C. Lodge v. Robinson Twp. ZHB v. Robinson Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Lodge, Cathy Lodge, :

Nolan Vance, Brenda Vance, :

Richard Barrie, and Irene Barrie, :

Appellants :

: No. 813 C.D. 2020

v. :

: Argued: May 10, 2021

Robinson Township Zoning Hearing :

Board :

:

v. :

:

Robinson Township, Range Resources - :

Appalachia, LLC, and Moore Park, L.P. :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge1

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: August 4, 2022

Christopher Lodge, Cathy Lodge (Lodges), Nolan Vance, Brenda Vance

(Vances), Richard Barrie, and Irene Barrie (Barries) (collectively, Objectors) appeal

from the July 16, 2020 order of the Court of Common Pleas of Washington County

1

This case was argued before a panel of the Court that included Judge Crompton. Judge

Crompton’s service with this Court ended on January 2, 2022, before the Court reached a decision in

this matter. Accordingly, Judge Ceisler was substituted for Judge Crompton as a panel member in

this matter and considered the matter as submitted on the briefs.

(trial court), which dismissed their substantive validity challenge to Robinson

Township (Township) Ordinance 1-20142 for lack of standing.

I. Factual and Procedural Background

i. History of Ordinance

On May 8, 2006, the Board of Supervisors of Robinson Township (Board)

enacted a comprehensive Zoning Ordinance (2006 Ordinance). The 2006 Ordinance

provided that oil and gas drilling “may be approved” as a conditional use in all zoning

districts, except the Floodplain Overlay District. (Reproduced Record (R.R.) at 1237a.)

The 2006 Ordinance articulated standards that included a drilling setback distance of

50 feet from property lines, a prohibition of drilling within 300 feet of a residence, a

requirement that all drilling activities conform to an “Environmental Plan” and such

other factors and criteria established by the Township Zoning Hearing Board (ZHB).

On December 23, 2013, departing members of the Board adopted

Ordinances 3-2013 and 4-2013 (collectively, 2013 Ordinances). Ordinance 3-2013

designated “Oil and Gas Operations and Development” to be a use by “special

exception.” (R.R. at 1257a-61a, 1868a-69a.) The 2013 Ordinances also created an

Interchange Business Development (IBD) District to provide for high impact land uses

that require significant infrastructure. (R.R. at 782a.) Ordinance 3-2013 provided that

Oil and Gas Operations and Development was a use by special exception in an IBD

District.

On August 7, 2014, a newly elected majority of the Board amended the

Township Zoning Ordinance and zoning map and adopted Ordinance 1-2014, the

challenged ordinance at issue here. According to Ordinance 1-2014, Oil and Gas Well

2

Township of Robinson, Washington County Ordinance No. 1-2014 (Ordinance 1-2014),

adopted August 7, 2014, effective August 12, 2014.

2

Site Development, Oil and Gas Sub-Surface Facilities and Activities and Natural Gas

Compressor Stations are “permitted principal uses” in the IBD District, Agricultural,

Rural Residential, and Industrial Districts. (R.R. at 1286a-336a.) Pursuant to

Ordinance 1-2014, Oil and Gas Well-Site Development is defined to include: well

location, preparation, construction, drilling hydraulic fracturing, seismic operations,

and water or fluid storage operations. Id. Ordinance 1-2014 amended the

“Performance Standards” for the IBD District. Specifically, a “65 dBA” maximum

noise level for the IBD District was enacted. Id. Ordinance 1-2014 further amended

the 2013 Ordinances to allow “oil and gas development” as permitted by conditional

use in the Special Conservation and Commercial Districts and not permitted in Single

Family Residential and General Residential Districts. Id.

ii. First Substantive Validity Challenge

On September 2, 2014, based in large part on the Supreme Court’s

decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013),3 Objectors

submitted a pre-enforcement, substantive validity challenge to the ZHB pursuant to

section 909.1(a) of the Pennsylvania Municipalities Planning Code (MPC).4 Objectors

argued that Ordinance 1-2014 is invalid because it does not promote the public health,

3

In Robinson Township, the Supreme Court held that a single, statewide zoning standard for

oil and gas operations in every zoning district in the Commonwealth, as specified in former section

3304 of Act 13, formerly 58 Pa.C.S. §3304, violated Article I, Section 27 of the Pennsylvania

Constitution (Environmental Rights Amendment), Pa. Const. art. I, § 27. The Supreme Court

concluded that statewide land use standards altered “existing expectations of communities and

property owners and substantially diminished natural and esthetic values of the local environment[.]”

83 A.3d at 979.

4

Act of July 31, 1968, P.L. 805, as amended, added by Act of December 21, 1988, P.L. 1329,

53 P.S. §10909.1(a). 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 County Zoning Hearing Board, 986 A.2d 199, 205 (Pa. Cmwlth. 2009).

3

safety and welfare, fails to satisfy the constitutional and statutory mandate that zoning

laws promote and protect the preservation of the natural, scenic and historic values of

the environment under the Environmental Rights Amendment.5 They further alleged

that Ordinance 1-2014 violates both the federal due process protections for property

owners and State Constitutional protections regarding private property (Pa. Const. art.

I, §1) because it fails to conserve and maintain the constitutionally protected aspects of

the public environment and of a certain quality of life for all the people. (R.R. at 73a.)

iii. Moore Park Well Pad

On September 15, 2014, shortly after Objectors’ substantive validity

challenge was filed, the Township, pursuant to Ordinance 1-2014, approved the

issuance of a zoning permit application for Range Resources. The permit application

involved the construction of the “Moore Park well pad,” a natural gas drilling and

production site on property located next to U.S. Route 22, a four-lane highway.

(Finding of Fact (F.F.) Nos. 4-5.) The Moore Park well pad is located in an IBD

District. Under Ordinance 1-2014, such use is now a use permitted by right. The

Moore Park well pad and its associated pig launcher is located approximately 2,725

feet from the Vance property, approximately 1.17 miles from the Barrie property, and

approximately 2.22 miles from the Lodge property. (R.R. at 1342a, 1579a.)

iv. Hearing before the Zoning Hearing Board

The ZHB conducted a hearing on October 30, 2014, concerning

Objectors’ substantive validity challenge. During the hearing, Range Resources moved

5

The Environmental Rights Amendment provides the people of Pennsylvania with the “right

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

the environment.” The Environmental Rights Amendment further requires the Commonwealth and

local governments, as trustees of Pennsylvania’s public resources, to “conserve and maintain them

for the benefit of all the people.” Pa. Const. art. I, §27.

4

to dismiss the challenge for lack of standing and ripeness. The ZHB allowed the parties

to file legal briefs and took the matter under advisement.

v. Second Substantive Validity Challenge

While their first substantive validity challenge was still pending,

Objectors submitted a second substantive validity challenge on December 17, 2014,

asserting claims as applied to the Township’s approval of Range Resources’ Moore

Park well pad. The ZHB held a hearing on January 6, 2015, concerning the first and

second validity challenges. Objectors argued that they are longtime residents of

Robinson Township who have enjoyed the Township’s rural, residential, and

agricultural character, and the assurances that such character would continue as

provided in the zoning ordinance in the districts in which they live. Objectors argued

that they have children, grandchildren, and animals who could be exposed to industrial

noise and traffic and/or pollution from the Moore Park well pad and related operations.

The Vances argued that, in reliance on the stated purposes of the Special Conservation

zoning district in which they live, they made a significant investment in, recently

completed construction on, and moved into their new home at 9812 Steubenville Pike.

They did not expect they would be living next door to an oil and gas well pad and other

related industrial facilities and activities. The Vances argued that they have reasonable

concerns that the construction, development, and operation of the Moore Park well pad

and other nearby oil and gas industrial facilities will affect their health, property values,

aesthetic values, and way of life.

The Barries argued that they have lived at their residence for 39 years and

that during this time, they have enjoyed the rural, residential, and agricultural nature of

Robinson Township and have come to rely on that way of life. The Barries complained

that they did not expect to live near industrial operations. They feared that because the

5

Moore Park well pad is less than a mile and a half from their property, it is likely that

the actual site operations and horizontal wellbores will be much closer. They asserted

that in the last few years, they began to experience the construction and operation of

nearby oil and gas facilities and operations, including neighboring well pads and a

pipeline. These new impacts have affected the Barries’ way of life, particularly due to

the related traffic, noises, emissions, and concerns for their well water.

On January 21, 2015, the ZHB issued two decisions, dismissing

Objectors’ first and second substantive validity challenges. The ZHB dismissed the

first validity challenge because Objectors did not allege that the use or development of

their properties were prohibited or restricted by Ordinance 1-2014 and they also failed

to establish that they had standing because they only presented generalized interests

common to the entire Township’s population, and their interests are neither substantial

nor immediate. With respect to the second challenge, the ZHB dismissed this challenge

pursuant to section 916.1(i) of the MPC, 53 P.S. §10916.1(i),6 because it was filed

while the first substantive validity challenge had not been finally determined or

withdrawn.

On February 20, 2015, Objectors filed a Notice of Land Use Appeal in the

trial court. Range Resources and others intervened in support of the Ordinance. (R.R.

at 86a-92a.) Upon review of the record of proceedings before the ZHB, the trial court

6

Section 916.1(i) of the MPC provides, in relevant part:

(i) A landowner who has challenged on substantive grounds the validity

of a zoning ordinance or map . . . shall not submit any additional

substantive challenges involving the same parcel, group of parcels or

part thereof until such time as the status of the landowner’s original

challenge has been finally determined or withdrawn . . . .

53 P.S. §10916.1(i), added by the Act of December 21, 1988, P.L. 1329.

6

concluded that the ZHB record was insufficiently developed on the issue of standing.

Specifically, on matters relevant to whether any Objectors would be impacted by

activities at the Moore Park well pad the evidentiary record was incomplete and critical

findings including credibility determinations were lacking. Accordingly, the trial court

scheduled a hearing to address the issue of Objectors’ standing. (R.R. at 653a.) Prior

to that future hearing, the parties agreed that the issue of Objectors’ standing should be

bifurcated and determined first.

In advance of the hearing, Range Resources presented a motion, and the

trial court entered an order for a view of the Moore Park well pad and the area in the

vicinity of the Vance Objectors’ residence, which at over a half mile away, is the closest

Objector residence to the well pad. (R.R. at 705a-16a, 719a-20a.) Range Resources

requested the site view under Section 908(8) of the MPC, 53 P.S. §10908(8), which

authorizes a zoning board or hearing officer to inspect a site or its surroundings with

any party or his representative if all parties are present or given an opportunity to do

so. Range Resources argued that even though the ZHB was not inspecting the site, it

was acceptable for the trial court to do so because the trial court was serving as a trier

of fact. Moreover, Range Resources stated that it would take responsibility for costs

and expenses associated with the view. Objectors did not file a written response to

Range Resources’ motion for a view or present their own motion for a view of any

properties during the five-year plus pendency of the validity challenge before the trial

court. On December 20, 2019, the trial court, joined by all counsel of record, conducted

the view of the Moore Park well pad and the Vance Objectors’ property. (R.R. at 721a-

25a.) The trial court held two days of hearings on January 24 and January 27, 2020, at

which time all parties were given the opportunity to present and cross-examine

7

witnesses and introduce and object to exhibits. (R.R. at 727a-1234a.) No objections

were made on the record to the site view at this hearing. (R.R. at 727a-1234a.)

vi. Trial Court’s Findings

On July 16, 2020, the trial court issued its findings, holding that Objectors

lacked standing to pursue the validity challenge.7 In essence, the trial court found that

Objectors had failed to meet their burden to establish that any of their concerns and

alleged adverse impacts raised were caused by the application of the challenged

Ordinance to the permit application for the Moore Park well pad. (R.R. at 1886a.) The

court concluded that Objectors failed to show how the passage of Ordinance 1-2014 or

the issuance of a permit for the Moore Park well pad resulted in “concretely

demonstrable harm to them or their interests.” (Conclusions of Law (C.L.) No. 127.)

Specifically, the trial court held that Objectors failed to demonstrate a present impact

to their interests, and that the complained of noise, vibrations, odors, and air pollution

could be attributed to a variety of sources and causes which existed prior to the passing

of Ordinance 1-2014 and the permit application for the Moore Park well pad. (C.L.

No. 129.) The court held that there was no causal connection between the adoption of

Ordinance 1-2014 and the impacts alleged by Objectors and that the evidence did “not

credibly demonstrate” that Objectors suffered any direct, substantial, and immediate

harms caused by the Moore Park well pad. (C.L. Nos. 131-132.) The trial court also

held that the evidence did “not credibly demonstrate” that Objectors suffered any

“greater direct, substantial[,] and immediate deleterious impacts from unconventional

7

The trial court dismissed Objectors’ appeal of the Second Validity Challenge on July 5,

2019. (R.R. at 653a.) Objectors did not appeal the trial court’s decision on the Second Validity

Challenge (raising an “as-applied” claim) to this Court. Therefore, our analysis of the standing issue

pertains to Objectors’ standing to bring a facial validity challenge to Ordinance 1-2014, and we do

not offer any opinion as to Objectors’ standing to bring an “as-applied” claim.

8

oil and natural gas drilling than those they encountered prior to the passage of

Ordinance 1-2014.” (C.L. No. 133.) The trial court made the following findings of

fact, determining them to be “credible and reliable.”

118. This trial court finds the Objectors’ contention, that they

suffered actual harm from facilities authorized by

Ordinance 1-2014 to be speculative, unpersuasive and

unsupported by the hearing record as a whole.

...

127. The Objectors have not shown how the passage of

Ordinance 1-2014 or the issuance of a permit for the

Moore Park [well pad] resulted in concretely

demonstrable harm to them or their interests.

...

129. The Objectors have not demonstrated a present impact

to their interests. The hearing evidence established that many

of the adverse effects they complained of such as noise,

vibrations, odors, air pollution, were due to a variety of

sources and existed prior to the passage of Ordinance 1-

2014 and the permit application for the Moore Park [well

pad]. The hearing evidence is unconvincing that the passage

of Ordinance 1-2014 or the Moore Park [well pad] permit

immediately impacted the Objectors’ interests.

...

131. The Objectors all live in excess of one-half mile from

the Moore Park [well pad]. Objectors did not prove a

causal connection between the Township’s adoption of

Ordinance 1-2014 and the impacts the Objectors alleged.

132. The evidence does not credibly demonstrate that the

Objectors suffered direct, substantial and immediate

deleterious impacts caused by the Moore Park [well pad]

operations.

133. Similarly, the evidence does not credibly demonstrate

that the Objectors suffered any greater direct, substantial

and immediate deleterious impacts from unconventional

9

oil and natural gas drilling than those they encountered

prior to the passage of Ordinance 1-2014.

(Trial ct. op., 07/17/2020, Findings of Fact (F.F.) Nos. 118, 127, 129, 131-33.)

(Emphasis added).

a. Christopher and Cathy Lodge

Christopher and Cathy Lodge reside at 257 Meinrad Drive in the

Township, approximately 2.22 miles away from the Moore Park well pad and did not

testify or appear at the hearings before the trial court. (R.R. at 1870a.) The trial court

found that:

36. No testimony or evidence was presented to credibly and

persuasively establish that Christopher and Cathy Lodge

have suffered any consequences or identifiable harm due to

the issuance of a permit for the operation of the Moore Park

[well pad].

37. No testimony or evidence was presented to credibly and

persuasively establish that Christopher and Cathy Lodge

possess a discernable interest that surpasses the abstract

interest “of all citizens in procuring obedience to the law.”

(Trial ct. op., 07/17/2020, F.F. Nos. 36-37.)

b. Richard and Irene Barrie

Richard and Irene Barrie reside at 5215 Maple Grove Road in the

Township’s R-1A Rural Residential Zoning District, 1.17 miles away from the Moore

Park well pad. (R.R. at 1871a.) Mrs. Barrie testified that beginning in December of

2012, she maintained a journal in which she recorded her sensory experiences at her

property caused by what she believed to be oil and gas development activities. (R.R.

at 1872a.) The trial court found that Mrs. Barrie’s journal entries predated the

application and issuance of a permit for the Moore Park well pad, and/or coincided

with unrelated construction projects occurring near the Barrie residence, including (1)

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the Kendall Station Well Site, which is located much closer to the Barrie property than

the Moore Park well pad and was not approved under the challenged Ordinance, (2)

the Kresic well pad, developed prior to adoption of the Ordinance and approval of the

Moore Park well pad, (3) the Richard Moore well pad, located in Smith Township, and

(4) certain unrelated pipeline work. (R.R. at 1871a-74a.) Mrs. Barrie conceded on

cross-examination that she could not directly attribute the impacts she experienced to

the Moore Park well pad and that she could not see the Moore Park well pad from her

property, but that she could hear air traffic from the Pittsburgh International Airport

and road traffic from U.S. Route 22. (R.R. at 1873a-74a.) Mrs. Barrie admitted that

she could not differentiate between the various noises she allegedly heard on her

property. (R.R. at 1874a.) The trial court found that Mrs. Barrie’s testimony regarding

the diminution of her property’s value due to oil and gas operations was “speculative

and not persuasive.” (R.R. at 1874a.)

c. Nolan and Brenda Vance

Nolan and Brenda Vance reside at 9812 Old Steubenville Pike Road,

approximately 2,725 feet from the Moore Park well pad in the Township’s Special

Conservation Zoning District. (R.R. at 1875a.) U.S. Route 22, which hundreds of

trucks traverse daily, separates the Vances’ current residence from the Moore Park

Well Pad. (R.R. at 1875a, 1876a.) Mrs. Vance contended during her testimony that

the activity at the Moore Park well pad disrupted her sleep, created constant noise,

disturbing vibrations, mechanical odors, and increased levels of truck traffic. (R.R. at

1876a.) The trial court made the following findings concerning Mrs. Vance’s standing:

72. Mrs. Vance acknowledged that the Moore Park [well

p]ad is not visible from her home.

73. She indicated that she was uncertain if trucks going to

and from the Moore Park [well pad] passed her home.

11

74. Mrs. Vance conceded that during concert season for the

Key Bank Pavilion there is an increase in traffic on U.S. 22,

more vehicles passing her home on weekends in order to

avoid back-ups on U.S. 22 and more vehicle fumes.

...

76. She could not recall the last time she smelled an odor

from the Moore Park [w]ell [p]ad.

77. She recalled that noise was most constant in April of 2015

and March of 2016.

78. Most recently in December of 2019, she heard “sounds”

but is unable to attribute that noise to the Moore Park [well

p]ad.

79. She recalled one instance of “flaring.” She indicated she

had a photograph to confirm the incident but such evidence

was not offered during the hearings on this challenge.

80. Mrs. Vance testified to having discolored water from her

well. She attributed that occurrence to National Fuel’s

replacing of pipelines. On that instance, she contacted the

Pennsylvania Department of Environmental Protection. The

DEP performed testing and found chemicals from fracking,

but could not conclude that the chemicals came from the

Moore Park [w]ell [p]ad.

81. She acknowledged that her property is separated from the

Smith Township border by a small creek.

82. This trial court finds that Mrs. Vance’s recollection of

high noise levels, vibrations, and “mechanical odors” is

credible.

83. This trial court finds that Mrs. Vance’s conclusion that

the high noise levels, vibrations and mechanical odors are

attributable to the Moore Park [well pad] was not proven.

(Trial ct. op., 07/17/2020, F.F. Nos. 72-74, 76-83.)

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d. Other Testimony

The Township called two residents, Bonnie Moore, a neighbor of the

Vances, and John Campbell, a Township resident and owner of property adjacent to

the Moore Park well pad. (R.R. at 1878a, 1881a.) Ms. Moore testified that she had

never seen, felt or smelled the impacts reported by Mrs. Vance. (R.R. at 1878a.) Mr.

Campbell, a longtime resident and farmer, testified that the site of the Moore Park well

pad is unusable for farming due to the impact of the expansion of U.S. Route 22 into a

four-lane highway approximately 50 to 55 years ago. (R.R. at 1193a-97a.) His farming

activities on the property adjacent to the Moore Park well pad include mowing,

conditioning, raking, and baling, which require equipment that emits both noise and

fumes, a normal byproduct of agricultural activity. (R.R. at 1646a.) Additionally, Mr.

Campbell testified that from his property he does not hear noises from the Moore Park

well pad, but rather hears constant noise from U.S. Route 22 and the nearby outdoor

amphitheater during concert season. (R.R. at 1202a, 1208a.)

The trial court found Justin Welker, Range Resources’ Water Operations

Manager, to be credible. (R.R. at 1879a.) Mr. Welker testified that the truck routes

used to service the Moore Park well pad did not travel on portions of roads adjacent to

any of Objectors’ respective properties. (R.R. at 1878a.) Additionally, Mr. Welker

testified that hydraulic fracturing, which necessitates higher truck use, only occurred at

the Moore Park well pad during the periods from March 1, 2016, to March 21, 2016,

and from August 24, 2017, to September 27, 2017. (R.R. at 1879a.) Mr. Welker

testified that the Moore Park well pad is now in “permanent production,” which only

requires two water trucks per day, as well as three condensate trucks per week. (R.R.

at 1097a-98a.) Finally, Mr. Welker testified that Range Resources does not anticipate

13

or have any drilling or hydraulic fracturing activity planned for the Moore Park well

pad for the next five years. (R.R. at 1114a.)

The trial court also found credible the testimony of Range Resources’

witness John R. Over, a civil engineer with K2 Engineering, that Objectors were not

able to view the Moore Park well pad from their homes. (R.R. at 1879a-80a.) Mr.

Over opined that Range Resources’ truck traffic in the area did not degrade the level

of service for the Township’s roads. (R.R. at 1880a.) Mr. Over provided testimony

concerning other construction projects in the Township, including the Pennsylvania

Turnpike Commission’s Interstate 576 Southern Beltway project, which disturbed over

450 acres of land in the Township. (R.R. at 1880a.) Mr. Over testified that the Lodge

property is closer to the Interstate 576 project than it is to the Moore Park well pad and

the Barrie property is equidistant to both the Interstate 576 project and the Moore Park

well pad. (R.R. at 1149a-50a.)

Range Resources’ witness Brent Cummings, an acoustical engineer with

TruHorizon Environmental Solutions, was qualified and accepted as a sound expert by

the trial court. (R.R. at 1880a). Mr. Cummings testified with respect to three studies

undertaken to evaluate sound impacts associated with the Moore Park well pad. First,

he reviewed and concurred with the pre-development sound impact assessment

prepared by Bergmann and Associates in 2014 (2014 Sound Impact Assessment),

which concluded that during drilling and hydraulic fracturing operations at the Moore

Park well pad there would be no sound impact beyond 1,000 feet from the pad. (R.R.

at 1882a.) Second, he oversaw a sound monitoring study conducted east of the Moore

Park well pad while hydraulic fracturing operations were ongoing at the pad during the

period between March 10, 2016, and March 16, 2016 (2016 Sound Monitoring Study).

(R.R. at 1881a.) Mr. Cummings testified that the 2016 Sound Monitoring Study picked

14

up a significant amount of road and air traffic sound from the nearby U.S. Route 22

and the Pittsburgh International Airport. (R.R. at 1882a.) According to Mr.

Cummings, the study did not detect cyclical hydraulic fracturing stage data from the

Moore Park well pad due to the U.S. Route 22 road noise. (R.R. at 964a.) TruHorizon

also deployed a sound monitor at 9784 Steubenville Pike, near the Vance Objectors’

property, located to the northwest and on the opposite side of U.S. Route 22 from the

Moore Park well pad from October 25, 2019, to October 28, 2019 (2019 Sound

Monitoring Study). (R.R. at 931a-38a.) Based on the 2019 Sound Monitoring Study

and his personal observations, Mr. Cummings determined that the primary sources of

noise at the monitoring point were vehicle traffic from U.S. Route 22 and Steubenville

Pike and air traffic from Pittsburgh International Airport, and that sound from the

permanent production operations of the Moore Park well pad would not be audible at

the monitoring point or the Vance Objectors’ residence. Id.

vii. Trial Court’s Legal Conclusions Regarding Standing

The trial court found “Objectors’ contention, that they suffered actual

harm from facilities authorized by Ordinance 1-2014 to be speculative, unpersuasive[,]

and unsupported by the hearing record as a whole.” (F.F. No. 118.) Applying the

standard for standing espoused in William Penn Parking Garage v. City of Pittsburgh,

346 A.2d 269, 282-83 (Pa. 1975), the trial court determined that Objectors failed to

show how the passage of Ordinance 1-2014 or the issuance of a permit for the Moore

Park well pad resulted in “concretely demonstrable harm to them or their interests.”

(C.L. No. 127.) Specifically, the trial court held that Objectors failed to demonstrate

a present impact to their interests, and that their complaints of noise, vibrations, odors,

and air pollution could be attributed to a variety of sources and causes which existed

prior to the passing of Ordinance 1-2014 and the permit application for the Moore Park

15

well pad. (C.L. No. 129.) The trial court concluded that there was no causal connection

between the adoption of Ordinance 1-2014 and the impacts alleged by Objectors and

that the evidence did “not credibly demonstrate” that Objectors suffered any direct,

substantial, and immediate harms caused by the Moore Park well pad. (C.L. Nos. 131-

132.) The trial court also held that the evidence did “not credibly demonstrate” that

Objectors suffered any “greater direct, substantial[,] and immediate deleterious impacts

from unconventional oil and natural gas drilling than those they encountered prior to

the passage of Ordinance 1-2014.” (C.L. No. 133.) The trial court further found, citing

Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19 (Pa. Cmwlth.

2009), that none of the Objectors established standing by geographic proximity as the

Lodge, Barrie, and Vance properties are 2.22 miles, 1.17 and .51 miles from the Moore

Park well pad, respectively. (C.L. No. 122.) Following the trial court’s ruling,

Objectors appealed to this Court.

II. Objectors’ Appeal

On appeal,8 Objectors raise a myriad of issues. The first issue, which

relates to standing, has multiple subparts. Objectors argue that the trial court erred by

concluding that they had not articulated an interest in the outcome of the litigation that

was substantial, direct, and immediate. Objectors assert that, contrary to the trial

court’s conclusion, they not only articulated interests that were substantial, direct, and

immediate through testimony of the multiple harms they had experienced, but they also

expressed reasonable concerns as to prospective harms from future facilities and

8

“When the court below considers additional evidence in a zoning appeal, we must determine

on review whether that court committed legal error or abused its discretion.” Boss v. Zoning Hearing

Board of Borough of Bethel Park, 443 A.2d 871, 872 (Pa. Cmwlth. 1982). This Court has stated on

numerous occasions that “[a]n abuse of discretion occurs when the findings are not supported by

substantial evidence in the record. Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Coal Gas Recovery, L.P. v. Franklin

Township Zoning Hearing Board, 944 A.2d 832, 838 n.9 (Pa. Cmwlth. 2008).

16

development allowed by Ordinance 1-2014. They contend that the trial court failed to

apply or address this Court’s and the Supreme Court’s standing precedent from In re

Broad Mountain Development Co., LLC, 17 A.3d 434, 440 (Pa. Cmwlth. 2011), and

Grant v. Zoning Hearing Board of Township of Penn, 776 A.2d 356, 359 (Pa. Cmwlth.

2001), which held that landowners possess substantial, direct, and immediate interests

when they have expressed reasonable concerns regarding how proposed uses will affect

their property, change their enjoyment and expectations of their property, alter their

zoning districts and surrounding environment, and affect their health and quality of life.

Objectors also assert that the trial court should have applied the standard for standing

applied by the Supreme Court in Robinson Township v. Commonwealth, 83 A.3d 901

(Pa. 2013), which held that the very enactment of the statute and its preemption of

protective zoning ordinances across Pennsylvania was sufficient to confer standing on

the landowners.

In addition to asserting errors with respect to standing, Objectors raise

several evidentiary challenges, arguing that the trial court capriciously disregarded the

fact that the Moore Park well pad is not in a state of “permanent production” but will

be developed in the future. Specifically, Range Resources’ witness, Justin Welker,

testified that Range Resources had only completed 9 of the 10 originally planned wells

on the Moore Park well pad and has reserved the 10th well for the development of Utica

shale. See R.R. at 1118a. When asked whether that meant there was “another [well]

that [Range Resources was] going to drill in the future,” Mr. Welker responded, “[a]t

some point, yes, sir.” Id. Objectors claim this fact, which the trial court disregarded,

corroborated the reasonableness of their concerns as to ongoing and future harms from

oil and gas development and facilities and contradicted the trial court’s finding of fact

that the Moore Park well pad is in “permanent production.”

17

Next, Objectors contend that the trial court capriciously disregarded the

2015 Washington County Hazard Mitigation Plan, prepared by a private company,

Michael Baker, Jr. Inc. for the Washington County Department of Public Safety, which

they introduced into evidence as a party admission against the Township. (R.R. at

1409a-23a.) The Hazard Mitigation Plan, according to Objectors, provides that

populations living within 1,000 feet of an unconventional oil or gas well are uniquely

vulnerable to “oil and gas well incidents” including “explosions or other catastrophic

incidents.” (R.R. at 1419a.) Objectors argue that the trial court abused its discretion

because it did not include the Hazard Mitigation Plan anywhere in its findings of fact

and failed to address it in any way. Objectors argue that the Hazard Mitigation Plan is

important because it supports that the Vances have standing because they live within

1,000 feet of the Moore Park well pad.

Additionally, they assert that the trial court abused its discretion by

accepting as reliable and persuasive the opinions of Brent Cummings, the acoustical

engineering expert witness offered by Range Resources with respect to certain sound

studies. Objectors contend that Mr. Cummings applied a flawed methodology that did

not comport with the industry standard.

Finally, Objectors argue that the trial court erred in granting a motion for

a view of Range Resources’ Moore Park well pad, while declining Objectors’ request

to include a well site in “active development” or one not in the direct control of Range

Resources. They assert that by allowing a view of an inactive, quiet site and rejecting

their request, the trial court improperly allowed into the record only evidence of a site

not exhibiting negative impacts and not allowing into the record evidence that would

corroborate and more accurately reflect Objectors’ claims regarding their experiences

with the Moore Park well pad and other similar sites.

18

Objectors ask that we reverse the trial court’s order and remand the matter

so that they may proceed with their challenge to overturn Ordinance 1-2014 “in order

to prevent future, additional harms . . . from [Range Resources’] planned development

of [a future well] at the Moore Park well pad . . . and further industrialization of their

neighborhoods, their zoning districts, and the Township.” (Objectors’ Br. at 56.)

III. Discussion

i. Standing

Objectors submitted a facial challenge to the substantive validity of

Ordinance 1-2014 pursuant to section 916.1 of the MPC, 53 P.S. §10916.1.9 That

section sets forth those persons who have the right to bring a substantive validity

challenge:

(a) A landowner who, on substantive grounds, desires to

challenge the validity of an ordinance or map or any

provision thereof which prohibits or restricts the use of

development of land in which he has an interest shall submit

the challenge. . . .

(b) Persons aggrieved by a use or development permitted on

the land of another by an ordinance or map, or any provision

thereof, who desires to challenge its validity on substantive

grounds shall first submit their challenge to the zoning

hearing board. . . .

53 P.S. §10916.1.

Under subsection (a), Objectors would not have standing as a landowner

because they do not allege that Ordinance 1-2014 affects the use or development of

their land. However, subsection (b) allows persons who do not own the land affected

9

Section 916.1(b) of the MPC was added by the Act of December 21, 1988, P.L. 1329.

19

by an ordinance to challenge the ordinance if they are aggrieved by a use or

development permitted on the land by virtue of an ordinance.

In order to be aggrieved in the zoning context, a party must have a

substantial, direct, and immediate interest in the claim sought to be litigated. William

Penn, 346 A.2d at 284; Laughman, 964 A.2d at 22. To have a substantial interest,

there must be some discernible adverse effect to some interest other than the abstract

interest of all citizens in having others comply with the law. Pilchesky v. Doherty, 941

A.2d 95, 99 (Pa. Cmwlth. 2008). Therefore, a property owner who asserts no interest

in the zoning challenge other than the interest common to all citizens does not have

standing. Broad Mountain, 17 A.3d at 440; Spahn v. Zoning Board of Adjustment, 922

A.2d 24, 31 (Pa. Cmwlth. 2007). Therefore, it is not sufficient for the person claiming

to be aggrieved to assert the common interest of all citizens in procuring obedience to

the law. William Penn, 346 A.2d at 280-281; Fumo v. City of Philadelphia, 972 A.2d

487, 496 (Pa. 2009).

The interest must also be direct and immediate and not a remote

consequence of the judgment. Laughman, 964 A.2d at 22. The interest is direct “if

there is a causal connection between the asserted violation and the harm complained

of; it is immediate if that causal connection is not remote or speculative.” Fumo, 972

A.2d at 496; see also Empire Coal Mining & Development, Inc. v. Department of

Environmental Resources, 623 A.2d 897, 899 (Pa. Cmwlth. 1993).10

10

“[P]roperty that is adjacent to or abuts the zoning area in question is in close proximity for

standing purposes.” Worthington v. Mount Pleasant Township, 212 A.3d 582, n.4 (Pa. Cmwlth.

2019). We have also held that “the owner of [a] property that is within 400 to 600 feet of the

challenged zoning district is also within close proximity and has standing. However, the owners of

property one-half mile and one mile or more away from the challenged zoning area have been deemed

to not be in close proximity in order to confer standing.” Laughman, 964 A.2d at 22-23 (holding that

(Footnote continued on next page…)

20

Objectors claim that direct and corroborative evidence showed that they

have experienced actual harm from facilities authorized by Ordinance 1-2014,

including specifically the Moore Park well pad. Specifically, they assert that Mrs.

Vance and Mrs. Barrie both testified as to the unbearable loud noises, vibrations,

offensive odors, mechanical smells, and heavy traffic.

However, the trial court found that Objectors Vance and Barrie did not

establish that either the challenged Ordinance or the Moore Park well pad were the

cause of their alleged harms. The trial court concluded that the hearing evidence

established that many of the adverse effects they complained of such as noise,

vibrations, odors, and air pollution, were due to a variety of sources and existed prior

to the passage of Ordinance 1-2014 and the permit application for the Moore Park well

pad. The trial court found that the impacts felt by these Objectors could be due to any

number of causes including unrelated oil and gas well sites in close proximity to

Objectors’ properties that are closer than the Moore Park well pad and predate

Ordinance 1-2014 (F.F. Nos. 38-41), unrelated pipelines (F.F. No. 47), oil and gas

drilling in neighboring townships (F.F. Nos. 51-51), air traffic from the Pittsburgh

International Airport and road traffic from U.S. Route 22 (F.F. Nos. 53, 55), a nearby

outdoor amphitheater which increases traffic and noise during certain times of the year

(F.F. Nos. 61-64), illuminated billboards (F.F. No. 75), a 450 highway project that was

closer in proximity to the Barries’ and Lodges’ property than the Moore Park well pad

(F.F. No. 102), and discolored water which could not be attributed to the Moore Park

objector whose closest property was located .8 miles from a newly created overlay district was not a

landowner in close proximity and, thus, lacked standing).

Here, none of the findings indicate that any of Objectors’ properties abut or are adjacent to

the Moore Park well pad or any other well site. The Lodge, Barrie, and Vance properties are 2.22,

1.17, .51 miles away from the Moore Park well pad, respectively. As such, none of the Objectors are

in close proximity.

21

well pad even after a Pennsylvania Department of Environmental Protection (DEP)

investigation. (F.F. No. 80).

When a trial court takes additional evidence in a land use appeal, and

exercises its own de novo review, it should make its own factual findings and legal

conclusions. Newtown Square East, L.P. v. Township of Newtown, 38 A.3d 1008, 1012

n.5 (Pa. Cmwlth. 2011), aff’d, 101 A.3d 37 (Pa. 2014). The trial court, as the fact finder

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

Protect PT v. Penn Township Zoning Hearing Board, 220 A.3d 1174, 1191 (Pa.

Cmwlth. 2019). As the fact finder, the trial court may reject even uncontradicted

testimony if it finds that testimony lacking in credibility. Id. This Court may not

substitute its interpretation of the evidence for that of the trial court. Tennyson v.

Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 743 (Pa. Cmwlth.

2008).

Essentially, by arguing that the trial court ignored their testimony,

Objectors are asking us to reweigh the evidence and substitute our credibility findings

for the trial court’s findings. Our role is not to reweigh the evidence or determine the

credibility of witnesses, but to determine whether, upon consideration of the evidence

as a whole, the trial court’s findings have the requisite measure of support in the record.

Protect PT. After a careful review of the record, we conclude that there was ample

evidence to support the trial court’s determination that neither the challenged

Ordinance nor the Moore Park well pad were the cause of Objectors’ concerns or

alleged harms. See Spahn, 922 A.2d at 1151 (“In order to be immediate, there must be

a causal connection between the action complained of and the injury to the person

challenging it.”). Therefore, we conclude that the trial court did not err when it found

22

Objectors failed to establish standing by this testimony of the Vance or Barrie

Objectors.

Next, Objectors argue that they established standing by expressing their

concerns of possible future harm from the enactment of Ordinance 1-2014 and future

operations of the Moore Park well pad. We must disagree.

A key component of the William Penn standing analysis, and whether an

objector is “aggrieved” for purposes of the MPC, is whether the proposed use in

question, or, in a substantive validity challenge, the challenged ordinance, actually

causes the injury complained of by the objector. William Penn, 346 A.2d at 282; see

also Worthington, 212 A.3d at 593 (“theoretical concerns do not satisfy the legal

requirement that [the objector] have a substantial, direct, and immediate interest to have

standing”); Laughman, 964 A.2d at 23 (a mere concern of remote consequences is not

direct because all citizens share concerns regarding traffic and safety).

In Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d

677, 689 (Pa. Cmwlth. 2018), the objectors testified that the construction at the Porter

Pad site was “noisy” and “inconvenient[;]” voiced concern that their property may

become “polluted[;]” and opined that their property values would decrease. We held

that the zoning board’s rejection of that evidence as lacking probative value was

consistent with this Court’s precedent and that “[t]estimony that merely speculates on

possible harm lacks probative value.” Id. at 690.

In Gorsline v. Board of Supervisors of Fairfield Township, 123 A.3d 1142

(Pa. Cmwlth. 2015), reversed on other grounds, 186 A.3d 375 (Pa. 2018), a gas

company sought a conditional use permit to operate an oil and gas well. Neighboring

landowners objected, expressing concerns about their well water, the increase in truck

traffic, noise and light pollution. This Court explained that the objectors “expressed

23

concerns” consisted of no more than “speculation of possible harms[,]” which was

“insufficient to show that the proposed natural gas well will be detrimental to the

health, safety and welfare of the neighborhood.” 123 A.3d at 1153.

This Court reached the same conclusion in EQT Production Company v.

Borough of Jefferson Hills, 162 A.3d 554 (Pa. Cmwlth. 2017). In that case, the

objectors presented evidence about the negative impacts oil and gas operations have

caused in other communities. This Court held that this evidence was insufficient to

satisfy the objectors’ burden of proof because their evidence was not specific to the

well site at issue. Nor did the objectors relate the experience of other communities to

the well site they challenged. Id. at 563.

Here, Objectors’ concerns about the “sprawling nature of the construction

and development of oil and gas facilities and infrastructure in Robinson Township and

their concerns and feelings as to future development and the transformation of the

vicinity of their homes and the Township into industrial areas” (Objectors’ Br. at 23)

were speculative. The trial court’s rejection of that evidence was entirely consistent

with this Court’s precedent that testimony that merely speculates on possible harm

lacks probative value.

Objectors contend that the trial court should have applied Grant and

Broad Mountain, where this Court held that in the context of land use matters,

landowners’ reasonable concerns as to the effects of proposed development were

enough to confer standing. Objectors’ reliance on these cases is misplaced. Grant,

involved two permanent 60-foot exhaust towers that were demonstrated to blow waste

products and noise to the objector’s property. Grant, 776 A.2d at 359. Additionally,

unlike here, the power company in Grant did not object to standing, nor was there any

dispute about the continual impact the plant would have on the objectors’ home. Id. at

24

358-59. Likewise, the challenged use in Broad Mountain consisted of 27 wind

turbines, with objectors who lived within a half mile of the use and who demonstrated

that they experienced constant noise, light flickering, and potential ice shedding in

freezing conditions. Broad Mountain, 17 A.3d at 440-41. Here, by contrast, no record

evidence presented by Objectors established that they live in proximity to the Moore

Park well pad or that the Moore Park well pad caused any of the adverse impacts

complained of by Objectors.

Objectors’ reliance on Robinson Township to establish standing is also

misplaced. Robinson Township did not establish legal precedent with respect to the

issue of standing of individual landowners and residents in the context of ordinance

validity challenges under the MPC. Robinson Township in no way announced a new

rule of law that individual objectors have automatic standing to pursue the validity of

a zoning ordinance in the abstract or that oil and gas development is necessarily

incompatible with Pennsylvania citizens’ constitutional rights. In fact, Pennsylvania

courts have, after Robinson Township was decided, held that oil and gas development

is compatible with other uses in rural and agricultural districts upon an analysis and

decision by the local governing body. See Gorsline, 186 A.3d 389 (holding that

pursuant to section 601 of the MPC, the governing body of a municipality may amend

its zoning ordinance to permit oil and gas development in any or all of its zoning

districts); Frederick (affirming a decision of a zoning hearing board that upheld

unconventional natural gas development as a permitted use by right in all of the

township’s zoning district); Kretschmann Farm v. Township of New Sewickley, 131

A.3d 1044 (Pa. Cmwlth. 2016) (upholding the conditional use approval of a gas

compressor station located in New Sewickley Township’s A-1 Agricultural District);

25

Brockway Borough Municipal Authority v. Department of Environmental Protection,

131 A.3d 578 (Pa. Cmwlth. 2016).

ii. Evidentiary Issues

Objectors first argue that the trial court capriciously disregarded testimony

from Justin Welker indicating that another well would have to be drilled at the Moore

Park well pad. They argue that this testimony corroborates their concerns regarding

their safety, and is relevant to the standing issue. However, as we have just explained,

Objectors’ speculative concerns regarding safety are not sufficient to confer standing.

Laughman, Gorsline, Frederick, EQT. As to a capricious disregard of evidence this

Court has stated that where substantial evidence supports the findings of fact, and the

findings of fact support the conclusions of law, “it should remain a rare instance where

an appellate court disturbs an adjudication based on capricious disregard.” Taliaferro

v. Darby Township Zoning Hearing Board, 873 A.2d 807, 815 (Pa. Cmwlth. 2005)

(emphasis added). “A capricious disregard occurs only when the fact-finder

deliberately ignores relevant, competent evidence. Capricious disregard of evidence is

a deliberate and baseless disregard of apparently reliable evidence.” Id. (citations

omitted).

Earlier in his testimony, Justin Welker clearly testified that the Moore

Park well pad was in permanent production and had been for several years. (R.R. at

1097a.) In fact, he testified that the Moore Park well pad was anticipated to be in

permanent production for several decades. (R.R. at 1114a.) Objectors contend that his

testimony is contradictory to the trial court’s finding that the well was in “permanent

production.” We disagree. This testimony is easily reconcilable with the trial court’s

finding. The trial court found as a fact that the Moore Park well pad “is now in

‘permanent production.’” (F.F. No. 93) (emphasis added). This finding can easily be

26

read to understand that the Moore Park well pad is currently in permanent production

and does not preclude the possibility that it may need to be drilled in the future. The

trial court’s finding does not indicate that the Moore Park well pad will be in permanent

production for perpetuity. This is consistent with Justin Welker’s testimony.

Next, with regard to the trial court’s allegedly improper rejection of

evidence, Objectors argue that the trial court entirely ignored the Hazard Mitigation

Plan they offered into evidence, which provides that populations living within 1,000

feet of an unconventional oil or gas well are uniquely vulnerable to oil and gas well

incidents. The Hazard Mitigation Plan covers a variety of topics including winter

storms, blizzards, dam failure, and conventional and unconventional well drilling.

(R.R. at 1408a-23a.) Objectors rely on a portion of the Hazard Mitigation Plan, which

states:

Vulnerability to oil and gas well incidents is defined as being

located within 1,000 yards of an unconventional oil or gas

well. This buffer is what DEP uses as its “zone of

culpability” for oil and gas well incidents. While explosions

or other catastrophic incidents at an oil or gas well could

cause property damage, of primary concern is the population

living near these wells.

(R.R. at 1419a.) As noted, the Hazard Mitigation Plan was admitted without any

corroborating witness testimony. The trial court explained that the findings that it made

were based upon the evidence in the record that it deemed credible and reliable. Indeed,

although the trial court admitted the Hazard Mitigation Plan into evidence, the fact that

it did not refer to it indicates that it did not find the Hazard Mitigation Plan to be

credible or reliable. Critically, the trial court is free to believe all, part, or none of the

testimony presented at trial and this Court may not reweigh the evidence or substitute

its judgment for that of the trial court. Southwest Regional Tax Bureau v. Kania, 49

27

A.3d 529, 532 n.5 (Pa. Cmwlth. 2012); Commonwealth v. Hoffman, 938 A.2d 1157,

1160 n.10 (Pa. Cmwlth. 2007). Moreover, Objectors have pointed to no authority that

required the trial court to propound, in its opinion, how it weighed every piece of

evidence presented by either or both parties. The trial court made the findings

necessary to resolve the issues raised by the evidence and relevant to the decision.

Accordingly, we find the omission of this evidence by the trial court did not amount to

a capricious disregard and did not constitute legal error.

Next, Objectors argue that the trial court erred when it found credible and

persuasive the testimony of Range Resources’ expert witness, Brent Cummings, on the

basis that he allegedly applied a “flawed methodology.” Objectors argue that the trial

court should not have accepted his opinion because he admittedly did not rely on

“industry standard” methods. We find Objectors’ assertion to be without merit.

In projecting sound levels and measuring ambient levels, Mr. Cummings

averaged sounds hourly based on measurements taken every minute. Mr. Cummings

further testified that because Ordinance 1-2014 did not specify what methodology is to

be used when conducting a sound study, he could “make a choice [as to the method] as

a professional.” (R.R. at 964a.) Mr. Cummings explained that averaging minute by

minute data points will still accurately capture peak sounds. (R.R. at 963a-64a.) Mr.

Cummings’ testimony was challenged extensively on cross-examination and was

therefore disputed evidence that the trial court was free to accept or reject. Township

of Salem v. Miller Penn Development, 142 A.3d 912, 922 (Pa. Cmwlth. 2016).

iii. View of the Well Pad

Objectors argue that the trial court erred by granting Range Resources’

motion to view the Moore Park well pad when it was not in active development, and

by denying Objectors’ request to include in the view a site during active development

28

not within the control of Range Resources.

Both the Pennsylvania Rules of Civil Procedure and the MPC permit the

trial court to order a view. Pa.R.Civ.P. 219, 4009.32; 53 P.S. §10908(8). The decision

to grant a view is totally within the trial court’s discretion and Pennsylvania courts have

rarely reversed a trial court’s decision to grant or not grant a view. See 1 West’s Pa.

Prac., Evidence § 425-6 (Views) (4th ed. 2021). The view’s function is illustrative, not

evidentiary, and its purpose is to aid the fact finder in understanding the evidence

presented in court and resolve conflicts in testimony. Id.

As the Moore Park well pad was the well at issue, we cannot find the trial

court abused its discretion in only allowing a view of that site.

IV. Conclusion

Accordingly, because the record provides substantial evidence for the

trial court’s decision and there is no basis for finding capricious disregard of the

evidence, we affirm the decision.

________________________________

PATRICIA A. McCULLOUGH, Judge

29

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Lodge, Cathy Lodge, :

Nolan Vance, Brenda Vance, :

Richard Barrie, and Irene Barrie, :

Appellants :

: No. 813 C.D. 2020

v. :

:

Robinson Township Zoning Hearing :

Board :

:

v. :

:

Robinson Township, Range Resources - :

Appalachia, LLC, and More Park, L.P. :

ORDER

AND NOW, this 4th day of August, 2022, the July 16, 2020 order of

the Court of Common Pleas of Washington County is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge