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

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

:

Appellant :

:

v. : No. 575 C.D. 2019

: Argued: February 13, 2020

Penn Township Zoning Hearing :

Board and Olympus Energy LLC :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: July 6, 2020

Protect PT (Objector) appeals the order of the Westmoreland County

Court of Common Pleas (trial court) denying its appeal, and upholding the decision

of the Penn Township Zoning Hearing Board (Board), that granted the special

exception application of Olympus Energy LLC (Applicant)1 to develop oil and gas

operations (unconventional gas wells)2 at Applicant’s Gaia Well Pad in Penn

1

At the time of application, Applicant was Huntley & Huntley Energy Exploration, LLC

(Huntley). However, by October 15, 2019 order, this Court granted Applicant’s application to

amend the caption of this appeal because Huntley changed its name to Olympus Energy LLC

effective September 25, 2019.

2

Section 190-202 of the Penn Township Zoning Ordinance Number 912-2016 (Zoning

Ordinance) defines “Oil and Gas Operations (unconventional gas wells),” in pertinent part, as

including “[w]ater and other fluid storage or impoundment areas used exclusively for . . . gas

operations.” Section 190-202 also defines “Wastewater (Unconventional Well)” as “[t]he post-

drilling liquids or fluids used in the fracking or extraction process.”

Township (Township), Westmoreland County, subject to a number of conditions.

We affirm.

In 2017, Applicant filed an application for a special exception to

develop unconventional gas wells on its 53.5-acre property located at 2002

Denmark Manor Road in the Township. The parcel is located in a Mineral

Extraction Overlay (MEO) Zoning District3 of the Township’s Rural Resource

Section 190-407(A) of the Township’s Zoning Ordinance defines the purpose of the

3

MEO Zoning District as follows:

The purpose of the MEO [] District is to provide areas for the

extraction of minerals as defined by the Commonwealth, where the

population density is low and significant development is not

projected for the near future. Uses permitted in the MEO District

shall comply with the provisions of §190-635, Performance

Standards, and §190-641, [Oil and Gas Operations

(Unconventional Gas Wells),] as well as with the “Surface Mining

Conservation and Reclamation Act,” [Act of May 31, 1945, P.L.

1198, as amended, 52 P.S. §§1396.1-1396.31,] the “Noncoal

Surface Mining Conservation and Reclamation Act,” [Act of

December 19, 1984, P.L. 1093, as amended, 52 P.S. §§3301-

3326,] the “Oil and Gas Act,” [58 Pa. C.S. §§3201–3274], and the

“Bituminous Mine Subsidence and Land Conservation Act,” [Act

of April 27, 1966, P.L. 31, as amended, 52 P.S. §§1406.1-

1406.21].

Additionally, Section 190-202 defines “Special Exception” as “[a] use which is subject to

approval by the [Board] when there is a specific provision for such special exception made in

this chapter.” Section 190-407(E) specifically provides for “[o]il and natural gas drilling

(unconventional)” as a permitted use by special exception in the MEO Zoning District.

Further, Section 190-407(G)(3), (4), and (9) provides:

G. Development standards: In addition to the applicable

performance standards in §190-635, any permitted . . . special

exception . . . shall be subject to the following:

***

(Footnote continued on next page…)

2

(continued…)

(3) Wastewater: Copies of all required Pennsylvania

[Department of Environmental Protection (DEP)] permits

or permits from the Municipal Authority with jurisdiction

agreeing to accept any effluent produced shall be provided

that cannot be treated on-site[, which] shall not be

permitted to accumulate and shall be disposed of on a

regular basis as required.

***

(4) Hazardous or toxic waste: Hazardous or toxic waste

shall not be permitted to accumulate on any property, and

disposal shall be in compliance with applicable

Commonwealth of Pennsylvania hazardous or toxic waste

handling regulations.

***

(9) Air quality: Air-contaminant emissions shall comply

with all municipal, county, commonwealth and federal

regulations, and all applicable regulations for smoke, ash,

dust, fumes, gases, odors and vapors.

Section 190-641(A), (C)(1), and (D) of the Township’s Zoning Ordinance provides, in

pertinent part:

A. Oil and gas operations, which include the drilling of . . . natural

gas wells in the MEO [] District, . . . shall be reviewed and

approved by the [Board] as a special exception prior to the

issuance of any required Township permits.

***

C. Where such oil and gas operations are classified as a special

exception . . . the following review procedure and submittal

information shall be provided and development standards met:

(1) An application for a special exception approval for a[]

. . . gas operation which involves a[] . . . natural gas well,

(Footnote continued on next page…)

3

(continued…)

. . . shall be filed with the Director of Community

Development along with the required administrative fee

and such application shall include information as outlined

and processed as follows:

***

(c) Disclose the special exception for which the

application is being made, and show how the

property, as it may be improved, meets the

standards and criteria required for approval.

(d) Upon receipt of such application for special

exception, the Director of Community

Development shall forthwith refer the same to the

[Board]. The application for special exception shall

be processed as per the provisions of [Section 913.2

of] the Pennsylvania Municipalities Planning Code

[(MPC), Act of July 31, 1968, P.L. 805, as

amended, added by the Act of December 21, 1988,

P.L. 1329, 53 P.S. §10913.2,] and §190-906 of this

chapter.

***

(f) The [Board] may authorize a special exception

pursuant to express standards and criteria specified

in this chapter for said uses and may attach such

additional conditions and safeguards as it may deem

necessary where such conditions and safeguards are

not pre-empted by [the Oil and Gas Act] as

determined by Pennsylvania courts.

D. The applicant shall demonstrate that the drill site operations

will not violate the citizens of Penn Township’s right to clean air

and pure water as set forth in Art[icle] 1, Sec[tion] 27, of the

Pennsylvania Constitution[.] The applicant shall have the burden

to demonstrate that its operations will not affect the health, safety

or welfare of the citizens of Penn Township or any other

(Footnote continued on next page…)

4

(RR) Zoning District.4 The following facts were found by the Board following a

number of hearings on the application for a special exception.

The development will cover approximately 20.7 acres of the parcel

and the Gaia Well Pad will be 350 feet by 500 feet. The Gaia Well Pad will be

located on the northern portion in accordance with the setback requirements. The

well site will be reached by taking U.S. Route 22 south on Harrison City-Export

Road for 1.8 miles, then left on Denmark Manor Road to an 820-foot access road

from Denmark Manor Road. Harrison City-Export Road is a Westmoreland

County-maintained road for the portion located in the Township and is maintained

by the Municipality of Murrysville for a short distance from the Township line to

U.S. Route 22. Denmark Manor Road is maintained by the Pennsylvania

Department of Transportation (PennDOT).

Applicant intends to drill 7 unconventional gas wells at the site in an

initial 6- to 10-month development period. Construction operations will occur

during daylight hours with heavy equipment remaining on site during that period.

(continued…)

potentially affected landowner. The application submitted shall

include reports from qualified environmental individuals attesting

that the proposed location will not negatively impact the Township

residents’ environmental rights; and will include air modelling and

hydrogeological studies as potential pathways that a spill or release

of fluid may follow.

4

Section 190-402 of the Township’s Zoning Ordinance defines the purpose of the RR

Zoning District as, “to provide land for continuing agricultural operations, resource management,

timber harvesting, outdoor recreation, public and private conservation areas, low-density single-

family residential, and compatible support uses.”

5

Approximately 7 to 10 truckloads of stone will be brought to the site per hour to

construct the access road and the pad over a 7- to 10-day period.

The drilling phase will take 20 to 25 days per well over a 3- to 5-

month period of time for 24 hours a day. The initial drilling phase will involve a

short-term, several-day increase in heavy traffic volume, which will peak at

approximately 10 vehicles per hour. Once the wells are open, the fracking segment

of the completion phase will cause a second increase in heavy vehicle traffic to

bring the necessary equipment to the site. This will involve sand truck traffic at 25

vehicles per day for the 7- to 10-day fracking period for each well. Applicant

intends to introduce a dust control protocol to dispense fracking sand that will

involve the creation of vacuums to minimize the accidental release of sand or dust

generated by the process. Truck trips to the site will reduce significantly during

the actual drilling operations, primarily involving vehicles transporting well

casings and cement trucks used for the casing installation.

The chemicals stored onsite will include drilling mud, friction

reducer, and the chemicals used in the fracking process, which will be protected

with secondary containment in addition to their primary containers. The chemicals

will be removed from the site once the drilling and completion phases are over.

Wastewater, also known as “flowback” or “produced” water, will be

collected during the completion phase in a 500-barrel “lay-down” tank. No

wastewater treatment will occur on site and it will be removed by trucks to be

reused at other well sites or transported to an approved treatment facility.

Produced water removal will require 15 to 20 trucks per day for approximately 30

days after which the volume required for disposal will decrease to a few trips per

day and then to a few per month during the production life of the site.

6

Applicant submitted Air and Hydrogeologic Reports prepared by

Morris Knowles, Civil Engineering Consultants, and Trinity Consulting, regarding

accidental releases of fluids and accompanying emissions with respect to the

constitutional requirements referenced in Section 190-641(D) of the Township’s

Zoning Ordinance governing the Township citizens’ right to clean air and water.

See Reproduced Record (R.R.) at 563a-637a, 638a-665a. The Board accepted

Nathan Garlitz of Morris Knowles and Thomas Walsh of Trinity Consulting as

experts. Garlitz and Walsh completed the Reports and each study presumed a

catastrophic failure of containment on the site, which is a rare event, and indicated

the pathways such a release would follow. Their studies found that no reasonable

groundwater pathways for a spill or release of fluid at the site would generate a risk

of toxic exposure to the surrounding area including groundwater sources.

Applicant also offered the testimony of Jennifer Hoffman, its Vice

President of Health, Safety and Regulatory Procedures. She testified that the

flowback water and produced water are regulated liquids that DEP classifies as

“Residual Waste” as provided in the Solid Waste Management Act (SWMA).5 She

stated that these fluids are not considered to be “hazardous wastes” as defined in

Section 103 of the SWMA,6 and are consistent with brine or saltwater. Likewise,

5

Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003.

6

35 P.S. §6018.103. Section 103 of the SWMA defines “Residual Waste,” in relevant

part, as “[a]ny garbage, refuse, other discarded material or other waste including solid, liquid,

semisolid, or contained gaseous materials resulting from industrial, mining and agricultural

operations.” In turn, Section 103 defines “Hazardous Waste,” in pertinent part, as:

Any . . . discarded material including solid, liquid, semisolid or

contained gaseous material resulting from . . . commercial,

industrial, [or] mining . . . operations, . . . which because of its

(Footnote continued on next page…)

7

Walsh, of Trinity Consulting, stated that a release of wastewater would act no

differently than a similar volume of freshwater.

Applicant also offered the testimony of Ian Donaldson (Donaldson) of

Trinity Consulting, who was accepted by the Board as an expert in air dispersion

modeling. He conducted air dispersion modeling using the United States

Environmental Protection Agency (EPA) AERSCREEN model, a single-source

model using a wide array of meteorological data and downwind receptors. He

determined that the evaporative emission rates associated with the several onsite

liquids were less than any short-term benchmarks indicating a hazard to public

health, safety, or welfare.

Finally, Applicant offered the testimony and report of Dr. Christopher

Long (Long), a Board Diplomate toxicologist with doctoral degrees in Chemistry,

Environmental Engineering, and Environmental Health. He was accepted by the

Board as an expert in these fields, and testified that he routinely prepares analyses

and renders opinions regarding human health risks in his position with Gradient, an

environmental consulting firm. He testified regarding the potential health effects

from unconventional gas wells, basing his opinion on peer-approved studies,

(continued…)

quantity, concentration, or physical [or] chemical ...

characteristics may:

(1) cause or significantly contribute to an increase in

mortality or an increase in morbidity in either an individual

or the total population; or

(2) pose a substantial present or potential hazard to human

health or the environment when improperly treated, stored,

transported, disposed of or otherwise managed.

8

empirical government datasets, government reports, and commissioned studies

regarding air quality impacts in the Marcellus Shale region, including air

monitoring data collected near oil and gas drilling operations in the region. See

R.R. at 808a-921a. He testified, within a reasonable degree of scientific certainty,

that the data compiled in a large body of monitoring studies concerning air quality

and the potential for harm from unconventional gas well drilling does not support

claims that public health concerns exist through normal and typical operations.

Objector presented the testimony of Dr. Walter Tsou (Tsou), an M.D.

with a bachelor’s degree in Chemistry and a master’s degree in Public Health, who

is the Executive Director of Physicians for Social Responsibility, as an expert in

public health issues. See R.R. at 501a-522a. Tsou was the author of a resolution

adopted by the Pennsylvania Medical Society urging a moratorium on

unconventional gas and oil development in the Commonwealth. He expressed

general concerns regarding the lack of baseline information that would assist in

determining the public health impact generated by unconventional gas drilling

based on his review of surveys analyzing information that was primarily self-

reported by individuals near unconventional gas well sites.

Objector also presented the testimony of Dr. Lawrence Irr, who has a

doctoral degree in Chemistry, and has completed post-doctoral work in engineering

and was accepted by the Board as an expert in Chemistry and the safe handling of

chemical substances. He expressed concerns regarding the manner of storage of

hazardous chemicals at the site, the lack of information regarding the materials

used to construct storage vessels and the containment protocol for the Gaia Well

Pad site. See R.R. at 494a-500a.

9

Several residents also testified, outlining their concerns regarding

truck traffic, hazards to well water, the lighting and vibrational impacts, and other

concerns. Other residents testified in favor of the special exception application to

undertake unconventional gas drilling at the Gaia Well Pad, and in general

throughout the Township.

On April 12, 2018, the Board issued a decision disposing of the

application for a special exception to develop unconventional gas wells at the Gaia

Well Pad. See R.R. at 471a-492a. Contrary to Objector’s assertion, the Board

concluded that “[t]he accumulation and temporary storage of wastewater, which

includes flowback and produced water, at the site throughout all phases of

development, including the long-term production phase, does not violate the

provisions of Section 190-635 [of the Zoning Ordinance] precluding the

unenclosed storage of flammable, hazardous or toxic fluids of more than 500

gallons.” Id. at 488a-489a. The Board also concluded, “Applicant, in its

application and through evidence submitted at the time of hearing . . . has satisfied

the conditions of Article VI, §190-641(B),” and “has provided an adequate

description of the property location, proposed use of the site and met other

requirements as set forth in Article VI, §190-641(C).” Id. at 489a.

Further, the Board concluded:

The normal operations associated with the proposed use,

while presumed consistent with health, safety and

welfare, also create issues of excessive lighting, noise

and some air quality issues, especially during the period

of 24-hour periods of operation that have been

demonstrated to interfere with the general welfare of the

surrounding residents, requiring the imposition of certain

conditions.

10

R.R. at 489a. Nevertheless, the Board concluded, “Applicant has produced

evidence to show that its operation, subject to certain conditions, will satisfy the

requirements of Article VI, §190-641(D) of the Ordinance and Article I, Section 27

of the Pennsylvania Constitution,” and that Objector “failed to establish sufficient,

credible evidence that if [] Applicant has been found to have met the Ordinance

requirements and the application is granted, with conditions, that the said use

would create a high probability that an adverse, abnormal or detrimental effect will

occur to public health, safety and welfare.” Id.

Accordingly, the Board issued the decision granting the application

for a special exception subject to a number of conditions. R.R. at 490a-492a.7

7

Specifically, the Board imposed the following conditions:

1. The Applicant shall submit its [DEP-]approved Radiation

Action Monitoring Plan to the appropriate Township department

prior to the issuance of any permit.

2. The Applicant shall provide all third-party permits to the

Township prior to the construction and drilling of the well site.

3. The Applicant shall construct and maintain standard physical

barrier[s], commonly referred to as “sound walls” on all sides of

the Pad which will provide for the absorption and mitigation of

sound, light and airborne materials, if present, emanating from the

drilling, completion and onsite pipeline connection of

[unconventional] gas wells. Such barriers will be assembled and

constructed on the Pad following construction and vegetation of

the Pad, and will remain in place during the mobilization, drilling,

completion and demobilization activities taking place on the Pad.

Following commencement of gas production, the barriers may be

removed by the Applicant. In the event that the Applicant engages

in the separate and non-consecutive drilling, completion or turn-to-

sales activity, it may disassemble the barriers between each

activity, but must reassemble the barriers prior to the

commencement of each activity.

(Footnote continued on next page…)

11

(continued…)

4. The Applicant shall participate in and pay for third-party noise

monitoring during the construction, drilling and completion stages

of development. Thirty (30) days prior to the commencement of

construction of the Gaia [Well] Pad, the Applicant and the

Township shall select an industry-accepted noise specialist from a

list of five qualified industry experts developed by the Applicant.

The selected noise specialist shall take baseline measurements for

the Gaia [Well] Pad. During construction, drilling and completion

of the Pad, the noise specialist shall conduct active monitoring at

the property line nearest the Applicant’s limit of disturbance once

every three (3) days. The Township may contact the noise

specialist and direct the noise specialist as to the specific time for

the active monitoring in each three-day interval. The results of the

monitoring shall be available upon the Township’s request. The

noise specialist shall notify the Applicant and the Township if the

monitoring shows results attributable to the Applicant’s oil and gas

operations above any applicable performance standard. The

parties agree that the temporary movement of vehicle to and from

the site shall not be included in the noise monitoring. The

Applicant shall also maintain a log of on-site monitoring

conducted for [the Occupational Safety and Health Administration

(OSHA) of the federal Department of Labor] purposes and shall

notify the Township of any reading beyond the sound barriers

showing the Applicant’s operations above 90 decibels for a period

in excess of two (2) hours.

5. To the extent permitted by Pennsylvania laws and regulations as

defined by the DEP, the Applicant shall plant and vegetate the

Gaia [Well] Pad in consultation with the Township to provide for

the visual enhancement of the Pad in concert with surrounding

vegetation.

6. The Applicant shall establish and maintain a 24-hour

emergency hotline telephone number to be used by the Township

representatives, employees, contractors and the volunteer fire

companies to directly contact employees and contractors of the

Applicant in the event of an emergency.

(Footnote continued on next page…)

12

(continued…)

7. The Applicant shall participate with or agree to the monitoring

of air quality emissions and particulate content during drilling and

completion activities. The Applicant will agree to pay for third-

party monitoring and testing from a mutually acceptable expert

with experience in this industry. The expert shall take baseline

readings at the Gaia [Well] Pad. The expert shall engage in active

monitoring twice a week on the Pad. Testing locations shall be

established on relevant parcel or leasehold boundaries but, in all

events, the only location that will be used for air monitoring

located within the Applicant’s established limit of disturbance shall

be situated at the access road entrance. No other air monitoring

equipment will be located within the Applicant’s limit of

disturbance including, but not limited to, the Pad or associated

stormwater or erosion and sedimentation control facilities. The

Applicant will notify the Township if any monitoring for OSHA

emissions requirements at the site exceed OSHA standards. In the

event that a DEP[-]reportable spill or any spill that is reported to

the DEP by the Applicant occurs at the Pad site, the Township may

require immediate air monitoring until the spill is abated or

remediated. Other than in emergency situations, the Applicant will

not flare or incinerate natural gas at the Poseidon Pad during

completion or flowback operations and the Applicant will comply

with all state and federal regulations applicable to emissions

relating to its operations on the Pad. This condition shall

conclusively establish compliance with §190-407(G)(9) and also

show compliance with §190-641(D).

8. In conjunction with the aforementioned physical barriers, the

Applicant shall mitigate direction or deflection of light sources off

the Gaia [Well] Pad, including b[ut] not limited to [the] use of low-

glare lighting sources, light shields and low vertical profile lighting

equipment. Upon request by the Township, the Applicant will

meet with the Township to take steps to further mitigate special

instances of complaints regarding the Applicant’s light sources. In

all circumstances, the Applicant will have the right to take any and

all steps to ensure that work surfaces will be proper[ly] lit to

provide for a safe workspace for its workers and contractors.

(Footnote continued on next page…)

13

Objector appealed the Board’s decision to the trial court, which denied the appeal

and affirmed the Board’s decision without taking additional evidence. Objector

then filed the instant appeal of the trial court’s order.8

I.

As a preliminary matter, this Court has recently stated the following in

a similar case involving the same Objector appealing the same Board’s grant of the

special exception applications of another company to develop a number of other

unconventional gas well sites in the Township:

A special exception is neither special nor an

exception, but rather a use expressly contemplated that

evidences a legislative decision that the particular type of

use is consistent with the zoning plan and presumptively

consistent with the health, safety and welfare of the

(continued…)

9. The Applicant shall take all necessary steps to ensure that no

trucks or construction vehicles will be staged or queued on any

public roads within the Township. The Applicant will consult with

the local School District to coordinate and minimize truck traffic

during regularly scheduled school bus stops. The Applicant will

follow the requirements of the Diesel-Powered Motor Vehicle

Idling Act[ (Vehicle Idling Act), Act of October 9, 2008, P.L.

1511, 35 P.S. §§4601-4610,] to minimize unnecessary idling on

the Pad. The Applicant will inspect and ensure that all vehicles

utilized on the Gaia [Well] Pad will maintain all required

certifications and permits applicable to such vehicles.

R.R. at 490a-492a.

8

Because the parties presented no additional evidence to the trial court, our review is

limited to determining whether the Board committed an abuse of discretion or an error of law.

Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 n.1 (Pa. Cmwlth.

2005) (citation omitted).

14

community. Further, as [the author of a treatise]

explains:

Zoning boards often hear protestants argue that an

applicant for a special exception should be

required to observe the law as set forth in the

zoning ordinance. That argument is appropriate in

an application for a variance, but not in a case

involving a special exception. The applicant for an

exception is following the zoning ordinance. His

application is one envisioned by the ordinance and,

if the standards established by the ordinance are

met, his use is one permitted by its express terms.

An applicant for a special exception has both the

duty of presenting evidence and the burden of persuading

the [Board] that its proposed use satisfies the objective

requirements of the zoning ordinance for the grant of the

special exception. Once the applicant meets its burdens

of proof and persuasion, a presumption arises that the

proposed use is consistent with the health, safety and

general welfare of the community. The burden then

normally shifts to the objectors to present evidence and

persuade the [Board] that the proposed use will have a

generally detrimental effect on health, safety and welfare.

The evidence presented by the objectors must show, to a

high degree of probability, that the use will generate

adverse impacts not normally generated by this type of

use and that these impacts will pose a substantial threat to

the health and safety of the community.

Further, this Court [has] outlined the rules

regarding the “initial evidence presentation duty (duty)

and persuasion burden (burden) in special exception

cases” as follows:

Specific requirements, e.g., categorical definition

of the special exception as a use type or other

matter, and objective standards governing such

matter as a special exception and generally:

The applicant has both the duty and the burden.

15

General detrimental effect, e.g., to the health,

safety and welfare of the neighborhood:

Objectors have both the duty and the burden; the

ordinance terms can place the burden on the

applicant but cannot shift the duty.

General policy concern, e.g., as to harmony with

the spirit, intent or purpose of the ordinance:

Objectors have both the duty and the burden; the

ordinance terms cannot place the burden on the

applicant or shift the duty to the applicant.

[We have] further explained the requirement that

an applicant bears the burden of both persuasion and the

initial duty to present evidence “to show that the proposal

complies with the ‘terms of the ordinance’ which

expressly govern such a grant.” This rule means the

applicant must bring the proposal within the specific

requirements expressed in the ordinance for the use (or

area, bulk, parking or other approval) sought as a special

exception. Those specific requirements, standards or

“conditions” can be classified as follows:

1. The kind of use (or area, bulk, parking or other

approval)—i.e., the threshold definition of what is

authorized as a special exception;

2. Specific requirements or standards applicable to

the special exception—e.g., special setbacks, size

limitations; and

3. Specific requirements applicable to such kind

of use even when not a special exception—e.g.,

setback limits or size maximums or parking

requirements applicable to that type of use

whenever allowed, as a permitted use or otherwise.

16

Protect PT v. Penn Township Zoning Hearing Board and Apex Energy (PA), LLC

(Pa. Cmwlth., Nos. 39-42 C.D. 2018, filed November 8, 2018) (Apex), slip op. at

7-9 (citations omitted and emphasis in original).9

II.

On appeal, Objector first claims that the Board erred in determining

that development of the Gaia Well Pad would not create a high probability of

adverse, abnormal, or detrimental effects on public health, safety, and welfare

based on related increased traffic and air emissions during its development and

operation. Specifically, Objector contends that in its decision, the Board

concluded that operations at the Gaia Well Pad will “create issues of excessive

lighting, noise and some air quality issues, especially during the period of 24-hour

[] operation[s], [which] have been demonstrated to interfere with the general

welfare of the surrounding residents.” R.R. at 489a. Nevertheless, the Board

granted the special exception application even though Applicant’s evidence

demonstrates the alarming number of vehicle trips that will be associated with the

construction and operation of the Gaia Well Pad.

The evidence shows that vehicle traffic for the Gaia and Metis Well

Pads will use the same truck route along Harrison City-Export Road. R.R. at 146a.

Over the period of development (475 days), the total traffic includes 3,295 Class 3

vehicle trips, 11,091 Class 6 and 7 vehicle trips, and 6,445 Class 10 vehicle trips.

Id. at 540a. This heavy traffic will return every time Applicant returns to the site

9

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

§69.414(a) (“Parties may also cite an unreported panel decision of this court issued after January

15, 2008, for its persuasive value, but not as binding precedent.”).

17

to drill new wells. Thus, the increase in traffic associated with the proposed use

bears a substantial relation to the health and safety of the community and there is a

high degree of probability that this traffic will affect the health and safety of the

community. Because Objector pointed to evidence of traffic counts and hazardous

road conditions, it met its burden of proving that the proposed use will generate

traffic that threatens health and safety. One of its members testified regarding the

unsafe road conditions. See R.R. at 31a-32a. Objector asserts that the Board

capriciously disregarded this evidence in concluding otherwise.

Additionally, Objector claims that as a result of the close proximity of

the well pad to residences, less than one kilometer, the community will suffer

detrimental health effects due to air emissions emanating from the Gaia Well Pad.

Dr. Tsou testified that its construction and operation will result in air emissions and

significantly increased exposure to volatile organic compounds such as ozone and

particulate matter that is not usually experienced in the Township. R.R. at 320a-

321a. He testified that all individuals and businesses within this proximity will be

adversely impacted by the development. Id. at 370a. He also testified that children

are much more prone to the effects of environmental toxins. Id. at 268a-269a.

Applicant’s expert, Dr. Long, did not attempt to estimate, quantify, or model the

emissions from the sources at the Gaia Well Pad and admitted that he could not say

which pollutants would be emitted at the site or at what rate or duration they may

be emitted. Notes of Testimony (N.T.) 2/8/18 at 134:23-135:22. In contrast, Dr.

Tsou presented specific evidence regarding the potential negative public impacts of

air emissions from the Gaia Well Pad operations that the Board did not address and

again capriciously disregarded.

However, as we have previously stated:

18

[T]his Court may not substitute its interpretation of the

evidence for that of the [B]oard. It is the function of [the

Board] to weigh the evidence before it. The [B]oard is

the sole judge of the credibility of witnesses and the

weight afforded their testimony. Assuming the record

contains substantial evidence, we are bound by the

[B]oard’s findings that result from resolutions of

credibility and conflicting testimony rather than a

capricious disregard of evidence.

[The Board] is free to reject even uncontradicted

testimony it finds lacking in credibility, including

testimony offered by an expert witness. It does not abuse

its discretion by choosing to believe the opinion of one

expert over that offered by another.

Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa.

Cmwlth. 2005) (citations omitted).

As in Apex, in this case the Board found that Objector has “failed to

establish sufficient, credible evidence that if . . . the application is granted, with

conditions, that the said use would create a high probability that an adverse,

abnormal or detrimental effect will occur to public health.” R.R. at 489a. The

Board “did not credit Objector’s expert or lay testimony regarding the purported

adverse impacts occasioned by Applicant’s proposed uses, and this Court cannot

revisit the [Board’s] determinations as to credibility and evidentiary weight on

appeal.” Apex, slip op. at 27-28 (citation omitted).

As noted above, with respect to the increased traffic, the Board found

as fact: (1) “the proposed traffic route proceeds from U.S. Route 22 south on

Harrison City-Export Road 1.8 miles then left on to Denmark Manor Road until

[the] site access road is reached;” (2) “Harrison-City Export Road is county

maintained for the portion located in [the Township] and maintained by the

Municipality of Murrysville for the short distance from the Township line to U.S.

19

Route 22;” (3) “Denmark Manor Road is a state maintained road;” (4) “Applicant

will enter into any required access maintenance agreements, including appropriate

bonding as may be required, with the Township and PennDOT;” (5) “[t]he initial

portion of the drilling phase will involve the transport and erection of drilling

equipment requiring a short-term, several-day increase in heavy truck traffic which

will peak at approximately 10 vehicles per hour;” (6) “[t]ruck trips for the site will

be reduced significantly during the actual drilling operations, primarily vehicles

carrying well casing and cement trucks used for the casing installation;” (7)

“Applicant will maintain a maintenance program for the Gaia [Well Pad] access

route including the watering of roadways to minimize dust production,

coordination of vehicle movement with the school district and prevent the stacking

or queuing of vehicles on public roadways;” (8) “Applicant intends to hold

monthly meetings with vendors and subcontractors to insure compliance with the

vehicle plans and determine logistics or implementation, including routes and

timing;” and (9) “Special meetings with these groups will be called on an as

needed basis and quarterly reviews will take place with individual vendors.” R.R.

at 473a, 474a-475a, 477a-478a.10

10

Objector does not argue that the Board’s findings are not supported by substantial

evidence; rather, Objector points to the evidence submitted in opposition to the application and

asserts that the Board capriciously disregarded it. However, as indicated above, the uncontested

Board findings are binding on appeal to this Court. Taliaferro, 873 A.2d at 811. See also

Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 688 (Pa. Cmwlth.

2018), appeal denied, 208 A.3d 462 (Pa. 2019) (“Objectors do not assert that the [] Board’s

findings of fact are not supported by substantial evidence; they do not challenge its factual

findings on any ground. They are binding on this Court.”); Apex, slip op. at 27-28 (“The [Board]

did not credit Objector’s expert or lay testimony regarding the purported adverse impacts

occasioned by Applicant’s proposed uses, and this Court cannot revisit the [Board’s]

determinations as to credibility and evidentiary weight on appeal.”) (citation omitted.) Further:

(Footnote continued on next page…)

20

Moreover, as outlined above, the Board imposed the following

condition in its approval:

[]Applicant shall take all necessary steps to ensure that

no trucks or construction vehicles will be staged or

queued on any public roads within the Township.

[]Applicant will consult with the local School District to

coordinate and minimize truck traffic during regularly

scheduled school bus stops. []Applicant will follow the

requirements of the [Vehicle Idling Act] to minimize

unnecessary idling on the Pad. []Applicant will inspect

and ensure that all vehicles utilized on the Gaia [Well]

Pad will maintain all required certifications and permits

applicable to such vehicles.

R.R. at 492a.

The evidence that Objector relies on relating to the Gaia Well Pad

development is not a basis upon which to deny the special exception application.

See Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 689

(Pa. Cmwlth. 2018), appeal denied, 208 A.3d 462 (Pa. 2019) (“[Z]oning ‘regulates

the use of land and not the particulars of development and construction.’”)

(emphasis in original and citations omitted). Further, with respect to the purported

traffic during site operations, as we explained in Apex, “‘[a]n increase in traffic is

(continued…)

[A]pplication of the capricious disregard standard here does not

warrant reversal. The Board’s decision plainly demonstrates it did

not deliberately ignore the testimony of Objectors’ experts as

evidenced by its express summation of their testimony. Rather, the

Board considered their testimony, and chose to reject it. The

express consideration and rejection of this evidence, by its

definition, is not capricious disregard.

Taliafarro, 873 A.2d at 815-16 (citations omitted).

21

generally not grounds for denial . . . unless there is a high probability that the

proposed use will generate traffic not normally generated by that type of use and

that the abnormal traffic threatens safety,’” and “[h]ere, Objector did not present

sufficient evidence to meet its burden on this issue.” Id., slip op. at 28, 29

(emphasis in original and citations omitted). In sum, Objector failed to present

sufficient credible evidence to the Board that the proposed use while the Gaia Well

Pad is in operation “will generate traffic not normally generated by that type of

use” and, as a result, the Board did not err in granting the application on this basis.

Id.

With respect to the purported air quality issues, the Board summarized

Donaldson’s testimony as follows:

[]Donaldson and his firm conducted air dispersion

modeling using the [EPA] AERSCREEN model, a

single[-]source model that uses a wide array of

meteorological data and downwind receptors and other

data sources to determine that the evaporative emission

rates associated with the several different onsite liquids

[are] less tha[n] any short-term benchmarks that would

indicate a hazard to public health, safety or welfare.

R.R. at 479a-480a.

In addition, the Board summarized Long’s testimony as follows:

[]Long testified, within a reasonable degree of scientific

certainty, that based upon a large body of monitoring

studies concerning air quality and potential for harm

from the normal and typical operations required for

unconventional gas well drilling, that the data compiled

from these studies and reports does not support claims

that public health concerns exist through the normal and

typical operations.

R.R. at 481a.

22

Moreover, as outlined above, the Board imposed the following

condition in its approval of the application:

[]Applicant shall participate with or agree to the

monitoring of air quality emissions and particulate

content during drilling and completion activities.

[]Applicant will agree to pay for third-party monitoring

and testing from a mutually acceptable expert with

experience in this industry. The expert shall take

baseline readings at the Gaia [Well] Pad. The expert

shall engage in active monitoring twice a week on the

Pad. . . . []Applicant will notify the Township if any

monitoring for OSHA emissions requirements at the site

exceed OSHA standards. In the event that a DEP[-

]reportable spill or any spill that is reported to the DEP

by []Applicant occurs at the Pad site, the Township may

require immediate air monitoring until the spill is abated

or remediated. . . . Applicant will comply with all state

and federal regulations applicable to emissions relating to

its operations on the Pad. This condition shall

conclusively establish compliance with §190-407(G)(9)

and also show compliance with §190-641(D).

R.R. at 491a. Further, the Board required Applicant to “establish and maintain a

24-hour emergency hotline telephone number to be used by the Township

representatives, employees, contractors and the volunteer fire companies to directly

contact . . . Applicant in the event of an emergency.” Id.

Again, as we explained in Apex:

Unlike in those cases where the fact-finders credited

evidence that the proposed uses would adversely impact

the public health, safety, and welfare, the [Board] here

found that Objector did not prove that Applicant’s

proposed uses would create a high probability of an

adverse, abnormal or detrimental effect to public health,

safety and welfare.

Further, as explained above, the [Board’s]

supported determinations reveal that Applicant satisfied

23

Section 190-641(D) of the zoning ordinance (relating to

the health, safety and welfare of the Township’s citizens

or any other potentially affected landowner). And, as

stated above, in granting the . . . requested special

exception[], the [Board] attached several detailed

conditions aimed at mitigating Objector’s concerns over

potential adverse effects, such as noise, lighting, air

quality, and truck traffic, associated with Applicant’s

proposed use[]. The [Board] also attached a condition

that requires Applicant to establish and maintain a 24-

hour emergency hotline telephone number to allow for

reporting of any emergencies that may occur.

Id., slip op. at 29-30 (emphasis in original and citations omitted). In sum, Objector

failed to present sufficient credible evidence to the Board that the proposed use

while the Gaia Well Pad is in operation will generate air emissions creating a high

probability of adverse, abnormal, or detrimental effects on the public health, safety

and welfare not associated with the approved use and, as a result, the Board did not

err in granting the application on this basis. Id.

III.

Objector next claims that the Board erred in determining that

development of the Gaia Well Pad would not create a high probability of adverse,

abnormal, or detrimental effects on public health, safety, and welfare or change the

character of the community based on the cumulative impacts of its development in

close proximity and time to other well pads in the community. Objector presented

a map to visually track all of the unconventional wells and their proximity to

schools, day care centers, and recreational facilities, which shows that the Gaia

Well Pad is in the heart of a largely residential area. See R.R. at 8a-9a, 11a, 493a.

Objector also contends that Applicant failed to present an explicit

schedule for development of the well at the site so the Board could not sufficiently

24

evaluate the aggregate impact of multiple developers constructing and using

multiple wells in the Township. Tsou testified that “the cumulative effect of the

increasing number of well pads is only going to compound the health impact from

each of the well pads.” R.R. at 270a. The community will be detrimentally

impacted by the changing character of the neighborhood from residential use to

heavy industrial use. A witness testified that Applicant may develop 15 to 18 wells

at the site of the Gaia Well Pad, that there will be multiple trips over time to

develop them, and that Applicant hopes that the well will stay in production for 30

to 50 years. Id. at 147a, 149a, 156a. Two of Objector’s members testified as to the

residential nature of their community and the changes that would result from

Applicant’s well activities. N.T. 11/9/17 at 36:20-37:5; R.R. at 23a. Thus,

Objector contends, it presented evidence regarding how the proposed development

of the Gaia Well Pad would significantly alter the neighborhood’s character and

the detrimental effects that would ensue thereby meeting its burden of proof, and

asserts that the Board again capriciously disregarded this evidence.

However, Objector bases its argument in this regard on evidence that,

as outlined above, the Board specifically rejected as not credible, and ignores the

Board’s determination that “Object[or] ha[s] failed to establish sufficient, credible

evidence that if [] Applicant has been found to have met the Ordinance

requirements and the application is granted, with conditions, that the said use

would create a high probability that an adverse, abnormal or detrimental effect will

occur to public health, safety and welfare.” R.R. at 489a.11 In rejecting this claim

below, the trial court explained:

11

Again, the uncontested Board findings are binding on appeal to this Court, and the

Board’s credibility determination regarding Objector’s evidence does not constitute a capricious

(Footnote continued on next page…)

25

Looking to [Objector’s] assertion that the

community will be detrimentally affected by the

cumulative effects of multiple unconventional natural gas

wells in close proximity, [Objector] points to a map

submitted at the hearing which plots out all

unconventional natural gas wells planned in [the]

Township, along with points of interest such as schools

and homes of [its] members. [Objector] points out that

Dr. Tsou testified that “the cumulative effect of the

increasing number of well pads is only going to

compound the health impact from each of the well pads.”

[R.R. at 270a]. [Objector] initially notes that the Gaia

well pad is located in what it considers a highly

residential area.

[Applicant] points out, and this Court agrees, that

[Objector] failed to provide any non-speculative evidence

that the proposed well pads will produce adverse impacts

“not normally generated by this type of use.” As such,

[Objector] has failed to meet the burden of proof required

to show a detriment caused by the proximity of various

unconventional natural gas wells, as is required. No

capricious disregard of any evidence regarding proximity

of wells is apparent here.

Trial Court 4/9/19 Opinion at 11.12 We discern no trial court error in this regard.

(continued…)

disregard of the evidence that was presented by the parties. Frederick, 196 A.3d at 688;

Taliaferro, 873 A.2d at 815-16; Apex, slip op. at 27-28.

12

Like the trial court, we rejected a similar argument that Objector raised in Apex and

distinguished the authority Objector cites herein stating, in relevant part:

[T]he [Board’s] findings that Objector did not prove that

Applicant’s proposed uses would adversely impact public health,

safety, and welfare, contrast this case with Hogan, Lepore &

Hogan v. Pequea Township Zoning Board, 638 A.2d 364 (Pa.

Cmwlth. 1994), disapproved of on other grounds by Wistuk v.

Lower Mt. Bethel Township Zoning Hearing Board, 925 A.2d 768

(Pa. 2007), and Blair v. Board of Adjustment of Borough of

(Footnote continued on next page…)

26

In Marr Development Mifflinville, LLC v. Mifflin Township Zoning

Hearing Board, 166 A.3d 479 (Pa. Cmwlth. 2017), the owner of a 5.85-acre parcel

of property in Mifflin Township’s Suburban Residential (RS) Zoning District

applied for a special exception to subdivide the parcel into 12 lots to construct

duplexes on 11 of the lots with an existing single-family dwelling on the remaining

lot. There were 17 existing detached single-family dwelling units on the property,

so the proposed development would double the number of dwelling units on the

parcel. Under the relevant zoning ordinance, the purpose of the RS Zoning District

was “‘to promote and encourage a suitable and safe environment for family life by

providing only for single[-]family residences and residential support land uses.’”

Id. at 481. The ordinance provided for single-family detached dwellings as a

permitted use while attached dwellings were limited to two dwelling units and

were only permitted by special exception. Ultimately, the zoning hearing board

determined that the objectors had met their burden of proving that “‘the proposed

use presents a project which is not consistent or compatible with the existing and

adjoining land uses that were and have been developed for single family residential

structures and not duplex units.’” Id. at 482. On appeal, the common pleas court

affirmed the board’s decision.

(continued…)

Hatboro, 169 A.2d 49 (Pa. 1961), cited by Objector. Unlike in

those cases where the fact-finders credited evidence that the

proposed uses would adversely impact the public health, safety,

and welfare, the [Board] here found that Objector did not prove

that Applicant’s proposed uses would create a high probability of

an adverse, abnormal or detrimental effect to public health, safety,

and welfare.

Id., slip op. at 29 (emphasis in original).

27

On further appeal, this Court reversed stating, in pertinent part:

The Board also claimed the project would double

the number of existing units in a one-block area and,

therefore, is “more intense.” This conclusion improperly

concentrates solely on the impact on the immediate one-

block area, without regard for the “community at large”

or any of the other factors expressed in [the relevant

section] of the Ordinance. It also does not address that

across the street from the proposed project are an

operating mill, a fire hall, a cemetery, and a 20–unit

apartment complex. Moreover, the Board’s contention

that the proposed use is “more intense” is undercut by the

fact that the 12 proposed lots all meet the setback and lot

dimension requirements. In a[nother] case involving the

same Board, we reversed its denial of a special exception

for a mobile home court. Like here, we said the force of

the Board’s and objectors’ density concerns was

“weakened” by the fact that the application complied

with the Ordinance’s requirements.

The Ordinance is silent as to density. Similarly,

the Ordinance places no limit on the number of duplexes

permitted. Yet, the Board is attempting to write in a

density provision to bar this project from moving

forward. While the Board claims the proposed use is

inconsistent with the character of the neighborhood,

duplexes, a form of single-family residences, are

permitted by special exception in the RS District.

“[T]here is a ‘presumption’ that the use is a

‘conditionally permitted use,’ legislatively allowed if the

[objective] standards are met.” The objectors failed to

present sufficient evidence to rebut this presumption.

Id. at 484-85 (citations and footnotes omitted).

As outlined above, Section 190-402 of the Township’s Zoning

Ordinance defines the purpose of the RR Zoning District, “to provide land for

continuing agricultural operations, resource management, timber harvesting,

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

28

residential, and compatible support uses.” (Emphasis added.) In turn, Section

190-407(A) of the Township’s Zoning Ordinance states, “The purpose of the MEO

[] District is to provide areas for the extraction of minerals as defined by the

Commonwealth, where the population density is low and significant development

is not projected for the near future.” (Emphasis added.)

In Protect PT v. Penn Township Zoning Hearing Board, 220 A.3d

1174, 1195-96 (Pa. Cmwlth. 2019), in which we rejected Objector’s substantive

validity challenge to the relevant provisions of the Township’s Zoning Ordinance,

we stated the following, in relevant part:

Notably, the [RR] District primarily addresses

resource management, not residential development. In

addition, the MEO District does not blanket the [RR]

District. Rather, the MEO District specifically excludes

areas of dense residential and commercial activity. The

MEO District also increases some of the state-imposed

setbacks. As a result of the increased setbacks,

[unconventional gas drilling (UNGD)] is limited to less

than 10% of the Township.

The purpose of an overlay district is to craft

provisions that conserve natural resources or realize

development objectives without unduly disturbing the

expectations created by the existing zoning district. The

MEO District meets those objectives by providing for the

preservation of agricultural operations and development

opportunities for owners of mineral resources. In

creating the MEO District, the Township properly

balanced the rights of property owners seeking to

develop their mineral resources with the need to ensure

the health, safety and welfare of neighboring community

members and property owners.

Furthermore, in the MEO District, 77.9% of the

land is under oil and gas leases. In Gorsline [v. Board of

Supervisors of Fairfield Township, 186 A.3d 375, 389

(Pa. 2018) (Gorsline II)], our Supreme Court determined

29

that municipalities are empowered to permit oil and gas

development in any or all of its zoning districts. The

Gorsline II Court, rather than relegating UNGD solely to

industrial zones, instead noted that its decision should not

be misconstrued as an indication that UNGD was

fundamentally incompatible with agricultural and

residential zoning districts. As discussed above, in

Frederick we upheld the [board’s] determination that the

objectors failed to prove that the zoning ordinance

(which allowed UNGD in every zoning district) violated

substantive due process. Regardless of the zoning

district, we observed in Frederick that UNGD must

satisfy exacting standards designed to protect

neighboring property owners from cognizable injury.[13]

13

See Frederick, 196 A.3d at 690 n.20 (“Objectors call oil and gas drilling ‘industrial’

throughout their briefs. Objectors presented no evidence to the Board on what they meant by

‘industrial’ or the significance of that term. . . . Farming uses heavy machinery; in this respect it

also contains components of an ‘industrial use.’”). See also Delaware Riverkeeper Network v.

Middlesex Township Zoning Hearing Board (Pa. Cmwlth., No. 2609 C.D. 2015, filed June 26,

2019), slip op. at 18 n.16, appeal denied, 222 A.3d 385 (Pa. 2019), in which we explained:

The General Assembly has also recognized the compatibility

between agricultural and oil and gas development uses in other

contexts. See Section 14.1(c)(6)(i) of the Agricultural Area

Security Law, Act of June 30, 1981, P.L. 128, as amended, added

by Act of December 14, 1988, P.L. 1202, 3 P.S. §914.1(c)(6)(i)

(“An agricultural conservation easement [purchased by the State

Agricultural Land Preservation Board] shall not prevent . . . [t]he

granting of leases . . . or the issuing of permits . . . for the

exploration, development, storage or removal of . . . oil and gas by

the owner of the subject land or the owner of the underlying . . . oil

and gas or the owner of the rights to develop the underlying . . . oil

and gas, or the development of appurtenant facilities related to . . .

oil or gas development or activities incident to the removal or

development of such minerals.”); Section 6(c.1)(1) of the

Pennsylvania Farmland and Forest Land Assessment Act of 1974,

Act of December 19, 1974, P.L. 973, as amended, 72 P.S.

§5490.6(c.1)(1) (“Land subject to preferential assessment may be

leased or otherwise devoted to the exploration for and removal of

gas and oil, including the extraction of coal bed methane, and the

development of appurtenant facilities, including new roads and

(Footnote continued on next page…)

30

Here, unlike Frederick, UNGD is permitted only

in the MEO District, and only by special exception. As

noted above, the trial court determined that UNGD is

compatible with, and even beneficial to, the rural uses

permitted in the [RR] District. Although low-density

residential properties are permitted in the [RR] District,

resource development uses are also permitted. [Objector]

failed to present any credible evidence indicating UNGD

would be harmful to the health, safety or welfare of

properties neighboring UNGD operations. [(Emphasis in

original and citation omitted).]

In sum, Objector failed to present sufficient credible evidence to rebut

the Board’s conclusion that “Applicant has produced evidence to show that its

operation, subject to certain conditions, will satisfy the requirements of Article VI,

§190-641(D) of the Ordinance and Article I, Section 27 of the Pennsylvania

Constitution.” R.R. at 489a. Because the Board found that the proposed

development meets the objective requirements of the Ordinance based on the

substantial and uncontested evidence, and because Objector did not present

credible evidence rebutting this determination, the Board did not err in rejecting

Objector’s claim that the application for a special exception should be denied

based on the purported cumulative negative impact of the proposed oil and gas

development at the Gaia Well Pad site. Marr Development Mifflinville, LLC.

IV.

Finally, Objector claims that the conditions that the Board imposed in

granting the application do not comport with its mandate under Article I, Section

(continued…)

bridges, pipelines and other buildings or structures, related to

exploration for and removal of gas and oil and the extraction of

coal bed methane.”). (Citation omitted.)

31

27 of the Pennsylvania Constitution14 to prohibit the degradation, diminution, and

depletion of the public natural resources. However, we note that Objector’s

Statement of Questions Involved portion of its appellate brief states:

Did the Board err as a matter of law or abuse its

discretion when it determined that objecting parties failed

to establish sufficient credible evidence that if the

proposed use is granted it would create a high probability

of an adverse, abnormal or detrimental effect to the

public health, safety and welfare.

Appellant’s Brief in Support of Appeal at 4.

Pa. R.A.P. 2111(a)(4) provides, in pertinent part that “[t]he brief of

the appellant . . . shall consist of the following matters, separately and distinctly

entitled and in the following order: . . . Statement of the questions involved.” In

turn, Pa. R.A.P. 2116(a) states, in relevant part:

The statement of the questions involved must state

concisely the issues to be resolved, expressed in the

terms and circumstances of the case but without

unnecessary detail. The statement will be deemed to

include every subsidiary question fairly comprised

therein. No question will be considered unless it is stated

in the statement of questions involved or is fairly

suggested thereby.

As outlined above, Objector did not raise a constitutional challenge to

the Board’s action in this matter in the Statement of Questions Involved portion of

14

Pa. Const. art. I, §27. Article I, Section 27 states:

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

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

the environment. Pennsylvania’s public natural resources are the

common property of all the people, including generations yet to

come. As trustee of these resources, the Commonwealth shall

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

32

its appellate brief. As a result, any claim regarding a purported violation of Article

I, Section 27 of the Pennsylvania Constitution has been waived for purposes of

appeal. Pa. R.A.P. 2116(a).15

Moreover, assuming that Objector has properly preserved this claim

for our review, we specifically rejected the identical argument in Apex stating, in

relevant part:

[]Objector maintains the [Board] did not uphold its

constitutional duty to protect the environmental rights of

the Township’s residents as required by Article I, Section

27 of the Pennsylvania Constitution. In support, it

references our Supreme Court’s decisions in

Pennsylvania Environmental Defense Foundation v.

Commonwealth, 161 A.2d 911 (Pa. 2017) (declaratory

judgment suit brought by environmental advocacy entity,

challenging constitutionality of statutory enactments

relating to funds generated from leasing of state forest

and park lands for oil and gas exploration and

extraction), and Robinson Township v. Commonwealth,

83 A.3d 901 (Pa. 2013) (suit for declaratory and

injunctive relief challenging constitutionality of [Act No.

13 of February 14, 2012, P.L. 87], amending the [Oil and

Gas Act]). Clearly, those cases, which involved

constitutional challenges, are distinguishable in that this

case does not involve a constitutional or substantive

validity challenge. Rather, this case involves

applications for uses permitted by special exception, and

appellate review of the [Board’s] application of the

15

See also Robinson Township v. Commonwealth, 147 A.3d 536, 585 n.60 (Pa. 2016)

(“[B]efore our Court, Citizens did not preserve a discrete claim based on Section 204(a) [of the

Eminent Domain Code, 26 Pa. C.S. §204(a),] in their statement of the questions involved in their

brief, nor pursue it in their argument; hence, we deem the question of the applicability of Section

204(a) waived for purposes of this appeal.”); Commonwealth v. Lynn, 71 A.3d 247 (Pa. 2013)

(“Respondent did not appeal the careless driving conviction to the Superior Court by raising it

. . . in his Statement of Questions Involved in his brief; therefore, the issue was waived and was

not properly before that court. Pa. R.A.P. . . . 2116(a) (no question will be considered unless

stated in statement of questions involved or fairly suggested thereby).”).

33

zoning ordinance’s special exception criteria to the facts

presented.

Moreover, contrary to Objector’s assertions,

Applicant’s proposed unconventional gas well operations

are permitted by special exception in the MEO District,

which evidences a legislative decision that the uses are

consistent with the zoning plan and presumptively

consistent with the health, safety and welfare of the

community. Greth [Development Group, Inc. v. Zoning

Hearing Board of Lower Heidelberg Township, 918 A.2d

181, 188 (Pa. Cmwlth. 2007)]. In light of the fact that

Objector presented no credible evidence of harm,

Objector’s claims are unsupported by the accepted

evidence of record. Further, as explained above, the

[Board] attached several detailed conditions to the grant

of the special exceptions in order to mitigate adverse

effects associated with Applicant’s proposed

unconventional gas drilling uses.

Id., slip op. at 30-31 (emphasis in original).16 As a result, Objector’s claim of a

purported constitutional violation is likewise without merit.

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

16

See also Protect PT, 220 A.3d at 1197-98 (“By failing to show with credible evidence

that UNGD would adversely affect neighboring property owners in the [RR] District, [Objector]

failed to establish that the Zoning Ordinance ‘unreasonably impairs’ the rights of Township

residents under [Article I, Section 27]. See Frederick, 196 A.3d at 697 (emphasis added).”).

34

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

:

Appellant :

:

v. : No. 575 C.D. 2019

:

Penn Township Zoning Hearing :

Board and Olympus Energy LLC :

ORDER

AND NOW, this 6th day of July, 2020, the order of the Westmoreland

County Court of Common Pleas dated April 9, 2019, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

Appellant :

: No. 575 C.D. 2019

v. :

: Argued: February 13, 2020

Penn Township Zoning Hearing :

Board and Olympus Energy LLC :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION

BY JUDGE McCULLOUGH FILED: July 6, 2020

I concur in the result reached by the Majority because faithful

adherence to our prevailing precedent compels it. See generally Protect PT v. Penn

Township Zoning Hearing Board, 220 A.3d 1174 (Pa. Cmwlth. 2019); Frederick v.

Allegheny Township Zoning Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018) (en

banc), appeal denied, 208 A.3d 462 (Pa. 2019). I do so reluctantly, though, based

upon the reasoning that I have previously expressed with regard to the fundamental

issues, underlying premises, and legal conclusions that constitute that prevailing

precedent.

Overall, the oil and gas industry is a longstanding, integral, and

important business to the residents of Pennsylvania. My concern, however, is that

judicial review in matters such as the one presently before the Court has been

severely reduced to a point where this Court functions merely to ascertain whether

a zoning hearing board found the objector’s evidence credible. Here, Protect PT

(Objector) presented both layperson and expert testimony. Most significantly, one

expert based his opinion on peer review literature and an analysis of the specific

details of the Gia Well Pad construction and its capabilities and opined that the

Township and its residents would suffer detrimental harm. See Reproduced Record

(R.R.) at 501a-09a.

I do not in any way—and I emphasize any—suggest that the Penn

Township Zoning Hearing Board (or any board) has not, cannot, and will not assume

and fulfill their tremendous responsibility as a fact finder in the most honorable and

principled manner. My concern, instead, lies in the legal framework employed to

address, analyze, and dispose of the issues discussed above.

Having made these observations, I respectfully concur in the result

reached by the Majority.

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PATRICIA A. McCULLOUGH, Judge

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