Argued: October 3, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE
CHRISTINE FIZZANO CANNON, Judge, HONORABLE ROBERT SIMPSON,
SIMPSON SENIOR JUDGE.
land use case, Protect PT appeals an order of the Court of
Common Pleas of Westmoreland County (trial
court) that, after holding an extended hearing
and receiving a large volume of evidence, denied Protect
PT's substantive validity challenge to Penn
Township's (Township) Ordinance No. 912-2016 Chapter 190
(Zoning), as amended (Zoning Ordinance). Notably,
the Zoning Ordinance established five unique zoning districts
and four overlay districts in the Township. In particular,
the Zoning Ordinance established a Rural Resource (Resource)
District and a Mineral Extraction Overlay (MEO) District.
Protect PT specifically challenged the constitutionality of
the MEO District to the extent it permits unconventional
natural gas development (UNGD) in the Resource District,
which also permits low-density residential properties.
PT contends the Township's Resource District is
essentially a growing suburban community and that UNGD is a
heavy industrial activity incompatible with residential use
and preservation of the environment. In rejecting Protect
PT's contentions, the trial court determined the Zoning
Ordinance does not violate either the substantive due process
rights of the Township's residents or their rights under
the Environmental Rights Amendment (ERA) in Article I,
Section 27 of the Pennsylvania Constitution. Therefore, the
trial court held the Zoning Ordinance constitutionally valid.
specifically, Protect PT asserts on appeal that the trial
court erred or abused its discretion: (1) in failing to
consider all phases of developing an UNGD well pad prior to
the production phase in analyzing the validity of the Zoning
Ordinance even though the drilling and completion phases
continue indefinitely; (2) in failing to find that UNGD is a
heavy industrial activity associated with impacts on
neighboring residents similar to other heavy industrial
activities including air pollution, water pollution, traffic
congestion, noise, light and threats to public safety; (3) in
finding that UNGD historically took place in the Township and
is compatible with the Township's Comprehensive Plan and
the agricultural and residential land uses authorized in the
Resource District; (4) in finding the MEO District is an
appropriate use of a zoning overlay even though it fails to
impose specific and targeted provisions tailored to local
conditions without disturbing expectations created by the
underlying district; (5) in finding that the enactment of the
Zoning Ordinance did not violate the ERA where the Township
Board of Commissioners (Commissioners) failed to account for
the impact of UNGD on Township citizens' rights to clean
air, pure water and the natural, scenic, historic, and
esthetic values of the environment; and (6) in finding the
Zoning Ordinance does not violate the substantive due process
rights of Township citizens even though Protect PT
demonstrated the Zoning Ordinance is arbitrary and
unreasonable, and lacks any substantial relationship to
promoting the public health, safety and welfare.
present case raises similar issues to those recently
addressed by this Court in Frederick v. Allegheny
Township Zoning Hearing Board, 196 A.3d 677 (Pa. Cmwlth.
2018) (en banc), appeal denied, 208 A.3d
462 (Pa. 2019) (holding objectors failed to establish that
UNGD was incompatible with other uses or that the ordinance
violated substantive due process or the ERA), and
Delaware Riverkeeper Network v. Middlesex Township Zoning
Hearing Board (Delaware Riverkeeper (Middlesex) (Pa.
Cmwlth., No. 2609 C.D. 2015, filed June 26, 2019), 2019 WL
2605850 (unreported),  (applying Frederick and denying
the objectors' substantive validity and ERA challenges to
a zoning ordinance allowing UNGD as a permitted use in a
residential agricultural district). In light of our decisions
in Frederick, Delaware Riverkeeper
(Middlesex) and other applicable cases, we affirm the
trial court's order denying Protect PT's challenges
to the Zoning Ordinance.
Substantive Validity Challenge to Zoning Ordinance
September 2016, the Commissioners enacted the Zoning
Ordinance, which created five unique zoning districts in the
Township. In addition to the Resource District, the Ordinance
established the Mixed Density Residential District, the
Neighborhood Commercial District, the Commercial Corridor
District, and the Industrial Corridor District. The Ordinance
also created four overlay districts. In addition to the MEO
District, they include the Airport Overlay District, the
Floodplain Overlay District and the Development Infill
Overlay District. The MEO District, which permits UNGD,
overlays the Industrial Commercial District (IC District) and
the majority of the Resource District, with the exception of
the densely populated Claridge area.
April 2017, Protect PT, proceeding before the Township's
Zoning Hearing Board (ZHB), filed a notice of substantive
validity challenge under Section 916.1 of the Pennsylvania
Municipalities Planning Code (MPC). In particular, Protect PT
challenged the constitutionality of the MEO District. In June
2017, the ZHB issued a letter stating it did not intend to
schedule a public hearing on Protect PT's validity
challenge. This resulted in a deemed denial under the MPC.
2017, Protect PT appealed the deemed denial to the trial
court. Huntley & Huntley Energy Exploration, LLC
(Huntley), an oil and gas exploration and production company
operating in the Township, and Apex Energy of Pennsylvania,
LLC (Apex), an oil and gas company focused on UNGD, which
also operates in the Township, were permitted to intervene.
The Township also intervened in the appeal.
Trial: General Overview
as here, the trial court takes evidence on the merits, it
must review the case de novo. Coal Gas Recovery,
L.P. v. Franklin Twp. Zoning Hearing Bd., Greene Cty.,
944 A.2d 832 (Pa. Cmwlth. 2008). This Court then reviews the
trial court's findings of fact and legal conclusions for
errors of law or an abuse of discretion. Id. An
abuse of discretion occurs where the trial court's
findings are not supported by substantial evidence.
Id. Substantial evidence is such relevant evidence
that a reasonable mind would accept as adequate to support a
the trial court conducted a de novo trial and took
evidence over four days in April and June 2018. During those
proceedings, the trial court heard testimony from 21
witnesses, and admitted 93 exhibits into evidence. The
parties also submitted briefs and proposed findings of fact.
November 2018, the trial court issued a comprehensive opinion
and order denying Protect PT's substantive validity
challenge and holding the Zoning Ordinance constitutionally
valid. In its findings of fact, the trial court noted that
the Zoning Ordinance described the purpose of the Resource
District as providing land for continuing agricultural
operations, resource management, timber harvesting, outdoor
recreation, public and private conservation areas, low
density single family residential, and compatible support
uses. Ord. §190-402(A). The court further noted the
purpose of the MEO District is described as providing areas
for the extraction of minerals where the population density
is low and significant development is not projected for the
near future. Ord. §190-407(A). Mining and conventional
oil and natural gas drilling are listed as principal uses in
the MEO District. Unconventional oil and natural gas
drilling are listed as special exceptions. Ord.
trial court also recognized that UNGD is subject to numerous
standards, including general development standards in the
Zoning Ordinance and particular standards pertaining to the
MEO District. To that end, the trial court noted:
Requirements include but are not limited to a prohibition on
wastewater impound storage, dumping and seepage, regular
removal of wastewater and hazardous and/or toxic waste,
compliance with the Township's Subdivision and Land
Development Ordinance, acquisition of relevant Pennsylvania
Department of Environmental Protection ('DEP')
permits, and a minimum lot size of  acres, as well as a
 foot 'protected structure' setback and a 200
foot property line setback. [Ord.] §190-407(G). As
[UNGD] is a special exception, the [ZHB] also has the right
to impose additional conditions on the grant of the exception
for purposes of promoting the health, safety and welfare of
the Township's residents. [Trial Transcript pp.]
Section 641(D) requires that the developer of a proposed
UNGD well specifically 'demonstrate that the drill site
operations will not violate the [Township citizens']
right to clean air and pure water as set forth in the [ERA]
through the submission of reports from
'qualified environmental individuals' stating that
the proposed drilling will not negatively impact these
rights. [Ord.] §190-641(D). Specifically required
are 'air modeling and hydrogeological studies as
potential pathways that a spill or release of fluid may
follow.' [Ord.] §190-641(D).
Tr. Ct., slip op., 11/9/18, at 3-4 (emphasis added). The
trial court also noted the subject of UNGD in the Zoning
Ordinance was addressed at 19 Planning Commission meetings,
53 Commissioners' meetings, 2 public meetings and a town
hall meeting at which Protect PT presented 7 speakers,
including its executive director. Id. at 4.
Protect PT's Expert Witnesses
trial, Protect PT presented testimony from three expert
witnesses. Anthony Ingraffea, Ph.D. (Dr. Ingraffea) is an
engineer and co-founder of Physicians, Scientists and
Engineers for Healthy Energy (PSE). Ultimately, the trial
court rejected Dr. Ingraffea's opinion that UNGD causes
significant adverse impacts to air and water quality,
community development, human-induced seismicity, climate
change, and animal health. The trial court also rejected Dr.
Ingraffea's opinion that UNGD is a heavy industrial
activity. These credibility findings are material to our
PT also presented testimony from Edward C. Ketyer, M.D. (Dr.
Ketyer), a pediatrician in Washington County, and a
consultant with the Southwest Pennsylvania Environmental
Health Project, which solicits patients who believe they may
have health symptoms as a result of oil and gas development.
Dr. Ketyer is also a board member of Physicians for Social
Responsibility, whose goal is to develop a fossil fuel free
world. Ultimately, the trial court rejected Dr. Ketyer's
opinion that emissions from UNGD presently pose a threat to
human health. This credibility finding is also significant to
PT's third expert, Thomas Daniels, Ph.D. (Professor
Daniels), is a professor of city and regional planning at the
University of Pennsylvania. Professor Daniels testified
regarding the Township's Comprehensive Plan. He noted
that the MPC requires the reasonable development of minerals
and gas. However, Professor Daniels opined that he considers
UNGD to be a heavy industrial use and that the MEO District
does not fulfill the purpose of the Comprehensive Plan
because the Resource District is predominantly residential.
He further stated that the MEO District as it exists resulted
in a scattered pattern of wells with heavy truck traffic and
inconvenience to the Township's residents. However, the
trial court declined to adopt Professor Daniels' opinions
that UNGD is a heavy industrial use that is incompatible with
the Comprehensive Plan and agricultural areas in general.
These credibility findings also impact our analysis.
Intervenor Huntley's Expert Witnesses
response, Intervenor Huntley, an oil and gas exploration and
production company operating in the Township, presented
testimony from three experts. Huntley presented Samuel A.
Flewelling, Ph.D. (Dr. Flewelling), an environmental science
consultant and a member of the Geophysical Union and the
Geological Society of America. Dr. Flewelling has extensive
experience regarding the impact of hydraulic fracturing on
groundwater and general matters of hydrogeology. Dr.
Flewelling opined that both conventional and unconventional
oil and gas development have an extensive history in
Westmoreland County, dating back over a hundred years.
Between 1980 and 2017, approximately 5, 380 conventional and
252 unconventional wells have been drilled in the county.
Unconventional wells are more compact and produce more gas
than conventional wells.
Flewelling stated that the risks of gas leaks into the
drinking water are unlikely due to DEP casing and cementing
requirements. Dr. Flewelling further indicated that
contamination to drinking water is not likely through the
deep hydraulically fractured rock as the fractures are
normally lower than the aquifer. In addition, a low
permeability layer creates a barrier, and there is no force
driving the fluid upward. Important to our analysis, the
trial court adopted Dr. Flewelling's above-expressed
opinions regarding groundwater and hydrogeology.
Huntley also presented expert testimony from Dr. Christopher
Long (Dr. Long), who holds a doctoral degree in environmental
health from Harvard University's School of Public Health.
Dr. Long is a certified toxicologist. He routinely conducts
human health risk assessments, and he has experience studying
the air quality impacts and risks caused by UNGD. Without
objection, the trial court qualified Dr. Long as an expert in
toxicology, air emission exposure assessment and human health
Long testified that all air emissions associated with all
phases of UNGD, excepting production, are transient and
short-term. Various air pollutants associated with UNGD are
ubiquitous in everyday life, such as fine particulate matter
(FPM). Most persons are regularly exposed to the same on a
short-term basis from everyday activities. A large amount of
air monitoring now occurs in the Marcellus Shale region near
gas development and is conducted by various groups.
Long further testified that DEP monitored FPM in Greene,
Bradford and Tioga Counties with no findings of elevated FPM
levels. Also, monitors in Bradford, Tioga and Washington
Counties found nitrogen dioxide levels far below the relevant
national standard. Further, DEP monitors near UNGD in
Washington, Wyoming and Susquehanna Counties all reported
average benzene levels. In addition, the Allegheny County
Health Department, which placed monitors for volatile organic
compounds (VOC) near well pad activity, found VOC levels far
below levels of concern for human health. Based on these and
other VOC studies related to UNGD in Pennsylvania, the trial
court adopted Dr. Long's expert opinions regarding
toxicology, air emission exposure assessment and human health
risk assessment. This credibility determination is material
to our analysis. It is within the exclusive province of the
trial court, as the fact-finder in a zoning case, to resolve
all matters of witness credibility and evidentiary weight.
See Penn St., L.P. v. E. Lampeter Twp. Zoning Hearing
Bd., 84 A.3d 1114 (Pa. Cmwlth. 2014).
third expert witness, Intervenor Huntley presented Professor
Ross Pifer (Professor Pifer), a professor at the Penn State
School of Law. Professor Pifer is the director of the Center
for Agriculture and Shale Law and Rural Economic Development
Clinic. Professor Pifer, who also testified in
Frederick, visited numerous UNGD sites during
various stages of development. He focused his research on the
interplay between UNGD and the community, especially in
agricultural areas. Professor Pifer made over 300
presentations regarding oil and gas development in the past
10 years. His expert testimony regarding the compatibility of
oil and gas with rural and agricultural communities has been
accepted by zoning hearing boards in Westmoreland, Lawrence
and Washington Counties.
Pifer further testified that UNGD primarily takes place in
rural and semi-rural counties in the Commonwealth, and that
Westmoreland County ranks ninth in the state for UNGD, with
283 wells already drilled. UNGD, in existence since 1947,
provides more benefit to agricultural regions than
conventional drilling. UNGD has less surface impact and can
access more acreage.
Pifer identified approximately 100 municipalities in
Pennsylvania, some with zoning and some without, where UNGD,
single-family homes, and agricultural uses coexist. In
Westmoreland County, 24 municipalities have no zoning
ordinances and allow UNGD throughout the entire municipality.
Pifer further noted that Pennsylvania law explicitly
encourages the coexistence of oil and gas development and
agriculture through protections provided in the Pennsylvania
Farmland and Forest Land Assessment Act of 1974, popularly
known as the Clean and Green Act,  and the Agricultural Area
Security Law (AASL),  which involve many farmers in the
Township. The Clean and Green Act also recognizes that the
financial benefits of UNGD from gas leasing enables farmers
to maintain agricultural operations on their land throughout
generations of farmers. This permits rural lands to remain
rural and prevents the forced sale of farmlands to commercial
or residential development. Ultimately, the trial court
adopted Professor Pifer's opinion that UNGD is compatible
with agricultural and rural land uses, both generally and as
laid out in the MEO District under the Zoning Ordinance.
See Tr. Ct., slip op., 11/9/18, at 12. This
credibility finding is also critical to our analysis.
Huntley also presented testimony from Jason Paul Gehringer
(Analyst Gehringer), a primary Geographic Information System
analyst. He testified to the existence of the Oakford Storage
Field, a mostly depleted natural gas reservoir that lies
beneath one-quarter of the Township's land mass. Analyst
Gehringer calculated that upon taking into consideration all
setbacks and regulatory requirements imposed by the Zoning
Ordinance, only 9.46% of the Township's land mass is
available for UNGD.
Apex presented testimony from Christopher James Hess (Hess),
its general counsel, vice president of land development and
corporate secretary. Hess oversees regulatory compliance,
leasing and land functions. Apex leases about 7, 509 acres
and maintains exclusive rights to drill in the Marcellus
Shale beneath the Oakford Storage Field in the Township. Apex
received approval to develop the Quest UNGD well pad, which
is now in production. Apex has seven other well pads planned
in the Township.
testified regarding the steps of development in UNGD,
including leasing, design, permitting and construction. He
described the measures taken by Apex to prevent spills and
releases at the site. Apex entered into an agreement with
Westmoreland County to obtain water through municipal taps,
thereby eliminating about 3, 000 water trips per well. He
also described DEP well permit requirements for protecting
surrounding water sources and DEP permit requirements for
surface disturbance and mitigation.
Hess testified that during the production phase, UNGD
generates no light at the well site, and no noise audible at
the property line. Truck traffic during the production phase
is limited to two truck trips per day and a few waste-water
truck visits per month. Hess noted that Apex has not received
any noise, light or traffic complaints regarding the Quest
well site since it entered the production phase.
PT presented lay testimony from its executive director,
Gillian Graber (Graber). She described Protect PT's
mission as the protection of Township residents in the
Penn-Trafford area from the effects of UNGD. Protect PT
members often engage in special exception hearings, meetings
and other public forums. Graber testified that Protect PT has
also placed noise and air quality monitors at residences
around the Township at property owners' requests.
PT also presented lay testimony from eight additional members
or property owners living near proposed well sites in the
Township. They expressed concerns regarding noise, light and
air emissions, truck traffic, adverse effects on groundwater
and water pressure, adverse effects on property values, and
other health and safety issues.
Intervenor Huntley presented lay testimony from Richard J.
Hajnosz and Adam Ferri (Ferri), two property owners who rely
on UNGD lease and royalty payments to maintain their
agricultural property and to avoid selling it for residential
development. Ferri, a real estate developer who owns a
133-acre tract in the Resource District, testified
residential development negatively impacts the agricultural
nature of the property in the Resource District. Ferri
testified that permanent impacts from residential development
include traffic and impervious surface loss. See
Notes of Testimony (N.T.), 6/4/18, at 844-45; Reproduced
Record (R.R.) at 722a.
Trial Court's Discussion and Analysis
discussed above, when reviewing a challenge to a zoning
ordinance in which it takes evidence, the trial court
performs a de novo review. Coal Gas Recovery
Grp. Because a zoning ordinance is presumed valid, a
challenger bears a heavy burden of establishing its
invalidity. Woll v. Monaghan Twp., 948 A.2d 933 (Pa.
Cmwlth. 2008). A validity challenge generally attacks zoning
on substantive due process grounds, i.e., whether an
ordinance is substantially related to a legitimate interest.
Plaxton v. Lycoming Cty. Zoning Hearing Bd., 986
A.2d 199 (Pa. Cmwlth. 2009). Where the validity of an
ordinance is debatable, it must be upheld. Main Street
Dev. Grp., Inc. v. Tinicum Twp. Bd. of Supervisors, 19
A.3d 21 (Pa. Cmwlth. 2011).
Pennsylvania, the constitutionality of a zoning ordinance is
reviewed under a substantive due process analysis.
Plaxton. Under such analysis, the party challenging
the validity of the provisions of a zoning ordinance must
establish that the challenged provisions are arbitrary or
unreasonable and have no substantial relationship to
promoting the public health, safety and welfare. Id.
In examining whether the ordinance is a valid exercise of the
police powers, reviewing courts must balance the public
interest to be served by the ordinance against the
confiscatory or exclusionary impact of the ordinance on
individual rights. Delchester Developers, L.P. v. Zoning
Hearing Bd. of London Grove, 161 A.3d 1081 (Pa. Cmwlth.
2017); Penn St.
PT alleged the MEO District violates the Township
residents' substantive due process rights, as well as
their constitutional rights under the ERA in Article I,
Section 27 of the Pennsylvania Constitution, by allowing UNGD
in the Resource District. Protect PT alleged the Resource
District is primarily residential. Protect PT claimed the MEO
District is designed in such a way that UNGD is able to be
developed in a haphazard manner, creating nuisances and
health risks for neighboring property owners. Thus, Protect
PT maintains the MEO District is invalid.
Substantive Due Process
PT first argued that in enacting the Zoning Ordinance, the
Township failed to consider the effects of UNGD on
neighboring property owners. Protect PT maintained that UNGD
is a heavy industrial use, and that allowing UNGD, in what
Protect PT perceives as a majority of the Township, creates
nuisance, health and safety risks for neighboring property
owners in the Resource District, thereby violating their
substantive due process rights.
trial court recognized UNGD is a lawful and not a disfavored
use in Pennsylvania. Section 603(i) of the MPC states:
"Zoning ordinances shall provide for the reasonable
development of minerals in each municipality." 53 P.S.
§10603(i). An integral purpose of the Resource District
is resource management. See Ord. §190-402(A).
Section 107(a) of the MPC defines "minerals" as
including "crude oil and natural gas." 53 P.S.
§10107(a). Notably, our Supreme Court determined that
pursuant to Section 601 of the MPC, the governing body of a
municipality may amend its zoning ordinances to permit oil
and gas development in any or all of its zoning districts.
Gorsline v. Bd. of Supervisors of Fairfield Twp.
(Gorsline II), 186 A.3d 375 (Pa. 2018).
the trial court observed that the Township carefully balanced
its obligation to provide for the management and development
of minerals with the inherent rights of the neighboring
property owners in the MEO District.
trial court further noted that under Pennsylvania law, zoning
regulates only the use of the land, not the
particulars of development and construction.
Frederick; Gorsline v. Bd. of Supervisors of
Fairfield Twp. (Gorsline I), 123 A.3d 1142 (Pa. Cmwlth.
2015), rev'd on other grounds, 186 A.3d 375 (Pa.
2018); Schatz v. New Britain Twp. Zoning Hearing Bd. of
Adjustment, 596 A.2d 294 (Pa. Cmwlth. 1991). Therefore,
the trial court reasoned, the development and construction of
a well pad prior to its production phase or use
phase, should not be taken into account in analyzing the
zoning ordinance in a validity challenge. Similarly, it would
be improper to assess the industrial activities that take
place during the construction of any commercial or
residential property, prior to the structures being used.
Compatibility with ...