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

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

Appellant :

:

v.

:

Penn Township Zoning Hearing Board : No. 1632 C.D. 2018

: Argued: October 3, 2019

v. :

:

Olympus Energy LLC, :

Apex Energy (PA), LLC, and :

The Township of Penn :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ROBERT SIMPSON, Senior Judge

OPINION

BY SENIOR JUDGE SIMPSON FILED: November 14, 2019

I. Introduction

In this land use case, Protect PT appeals an order of the Court of

Common Pleas of Westmoreland County (trial court)1 that, after holding an extended

hearing and receiving a large volume of evidence, denied Protect PT’s substantive

validity challenge to Penn Township’s (Township) Ordinance No. 912-2016 Chapter

190 (Zoning), as amended (Zoning Ordinance). Notably, the Zoning Ordinance

established five unique zoning districts and four overlay districts in the Township.

In particular, the Zoning Ordinance established a Rural Resource (Resource) District

and a Mineral Extraction Overlay (MEO) District. Protect PT specifically

1

The Honorable Harry F. Smail, Jr., presided.

challenged the constitutionality of the MEO District to the extent it permits

unconventional natural gas development (UNGD) in the Resource District, which also

permits low-density residential properties.

Protect PT contends the Township’s Resource District is essentially a

growing suburban community and that UNGD is a heavy industrial activity

incompatible with residential use and preservation of the environment. In rejecting

Protect PT’s contentions, the trial court determined the Zoning Ordinance does not

violate either the substantive due process rights of the Township’s residents or their

rights under the Environmental Rights Amendment (ERA) in Article I, Section 27 of

the Pennsylvania Constitution.2 Therefore, the trial court held the Zoning Ordinance

constitutionally valid.

More specifically, Protect PT asserts on appeal that the trial court erred

or abused its discretion: (1) in failing to consider all phases of developing an UNGD

well pad prior to the production phase in analyzing the validity of the Zoning

Ordinance even though the drilling and completion phases continue indefinitely; (2)

in failing to find that UNGD is a heavy industrial activity associated with impacts

on neighboring residents similar to other heavy industrial activities including air

pollution, water pollution, traffic congestion, noise, light and threats to public safety;

(3) in finding that UNGD historically took place in the Township and is compatible

with the Township’s Comprehensive Plan and the agricultural and residential land

uses authorized in the Resource District; (4) in finding the MEO District is an

appropriate use of a zoning overlay even though it fails to impose specific and

2

PA. CONST. art. I, §27.

2

targeted provisions tailored to local conditions without disturbing expectations

created by the underlying district; (5) in finding that the enactment of the Zoning

Ordinance did not violate the ERA where the Township Board of Commissioners

(Commissioners) failed to account for the impact of UNGD on Township citizens’

rights to clean air, pure water and the natural, scenic, historic, and esthetic values of

the environment; and (6) in finding the Zoning Ordinance does not violate the

substantive due process rights of Township citizens even though Protect PT

demonstrated the Zoning Ordinance is arbitrary and unreasonable, and lacks any

substantial relationship to promoting the public health, safety and welfare.

The present case raises similar issues to those recently addressed by this

Court in Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677

(Pa. Cmwlth. 2018) (en banc), appeal denied, 208 A.3d 462 (Pa. 2019) (holding

objectors failed to establish that UNGD was incompatible with other uses or that the

ordinance violated substantive due process or the ERA), and Delaware Riverkeeper

Network v. Middlesex Township Zoning Hearing Board (Delaware Riverkeeper

(Middlesex) (Pa. Cmwlth., No. 2609 C.D. 2015, filed June 26, 2019), 2019 WL

2605850 (unreported),3 (applying Frederick and denying the objectors’ substantive

validity and ERA challenges to a zoning ordinance allowing UNGD as a permitted

use in a residential agricultural district). In light of our decisions in Frederick,

Delaware Riverkeeper (Middlesex) and other applicable cases, we affirm the trial

court’s order denying Protect PT’s challenges to the Zoning Ordinance.

3

Unreported cases, issued after January 15, 2008, may be cited for their persuasive value.

See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).

3

II. Background

A. Substantive Validity Challenge to Zoning Ordinance

In September 2016, the Commissioners enacted the Zoning Ordinance,

which created five unique zoning districts in the Township. In addition to the

Resource District, the Ordinance established the Mixed Density Residential District,

the Neighborhood Commercial District, the Commercial Corridor District, and the

Industrial Corridor District. The Ordinance also created four overlay districts. In

addition to the MEO District, they include the Airport Overlay District, the

Floodplain Overlay District and the Development Infill Overlay District. The MEO

District, which permits UNGD, overlays the Industrial Commercial District (IC

District) and the majority of the Resource District, with the exception of the densely

populated Claridge area.

In April 2017, Protect PT, proceeding before the Township’s Zoning

Hearing Board (ZHB), filed a notice of substantive validity challenge under Section

916.1 of the Pennsylvania Municipalities Planning Code (MPC).4 In particular,

Protect PT challenged the constitutionality of the MEO District. In June 2017, the

ZHB issued a letter stating it did not intend to schedule a public hearing on Protect

PT’s validity challenge. This resulted in a deemed denial under the MPC.

In July 2017, Protect PT appealed the deemed denial to the trial court.

Huntley & Huntley Energy Exploration, LLC (Huntley), an oil and gas exploration

and production company operating in the Township, and Apex Energy of

4

Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.

1329, 53 P.S. §10916.1.

4

Pennsylvania, LLC (Apex), an oil and gas company focused on UNGD, which also

operates in the Township, were permitted to intervene. The Township also

intervened in the appeal.5

B. Trial: General Overview

Where, as here, the trial court takes evidence on the merits, it must

review the case de novo. Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing

Bd., Greene Cty., 944 A.2d 832 (Pa. Cmwlth. 2008). This Court then reviews the trial

court’s findings of fact and legal conclusions for errors of law or an abuse of

discretion. Id. An abuse of discretion occurs where the trial court’s findings are not

supported by substantial evidence. Id. Substantial evidence is such relevant evidence

that a reasonable mind would accept as adequate to support a conclusion. Id.

Here, the trial court conducted a de novo trial and took evidence over

four days in April and June 2018. During those proceedings, the trial court heard

testimony from 21 witnesses, and admitted 93 exhibits into evidence. The parties

also submitted briefs and proposed findings of fact.

In November 2018, the trial court issued a comprehensive opinion and

order denying Protect PT’s substantive validity challenge and holding the Zoning

Ordinance constitutionally valid. In its findings of fact, the trial court noted that the

Zoning Ordinance described the purpose of the Resource District as providing land

5

By order dated October 15, 2019, we granted an application by Huntley & Huntley Energy

Exploration, LLC (Huntley) to amend the caption to reflect its new name, Olympus Energy, LLC.

However, to avoid confusion regarding the briefs, record and prior decisions involved in this

appeal, we will refer to this party as Huntley in this opinion.

5

for continuing agricultural operations, resource management, timber harvesting,

outdoor recreation, public and private conservation areas, low density single family

residential, and compatible support uses. Ord. §190-402(A). The court further noted

the purpose of the MEO District is described as providing areas for the extraction of

minerals where the population density is low and significant development is not

projected for the near future. Ord. §190-407(A). Mining and conventional oil and

natural gas drilling are listed as principal uses in the MEO District. Unconventional

oil and natural gas drilling are listed as special exceptions. Ord. §§190-407(C), 190-

407(D).

The trial court also recognized that UNGD is subject to numerous

standards, including general development standards in the Zoning Ordinance and

particular standards pertaining to the MEO District. To that end, the trial court

noted:

Requirements include but are not limited to a prohibition on

wastewater impound storage, dumping and seepage, regular

removal of wastewater and hazardous and/or toxic waste,

compliance with the Township’s Subdivision and Land

Development Ordinance, acquisition of relevant Pennsylvania

Department of Environmental Protection (‘DEP’) permits, and a

minimum lot size of [10] acres, as well as a [600] foot ‘protected

structure’ setback and a 200 foot property line setback. [Ord.]

§190-407(G). As [UNGD] is a special exception, the [ZHB] also

has the right to impose additional conditions on the grant of the

exception for purposes of promoting the health, safety and

welfare of the Township’s residents. [Trial Transcript pp.] 744-

45).

Section 641(D) requires that the developer of a proposed

UNGD well specifically ‘demonstrate that the drill site

operations will not violate the [Township citizens’] right to clean

air and pure water as set forth in the [ERA] through the

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submission of reports from ‘qualified environmental individuals’

stating that the proposed drilling will not negatively impact these

rights. [Ord.] §190-641(D). Specifically required are ‘air

modeling and hydrogeological studies as potential pathways that

a spill or release of fluid may follow.’ [Ord.] §190-641(D).

Tr. Ct., slip op., 11/9/18, at 3-4 (emphasis added). The trial court also noted the

subject of UNGD in the Zoning Ordinance was addressed at 19 Planning

Commission meetings, 53 Commissioners’ meetings, 2 public meetings and a town

hall meeting at which Protect PT presented 7 speakers, including its executive

director. Id. at 4.

C. Protect PT’s Expert Witnesses

At trial, Protect PT presented testimony from three expert witnesses.

Anthony Ingraffea, Ph.D. (Dr. Ingraffea) is an engineer and co-founder of

Physicians, Scientists and Engineers for Healthy Energy (PSE). Ultimately, the trial

court rejected Dr. Ingraffea’s opinion that UNGD causes significant adverse impacts

to air and water quality, community development, human-induced seismicity,

climate change, and animal health. The trial court also rejected Dr. Ingraffea’s

opinion that UNGD is a heavy industrial activity. These credibility findings are

material to our analysis.

Protect PT also presented testimony from Edward C. Ketyer, M.D. (Dr.

Ketyer), a pediatrician in Washington County, and a consultant with the Southwest

Pennsylvania Environmental Health Project, which solicits patients who believe

they may have health symptoms as a result of oil and gas development. Dr. Ketyer

is also a board member of Physicians for Social Responsibility, whose goal is to

develop a fossil fuel free world. Ultimately, the trial court rejected Dr. Ketyer’s

7

opinion that emissions from UNGD presently pose a threat to human health. This

credibility finding is also significant to our analysis.

Protect PT’s third expert, Thomas Daniels, Ph.D. (Professor Daniels),

is a professor of city and regional planning at the University of Pennsylvania.

Professor Daniels testified regarding the Township’s Comprehensive Plan. He noted

that the MPC requires the reasonable development of minerals and gas. However,

Professor Daniels opined that he considers UNGD to be a heavy industrial use and

that the MEO District does not fulfill the purpose of the Comprehensive Plan

because the Resource District is predominantly residential. He further stated that

the MEO District as it exists resulted in a scattered pattern of wells with heavy truck

traffic and inconvenience to the Township’s residents. However, the trial court

declined to adopt Professor Daniels’ opinions that UNGD is a heavy industrial use

that is incompatible with the Comprehensive Plan and agricultural areas in general.

These credibility findings also impact our analysis.

D. Intervenor Huntley’s Expert Witnesses

In response, Intervenor Huntley, an oil and gas exploration and

production company operating in the Township, presented testimony from three

experts. Huntley presented Samuel A. Flewelling, Ph.D. (Dr. Flewelling), an

environmental science consultant and a member of the Geophysical Union and the

Geological Society of America. Dr. Flewelling has extensive experience regarding

the impact of hydraulic fracturing on groundwater and general matters of

hydrogeology. Dr. Flewelling opined that both conventional and unconventional oil

and gas development have an extensive history in Westmoreland County, dating back

8

over a hundred years. Between 1980 and 2017, approximately 5,380 conventional

and 252 unconventional wells have been drilled in the county. Unconventional wells

are more compact and produce more gas than conventional wells.

Dr. Flewelling stated that the risks of gas leaks into the drinking water

are unlikely due to DEP casing and cementing requirements. Dr. Flewelling further

indicated that contamination to drinking water is not likely through the deep

hydraulically fractured rock as the fractures are normally lower than the aquifer. In

addition, a low permeability layer creates a barrier, and there is no force driving the

fluid upward. Important to our analysis, the trial court adopted Dr. Flewelling’s

above-expressed opinions regarding groundwater and hydrogeology.

Intervenor Huntley also presented expert testimony from Dr.

Christopher Long (Dr. Long), who holds a doctoral degree in environmental health

from Harvard University’s School of Public Health. Dr. Long is a certified

toxicologist. He routinely conducts human health risk assessments, and he has

experience studying the air quality impacts and risks caused by UNGD. Without

objection, the trial court qualified Dr. Long as an expert in toxicology, air emission

exposure assessment and human health risk assessment.

Dr. Long testified that all air emissions associated with all phases of

UNGD, excepting production, are transient and short-term. Various air pollutants

associated with UNGD are ubiquitous in everyday life, such as fine particulate

matter (FPM). Most persons are regularly exposed to the same on a short-term basis

9

from everyday activities. A large amount of air monitoring now occurs in the

Marcellus Shale region near gas development and is conducted by various groups.

Dr. Long further testified that DEP monitored FPM in Greene, Bradford

and Tioga Counties with no findings of elevated FPM levels. Also, monitors in

Bradford, Tioga and Washington Counties found nitrogen dioxide levels far below

the relevant national standard. Further, DEP monitors near UNGD in Washington,

Wyoming and Susquehanna Counties all reported average benzene levels. In

addition, the Allegheny County Health Department, which placed monitors for

volatile organic compounds (VOC) near well pad activity, found VOC levels far

below levels of concern for human health. Based on these and other VOC studies

related to UNGD in Pennsylvania, the trial court adopted Dr. Long’s expert opinions

regarding toxicology, air emission exposure assessment and human health risk

assessment. This credibility determination is material to our analysis. It is within

the exclusive province of the trial court, as the fact-finder in a zoning case, to resolve

all matters of witness credibility and evidentiary weight. See Penn St., L.P. v. E.

Lampeter Twp. Zoning Hearing Bd., 84 A.3d 1114 (Pa. Cmwlth. 2014).

As its third expert witness, Intervenor Huntley presented Professor

Ross Pifer (Professor Pifer), a professor at the Penn State School of Law. Professor

Pifer is the director of the Center for Agriculture and Shale Law and Rural Economic

Development Clinic. Professor Pifer, who also testified in Frederick, visited

numerous UNGD sites during various stages of development. He focused his

research on the interplay between UNGD and the community, especially in

agricultural areas. Professor Pifer made over 300 presentations regarding oil and

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gas development in the past 10 years. His expert testimony regarding the

compatibility of oil and gas with rural and agricultural communities has been

accepted by zoning hearing boards in Westmoreland, Lawrence and Washington

Counties.

Professor Pifer further testified that UNGD primarily takes place in

rural and semi-rural counties in the Commonwealth, and that Westmoreland County

ranks ninth in the state for UNGD, with 283 wells already drilled. UNGD, in

existence since 1947, provides more benefit to agricultural regions than conventional

drilling. UNGD has less surface impact and can access more acreage.

Professor Pifer identified approximately 100 municipalities in

Pennsylvania, some with zoning and some without, where UNGD, single-family

homes, and agricultural uses coexist. In Westmoreland County, 24 municipalities

have no zoning ordinances and allow UNGD throughout the entire municipality.

Professor Pifer further noted that Pennsylvania law explicitly

encourages the coexistence of oil and gas development and agriculture through

protections provided in the Pennsylvania Farmland and Forest Land Assessment Act

of 1974, popularly known as the Clean and Green Act,6 and the Agricultural Area

Security Law (AASL),7 which involve many farmers in the Township. The Clean

and Green Act also recognizes that the financial benefits of UNGD from gas leasing

enables farmers to maintain agricultural operations on their land throughout

generations of farmers. This permits rural lands to remain rural and prevents the

6

Act of December 19, 1974, as amended, 72 P.S. §§5490.1-5490.13.

7

Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §§901-915.

11

forced sale of farmlands to commercial or residential development. Ultimately, the

trial court adopted Professor Pifer’s opinion that UNGD is compatible with

agricultural and rural land uses, both generally and as laid out in the MEO District

under the Zoning Ordinance. See Tr. Ct., slip op., 11/9/18, at 12. This credibility

finding is also critical to our analysis.

Intervenor Huntley also presented testimony from Jason Paul Gehringer

(Analyst Gehringer), a primary Geographic Information System analyst. He testified

to the existence of the Oakford Storage Field, a mostly depleted natural gas reservoir

that lies beneath one-quarter of the Township’s land mass. Analyst Gehringer

calculated that upon taking into consideration all setbacks and regulatory

requirements imposed by the Zoning Ordinance, only 9.46% of the Township’s land

mass is available for UNGD.

E. Apex Witness

Intervenor Apex presented testimony from Christopher James Hess

(Hess), its general counsel, vice president of land development and corporate

secretary. Hess oversees regulatory compliance, leasing and land functions. Apex

leases about 7,509 acres and maintains exclusive rights to drill in the Marcellus Shale

beneath the Oakford Storage Field in the Township. Apex received approval to

develop the Quest UNGD well pad, which is now in production. Apex has seven

other well pads planned in the Township.

Hess testified regarding the steps of development in UNGD, including

leasing, design, permitting and construction. He described the measures taken by

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Apex to prevent spills and releases at the site. Apex entered into an agreement with

Westmoreland County to obtain water through municipal taps, thereby eliminating

about 3,000 water trips per well. He also described DEP well permit requirements

for protecting surrounding water sources and DEP permit requirements for surface

disturbance and mitigation.

In sum, Hess testified that during the production phase, UNGD

generates no light at the well site, and no noise audible at the property line. Truck

traffic during the production phase is limited to two truck trips per day and a few

waste-water truck visits per month. Hess noted that Apex has not received any noise,

light or traffic complaints regarding the Quest well site since it entered the

production phase.

F. Lay Witnesses

Protect PT presented lay testimony from its executive director, Gillian

Graber (Graber). She described Protect PT’s mission as the protection of Township

residents in the Penn-Trafford area from the effects of UNGD. Protect PT members

often engage in special exception hearings, meetings and other public forums.

Graber testified that Protect PT has also placed noise and air quality monitors at

residences around the Township at property owners’ requests.

Protect PT also presented lay testimony from eight additional members

or property owners living near proposed well sites in the Township. They expressed

concerns regarding noise, light and air emissions, truck traffic, adverse effects on

13

groundwater and water pressure, adverse effects on property values, and other health

and safety issues.

Conversely, Intervenor Huntley presented lay testimony from Richard

J. Hajnosz and Adam Ferri (Ferri), two property owners who rely on UNGD lease

and royalty payments to maintain their agricultural property and to avoid selling it for

residential development. Ferri, a real estate developer who owns a 133-acre tract in

the Resource District, testified residential development negatively impacts the

agricultural nature of the property in the Resource District. Ferri testified that

permanent impacts from residential development include traffic and impervious

surface loss. See Notes of Testimony (N.T.), 6/4/18, at 844-45; Reproduced Record

(R.R.) at 722a.

G. Trial Court’s Discussion and Analysis

1. Generally

As discussed above, when reviewing a challenge to a zoning ordinance

in which it takes evidence, the trial court performs a de novo review. Coal Gas

Recovery Grp. Because a zoning ordinance is presumed valid, a challenger bears a

heavy burden of establishing its invalidity. Woll v. Monaghan Twp., 948 A.2d 933

(Pa. Cmwlth. 2008). A validity challenge generally attacks zoning on substantive

due process grounds, i.e., whether an ordinance is substantially related to a legitimate

interest. Plaxton v. Lycoming Cty. Zoning Hearing Bd., 986 A.2d 199 (Pa. Cmwlth.

2009). Where the validity of an ordinance is debatable, it must be upheld. Main

Street Dev. Grp., Inc. v. Tinicum Twp. Bd. of Supervisors, 19 A.3d 21 (Pa. Cmwlth.

2011).

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In Pennsylvania, the constitutionality of a zoning ordinance is reviewed

under a substantive due process analysis. Plaxton. Under such analysis, the party

challenging the validity of the provisions of a zoning ordinance must establish that

the challenged provisions are arbitrary or unreasonable and have no substantial

relationship to promoting the public health, safety and welfare. Id. In examining

whether the ordinance is a valid exercise of the police powers, reviewing courts must

balance the public interest to be served by the ordinance against the confiscatory or

exclusionary impact of the ordinance on individual rights. Delchester Developers,

L.P. v. Zoning Hearing Bd. of London Grove, 161 A.3d 1081 (Pa. Cmwlth. 2017);

Penn St.

Protect PT alleged the MEO District violates the Township residents’

substantive due process rights, as well as their constitutional rights under the ERA

in Article I, Section 27 of the Pennsylvania Constitution, by allowing UNGD in the

Resource District. Protect PT alleged the Resource District is primarily residential.

Protect PT claimed the MEO District is designed in such a way that UNGD is able to

be developed in a haphazard manner, creating nuisances and health risks for

neighboring property owners. Thus, Protect PT maintains the MEO District is invalid.

2. Substantive Due Process

Protect PT first argued that in enacting the Zoning Ordinance, the

Township failed to consider the effects of UNGD on neighboring property owners.

Protect PT maintained that UNGD is a heavy industrial use, and that allowing

UNGD, in what Protect PT perceives as a majority of the Township, creates

15

nuisance, health and safety risks for neighboring property owners in the Resource

District, thereby violating their substantive due process rights.

The trial court recognized UNGD is a lawful and not a disfavored use

in Pennsylvania. Section 603(i) of the MPC states: “Zoning ordinances shall provide

for the reasonable development of minerals in each municipality.” 53 P.S.

§10603(i). An integral purpose of the Resource District is resource management.

See Ord. §190-402(A). Section 107(a) of the MPC defines “minerals” as including

“crude oil and natural gas.” 53 P.S. §10107(a). Notably, our Supreme Court

determined that pursuant to Section 601 of the MPC, the governing body of a

municipality may amend its zoning ordinances to permit oil and gas development in

any or all of its zoning districts. Gorsline v. Bd. of Supervisors of Fairfield Twp.

(Gorsline II), 186 A.3d 375 (Pa. 2018).

Here, the trial court observed that the Township carefully balanced its

obligation to provide for the management and development of minerals with the

inherent rights of the neighboring property owners in the MEO District.

The trial court further noted that under Pennsylvania law, zoning

regulates only the use of the land, not the particulars of development and

construction. Frederick; Gorsline v. Bd. of Supervisors of Fairfield Twp. (Gorsline

I), 123 A.3d 1142 (Pa. Cmwlth. 2015), rev’d on other grounds, 186 A.3d 375 (Pa.

2018); Schatz v. New Britain Twp. Zoning Hearing Bd. of Adjustment, 596 A.2d

294 (Pa. Cmwlth. 1991). Therefore, the trial court reasoned, the development and

construction of a well pad prior to its production phase or use phase, should not be

16

taken into account in analyzing the zoning ordinance in a validity challenge.

Similarly, it would be improper to assess the industrial activities that take place

during the construction of any commercial or residential property, prior to the

structures being used.

3. Compatibility with Resource District

As Professor Pifer explained, a producing UNGD well pad is entirely

compatible with the purpose of the Resource District, which provides for resource

management and agricultural operations. In fact, UNGD can be beneficial to

agricultural uses. Huntley’s two lay witnesses, Ferri and Hajnosz, testified that the

financial benefits of UNGD on their respective properties helps them preserve the

agricultural nature of their land by promoting inter-generational farm transfers and

allowing for the continuance of farming activity that might not be feasible otherwise.

4. Environmental & Health Concerns

With respect to Protect PT’s environmental and health concerns, the

trial court rejected the opinions of Protect PT’s experts, Dr. Ingraffea and Dr. Ketyer,

regarding the actual risks to Township residents. The trial court found their

testimony speculative and not indicative of any substantial environmental or health

risks.

The trial court found credible the testimony of Intervenor Huntley’s

expert witnesses, Dr. Long and Dr. Flewelling. Dr. Long presented significant

amounts of actual air monitoring data showing no danger to public health related to

widespread air emissions caused by UNGD. The trial court also credited the

17

testimony of Dr. Flewelling regarding the low risk of water contamination by UNGD

and the abundant water protections already in place.

The trial court also expressed sympathy for the landowners’ worries

regarding the hypothetical diminution of property values, increases in noise and

light, and other stated concerns. Nonetheless, the trial court noted that the Township

adequately considered these concerns as part of an extensive balancing inquiry in

adopting the Zoning Ordinance, which is far more protective of Township citizens

than the previous zoning ordinance.

Further, the trial court rejected Protect PT’s argument that the MEO

District allows for UNGD in the majority of the Township’s residential areas. The

court noted the Township made a great effort to develop and refine the Zoning

Ordinance to provide for UNGD only in specifically delineated areas. In considering

the setbacks and other required considerations, UNGD can take place in

approximately 9.46% of the Township. Given the Township’s thorough analysis of

the particulars of oil and gas development evidenced by the Zoning Ordinance’s

many drafts and revisions, and the countless public meetings from 2010 through

2016, the trial court determined that the Zoning Ordinance provides for an

exceedingly heightened level of protection for neighboring property owners.

In concluding its substantive evidence analysis, the trial court

recognized it must balance the public interest to be served by the Zoning Ordinance

against the confiscatory or exclusionary impact on individual property rights.

Delchester. The trial court found the Township carefully considered and balanced

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the Township’s residents’ rights concerning their health and safety with the interests

of neighboring landowners who rely on royalties and lease payments from UNGD

to maintain the agricultural use of their property. In enacting the Zoning Ordinance,

the Township established a series of rigorous requirements ensuring that UNGD in

the Township complies with all state and federal mandates.

The Zoning Ordinance also imposed additional protections in the form

of setbacks, acreage requirements, an exclusion of the most densely populated area

of the Resource District, and the requirement that developers submit reports to the

Township expressly representing that UNGD will not impact the residents’ rights

under the ERA. Based on the evidence presented, the trial court concluded that the

Township fully considered the public health, safety and welfare of Township

residents in enacting the Zoning Ordinance.

Summarizing, the trial court recognized that a determination of whether

legislation is wise or whether it is the best means to achieve the desired result is best

left to the governing body and not the courts. The governing body is presumed to

have investigated the question and ascertained what is best for the good of the

people. Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936 (Pa. 2004). Thus,

the trial court reasoned, even if it was to disagree with the substance of the Zoning

Ordinance, it is apparent that the Township exercised due diligence in ascertaining

what it believed to be the best balance of protections for all its residents.

Consequently, the trial court determined Protect PT did not meet its heavy burden

of showing that the presumptively valid Zoning Ordinance is arbitrary and

19

unreasonable, or that it has no substantial relationship to promoting the public health,

safety and welfare. Plaxton.

5. Robinson Township Cases; Gorsline II

Next, Protect PT cited Robinson Township, Washington County v.

Commonwealth (Robinson II), 83 A.3d 901 (Pa. 2013), where the Supreme Court

deemed several provisions of the amended Pennsylvania Oil and Gas Act (Oil and

Gas Act)8 unconstitutional because they allowed for UNGD as of right in all areas

of the Commonwealth, entirely preempting local zoning in the matter of oil and gas

regulation. The trial court observed that the circumstances in Robinson II are

entirely different from those in the present case. Rather, the situation in the present

case is the situation that Robinson II intended to protect: a municipality making its

own decisions regarding oil and gas regulation, uniquely tailored to local

circumstances, and mindful of Pennsylvania citizens’ constitutional rights. The trial

court further noted that in Robinson Township, Washington County v.

Commonwealth (Robinson IV), 147 A.3d 536 (Pa. 2016), the Supreme Court went

out of its way to express the importance of locally tailored policy goals and the

importance of considering local conditions and the needs of the residents in assessing

oil and gas development at a municipal level.

The trial court also found our Supreme Court’s decision in Gorsline II

distinguishable from the present case. The relevant ordinance in Gorsline II

delineated a residential-agricultural zoning district, in which UNGD was neither

specifically allowed nor prohibited. The ordinance included a savings clause,

8

58 Pa. C.S. §§2301-3504.

20

wherein a use could be allowed if shown to be similar to other uses permitted in that

zoning district. Ultimately, in Gorsline II our Supreme Court reversed this Court’s

decision in Gorsline I holding that UNGD was similar to other uses in the district,

specifically public service facilities and essential services.

Unlike the zoning ordinance at issue in Gorsline II, the trial court

observed that here the Zoning Ordinance does not require a showing that UNGD is

similar to public service facilities or any other uses permitted in the zoning district.

Rather, under the Zoning Ordinance, UNGD is permitted in the MEO District as a

special exception.

In particular, the trial court noted that the Supreme Court in Gorsline II

emphasized that its decision should not be misconstrued as an indication that oil and

gas development is never permitted in residential or agricultural districts, or that it

is fundamentally incompatible with residential or agricultural uses. The Supreme

Court also highlighted the importance of local municipalities tailoring ordinances to

the particulars of local conditions in order to protect environmental values. In order

to permit UNGD, a local government body must “actually amend its zoning

ordinances to permit drilling in designated areas, setting forth whatever limitations

and conditions it decides are appropriate for the protection of its citizenry.” Gorsline

II, 186 A.3d at 389. The trial court observed that this is precisely what occurred in

the present case. The Township spent many years receiving input from various

sources, including members and representatives of Protect PT. The Township then

crafted an ordinance setting forth protective limitations and conditions.

21

6. Comprehensive Plan; Property Owner Expectations

In addition, Protect PT argued the MEO District directly contradicts the

Township’s community planning tools and directly conflicts with the purpose of the

underlying districts. Protect PT alleged the MEO District disrupted the reasonable

expectations of property owners in the Resource District. In rejecting Protect PT’s

contentions, the trial court recognized that the Township’s Comprehensive Plan

promotes both growing residential development and agricultural use. As noted

above, the trial court credited Professor Pifer’s testimony that UNGD and

agricultural uses are inherently compatible. Therefore, the trial court decided the

MEO District fits plainly within the goals of the Comprehensive Plan.

Further, even assuming the MEO District was incompatible with the

Comprehensive Plan, Section 303(c) of the MPC provides that no action by the

governing body of a municipality shall be invalid or be subject to challenge on

appeal on the basis that such action is inconsistent with, or fails to comply with, the

provisions of a comprehensive plan. 53 P.S. §10303(c).

With respect to the property owners’ expectations, the trial court found

that Protect PT failed to present any testimony from landowners indicating that they

investigated the zoning ordinance in effect at the time of their purchase. In any case,

even if a landowner purchased the property prior to the enactment of the Zoning

Ordinance, the purchaser would have been afforded much less protection under the

regulation of UNGD under prior ordinances, which were much less restrictive.

Consequently, the trial court concluded that Protect PT cannot meet its heavy burden

22

of proof in a challenge to the MEO District as being in violation of the

Comprehensive Plan or property owners’ expectations.

7. Appropriate Use of Overlay District

Protect PT also argued that the MEO District violates established

standards for the appropriate use of an overlay district in zoning. “An overlay district

creates a framework for conservation or development allowing for a new type of

development or imposing restrictions that is superimposed over the zoning districts

on all or part of a municipality.” Main St., 19 A.3d at 28. “The purpose of an overlay

district is to create specific and targeted provisions that conserve natural resources

or realize development objectives without unduly disturbing the expectations created

by the existing zoning ordinance.” Id. “In other words, overlay districts supplement

existing zoning districts, they do not supersede them either in fact or in practice.”

Id.

Here, the trial court found the MEO District to be an appropriate use of

the overlay district concept. The MEO District succeeded in creating specific and

targeted provisions allowing for limited UNGD in sparsely populated areas without

being overly burdensome or conflicting with the expectations of property owners in

the Resource District. Thus, the trial court rejected Protect PT’s claims that the MEO

District disturbs the reasonable expectations of property owners in the Resource

District.

23

8. ERA; Constitutionality

In its final substantive argument before the trial court, Protect PT

asserted that the Township failed to fulfill its fiduciary obligation to protect its

residents’ environmental rights under Article I, Section 27 of the Pennsylvania

Constitution, known as the ERA, which provides:

The people have a right to clean air, pure water, and to the

preservation of the natural, scenic, historic and esthetic values of

the environment. Pennsylvania’s public natural resources are the

common property of all the people, including generations yet to

come. As trustee of these resources, the Commonwealth shall

conserve and maintain them for the benefit of all the people.

PA. CONST. art. I, §27.

The trial court observed that Protect PT’s constitutional challenge

under the ERA largely mirrored its substantive due process argument. Protect PT

cited our Supreme Court’s decision in Pennsylvania Environmental Defense

Foundation v. Commonwealth (PEDF), 161 A.3d 911 (Pa. 2017), for the proposition

that “the Commonwealth has a duty to prevent the degradation, diminution, and

depletion of our public natural resources, whether these harms might result from

direct state action or from the actions of private parties.” Id. at 933.

In rejecting Protect PT’s argument, the trial court reasoned that the

Township took into account the ERA’s mandate. Pursuant to Section 190-641(D) of

the Zoning Ordinance, the Township placed the burden on every UNGD developer to

demonstrate that drill site operations will not violate Township’s citizens’ rights to

clean air and clean water through the reports of qualified environmental individuals.

24

These reports must state that the proposed drilling will not negatively impact ERA

rights.

Overall, the trial court noted, the Zoning Ordinance offers Township

citizens more protections with regard to UNGD than many municipalities throughout

the county and the Commonwealth. The trial court reasoned that to find the Zoning

Ordinance in violation of the ERA would directly bring into question the

constitutional compliance of every municipality in the Commonwealth which

chooses to not enact zoning regulations, or which chooses to enact some less

stringent regulation of oil and gas activity.

9. Frederick

The trial court found this Court’s decision in Frederick particularly

relevant to the present case. In Frederick, an en banc panel of this Court affirmed a

decision of a zoning hearing board upholding UNGD, as a permitted use by right, in

all of the township’s zoning districts. In early 2015, the township’s zoning hearing

board conducted a hearing on a validity challenge raising substantive due process and

ERA-based challenges similar to those raised by Protect PT in the present case. The

zoning hearing board found oil and gas development to be consistent with rural and

agricultural uses. Thus, the zoning hearing board rejected the objectors’ ERA and

substantive due process challenges. Notably, the zoning hearing board accepted and

relied upon the opinions provided by Professor Pifer, which largely track the opinions

he provided in the present case.

25

Here, the trial court focused on this Court’s unequivocal holdings in

Frederick that the township zoning ordinance did not violate either the objectors’

substantive due process rights or their rights under the ERA. Ultimately, the trial court

determined that it would be contrary to current precedent to conclude the Zoning

Ordinance, a more stringent ordinance than the zoning ordinance in Frederick, violates

either substantive due process or the ERA.

For these reasons, the trial court held that the Zoning Ordinance does

not violate the substantive due process rights of the Township’s residents or their

rights under the ERA. Protect PT appeals.9

III. Discussion

A. Pre-Production Phases of UNGD; Heavy Industrial Activity

1. Contentions

a. Consideration of Pre-Production Phases of UNGD

Protect PT first contends the trial court erred or abused its discretion in

failing to consider all phases of developing an UNGD well pad prior to the

production phase in analyzing the validity of the Zoning Ordinance even though the

drilling and completion phases are ongoing indefinitely. Therefore, Protect PT

further asserts the trial court erred or abused its discretion in failing to find that

UNGD is a heavy industrial activity associated with impacts on neighboring

residents similar to other heavy industrial activities including air pollution, water

pollution, traffic congestion, noise, light and threats to public safety.

9

Where, as here, the trial court takes additional evidence, our review is limited to

determining whether the trial court abused its discretion or erred as a matter of law. Larock v. Bd.

of Supervisors of Sugarloaf Twp., 961 A.2d 916 (Pa. Cmwlth. 2008).

26

Protect PT argues that all phases of development or construction prior

to the final production phase should be taken into account in analyzing the Zoning

Ordinance. Protect PT asserts that the most impactful phases of development,

drilling and completion may be repeated many times during the life of a well pad. The

average number of wells on a well pad is five. However, Protect PT claims there are

many pads in the U.S. that have 20 or more wells. Therefore, Protect PT maintains

that the excavation and construction, drilling and fracking/completion phases are as

much a part of the use of the land as the final production phase.

In support of its position, Protect PT asserts that courts have

traditionally evaluated the drilling and fracking phases of UNGD as part of any

applicable zoning analysis. In Gorsline II, the Supreme Court stated a proposed well

pad is a purely industrial use of the type discouraged in the township’s residential-

agricultural district. In Robinson II, the Supreme Court, in ruling part of the Oil and

Gas Act unconstitutional, noted the myriad of impacts from several different phases

of UNGD. In particular, the Supreme Court noted that insofar as the Oil and Gas Act

permitted fracking operations in every zoning district throughout the Commonwealth,

fracking operations expose otherwise protected areas to environmental and

habitability costs including “air, water, and soil pollution; persistent noise, lighting

and heavy vehicle traffic; and the building of facilities incongruous with the

surrounding landscape.” Robinson II, 83 A.3d at 979. The Supreme Court further

noted that “the exploitation of the Marcellus Shale Formation will produce a

detrimental effect on the environment, on the people, their children, and future

generations, and potentially on the public purse, perhaps rivaling the environmental

effects of coal extraction.” Id. at 976.

27

Protect PT also cites Section 603(b)(2) of the MPC, which states that

zoning ordinances may permit, prohibit, regulate, restrict and determine “[s]ize,

height, bulk, location, erection, construction, repair, maintenance, alteration, razing,

removal and use of structures.” 53 P.S. §10603(b)(2). Thus, Protect PT asserts the

MPC itself contemplated consideration of gas wells, tanks, drill rigs and other

equipment on a well pad associated with the drilling and completion process.

Protect PT then summarizes a description offered by its expert, Dr.

Ingraffea, of the various activities and impacts occurring during various phases of

exploration, excavation and construction, drilling, fracking (completion), leading to

the production phase. The drilling and fracking phases are particularly harmful,

involving the use of heavy equipment, including drilling rigs, which operate 24 hours

per day/7days per week and use large volumes of water mixed with chemicals and

drilling mud. During the fracking/completion phase, which is extremely dirty, a well

is stimulated, or brought into production, by injecting a massive amount of water

mixed with chemicals (fracturing fluid) down a well bore to hydraulically fracture

the rock in order to widen natural joints making it easier for the hydrocarbons to

flow back up the well.

Moreover, Protect PT claims that 20% of the fracturing fluid injected

into a well flows back up the well and is treated as residual waste. This waste is

transported by truck, requiring hundreds or thousands of trips. As discussed above,

the drilling and fracking phases may be repeated over and over again, depending on

geology and the operator’s leasing agreements. Consequently, Protect PT argues

that the trial court erred and abused its discretion in concluding that the drilling and

28

fracking phases are mere construction phases that should not be taken into account

in analyzing the Zoning Ordinance in a validity challenge.

b. Heavy Industrial Activity; Weight of the Expert Evidence

Protect PT next contends the trial court erred or abused its discretion by

failing to find UNGD is a heavy industrial activity that causes significant adverse

impacts to air and water quality, community development, human-induced

seismicity, and climate change, including animal health. Protect PT notes that the

trial court declined to adopt the opinions of its experts, Dr. Ingraffea and Dr. Ketyer,

who testified regarding the adverse impacts to human health caused by UNGD.

Rather, the trial court credited the testimony of Huntley’s expert, Dr. Long, who

opined that exposure to air pollutants from UNGD is not a public health concern.

Nevertheless, Protect PT argues that the weight of the evidence

introduced at trial suggests that UNGD produces harmful impacts on the health of

persons living in proximity to UNGD. Protect PT cites Dr. Ketyer’s testimony that

UNGD generates toxic air pollution and increases stressors that impact health such

as odors, noise, bright lights, and heavy truck traffic. Public health studies show that

people living in proximity to shale development report adverse health effects

including respiratory symptoms, increased fatigue, severe headaches, depression,

dizziness, nausea, memory problems, skin irritation and sleep disturbances.

Protect PT further asserts many of the studies Huntley’s witness, Dr.

Long, relied upon suffered from significant deficiencies or simply do not support his

conclusions. Conversely, Protect PT’s witness, Dr. Ketyer, pointed to a study where

29

researchers found that chemicals associated with oil and gas development pose

serious health risks to women and their babies during pregnancy. Rather than

weighing Dr. Ketyer’s testimony against the conclusory statements of Dr. Long,

Protect PT asserts the trial court improperly chose to dismiss Dr. Ketyer’s testimony

in its entirety.

c. Township Residents’ Testimony

Protect PT also contends the trial court failed to consider the testimony

of Township residents who are directly affected by UNGD. Although UNGD only

recently began in the Township, Protect PT received noise complaints regarding the

Poseidon well. Tracey Mason, who lives less than a mile from the Quest well pad,

testified that drilling noise and light from the site greatly impacted her townhouse

and prevented her from sleeping. Mason provided a video that depicted flaring at

the Quest well site. She recalled that this process sounded like a jet airplane over

her house. Mason also testified regarding a spill of mercaptan, a foul-smelling

chemical compound added to natural gas to detect leaks, at the Quest well site.

Danielle LeJeune, another Township resident and Protect PT member,

also testified regarding her first-hand experience with UNGD. LeJeune, who

frequently drove by the Quest well site during the drilling and fracking phases, noted

the well site was brightly lit during drilling and very noisy. LeJeune testified that

two well pads have been proposed for a site located very close to her home. LeJeune

further testified that she and her family are looking to move out of the area to avoid

the risks to their health and safety.

30

In light of this testimony, Protect PT argues the trial court, in

determining UNGD is not a heavy industrial activity, abused its discretion by failing

to weigh or consider the direct experience of Township residents.

d. Expert Land Use Planning Testimony

In addition, Protect PT contends the trial court erred in failing to find

UNGD is a heavy industrial activity because the only expert land use testimony

presented at the hearing characterized UNGD as heavy industrial land use. Protect

PT’s expert, Dr. Daniels, cited an article from the Journal of the American Planning

Association defining hydraulic fracturing as a heavy industrial land use. Dr. Daniels

testified that UNGD is a heavy industrial use.

Protect PT further asserts Justice Baer’s concurring opinion in

Robinson II supports Dr. Daniels’ testimony that UNGD is an industrial land use

generally incompatible with other non-industrial uses. It involves the “blasting of

rock and other material, noise from the running of diesel engines, sometimes nonstop

for days, traffic from construction vehicles, tankers, and other heavy-duty machinery,

the storage of hazardous materials, constant bright lighting at night, and the potential

for life- and property-threatening explosions and gas well blowouts.” See Robinson

II, 83 A.3d at 1005 (Baer, J., concurring).

Therefore, Protect PT argues that the trial court’s failure to credit Dr.

Daniels’ testimony that UNGD is a heavy industrial activity, constitutes an error of

law and an abuse of discretion.

31

2. Analysis

To begin, we recognize that the trial court, as the fact-finder in this case,

is the ultimate judge of credibility and resolves all conflicts in the evidence.

Frederick. As the fact-finder, the trial court may reject even uncontradicted

testimony if it finds that testimony lacking in credibility. Id.

Here, the trial court rejected the testimony of Protect PT’s experts, Dr.

Ingraffea, Dr. Ketyer and Dr. Daniels, and the lay testimony of Township residents

that UNGD is a heavy industrial activity inconsistent with the MEO District’s

underlying Resource District. Rather, the trial court adopted the opinion of

Huntley’s expert, Professor Pifer, who testified that a producing UNGD well pad is

compatible with the purpose of the Resource District.

Further, we recognized in Frederick that zoning regulates the use of the

land, not the particulars of development and construction. In other words, a

municipality may use its zoning powers to regulate where UNGD takes place.

Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 964 A.2d

855 (Pa. 2009); Frederick. However, a municipality does not regulate how UNGD

is done. Frederick. Therefore, complaints regarding harm to the environment from

UNGD should have been addressed to the state agencies issuing permits for UNGD

operations. Id.

Nevertheless, we question whether impacts from pre-production stages

of UNGD can never be taken into consideration in a substantive validity challenge.

The better jurisprudential articulation is that impacts from any stage can be taken

into consideration by the fact-finder in a substantive validity analysis. However, no

32

reversible error is evident here. This is because evidence of stage duration 10 and of

modest impacts during long-term production provides a sufficient factual basis upon

which to distinguish the temporary industrial-type impacts during the much shorter

pre-production stages from the incremental impacts during the majority lifespan of

an UNGD well. There is no abuse of discretion in affording less weight to evidence

of temporary impacts. See Delaware Riverkeeper (Middlesex) (in substantive

validity challenge, fact-finder rejected the testimony of Dr. Daniels, which focused

on a temporary period of industrial development, in favor of expert testimony

considering entire lifespan of UNGD well pad and post-reclamation period).

More generally, the facts in the present case are analogous to those in

Frederick and Delaware Riverkeeper (Middlesex), where this Court rejected similar

contentions that an UNGD well could only be permitted in an industrial zoning

district. In Frederick, the objectors presented similar testimony that UNGD would

have a negative impact on the surrounding community. The fact-finder rejected the

objectors’ testimony for several reasons, including their lack of knowledge of

UNGD operations. In Frederick, we noted that the objectors, without any supporting

evidence, presumed that UNGD, by its very nature, adversely affects property rights.

However, this Court observed that the evidence showed that existing UNGD wells

advanced, rather than impeded, the ability of farmers to continue to use their land

for farming. In other words, oil and gas development and agricultural uses have a

history of safe and beneficial co-existence in rural communities.

10

The trial court noted Dr. Ingraffea’s testimony that the construction phase typically lasts

for about 30 days, the drilling phase typically lasts about 2-3 weeks, and the completion phase

typically lasts about 10 days. Dr. Ingraffea also admitted that the final production phase constitutes

the majority lifespan of a UNGD well. See Tr. Ct., slip op., 11/9/18, at 5.

33

Also, in Frederick, we upheld the fact-finder’s determination that the

zoning ordinance, which allowed UNGD in every zoning district, did not violate

substantive due process. We reached this conclusion because UNGD must satisfy

exacting standards designed to protect neighboring property owners from cognizable

injury. In short, we reasoned that the objectors’ expressed concerns consisted of

speculation of possible harms. Such speculation is insufficient to show the proposed

UNGD well would be detrimental to the health, safety and welfare of the

neighborhood.

Similarly here, the fact-finding trial court held that the Township, in

determining that UNGD is a proper use in the MEO District overlaying sparsely

populated areas of the Resource District, engaged in lengthy proceedings before

enacting the Zoning Ordinance. The question of what best serves the public interest

is primarily a question for the appropriate legislative body in a given situation.

Plaxton. During these proceedings, the Township carefully and appropriately

balanced its obligation to provide for property owners’ development and

management of minerals with its obligation to protect the health, safety and welfare

of neighboring Resource District property owners. Based on our review of the

record, we conclude the trial court’s determinations are supported by substantial

evidence.

B. Comprehensive Plan; Appropriate Use of Overlay District

1. Contentions

a. Comprehensive Plan; Residents’ Expectations

34

Protect PT argues that UNGD is a new activity in the Township that is

incompatible with the Township’s Comprehensive Plan and residential land use

expectations in the Resource District. It asserts the Commissioners failed to consider

the Comprehensive Plan when enacting the MEO District, resulting in UNGD, a

heavy industrial activity, being permitted across a majority of the Township. Rather

than using available land use planning tools and data to determine the best location

for an industrial activity UNGD and tailoring the Zoning Ordinance to local

conditions, Protect PT contends the Township enacted a blanket overlay district that

permits UNGD to spread out across the Township. Thus, Protect PT maintains the

Township’s decision to adopt the Zoning Ordinance was devoid of rational planning

principles and therefore arbitrary. As such, Protect PT assigns error in the trial

court’s conclusion that the MEO District fits within the Comprehensive Plan’s goals.

In support of its position, Protect PT developed a map identifying six

schools, five daycare facilities, various recreational facilities, and a community pool

in proximity to existing and proposed UNGD well pads. Protect PT also mapped

public water lines and private water supplies in the Township in relation to the MEO

District and proposed UNGD well pads. Protect PT maintains that the maps reflect

that the MEO District encourages haphazard UNGD in the Resource District.

Protect PT’s expert witness, Dr. Daniels, described the Resource

District as essentially a rural residential district where agriculture is a permitted use.

Protect PT argues the Comprehensive Plan envisions an evolving vibrant suburban

community. Dr. Daniels testified the Township’s population density of 600 people

per square mile is indicative of a suburban community. The Comprehensive Plan

35

provides property owners a sense of how the community is expected to develop over

the next 20 years.

In contrast, the Industrial Commerce District provides a place where both

heavy and light industrial activities are really a preferred use. Protect PT therefore

argues that the MEO District is introducing UNGD, a heavy industrial use, into an

area designated for development in the Comprehensive Plan as an evolving suburban

community.

Protect PT further argues that in the context of evaluating substantive

validity claims related to exclusionary zoning, the reasonable development of

minerals is only one of several factors listed in Section 603 of the MPC that should

be considered. See Larock v. Bd. of Supervisors of Sugarloaf Twp., 866 A.2d 1208

(Pa. Cmwlth. 2005). Applying an equivalent standard in this case, Protect PT

asserts, requires that a court consider how the Zoning Ordinance balances UNGD

with the various other factors listed in Section 603, including protection of prime

agricultural land, and protection of natural and historic resources. Protect PT argues

the trial court’s failure to balance these factors in tailoring the MEO District to local

conditions is a substantial factor weighing in favor of invalidating the Zoning

Ordinance.

Because the MEO District allows UNGD in the non-industrial

Resource District, Protect PT asserts the MEO District clearly conflicts with the

Township’s community development objectives and Comprehensive Plan. Thus,

36

Protect PT contends the Zoning Ordinance is arbitrary and unconstitutional in that it

establishes an irrational zoning framework.

In sum, Protect PT argues that the purpose of zoning is to separate

conflicting land uses, to protect the property value and to protect public health, safety

and welfare. To fulfill that purpose, a municipality must identify uses that will cause

conflicts, often based on factors such as noise, dust, odors, light and pollution. The

municipality must then design an ordinance to minimize those conflicts.

Thus, Protect PT asserts the MEO District is an arbitrary zoning district

which permits the haphazard development of UNGD, which will lead to land use

conflicts with Township residents in the Resource District. As such, Protect PT

argues the trial court erred and abused its discretion in concluding that UNGD has a

long history in the Township, thereby making it compatible with residential land

uses and the Comprehensive Plan.

b. MEO District Lacks Specific and Targeted Provisions

Protect PT next contends the MEO District is invalid because it does

not have specific and targeted provisions tailored to local conditions. Rather, it

authorizes industrial development over about 55% of the Township. The MEO

authorizes deep mining, surface mining, sand, gravel and limestone excavation,

UNGD, conventional drilling and the storage of explosives and other hazardous or

toxic materials.

37

The MEO District inexplicably overlays the Township’s most intensive

land use district, the IC District and its least intensive land use district, the Resource

District. Given the Township’s growing suburban population, Protect PT argues it

is clear the MEO District was not tailored to local conditions. Rather, it blankets the

IC and Resource Districts without any consideration for where it would be

appropriate to locate UNGD. The purpose of an overlay district is to create specific

provisions that conserve natural resources or realize development objectives without

unduly disturbing the expectations created by the existing zoning ordinance. Protect

PT contends that the IC District is the only location where UNGD is allowed in a

manner sufficiently protective of a citizen’s substantive due process rights.

In other words, the MEO District creates an industrial zone out of the

Resource District, significantly changing the expectations of property owners in the

Resource District. Citing Main Street and Robinson II, Protect PT argues the MEO’s

disruption of expectations created by the underlying Resource District violates both

substantive due process principles and the standards for an appropriate overlay

district.

Protect PT argues the purpose of the Resource District is to provide

land for continuing agricultural operations, resource management, timber

harvesting, outdoor recreation, and low density single-family residential

development. Ord. §190-402(A). The testimony at the hearing established that

UNGD is a heavy industrial activity incompatible with the main purposes identified

in the Resource District.

38

The MEO District is arbitrary because its purpose is to provide for the

extraction of minerals where the population density is low and significant

development is not projected for the near future. See Ord. §190-407(A). Protect PT

claims the Township, which is a growing residential community, failed to establish

where that growth is taking place, or where it is expected to occur in the future.

Because the MEO District allows for UNGD to occur in the Resource District

without any consideration of the long-term impact on neighboring residential

properties, it is arbitrary. Therefore, Protect PT urges, the trial court’s conclusions

to the contrary must be reversed.

2. Analysis

First and foremost, in accord with Section 303(c) of the MPC, no action

by the governing body of a municipality shall be invalid or be subject to challenge

on appeal on the basis that such action is inconsistent with, or fails to comply with

the provisions of a comprehensive plan. 53 P.S. §10303(c); Springwood Dev.

Partners, L.P. v. Bd. of Supervisors of N. Cornwall Twp., 985 A.2d 298 (Pa.

Cmwlth. 2009) (failure to conform to requirements of comprehensive plan does not

invalidate a zoning amendment); Todrin v. Bd. of Supervisors of Charlestown Twp.,

367 A.2d 332 (Pa. Cmwlth. 1976) (holding that governing body is not even bound

by formally adopted comprehensive plan).

Further, the trial court credited Huntley’s expert, Professor Pifer, that

oil and gas development has more than a 100-year history in Westmoreland County.

See Frederick (fact-finder accepted similar testimony by Professor Pifer). In

addition, as discussed above, previous Township zoning ordinances offered much

39

less regulation of oil and gas development than does the current Zoning Ordinance.

In particular, the 1995 zoning ordinance authorized oil and gas drilling throughout

the Township as a special exception with very few other requirements. In contrast,

the Zoning Ordinance limits oil and gas drilling to the MEO District.

Notably, the Resource District primarily addresses resource

management, not residential development. In addition, the MEO District does not

blanket the Resource 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, 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. Main St. 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 II, our Supreme Court determined 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,

40

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 ZHB’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.

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

Resource District. Although low-density residential properties are permitted in the

Resource District, resource development uses are also permitted. Protect PT failed

to present any credible evidence indicating UNGD would be harmful to the health,

safety or welfare of properties neighboring UNGD operations.

Finally, our independent review of the 2005 Comprehensive Plan

reveals concrete ways in which the process and result of the Zoning Ordinance are

fundamentally compatible with the Plan. First, the Comprehensive Plan

recommends more flexibility in regulating land use and land development. R.R. at

989a (addressing current and future land use). Among identified flexible zoning

techniques is the adoption of additional overlay zones. Id. Second, the

Comprehensive Plan observes that future land use planning will be more likely to

succeed if based upon broad consensus and citizen vision. Id. The extensive

development process for the Zoning Ordinance is relevant in this regard. Third, the

41

Comprehensive Plan specifically calls for consideration of a “Rural Resource Area”

providing for extractive industries, among other uses. R.R. at 995a (addressing

implementation goals to limit the impact of development on the natural

environment). Notably, the Comprehensive Plan contains a map of then-existing

gas and oil well locations. R.R. at 1046a.

Considering the foregoing, we reject Protect PT’s contention that the

MEO District is invalid because it is inconsistent with the Comprehensive Plan or

Resource District residents’ reasonable expectations. The Resource District clearly

provides for resource development. We also reject Protect PT’s erroneous

contention that the MEO District is invalid because it does not have specific and

targeted provisions tailored to local conditions. To the contrary, the MEO District

excludes densely populated areas. Further, Analyst Gehringer, Huntley’s expert,

credibly testified that the Zoning Ordinance imposes 600-foot setbacks from

protected structures and 200-foot setbacks from property lines, thereby limiting

UNGD to less than 10% of the Township. See N.T., 6/5/18, at 868-70, R.R. at 728a.

C. ERA

1. Contentions

Protect PT next contends the Zoning Ordinance and the trial court’s

decision fail to protect Township residents’ right to use, enjoy and protect their

property under Article I, Sections 1 and 2 of the Pennsylvania Constitution, 11 and

their right to a healthy environment under the ERA.

11

Pursuant to Article I, Sections 1 and 2 of the Pennsylvania Constitution, all citizens of

the Commonwealth enjoy the right to use, enjoy and protect their property. PA. CONST. art. I, §§1,

2.

42

Citing PEDF and Robinson II, Protect PT argues that under the

language of the ERA, all government actors are trustees of the public’s natural

resources and are required to conserve and maintain those resources for the benefit

of all people. Protect PT also cites The Delaware Riverkeeper Network v.

Department of Environmental Protection & R.E. Gas Development, LLC (EHB Dkt.

Nos. 2014-142-B, 2015-157-B, filed May 11, 2018), 2018 WL 2294492, a decision

of the Pennsylvania Environmental Hearing Board (EHB). In that case, the EHB

articulated a two-step process for determining compliance with the ERA. The first

step involves an evaluation of whether the environmental impacts of the action were

considered and whether there was a correct determination that the action would not

result in unreasonable degradation, diminution, depletion or deterioration of the

environment. The second step involves an evaluation of whether the government

entity fulfilled its responsibilities as a trustee under the ERA by acting with

prudence, loyalty, and impartiality with respect to the beneficiaries of the natural

resources impacted by the action.

Protect PT asserts that although the Township held many meetings prior

to enacting the Zoning Ordinance, there is no evidence in the record that the

Township actually identified or evaluated the environmental impacts of its decision-

making in creating the MEO District. Thus, Protect PT argues the Township, when

it enacted the MEO District, failed to consider the environmental impacts of its

decision.

Further, rather than acting with prudence, loyalty and impartiality on

behalf of its citizens, Protect PT asserts the Township succumbed to the pressure of

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the very outside interests looking to conduct UNGD in the Township. In particular,

Protect PT alleges the Township settled a $300 million lawsuit brought against it by

Intervenor Apex by imposing industry-preferred standards in the Zoning Ordinance.

Protect PT thus maintains the Township’s enactment of the MEO District violates

the ERA and will result in unreasonable environmental degradation in the Township.

2. Analysis

Section 190-641(D) of the Zoning Ordinance, specifically relating to a

UNGD applicant’s obligation to comply with the ERA, provides:

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 [Article I, Section

27] of the Pennsylvania Constitution (the Environmental

Rights Amendment). The applicant shall have the burden

to demonstrate that its operations will not affect the health,

safety and welfare of the citizens of Penn Township or any

other potentially affected land owner. 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.

Ord. §190-641(D); R.R. at 918a (emphasis added).

As reflected by Section 190-641(D) of the Zoning Ordinance, the

Township did consider its residents’ rights under the ERA. Contrary to Protect PT’s

contention that the Township’s settlement imposed industry-preferred standards in

the Zoning Ordinance, a realistic assessment of the consent judgment indicates that

44

the settlement did not contravene the Zoning Ordinance. Rather, it actually provides

for additional controls on UNGD operations. See R.R. at 1265a-91a.

In Frederick, we reviewed a similar situation elsewhere in

Westmoreland County where the objectors argued that the zoning ordinance violated

the ERA by placing UNGD, an alleged industrial use, in agricultural areas. The

objectors maintained that the UNGD well would degrade the local environment in

which people live, work and recreate, including the public natural resources on

which people rely.

The objectors in Frederick advanced arguments nearly identical to

those raised here. In rejecting these arguments, the fact-finder in Frederick relied on

Professor Pifer’s testimony that oil and gas development safely coexisted with

agricultural uses in the rural areas of the township. We noted in Frederick that the

ERA does not call for a stagnant landscape or a derailment of economic

development.

By failing to show with credible evidence that UNGD would adversely

affect neighboring property owners in the Resource District, Protect PT failed to

establish that the Zoning Ordinance “unreasonably impairs” the rights of Township

residents under the ERA. See Frederick, 196 A.3d at 697 (emphasis added).

Further, the plurality in Robinson II stated that the ERA does not

impose express duties on municipalities to enact specific affirmative measures to

promote clean air, pure water and the preservation of different values of our

45

environment. As we recognized in Frederick, municipalities lack the authority to

replicate the environmental oversight that the General Assembly conferred upon

DEP and other state agencies. The preemption language in Section 3302 of the Oil

and Gas Act, left intact after Robinson II, specifically states that a municipality lacks

the authority to regulate how gas wells operate. 58 Pa. C.S. §3302; Frederick.

Rather, a zoning ordinance must balance the public interests of the community with

the due process rights of private property owners. Frederick.

Additionally, the Zoning Ordinance is more stringent than the zoning

ordinance in Frederick. See Tr. Ct., slip op. at 25-27. In particular, Section 190-

641(D) of the Zoning Ordinance mandates that an UNGD application shall include

reports from qualified environmental individuals attesting that the proposed

development will not negatively impact the Township residents’ ERA rights. Ord.

§190-641(D). Consequently, our decision in Frederick is equally applicable here.

In sum, the trial court did not err or abuse its discretion by failing to

find that the Zoning Ordinance violated Township residents’ rights under the ERA.

Frederick; Delaware Riverkeeper (Middlesex).

D. Substantive Due Process

1. Contentions

With respect to its substantive validity challenge, Protect PT argues it

met its burden of showing that the Zoning Ordinance is arbitrary and unreasonable

and bears no substantial relationship to promoting the public health, safety and

welfare. Relying on Dr. Daniels’ testimony, Protect PT asserts it established that the

46

location of the proposed well pads in the MEO District overlay of the Resource

District is scattered and haphazard. Protect PT further claims the Township failed to

identify specific and targeted areas where UNGD would be compatible with similar

uses and failed to balance neighboring property owners’ reasonable expectations and

constitutional rights.

Citing Gorsline II, Protect PT contends that in this case, the Township

failed to tailor the Zoning Ordinance to local conditions in the Resource District and

instead utilized a blanket overlay district that effectively permits UNGD throughout a

majority of the Township’s residential areas without any consideration for the adverse

impacts that this heavy industrial activity would have on neighboring property

owners. Protect PT argues that placing heavy industrial uses in clearly non-industrial

areas violates residents’ substantive due process rights and rights under the ERA.

2. Analysis

As we noted in Frederick, a substantive due process analysis requires a

balancing of the public interest served by the zoning ordinance against the

confiscatory or exclusionary impact of regulation on individual rights. Here, Protect

PT essentially relies upon expert testimony rejected by the fact-finder. As discussed

above, the trial court fully explained its reasons for its determination that UNGD

will not adversely affect the health, safety or welfare of neighboring property owners

in the MEO District. As a result, Protect PT failed to satisfy its heavy evidentiary

burden of proof in a substantive validity challenge. Frederick.

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Similar to the fact-finder in Frederick, the trial court here recognized

that natural gas extraction operations were historically commonplace in the

Township. Conventional wells are a principal permitted use in the Resource District.

See R.R. at 835a. UNGD wells are permitted as a special exception only in the MEO

District and are subject to seven pages of various restrictions. See Ord. §§190-407

(R.R. at 850a-53a), 190-641 (R.R. at 915a-18a).

In short, the Zoning Ordinance properly balances the rights of citizens

to benefit economically from UNGD, which helps them sustain their agricultural-

based livelihoods, with the interests of the general public by adopting an extensive

regulatory scheme far beyond that imposed on any other use. The Zoning Ordinance

addresses issues such as minimum lot size, required yards, setbacks, wastewater,

health and safety, access routes, erosion and sediment control, security, site

reclamation, road use, and compliance with the ERA. Also, because the Zoning

Ordinance regulates UNGD as a special exception, the Township can impose

additional conditions.

As discussed above, Protect PT failed to establish that UNGD posed

any substantial actual risk to the environment or health of Township residents. To

the contrary, the trial court accepted testimony from Huntley’s expert, Professor

Pifer, that UNGD is compatible with the rural and agricultural uses in the Resource

District. Consequently, the trial court properly determined that the Zoning

Ordinance, and in particular, the MEO District, which permits UNGD in specific

and targeted areas of the Resource District that are rural and not densely populated,

did not violate substantive due process. Frederick.

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IV. Conclusion

Discerning no error, abuse of discretion or constitutional violations in

the trial court’s opinion and order, we affirm.

_________________________________

ROBERT SIMPSON, Senior Judge

49

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

Appellant :

:

v. : No. 1632 C.D. 2018

:

Penn Township Zoning Hearing Board :

:

v. :

:

Olympus Energy LLC, :

Apex Energy (PA), LLC, and :

The Township of Penn :

ORDER

AND NOW, this 14th day of November 2019, for the reasons stated in

the foregoing opinion, the order of the Court of Common Pleas of Westmoreland

County is AFFIRMED.

_________________________________

ROBERT SIMPSON, Senior Judge