planning Commission expressed
concerns to the Board and listed requirements Applicant should satisfy for the Board
to grant the Application and suggested conditions the Board should impose, if
Applicant satisfied those requirements. See id. at 1646a-1650a.
From September 8, 20209 to February 14, 2023, the Board conducted a
series of 31 hearings (some virtually via Zoom) regarding the Application, at which
the Board granted Objectors party status. At the conclusion of the hearings, on April
11, 2023, the Board unanimously voted to approve the Application subject to 34
conditions intended to mitigate the impacts of the proposed use. On May 15, 2023,
the Board issued the Decision approving the Application conditioned, in part, on
Applicant beginning operations in the North Extraction Area.10 See R.R. at 4a-41a.
On June 14, 2023, Objectors appealed to the trial court. On July 5, 2023, Applicant
filed a Notice of Intervention. On August 16, 2023, the Township filed a Notice of
Non-Participation.
On September 5, 2023, the trial court remanded the matter to the Board
to provide further detailed explanations for its approval. See R.R. at 105a-107a. On
November 3, 2023, the Board issued a Supplemental Conditional Use Decision
addressing the trial court’s issues on remand (Supplemental Decision). See R.R. at
108a-154a. On December 1, 2023, Objectors filed an amended appeal in the trial
court. At the trial court’s direction, the parties filed their respective briefs. On
9
On or about June 24, 2020, Applicant waived the requirement in the Pennsylvania
Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-
11202, and the Act of April 20, 2020, P.L. 82 (Act 15 of 2020) (COVID-19 Disaster Emergency),
that the first hearing had to be held within 60 days of May 20, 2020.
10
Applicant did not challenge any of the Board’s conditions. In fact, during the hearings,
Applicant agreed to the Planning Commission’s proposed conditions. See O.R., 10/8/2020 N.T.
at 104-110.
4
November 6, 2024, the trial court affirmed the Board’s Supplemental Decision and
dismissed Objectors’ appeal. See R.R. at 498a-575a.
On December 4, 2024, Objectors appealed to this Court.11 On
December 6, 2024, the trial court directed Objectors to file a Concise Statement of
Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure (Rule) 1925(b) (Rule 1925(b) Statement). On December 24, 2024,
Objectors filed their Rule 1925(b) Statement. The trial court issued its opinion
pursuant to Rule 1925(a) (Rule 1925(a) Opinion) on February 3, 2025. See R.R. at
579a-601a.
On March 18, 2025, the Township and the Board notified this Court
that they would not participate in this appeal. On June 24, 2025, the Clean Air
Council filed its brief. That same day, Spear Products, Spear Holdings, Fliszar, the
Yerkes, and the Claires joined Clean Air Council’s brief.
11
“Where the trial court takes no additional evidence, [this Court’s] review in a land
development appeal is limited to determining whether the local governing body committed an error
of law or an abuse of discretion.” Grim v. Maxatawny Twp. Bd. of Supervisors, 297 A.3d 1, 5 n.7
(Pa. Cmwlth. 2023) (quoting Berner v. Montour Twp., 120 A.3d 433, 436 n.5 (Pa. Cmwlth. 2015)).
“An abuse of discretion occurs when [a local agency’s factual]
findings are not supported by substantial evidence in the record.”
Coal Gas Recovery, L.P. v. Franklin T[wp.] Zoning Hearing B[d.],
944 A.2d 832, 838 (Pa. Cmwlth. 2008). “By ‘substantial evidence’
we mean such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Valley View Civic Ass[’n] v.
Zoning B[d.] of Adjustment, . . . 462 A.2d 637, 640 ([Pa.] 1983)
(citations omitted).
Mahoning Twp. v. Zoning Hearing Bd., 320 A.3d 861, 868 n.2 (Pa. Cmwlth. 2024). “[This Court]
appl[ies] this deferential standard of review because [it] do[es] not sit as ‘a super [zoning hearing
board]’ and[,] thus[,] ‘[t]he necessity must be clear before there is justification for judicial
interference with the municipality’s exercise of its zoning power.’” Plum Borough v. Zoning
Hearing Bd. of Borough of Plum, 310 A.3d 815, 823 (Pa. Cmwlth. 2024) (quoting Robert Louis
Corp. v. Bd. of Adjustment of Radnor Twp., 274 A.2d 551, 555 (Pa. Cmwlth. 1971)).
5
Discussion
Initially,
[a] conditional use is defined as “[a] use permitted in a
particular zoning district pursuant to the provisions in
Article VI” of the [Pennsylvania Municipalities Planning
Code (]MPC[)]. See Section 107(a) of the MPC, 53 P.S.
§ 10107(a). A governing body [(i.e., the board of
supervisors)] has authority to grant a conditional use
“pursuant to express standards and criteria set forth in the
zoning ordinance.” Section 603(c)(2) of the MPC, 53 P.S.
§ 10603(c)(2). A conditional use involves the use of the
land, as opposed to the particular design details of the
development. Joseph v. N[.] Whitehall T[wp.] B[d.] of
Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth. 2011). An
applicant is entitled to a conditional use as a matter of
right, unless it is determined “that the use does not satisfy
the specific, objective criteria in the zoning ordinance for
that conditional use.” In re Drumore Crossings, L.P., 984
A.2d 589, 595 (Pa. Cmwlth. 2009).
The applicant bears the burden of establishing that the
proposed conditional use satisfies the specific criteria in
the zoning ordinance. Id. The board [of supervisors] is
the fact[-]finder, with the responsibility for credibility
determinations and the weight to be assigned the evidence.
Joseph, 16 A.3d at 1218. If the board [of supervisors] is
persuaded that the application complies with the zoning
ordinance, a presumption arises that “the proposed use is
consistent with the general welfare of the community.”
H.E. Rohrer, Inc. v. Zoning Hearing B[d.] of Jackson
T[wp.], 808 A.2d 1014, 1018 (Pa. Cmwlth. 2002). A
conditional use evidences a legislative determination that
the use will not have an adverse impact on the public
interest in normal circumstances. In re Cutler Gr[p.], Inc.,
880 A.2d 39, 42 (Pa. Cmwlth. 2005).
The burden then “shifts to [the] objectors to rebut the
presumption by proving that there is a high degree of
probability the proposed use will adversely affect the
welfare of the community in a way not normally expected
from the type of use.” H.E. Rohrer, Inc., 808 A.2d at 1018.
“Mere speculation” of possible harm is not sufficient, and
the objectors’ burden may not be satisfied with personal
6
opinion or bald assertions. Id. Pointedly, a “conditional
use application must be granted unless the objectors
present sufficient evidence that the proposed use has a
detrimental effect on the public health, safety and
welfare.” In re McGlynn, 974 A.2d 525, 537 (Pa. Cmwlth.
2009) (emphasis added).
Brookview Solar I, LLC v. Mount Joy Twp. Bd. of Supervisors, 305 A.3d 1222, 1233
(Pa. Cmwlth. 2023).
Here, the Board concluded based on the evidence presented at the
hearings that, so long as Applicant complies with the conditions imposed upon its
approval, Applicant’s proposed use: is appropriate for the Property and will not
destroy the character of the surrounding residential neighborhoods (see Conclusion
of Law (COL) 9); provides for adequate access to public roads, without creating
hazardous conditions at intersections and without creating undue congestion, and
access to the site is safe (see COL 10); is compatible with the surrounding uses (see
COL 11); will not result in safety risks from fire, panic, and other dangers (see COL
12); will not result in overcrowding of land or congestion of population (see COL
13); will facilitate the adequacy of public and community services (see COL 14);
and will be suitable for the site with respect to the conservation of natural resources
(see COL 15).12 See R.R. at 21a-22a. The Board also concluded that Applicant
satisfactorily proved the proposed use’s compliance with criteria not preempted by
the Mining Act (i.e., where mining may take place), and that the proposed use does
not violate the ERA.13 See R.R. at 22a-28a.
12
The Board acknowledged that, although Applicant did not submit a specific
environmental impact assessment, it provided reports and testimony concerning the topics listed
in Section 404(G)(7)(d)12) of the Ordinance, including groundwater and surface water, air quality,
noise and odor, vehicle traffic, and soil quality, which established that the proposed quarry use
will not harm the health or environment as long as Applicant complies with the Board’s conditions.
13
Although not specifically challenged in this appeal, the Board also concluded that the
Upper Bucks Rail Trail is not a park Applicant was required to depict on its Application. See R.R.
at 30a.
7
In addition, the Board declared that Objectors failed to present
sufficient evidence to prove to a high degree of probability that the proposed quarry
use will have a significantly greater effect on any residential areas than any other
noncoal surface mining operation of a similar size and nature located on the
Property, that the proposed use will have a detrimental effect on the public health,
safety, and welfare of the community, and that Objectors offered only speculation
and conjecture concerning potential impacts associated with the proposed quarry’s
operation. See R.R. at 22a. The trial court agreed. See Trial Ct. Op. at 59-64 (R.R.
at 556a-561a).
1. Conditional Use Criteria
At the outset, Section 609.A(2)(p) of the Ordinance permits a quarry as
a conditional use in the Township’s PI Zoning District if all of the Ordinance’s
specific, objective requirements are met. See Ord. § 609.A(2)(p). Section 802 of
the Ordinance sets forth the general criteria for the Board’s approval of a conditional
use.14 Section 802.4.C of the Ordinance requires the Board to deny an application
unless it makes a favorable finding that “[t]he application has provided credible
evidence that the proposal conforms to all applicable requirements of this
Ordinance.” Ord. § 802.4.C.
Section 402.1 of the Ordinance specifies: “All uses permitted by . . .
conditional approval shall be subject, in addition to use regulations, to such
regulations of yard, lot size, lot width, building area and height, impervious surfaces,
easements, buffer yards, off-street parking, and such other provisions as are specified
in other Articles herein.” Ord. § 402.1. Section 404.G(7) of the Ordinance mandates
the following for quarry uses:
14
See https://codelibrary.amlegal.com/codes/springfieldpa/latest/springfieldt_pa/0-0-0-
7918 (last visited Nov. 18, 2025).
8
Quarry. Shall include extraction of materials from the
ground, such as sand, clay, shale, gravel, top[]soil, stone[,]
and similar materials.
(a) General Requirements.
1) All applications for zoning permits or annual
renewal permits for quarries shall be made in writing by
the owner, tenant, vendee under contract of sale on a form
supplied by the Township, which shall be filed with the
Zoning Officer. The applications shall be accompanied by
plans and other materials to show compliance with the
following provisions and regulations:
a) There shall be a berm of minimum height of
15 feet and maximum height of 50 feet surrounding the
entire property site. Berms will be required along existing
quarry faces to the extent which the Board . . . determines
is feasible. The slope of the sides of the berm shall not
exceed a 3:1 ratio. Berms shall be planted and dusted, and
erosion control measures shall be taken as may be
approved by the [Bucks] County Conservation District.
Berms shall begin at a point no closer to a street than the
ultimate right-of-way line. No berms shall be constructed
closer than 15 feet to a district in which extraction
operations are not permitted. Planting of the berms and
yard areas shall be sufficient to screen the quarry
extraction operations. Both planting and berm
construction shall be according to a plan approved by the
Board . . . which shall include a reasonable timetable for
completion. Such planting shall consist of evergreens of
such species and size as will produce, within [three] years,
a complete all season visual screen of at least [eight] feet
in height.
....
2) Any application for a zoning permit or an
annual renewal permit as hereinafter provided shall be
accompanied by plans and other information to satisfy the
criteria set forth in clause (a) above and in addition shall
depict:
a) Plan of general area within a 1/2 mile radius
of the site at scale of 500 feet or less to the inch with a 50-
foot or less contour interval to show:
9
....
xiii. Plan of operation showing - proposed
tree screen locations. Soil embankments for noise, dust[,]
and visual barriers and heights of soil mounds method of
and provision for disposition of excess water during
operation location and typical schedule of blasting
machinery - type and noise. Safety measures - monitoring
of complaints.
....
12) Environmental Impacts. An environmental
impact assessment shall be submitted to the Township that
details potential impacts to human health and the
environment from all aspects of the use, including, but not
limited to:
a) Ground water and surface water.
b) Air quality (particulate and toxic
substances).
c) Noise and odor beyond the property line.
d) Vehicle traffic, particularly to consider the
ability of the road system to handle the truck traffic.
e) Soil quality.
....
14) A traffic impact study shall be submitted at
the time of the conditional use application. Such study
shall meet the requirements of the Subdivision and Land
Development Ordinance and shall analyze the ability of
the road base and widths of existing public streets to
handle the resulting traffic.
15) If blasting will be used, a pre-blast survey
shall be conducted of existing conditions of buildings and
streets in the vicinity. A copy of such survey shall be
submitted to the Township.
10
Ord. § 404.15 In addition, Section 509 of the Ordinance sets forth Environmental
Protection Standards, which contain broad provisions protecting, inter alia,
wetlands, streams, floodplains, woodlands, seeps, springs, and steep slopes. See
Ord. § 509.16
Preemption
Notwithstanding, “municipalities are creatures of the statute and have
no inherent powers of their own. Rather, they possess only such powers of
government as are expressly granted to them and as are necessary to carry the same
into effect.” McNew v. E. Marlborough Twp., 295 A.3d 1, 12 (Pa. Cmwlth. 2023)
(quoting UGI Utils., Inc. v. City of Lancaster, 125 A.3d 858, 863 (Pa. Cmwlth.
2015)). In Section 601 of the MPC, the General Assembly authorized “[t]he
governing body of each municipality, in accordance with the conditions and
procedures set forth in th[e MPC], [to] enact, amend and repeal zoning ordinances
to implement comprehensive plans and to accomplish any of the purposes of th[e
MPC].” 53 P.S. § 10601. In particular, Section 603(i) of the MPC provides that
“ordinances shall provide for the reasonable development of minerals in each
municipality.” 53 P.S. § 10603(i). However, “even in areas over which
municipalities have been granted power to act, the state may bar local governing
bodies from legislating in a particular field.” Hoffman Mining Co., Inc. v. Zoning
Hearing Bd. of Adams Twp., Cambria Cnty., 32 A.3d 587, 593 (Pa. 2011).
Relevant here, the General Assembly enacted the Mining Act on
December 19, 1984 (effective on February 17, 1985), “to address the negative
[e]ffects of surface mining by improving conservation of the land, protecting the
15
See https://codelibrary.amlegal.com/codes/springfieldpa/latest/springfieldt_pa/0-0-0-
5322#JD_Ch.154§404 (last visited Nov. 18, 2025).
16
See https://codelibrary.amlegal.com/codes/springfieldpa/latest/springfieldt_pa/0-0-0-
6683 (last visited Nov. 18, 2025).
11
health and safety of citizens and wildlife, and limiting pollution.” Pennsy Supply,
Inc. v. Zoning Hearing Bd. of Dorrance Twp., 987 A.2d 1243, 1253 (Pa. Cmwlth.
2009) (quoting Tinicum Twp. v. Del. Valley Concrete, Inc., 812 A.2d 758, 760 n.4
(Pa. Cmwlth. 2002)). Section 16 of the Mining Act declares: “Except with respect
to ordinances adopted pursuant to the [MPC,17] all local ordinances and enactments
purporting to regulate surface mining are hereby superseded. The Commonwealth,
by this enactment, hereby preempts the regulation of surface mining as herein
defined.” 52 P.S. § 3316 (emphasis added). The Mining Act authorizes DEP to
regulate the operation of noncoal surface mining.18
This Court has ruled that regardless of the MPC’s enabling authority
for municipalities to implement ordinances to carry out their comprehensive plans,
the second sentence of Section 16 of the Mining Act preempts all local ordinances
enacted to regulate noncoal surface mining after February 17, 1985. See Gibraltar
Rock, Inc. v. New Hanover Twp., 118 A.3d 461 (Pa. Cmwlth. 2015) (Gibraltar Rock
II); see also Section 603(b) of the MPC, 53 P.S. § 10603(b) (local ordinances may
regulate mineral extraction except to the extent the Mining Act preempts such
regulation). Because the Ordinance in the instant matter was enacted in 2007, after
the Mining Act’s effective date, the Mining Act preempts the Ordinance’s provisions
that regulate noncoal surface mining operations.
In defining the relationship between the [Mining] Act’s
preemption provision and land use regulation, this Court
has recognized a distinction between an ordinance or
17
“Where a township has enacted an ordinance pursuant to the MPC prior to the effective
date of the . . . Mining Act, the . . . Mining Act does not supersede or preempt the ordinance.”
Pennsy Supply, Inc., 987 A.2d at 1254.
18
Section 5(a) of the Mining Act declares, in relevant part: “No person shall conduct a
surface mining operation unless the person has first applied for and obtained a license from
[DEP].” 52 P.S. § 3305(a); see also Section 77.51(a) of DEP’s Regulations, 25 Pa. Code §
77.51(a). Chapter 77 of DEP’s Regulations outlines DEP’s authority over noncoal mining. See
25 Pa. Code §§ 77.1-77.808.
12
zoning provision governing where a facility may be
located (which is not preempted) and, on the other hand,
an ordinance or operational regulation dictating how the
facility will be technically designed and operated
(which is preempted). Geryville Materials, Inc. v.
Planning Comm’n of Lower Milford Twp., Lehigh Cnty.,
74 A.3d 322, 324 (Pa. Cmwlth. 2013). Regardless of
whether an ordinance applies specifically to a quarry or is
neutral on its face, the ordinance will be preempted as an
operational regulation if it regulates “surface mining” as
that term is statutorily defined. Id. at 329-30.
Gibraltar Rock II, 118 A.3d at 466 (bold emphasis added); see also Frederick v.
Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018); Geryville
Materials, Inc., 74 A.3d at 326 (“When an ordinance regulates the operations of a
surface mine, it goes beyond the purview of traditional land use controls.”); E.
Rockhill Twp. v. Richard E. Pierson Materials Corp., 364 F.Supp.3d 436 (E.D. Pa.
2019). Another way to make the distinction between traditional land use controls
and operational limitations is that “zoning ordinances ‘that become pertinent only
after land use approval is granted’ [a]re likely to be ordinances that regulate
operations, not land use.” Geryville Materials, Inc., 74 A.3d at 327 (quoting Arbor
Res., LLC v. Nockamixon Twp., 973 A.3d 1036, 1046 (Pa. Cmwlth. 2009)).
Subject to exceptions not applicable here, Section 3 of the Mining Act
broadly defines surface mining as:
The extraction of minerals from the earth, from waste or
stockpiles or from pits or from banks by removing the
strata or material that overlies or is above or between them
or otherwise exposing and retrieving them from the
surface, including, but not limited to, strip mining, auger
mining, dredging, quarrying and leaching and all
surface activity connected with surface . . . mining,
including, but not limited to, exploration, site
preparation, entry, tunnel, drift, slope, shaft and borehole
drilling[,] and construction and activities related
thereto[.]
13
52 P.S. § 3303 (emphasis added). “Notably missing from the [] Mining Act’s
definition . . . is any mention whatsoever of either the location of surface mining or
traditional land use regulation.” Hoffman Min. Co., Inc., 32 A.3d at 600. Because
the Mining Act does not govern the location of surface mining within a municipality,
nor prohibits traditional local land use ordinances affecting where such operations
are located, such regulation is left up to each municipality.19
Relevant here, Pennsylvania courts have ruled that although the Mining
Act does not preempt local setback provisions or a local government’s authority to
allow quarrying operations by conditional use, it does preempt local ordinances
governing “buffers and berms, overburden storage, reclamation, and drainage
structures” because they regulate surface mining operations. Warner Co. v. Zoning
Hearing Board of Tredyffrin Twp., 612 A.2d 578, 582 (Pa. Cmwlth. 1992); see also
In re Gibraltar Rock, Inc. (Pa. Cmwlth. No. 2287 C.D. 2011, filed Oct. 11, 2013)
(Gibraltar Rock I)20 (the Mining Act preempts a municipality’s regulation of a
berm’s location or height, but not the timing of when a berm must be installed). The
Mining Act also preempts blasting ordinances, see Original Record (O.R.),
11/10/2020 N.T. at 88; see also Tinicum Twp., stormwater management ordinances,
see Gibraltar Rock II, and ordinances regulating wetlands, groundwater, surface
water, and streams at a quarry. See Geryville Materials, Inc.
Here, Objectors argue that the Board erred or abused its discretion by
finding that Applicant met its burden of proving compliance with the objective
criteria of the Ordinance. Objectors specifically contend that Applicant did not meet
19
Applicant’s manager and engineer Scott S. Drumbore, P.E. (Drumbore) explained that
Applicant must obtain site approval from the Board before it can apply to DEP for a large noncoal
surface mining permit. See O.R., 12/8/2020 N.T. at 74-76; see also O.R., 1/12/2021 N.T. at 22-
24, 58.
20
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a). Gibraltar Rock I is cited for its persuasive value.
14
its burden of proving compliance with Section 404.G(7)(d)12) of the Ordinance and
the ancillary natural resource protections in Section 509 of the Ordinance, in addition
to the berm requirements in Section 404.G(7)(a)1)a) of the Ordinance, and the
blasting requirements in Section 404.G(7)(a)2)a)xiii and (d)15) of the Ordinance.21
Section 404.G(7)(d)12) of the Ordinance
Section 404.G(7)(a)1) of the Ordinance requires that “[a]ll applications
for zoning permits for quarries shall be made in writing . . . on the form supplied by
the Township . . . accompanied by plans and other materials to show compliance
with” the provisions that follow, see Ord. § 404.G(7)(a)1), among which is Section
404.G(7)(d)12) of the Ordinance, which specifies:
An environmental impact assessment shall be submitted to
the Township that details potential impacts to human
health and the environment from all aspects of the use,
including, but not limited to:
a) Ground water and surface water.
b) Air quality (particulate and toxic substances).
c) Noise and odor beyond the property line.
d) Vehicle traffic, particularly to consider the ability of
the road system to handle the truck traffic.
e) Soil quality.
Ord. § 404.G(7)(d)12). Section 509 of the Ordinance more broadly lists
environmental protection and contains provisions protecting floodplains, lakes and
ponds, wetlands and wetland riparian buffers, streams and watercourses, slopes,
woodlands, carbonate geology, and productive agricultural soils. See Ord. § 509.
21
Because Objectors limit the arguments in their appeal brief to this Court to those specific
provisions, this Court’s analysis is limited to those provisions.
15
Objectors claim that Applicant’s failure to submit a single,
comprehensive, written report that addressed all five of the criteria set forth in
Section 404.G(7)(d)12) of the Ordinance was fatal to the Board’s approval. Indeed,
the Board determined that Applicant did not submit a single, written environmental
assessment report, but declared that Applicant “provided reports and testimony
concerning the topics listed in Section 404.G(7)(d)[]12) of the [] Ordinance,
including groundwater and surface water, air quality, noise and odor, vehicle
traffic[,22] and soil quality.” COL 21 (R.R. at 22a); see also Suppl. Dec. (R.R. at
127a-128a).
Section 404.G(7)(d)12) of the Ordinance does not specify that the
required environmental impact assessment must be a single, written report. Rather,
that provision seeks an environmental impact assessment, a term neither the
Ordinance nor the MPC defines. Merriam-Webster’s online dictionary defines
assessment as “the action or an instance of making a judgment about something : the
act of assessing something : appraisal” (emphasis omitted).23 Applicant clearly
presented its assessments of each of the criteria in Section 404.G(7)(d)12) of the
Ordinance in its Application together with applicable reports. See R.R. at 1528a-
1529a. Because there was no express requirement for Applicant to submit a
comprehensive, written environmental impact report to the Township with its
Application, Applicant did not violate Sections 404.G(7)(d)12) and 509 of the
22
Applicant produced a study on the effect of the quarry’s operation on local traffic, see
Ex. A-3, the value of which Objectors disputed.
23
“[W]here a court needs to define an undefined [ordinance] term, it may consult dictionary
definitions for guidance.” Sheppleman v. City of Chester Aggregated Pension Fund, 271 A.3d
938, 949 (Pa. Cmwlth. 2021) (quoting THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330,
336 (Pa. Cmwlth. 2014)). See www.merriam-webster.com/dictionary/assessment (last visited
Nov. 18, 2025).
16
Ordinance, and the Board did not err by accepting Applicant’s assessment by way
of testimony and other evidence.24
Moreover, the Mining Act clearly preempts the subjects addressed in
Section 404.G(7)(d)12)a)-c) and e) of the Ordinance. See Geryville Materials, Inc.;
see also Warner Co. This Court recognizes that, in Arbor Resources, this Court held
that the requirement to submit environmental reports “logically related to the zoning
decision of allowing or disallowing the facility to be located in a particular site in
relation to other components of the . . . landscape” is a traditional land use control.25
Id. at 1046 (emphasis added) (quoting Klein v. Shadyside Health Educ. & Rsch.
Corp., 643 A.2d 1120, 1125 (Pa. Cmwlth. 1994)). However, the Geryville
Materials, Inc. Court observed that ordinances that may be neutral on their face can
24
As the trial court accurately summarized:
[Applicant’s] testimony and reports addressed the topics of
groundwater (geologist, Val [F.] Britton), wetlands and surface
water (Jason [J.] Mease[, PWS, Valley Environmental Services,
Inc.]), floodplain identification analysis ([Timothy] Woodrow[,
P.E., Woodrow & Associates]), air quality (Daniel [P.] Dix[, ALL4,
LLC]), noise and odor ([] Drumbore), and traffic (Mark [A.] Roth[,
P.E., McMahon Associates]). As to soil quality, [Applicant]
introduced Exhibit A-2 which contains soil mapping and a Bucks
County Soil Survey Types legend. Additional information relating
to soils was presented by [Applicant] through testimony and also a
project narrative within Exhibit B-l[,] which explains that the site is
comprised of soils classified as the Montalto loam series, the
Steinburg shaly silt loam[,] and the Watchung silt loam. See Ex[.]
B-l at 9.
Trial Ct. Op. at 48 (R.R. at 545a).
25
This Court acknowledges that the preempting state law in Arbor Resources was the
since-repealed Oil and Gas Act, Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. §§
601.101-601.605; repealed and replaced by the Act of February 14, 2012, P.L. 87, No. 13, 58
Pa.C.S. §§ 2301-3504 (58 Pa.C.S. § 3304 declared unconstitutional, null and void in Robinson
Township, Wash. Cnty. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012), aff’d in part and rev’d
in part, 83 A.3d 901 (Pa. 2013). However, because Section 602 of the Oil and Gas Act contained
similar preemption language, see formerly 58 P.S. § 601.602, the analyses also apply to Mining
Act preemptions. See Geryville Materials, Inc.
17
be preempted when the local governing body “turn[s] them into operational
regulations . . . that confront every quarry[,]” id. at 329, i.e., the Mining Act preempts
otherwise neutral ordinances a local governing body construes or applies in a manner
that regulates noncoal surface mining. See id. This Court has also expressly
concluded that a municipality “lack[s] the power to replicate the environmental
oversight that the General Assembly has conferred upon DEP . . . .” Frederick, 196
A.3d at 697.
Here, the Board concluded that while the Ordinance requires that all
uses comply with the environmental protection standards enumerated therein, the
Mining Act preempts those standards. See COL 42 (R.R. at 25a); see also R.R. at
129a-130a. Indeed, based on this Court’s review, in addition to its other numerous
regulations concerning noncoal mining, Title 25, Subchapters G and I of DEP’s
Regulations26 (see 25 Pa. Code §§ 77.401-77.410, 77.501-77.655) requires noncoal
mining permit applicants to identify environmental resources, including “the
geology, hydrology and water quality and quantity of surface waters and
groundwaters within the general area, and water which will flow into or receive
discharges of water from the general area.” 25 Pa. Code § 77.403(a); see also 25 Pa.
Code §§ 77.404-77.407, 77.521-77.535. A permit applicant must also provide air
pollution control and air resources protection plans, with consideration of Chapters
123 and 127 of DEP’s Regulations (relating to air and odor contaminants) (see 25
Pa. Code §§ 77.455, 77.575, 123.1-123.121, 127.1-127.802), soil erosion and
sedimentation control plans (see 25 Pa. Code § 77.458), blasting information (see 25
Pa. Code §§ 77.561-77.565). Therefore, the Board properly concluded the Mining
Act preempts Sections 404.G(7)(d)12)a)-c), e) of the Ordinance and related
provisions in Section 509 of the Ordinance.
26
Section 11(a) of the Mining Act authorizes DEP’s Environmental Quality Board to
promulgate Regulations necessary to carry out the Mining Act’s purpose. See 52 P.S. § 3311(a).
18
The Board did not conclude whether the Mining Act preempted the
vehicle traffic information requirement in Section 404.G(7)(d)12)d) of the
Ordinance or the traffic impact study requirement in Section 404.G(7)(d)14) of the
Ordinance at this stage. Importantly, DEP’s Regulations do not specifically call for
traffic impact studies as part of quarry operations. In addition, although DEP has
promulgated Regulations in its environmental protection performance standards
relating to operation’s vehicle traffic on both haul roads and common use roads, see
25 Pa. Code §§ 77.465-77.466, 77.631-77.633, they primarily relate to the conditions
of common use roads, rather than a mining use’s effect on local traffic. Moreover,
traffic impact falls under the category of permissible land use regulation that a local
government may undertake because the location of the proposed quarry must be
suitable given the probable effects on local traffic. Accordingly, this Court must
review Applicant’s traffic evidence.
At the hearings, Applicant’s manager and engineer, Scott S. Drumbore,
P.E. (Drumbore), testified that, based on real-time daily counts obtained from
Applicant’s current operation across the street in 2019, and taking into account a
reduction in the current truck traffic between Applicant’s other quarries and the
asphalt plant, Applicant did not expect to add more than 52 trips to the weekday
morning peak period or more than 10 trips to the afternoon peak period. See O.R.,
11/10/2020 N.T. at 81; see also Finding of Fact (FOF) 48 (R.R. at 9a). He added
that traffic generated from the proposed quarry will be what one would normally
expect from this sort of operation. See O.R., 11/10/2020 N.T. at 85.
Mark A. Roth, P.E. (Roth) of McMahon Associates, who the Board
found qualified as an expert in the field of traffic engineering, prepared the trip
generation report and TIS Applicant produced in support of its Application. See
O.R., 8/10/2021 N.T. at 9. He testified at the hearings that he created the trip
generation report on March 11, 2020, using information obtained from Applicant’s
19
similar quarry operation in Hilltown Township from January through December
2019, Applicant’s current asphalt batch plant across from the Property, and the
further proposed quarry use, taking into consideration that August to September
demonstrated the highest trip generation, and estimated that during peak weekday
morning hours, 7:00 a.m. to 9:00 a.m., and peak weekday afternoon hours, 4:00 p.m.
to 6:00 p.m. - the times during which commuter travel would also be at its highest -
there would be a total of 74 trips during the morning peak and 10 trips during the
afternoon peak. See id. at 14-15; see also R.R. at 1556a-1578a. Roth explained,
however, that since the new quarry will eliminate traffic currently traveling from
other quarries to the asphalt plant, the net impact would be approximately 60 new
trips during peak morning hours and 4 new trips during peak afternoon hours. See
id. at 15; see also R.R. at 1558a. He opined that the proposed use would not have a
significant impact on Springfield Street or at its nearby intersection with Route 309,
but he would confirm his opinion after he conducted a TIS. See id.; see also R.R. at
1559a.
Roth also testified regarding how he prepared the TIS in June 2020,
using the Pennsylvania Department of Transportation (PennDOT)-adopted Synchro
computer analysis system incorporating the Highway Capacity Manual, and 2018
and 2019 data. See id. at 15-26. He ultimately estimated in the TIS that there would
be a total of 52 new trips during peak morning hours and 10 new trips during peak
afternoon hours. See id. at 27; see also Ex. A-3 at 8; FOF 48 (R.R. at 9a). Roth
determined that the affected intersection is a Level of Service A, which has a 6.7
second peak morning-hour delay without the development, which would only extend
to 7.4 seconds with development, and the 5 second peak morning-hour delay without
development would only increase to 5.3 seconds with development. See O.R.,
9/14/2021 N.T. at 23-30. Roth maintained that the sight distance at the proposed
20
quarry’s driveway exceeds PennDOT’s 400-foot requirement. See O.R., 8/10/2021
N.T. at 49-50.
Roth concluded that, under such conditions, and considering worst case
scenarios, the intersection could withstand a significant amount of additional
vehicles without impacting the current times. See O.R., 9/14/2021 N.T. at 27-58.
Based upon his conclusions, Roth recommended that Applicant create single ingress
and stop-controlled egress lanes from the proposed quarry’s driveway, and
additional curvature access at the intersection. See O.R., 8/10/2021 N.T. at 52-54.
According to Roth, the traffic that will be generated will be typical for a quarry use,
and the proposed site’s location is appropriate for such use. See O.R., 8/10/2021
N.T. at 60-61; see also O.R., 9/14/2021 N.T. at 6. He acknowledged that the TIS
was based on the assumption that the proposed quarry’s production level would be
approximately 500,000 tons per year, and admitted that the TIS did not extend
beyond 2023 projections. See O.R., 9/14/2021 N.T. at 35-36, 39. Roth added that
he made an engineering judgment not to include accident analysis in the TIS. See
id. at 49-50. Roth opined that the proposed use would not have a significant impact
on traffic in the area. See O.R., 9/14/2021 N.T. at 37; see also FOFs 24, 27-28, 48-
58, 165 (R.R. at 7a-10a, 19a).
Clearly, regardless of whether the Mining Act preempted Section
404.G(7)(d)12)d) of the Ordinance, Applicant provided the Township with an
environmental impact assessment regarding “[v]ehicle traffic” that included
consideration of “the ability of the road system to handle the truck traffic”
anticipated by the proposed quarry use at the Property, as that Ordinance prescribed.
Ord. § 404.G(7)(d)12)d). Accordingly, the Board did not err by concluding that the
Mining Act preempts Section 404.G(7)(d)12)a)-c) and e) of the Ordinance and, thus,
Applicant was not required to satisfy those criteria. To the extent Section
21
404.G(7)(d)12)d) is not also preempted by the Mining Act, the Board properly
determined that Applicant satisfied the vehicle traffic assessment requirement.
Section 404.G(7)(a)1)a) of the Ordinance
Section 404.G(7)(a)1)a) of the Ordinance mandates:
There shall be a berm[27] of minimum height of 15 feet and
maximum height of 50 feet surrounding the entire property
site. Berms will be required along existing quarry faces to
the extent which the Board . . . determines is feasible. The
slope of the sides of the berm shall not exceed a 3:1 ratio.
Berms shall be planted and dusted, and erosion control
measures shall be taken as may be approved by the
[Bucks] County Conservation District. Berms shall begin
at a point no closer to a street than the ultimate right-of-
way line. No berms shall be constructed closer than 15
feet to a district in which extraction operations are not
permitted. Planting of the berms and yard areas shall be
sufficient to screen the quarry extraction operations. Both
planting and berm construction shall be according to a plan
approved by the Board . . . which shall include a
reasonable timetable for completion. Such planting shall
consist of evergreens of such species and size as will
produce, within [three] years, a complete all season visual
screen of at least [eight] feet in height.
Ord. § 404.G(7)(a)1)a).
The Board concluded that the Mining Act preempts Section
404.G(7)(a)1)a) of Ordinance because the berm height and location provisions
therein relate to surface mining. See COLs 32, 40 (R.R. at 24a-25a, 120a-121a).
Based on this Court’s previous rulings, see Gibraltar Rock I;28 see also Warner Co.,
and because the berm’s placement is clearly “surface activity connected with surface
27
According to the Board, the “berms serve to reduce noise and dust emissions off site and
also provide a visual screen to the operation.” FOF 39 (R.R. at 9a).
28
Objectors claim that their challenge is to the timing of the berm’s placement, which this
Court concluded in Gibraltar Rock I, an unreported decision, is not preempted by the Mining Act.
However, that decision is not binding on this Court.
22
. . . mining, [that] includ[es] . . . site preparation . . . and construction and activities
related thereto,” 52 P.S. § 3303, the Board did not err by concluding that the Mining
Act preempts Section 404.G(7)(a)1)a) of the Ordinance and, thus, Applicant was not
required to satisfy that criteria.
Section 404.G(7)(a)2)b)xiii and (d)15)
Section 404.G(7)(d)15) of the Ordinance specifies that “[i]f blasting
will be used, a pre-blast survey shall be conducted of existing conditions of buildings
and streets in the vicinity. A copy of such survey shall be submitted to the
Township.” Ord. § 404.G(7)(d)15). In addition, Section 404.G(7)(a)2)b)xiii of the
Ordinance requires an Applicant to provide, inter alia, a “[p]lan of operation
showing . . . location and typical schedule of blasting machinery-type and noise.”
Ord. § 404.G(7)(a)2)b)xiii. However, the Mining Act preempts blasting ordinances,
see O.R., 11/10/2020 N.T. at 88; see also Tinicum Twp., and mere use of the word
location does not change the clear operational nature of the regulation. Accordingly,
the Board did not err by concluding that the Mining Act preempts Section
404.G(7)(a)2)b)xiii and (d)15) of the Ordinance and, thus, Applicant was not
required to satisfy that criteria.
Because, at this stage - before the Board rather than DEP - Applicant
did not have the burden of proving compliance with preempted environmental
protection Ordinance Sections 404.G(7)(d)12) and 509, berm Ordinance Section
404.G(7)(a)1)a), or blasting Ordinance Section 404.G(7)(a)2)b)xiii and (d)15), but
nevertheless presented information related to each, the Board did not exempt
Applicant from satisfying non-preempted specific, objective criteria nor err by
concluding that Applicant had met its burden.
23
Conditions
Despite that Objectors stated in their Statement of Questions Involved
that the trial court erred or abused its discretion by affirming the Board’s grant of
conditional use approval that relies on preemption of numerous Ordinance
provisions while, at the same time, imposing conditions directly implicating the
subject matter of the Ordinance provisions claimed to have been preempted,
Objectors fail to provide any discussion or legal argument related thereto in their
brief. This Court has explained: “When a party’s brief, and specifically the argument
section of a brief, is bereft of any legal analysis or citation to court decisions relating
to the issues an appellant seeks to have an appellate court review, the reviewing court
may regard the appellant as having waived his arguments.” Irey v. Dep’t of Transp.,
72 A.3d 762, 770 n.8 (Pa. Cmwlth. 2013); see also Samuel-Bassett v. Kia Motors
Am., 34 A.3d 1 (Pa. 2011) (an appellant waives issues not properly developed in his
brief). Thus, Objectors have waived that issue.
Notwithstanding, this Court acknowledges that the Board curiously
simultaneously determined that the Mining Act preempted Sections 404.G(7)(a)1)a),
404.G(7)(a)2)b)xiii, 404.G(7)(d)12), 15) and 509 of the Ordinance, but declared that
“Applicant will comply with the Mining Act with respect to all surface mining
24
activities[,]”29 and it imposed conditions to ensure that will be the case.30, 31 FOF
112 (R.R. at 15a); see also COL 15 (R.R. at 22a) (“So long as [] Applicant complies
with the conditions imposed upon the approval, the proposed use will be suitable for
the [Property] with respect to the conservation of natural resources.”). Based on this
Court’s review, rather than reflecting an attempt by the Board to erroneously assert
29
The Board found that, with the exception of a portion of the internal access drive crossing
a floodplain and wetlands area, Applicant’s “proposal complie[d] with the natural resource
protection standards contained in the [] Ordinance[.]” FOF 66 (R.R. at 11a); see also FOF 155
(R.R. at 18a). For that crossing, the Board required Applicant to obtain a special exception.
Section 509.2.A(3)(d) of the Ordinance provides that “[s]tream crossings for utilities, driveways
and streets” “are permitted in [a] floodplain by special exception provided that they are in
compliance with the provisions of the underlying district, conform to all requirements of the . . .
Floodplain Ordinance and are not prohibited by any other [O]rdinance[.]” Ord. § 509.2.A(3)(d).
30
The Board imposed the following environmental conditions on its approval:
4. Applicant shall comply with the [] Mining Act, and all other
applicable local, state, and federal laws.
5. Applicant shall comply with the applicable provisions of the []
Ordinance that are not preempted by the Mining Act, including but
not limited to those which are requirements of future submissions
(i.e., zoning permit, renewals) and not yet applicable to the
Application.
R.R. at 31a. The Board also required Applicant to obtain an annual renewal permit in accordance
with applicable non-preempted provisions of Section 404.G(7) of the Ordinance, the filing of
which shall include pre-blast surveys and blasting complaints formally reported to DEP and/or
informally reported to Applicant; all dust, noise, and groundwater/surface water test results and
complaints; records of each blast; and updated traffic counts and projections. See R.R. at 34a.
31
The Board imposed the following berm conditions on its approval:
21. Applicant shall maintain the plantings and berms as shown in
the Application, and subject to any required revisions by [DEP]
under Applicant’s large non[]coal surface mining permit, at all times
to mitigate any impacts of noise and dust associated with the use of
the Property.
22. Applicant shall install improvements that will mitigate noise and
dust in the areas along the Property boundaries located on the south
and west sides of the Property where the berm is not constructed to
reduce the effects of noise and dust from the quarry operation. . . .
R.R. at 33a; see also R.R. at 140a-141a.
25
authority over preempted Ordinances, as Objectors imply, the conditions merely
confirm that the Board approved the Application subject to Applicant’s compliance
(and, in several instances, Applicant’s agreement) with the applicable Mining Act
provisions and DEP Regulations. Accordingly, this Court finds no error in that
regard.
2. Threat Not Normally Expected from Quarry Use
Because the Board properly concluded that Applicant met its burden of
proving compliance with the Ordinance’s non-preempted conditional use criteria, “a
presumption ar[ose] that ‘the proposed use is consistent with the general welfare of
the community.’” Brookview Solar I, LLC, 305 A.3d at 1233 (quoting H.E. Rohrer,
Inc., 808 A.2d at 1018). The burden then shifted to Objectors “to rebut the
presumption by proving that there is a high degree of probability the proposed use
will adversely affect the welfare of the community in a way not normally expected
from the type of use.” Brookview Solar I, LLC, 305 A.3d at 1233. The Board
concluded that Objectors did not meet their burden.
Objectors generally argue that the Board cherry-picked and arbitrarily
and capriciously disregarded their competent evidence that the proposed quarry
poses a threat to the health, safety, and general welfare of the community in a way
not normally expected from that type of use.32 To support their position, Objectors
point to testimony and documentation the Mining Act preempted the Board from
acting upon. However, limiting this Court’s review to the sole issue Objectors have
raised on appeal that may not be preempted by the Mining Act - traffic - Objectors
32
Objectors’ testimony and public comments made clear that local residents object to a
quarry use on the Property despite the Township’s “legislative determination that the use will not
have an adverse impact on the public interest in normal circumstances.” Brookview Solar I, LLC,
305 A.3d at 1233.
26
specifically contend that Applicant failed to meet its “burden to ensure that there
will not be adverse traffic impacts.” Objectors’ Br. at 24.
This Court has stated: “An anticipated traffic increase resulting from a
proposed use would not on its own defeat a conditional use request.” Joseph, 16
A.3d at 1217; see also In re Brickstone Realty Corp., 789 A.2d 333 (Pa. Cmwlth.
2001). Rather, “to deny a request for a conditional use, ‘[t]here must be a high
probability that the proposed use will generate traffic patterns not normally
generated by [the proposed] type of use and that this abnormal traffic will pose a
substantial threat to the health and safety of the community.’” Joseph, 16 A.3d at
1217 (quoting Orthodox Minyan of Elkins Park v. Cheltenham Twp. Zoning Hearing
Bd., 552 A.2d 772, 774 (Pa. Cmwlth. 1989)).
The Board found credible Drumbore’s and Roth’s testimony that traffic
generated from the proposed quarry will be typical for the use and will not have a
significant impact on traffic in the area. See FOFs 15 (R.R. at 6a), 47 (R.R. at 9a);
see also O.R., 11/10/2020 N.T. at 85; O.R., 8/10/2021 N.T. at 60-61; O.R.,
9/14/2021 N.T. at 6, 37. Although Objectors raised concerns regarding traffic, they
did not produce any evidence to rebut that testimony.33
It is well settled that “[t]he [B]oard is the fact[-]finder, with the
responsibility for credibility determinations and the weight to be assigned the
evidence.” Brookview Solar I, LLC, 305 A.3d at 1233.
[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
33
The Board did not find record support for Objectors’ challenge that the TIS and Roth’s
testimony was flawed because the TIS was prepared in 2020 and updated thereafter projecting only
until 2023; Roth’s calculations were premised on Applicant removing 500,000 tons of rock from
the Property annually, where it could possibly remove 2.5 to 3 times more than that; the TIS does
not account for trucks entering to reclaim the South Extraction Area while the North Extraction
Area work begins; and the TIS does not include any analysis of accident data.
27
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.
Appeal of Campbell, 250 A.3d 1263, 1265 n.1 (Pa. Cmwlth. 2021) (quoting
Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 811 (Pa. Cmwlth.
2005) (citations omitted)). Because, based on this Court’s review, substantial record
evidence supported “the Board’s findings that result from resolutions of
credibility[,]” id., this Court is bound by them.
Moreover, Applicant has agreed to the following traffic-related
conditions to alleviate any concerns:
16. Applicant will be financially responsible for any
PennDOT required alterations and intersection upgrades
to the intersection of Route 309 and Springfield Street that
are specifically related to Applicant’s Large Non[]Coal
Surface Mining operation as a G-7 Quarry use.
17. Applicant shall provide an annual contribution of
$1,500[.00] to [the] Township to defray the Township’s
costs associated with the operation, maintenance[,] and
repair for the stop lights located at the intersection of
Route 309 and Springfield Street.
18. All quarry related traffic shall be restricted to that
portion of Springfield Street west of the proposed quarry
entrance and east of [Route] 309[,] except for local
deliveries.
19. Applicant shall take measures including installation of
signage on the Property and providing operational
directions to direct truck traffic away from Mine Road and
shall direct trucks to use Springfield Street to Route 309
except for local deliveries.
28
....
34. Applicant will perform widening of the northeast
corner of Route 309 and Springfield Street as indicated in
the drawing prepared by Wynn Associates, Inc., entitled
“Quarry Vehicle Turning Study” dated November 23,
2021 (Hearing Exhibit T-5)[,] subject to the following
conditions:
a. Subject to and provided that [PennDOT] issues
the appropriate Highway Occupancy Permit
([]HOP[]). If PennDOT does not issue an
appropriate HOP permit, then there is no
obligation to perform any widening.
b. All work is to be performed within the existing
right-of-way on [the] eastern side of northbound
Route 309 from Springfield Street extending no
more than 50 feet along the existing right-of-way
and the existing right-of-way on the northern side
of westbound Springfield Street between the
bridge abutment closest to Route 309 and Route
309.
c. If permitted by PennDOT, Applicant will
relocate the existing traffic light mast arm and
support if required, but will not perform any work
on or connected with the Springfield Street bridge.
R.R. at 33a, 35a. In light of the Board’s credibility determinations and these
conditions, and Objectors’ general argument that traffic will increase with the
proposed use, Objectors failed to meet their burden of proving that the proposed
quarry poses a threat to the health, safety, and general welfare of the community in
a way not normally expected from that type of use.
3. ERA
Finally, Objectors argue that the trial court erred or abused its discretion
by affirming the Board’s grant of conditional use approval in a manner inconsistent
with its duties as trustee under the ERA. Objectors specifically assert that there is
29
no baseline assessment of water quality; the air particulate evidence Applicant
provided was from an unreliable air modeler and Applicant offered no evidence of
air toxics; and Applicant’s evidence reflects deep risk and harm to the public natural
resources onsite and on neighboring properties. Objectors claim that the Board
impermissibly cherry-picked evidence to support its preferences.
The Pennsylvania Supreme Court has ruled:
To start, the General Assembly derives its power from
[a]rticle III of the Pennsylvania Constitution[, PA. CONST.
art. III], which grants broad and flexible police powers to
enact laws for the purposes of promoting public health,
safety, morals, and the general welfare. [Robinson Twp.,
Wash. Cnty. v. Commonwealth, 83 A.3d 901,] 946 [(Pa.
2013) (plurality)]. These powers, however, are expressly
limited by fundamental rights reserved to the people in
[a]rticle I of our Constitution[, PA. CONST. art. I]. Id. . . .
Specifically, [s]ection 1 [of Pennsylvania Constitution
article I] affirms, among other things, that all citizens
“have certain inherent and indefeasible rights.” Id. at 948
(quoting PA. CONST. art. I, § 1). As forcefully pronounced
in [s]ection 25 [of Pennsylvania Constitution article I], the
rights contained in [a]rticle I [of the Pennsylvania
Constitution] are “excepted out of the general powers of
government and shall forever remain inviolate.” Id.
(quoting PA. CONST. art. I, § 25).
Among the “inherent and indefeasible” rights in [a]rticle I
of the Pennsylvania Constitution are the rights set forth in
the [ERA], which we quote again for ease of discussion:
The people have a right to clean air, pure water,
and to the preservation of the natural, scenic,
historic and esthetic values of the environment.
Pennsylvania’s public natural resources are the
common property of all the people, including
generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and
maintain them for the benefit of all the people.
PA. CONST. art. I, § 27. This constitutional provision
grants two separate rights to the people of this
30
Commonwealth. The first right is contained in the first
sentence, which is a prohibitory clause declaring the right
of citizens to clean air and pure water, and to the
preservation of natural, scenic, historic[,] and esthetic
values of the environment. Robinson Twp., 83 A.3d at
951. This clause places a limitation on the state’s power
to act contrary to this right, and while the subject of this
right may be amenable to regulation, any laws that
unreasonably impair the right are unconstitutional. Id.
The second right reserved by [s]ection 27 [of Pennsylvania
Constitution article I], set forth in its second sentence, is
the common ownership by the people, including future
generations, of Pennsylvania’s public natural resources.
Id. at 954. . . .
The third clause of [s]ection 27 [of Pennsylvania
Constitution article I] establishes a public trust, pursuant
to which the natural resources are the corpus of the trust,
the Commonwealth is the trustee, and the people are the
named beneficiaries. Robinson Twp., 83 A.3d at 955-
56. . . .
The Robinson Township plurality aptly described the
Commonwealth’s duties as the trustee of the
environmental trust created by the people of Pennsylvania
as follows:
As trustee, the Commonwealth is a fiduciary
obligated to comply with the terms of the trust and
with standards governing a fiduciary’s conduct.
The explicit terms of the trust require the
government to “conserve and maintain” the corpus
of the trust. See PA. CONST. art. I, § 27. The plain
meaning of the terms conserve and maintain
implicates a duty to prevent and remedy the
degradation, diminution, or depletion of our public
natural resources. As a fiduciary, the
Commonwealth has a duty to act toward the corpus
of the trust - the public natural resources - with
prudence, loyalty, and impartiality.
Robinson Twp., 83 A.3d at 956-57.
31
Pa. Env’t Def. Found. v. Commonwealth, 161 A.3d 911, 930-32 (Pa. 2017) (footnote
omitted). “[A]ll . . . entities of the Commonwealth government, both statewide and
local, have a fiduciary duty to act toward the corpus with prudence, loyalty, and
impartiality.” Id. at 932 n.23. Therefore, “[w]hen a municipality enacts a zoning
ordinance, it is bound by the [ERA] and by all the rights protected in [a]rticle I of
the Pennsylvania Constitution.” Frederick, 196 A.3d at 695.
This Court has explained:
The [ERA] “protects the people from governmental action
that unreasonably causes actual or likely deterioration” of
the public natural resources. [Robinson Twp., 83 A.3d] at
953 . . . . The [ERA] was not intended to “deprive persons
of the use of their property or to derail development
leading to an increase in the general welfare, convenience,
and prosperity of the people.” Id. at 954. It does, however,
require that economic development not take place at the
expense of an “unreasonable degradation of the
environment.” Id. . . . Furthermore, with respect to the
environment, “the state’s plenary police power . . . must
be exercised in a manner that promotes sustainable
property use and economic development.” Id. Thus,
[t]he [ERA] does not call for a stagnant landscape;
nor, as we explain [above], for the derailment of
economic or social development; nor for a
sacrifice of other fundamental values. But, when
government acts, the action must, on balance,
reasonably account for the environmental features
of the affected locale, . . . if it is to pass
constitutional muster.
Id. at 953. In sum, the [ERA] “do[es] not require a freeze
of the existing public natural resource stock; rather, . . . the
duties to conserve and maintain are tempered by legitimate
development tending to improve upon the lot of
Pennsylvania’s citizenry, with the evident goal of
promoting sustainable development.” Id. at 958.
The [ERA’s] protections may be enforced by citizens
bringing suit in the appropriate forum, including the
courts. Id. at 957.
32
Feudale v. Aqua Pa., Inc., 122 A.3d 462, 467-68 (Pa. Cmwlth. 2015), aff’d, 135
A.3d 580 (Pa. 2016). As the parties challenging the constitutionality of the
Ordinance’s provisions that are presumed to be valid, Objectors bear the burden of
proof, and the Board’s judgment controls when the Ordinance’s validity is debatable.
See Frederick.
Section 603(i) of the MPC requires that municipalities “shall provide
for the reasonable development of minerals in each municipality” in their zoning
ordinances. 53 P.S. § 10603(i). However, because quarries may be less than
desirable neighbors, “[z]oning accounts for the ‘natural, scenic, historic[,] and
esthetic values of the environment[,]’ Pa. Const. art. I, § 27[,] . . . by placing
compatible uses in the same zoning district[,]” Frederick, 196 A.3d at 695, i.e.,
“regulat[ing] where mineral extraction takes place.” Id. at 697. Here, the Township
has legislated that a quarry is permitted as a conditional use in its PI Zoning District
if an applicant satisfies the general and specific criteria set forth in Sections
404.G(7), 509, and 802 of the Ordinance.
Although the ERA does not impose express duties on the Township to
take specific measures to protect the environment, the Township is aware of and
considers the Ordinance’s stated purpose
to control the intensity of development in areas of sensitive
natural resources or natural features in order to reduce or
eliminate adverse environmental impacts; to protect the
people’s right to clean air, pure water, and the natural
scenic, historic, and aesthetic values of the environment;
and to protect natural resources which are part of the
ecological system to which we are all bound, and therefore
are the common property of all the people, including
generations yet to come, and must be protected to insure
the health, safety, and welfare of all the people.
Ordinance Section 103.A, Ord. § 103.A. Allowing a quarry use in the PI Zoning
District by conditional use “evidences [the Township’s] legislative determination
33
that the use will not have an adverse impact on the public interest in normal
circumstances.” Brookview Solar I, LLC, 305 A.3d at 1233; see also Protect PT v.
Penn Twp. Zoning Hearing Bd., 220 A.3d 1174, 1185 (Pa. Cmwlth. 2019) (The
Township “is presumed to have investigated [whether such use is wise] and
ascertained what is best for the good of the people.”).
Notwithstanding, the Mining Act preempts the environmental
regulation of noncoal surface mining. Importantly, Section 2 of the Mining Act
similarly declares:
Th[e Mining A]ct shall be deemed to be an exercise of the
police powers of the Commonwealth for the general
welfare of the people of this Commonwealth, to provide
for the conservation and improvement of areas of land
affected in the surface mining of noncoal minerals, to aid
in the protection of birds and wildlife, to enhance the value
of the land for taxation, to decrease soil erosion, to aid in
the prevention of the pollution of rivers and streams, to
protect and maintain water supply, to protect land, to
enhance land use management and planning, to prevent
and eliminate hazards to health and safety and generally to
improve the use and enjoyment of the lands.
52 P.S. § 3302. Therefore, the Mining Act also recognizes that surface mining may
impact the environment and directs DEP - not the Board - to mitigate any impacts to
the extent possible.
Where, as in this case, the Mining Act preempts the specific
environmental criteria with which Objectors take issue in this appeal, the Board
cannot have violated the ERA in granting the Application. Applicant’s compliance
with environmental protection regulations relative to its proposed use are for DEP
to decide. Accordingly, the trial court properly determined that Objectors failed to
establish that the Board’s decision violated the ERA.
34
Conclusion
Based on the foregoing, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
35
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Spear Products, Inc., Spear Holdings, :
LLC, Kyle Fliszar, Harold and Ellen :
Yerkes, Gerald and Mary Anne Claire, :
and Clean Air Council, :
Appellants :
:
v. :
:
Springfield Township, H&K Group, :
Inc., and Springfield Township Board : No. 1627 C.D. 2024
of Supervisors :
ORDER
AND NOW, this 19th day of November, 2025, the Bucks County
Common Pleas Court’s November 6, 2024 order is affirmed.
_________________________________
ANNE E. COVEY, Judge