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Protect PT v. Penn Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

November 14, 2019

Protect PT, Appellant
Penn Township Zoning Hearing Board
Olympus Energy LLC, Apex Energy (PA), LLC, and The Township of Penn

          Argued: October 3, 2019




         I. Introduction

         In this land use case, Protect PT appeals an order of the Court of Common Pleas of Westmoreland County (trial court)[1] that, after holding an extended hearing and receiving a large volume of evidence, denied Protect PT's substantive validity challenge to Penn Township's (Township) Ordinance No. 912-2016 Chapter 190 (Zoning), as amended (Zoning Ordinance). Notably, the Zoning Ordinance established five unique zoning districts and four overlay districts in the Township. In particular, the Zoning Ordinance established a Rural Resource (Resource) District and a Mineral Extraction Overlay (MEO) District. Protect PT specifically challenged the constitutionality of the MEO District to the extent it permits unconventional natural gas development (UNGD) in the Resource District, which also permits low-density residential properties.

         Protect PT contends the Township's Resource District is essentially a growing suburban community and that UNGD is a heavy industrial activity incompatible with residential use and preservation of the environment. In rejecting Protect PT's contentions, the trial court determined the Zoning Ordinance does not violate either the substantive due process rights of the Township's residents or their rights under the Environmental Rights Amendment (ERA) in Article I, Section 27 of the Pennsylvania Constitution.[2] Therefore, the trial court held the Zoning Ordinance constitutionally valid.

         More specifically, Protect PT asserts on appeal that the trial court erred or abused its discretion: (1) in failing to consider all phases of developing an UNGD well pad prior to the production phase in analyzing the validity of the Zoning Ordinance even though the drilling and completion phases continue indefinitely; (2) in failing to find that UNGD is a heavy industrial activity associated with impacts on neighboring residents similar to other heavy industrial activities including air pollution, water pollution, traffic congestion, noise, light and threats to public safety; (3) in finding that UNGD historically took place in the Township and is compatible with the Township's Comprehensive Plan and the agricultural and residential land uses authorized in the Resource District; (4) in finding the MEO District is an appropriate use of a zoning overlay even though it fails to impose specific and targeted provisions tailored to local conditions without disturbing expectations created by the underlying district; (5) in finding that the enactment of the Zoning Ordinance did not violate the ERA where the Township Board of Commissioners (Commissioners) failed to account for the impact of UNGD on Township citizens' rights to clean air, pure water and the natural, scenic, historic, and esthetic values of the environment; and (6) in finding the Zoning Ordinance does not violate the substantive due process rights of Township citizens even though Protect PT demonstrated the Zoning Ordinance is arbitrary and unreasonable, and lacks any substantial relationship to promoting the public health, safety and welfare.

         The present case raises similar issues to those recently addressed by this Court in Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018) (en banc), appeal denied, 208 A.3d 462 (Pa. 2019) (holding objectors failed to establish that UNGD was incompatible with other uses or that the ordinance violated substantive due process or the ERA), and Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board (Delaware Riverkeeper (Middlesex) (Pa. Cmwlth., No. 2609 C.D. 2015, filed June 26, 2019), 2019 WL 2605850 (unreported), [3] (applying Frederick and denying the objectors' substantive validity and ERA challenges to a zoning ordinance allowing UNGD as a permitted use in a residential agricultural district). In light of our decisions in Frederick, Delaware Riverkeeper (Middlesex) and other applicable cases, we affirm the trial court's order denying Protect PT's challenges to the Zoning Ordinance.

         II. Background

         A. Substantive Validity Challenge to Zoning Ordinance

         In September 2016, the Commissioners enacted the Zoning Ordinance, which created five unique zoning districts in the Township. In addition to the Resource District, the Ordinance established the Mixed Density Residential District, the Neighborhood Commercial District, the Commercial Corridor District, and the Industrial Corridor District. The Ordinance also created four overlay districts. In addition to the MEO District, they include the Airport Overlay District, the Floodplain Overlay District and the Development Infill Overlay District. The MEO District, which permits UNGD, overlays the Industrial Commercial District (IC District) and the majority of the Resource District, with the exception of the densely populated Claridge area.

         In April 2017, Protect PT, proceeding before the Township's Zoning Hearing Board (ZHB), filed a notice of substantive validity challenge under Section 916.1 of the Pennsylvania Municipalities Planning Code (MPC).[4] In particular, Protect PT challenged the constitutionality of the MEO District. In June 2017, the ZHB issued a letter stating it did not intend to schedule a public hearing on Protect PT's validity challenge. This resulted in a deemed denial under the MPC.

         In July 2017, Protect PT appealed the deemed denial to the trial court. Huntley & Huntley Energy Exploration, LLC (Huntley), an oil and gas exploration and production company operating in the Township, and Apex Energy of Pennsylvania, LLC (Apex), an oil and gas company focused on UNGD, which also operates in the Township, were permitted to intervene. The Township also intervened in the appeal.[5]

         B. Trial: General Overview

         Where, as here, the trial court takes evidence on the merits, it must review the case de novo. Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., Greene Cty., 944 A.2d 832 (Pa. Cmwlth. 2008). This Court then reviews the trial court's findings of fact and legal conclusions for errors of law or an abuse of discretion. Id. An abuse of discretion occurs where the trial court's findings are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence that a reasonable mind would accept as adequate to support a conclusion. Id.

         Here, the trial court conducted a de novo trial and took evidence over four days in April and June 2018. During those proceedings, the trial court heard testimony from 21 witnesses, and admitted 93 exhibits into evidence. The parties also submitted briefs and proposed findings of fact.

         In November 2018, the trial court issued a comprehensive opinion and order denying Protect PT's substantive validity challenge and holding the Zoning Ordinance constitutionally valid. In its findings of fact, the trial court noted that the Zoning Ordinance described the purpose of the Resource District as providing land for continuing agricultural operations, resource management, timber harvesting, outdoor recreation, public and private conservation areas, low density single family residential, and compatible support uses. Ord. §190-402(A). The court further noted the purpose of the MEO District is described as providing areas for the extraction of minerals where the population density is low and significant development is not projected for the near future. Ord. §190-407(A). Mining and conventional oil and natural gas drilling are listed as principal uses in the MEO District. Unconventional oil and natural gas drilling are listed as special exceptions. Ord. §§190-407(C), 190-407(D).

         The trial court also recognized that UNGD is subject to numerous standards, including general development standards in the Zoning Ordinance and particular standards pertaining to the MEO District. To that end, the trial court noted:

Requirements include but are not limited to a prohibition on wastewater impound storage, dumping and seepage, regular removal of wastewater and hazardous and/or toxic waste, compliance with the Township's Subdivision and Land Development Ordinance, acquisition of relevant Pennsylvania Department of Environmental Protection ('DEP') permits, and a minimum lot size of [10] acres, as well as a [600] foot 'protected structure' setback and a 200 foot property line setback. [Ord.] §190-407(G). As [UNGD] is a special exception, the [ZHB] also has the right to impose additional conditions on the grant of the exception for purposes of promoting the health, safety and welfare of the Township's residents. [Trial Transcript pp.] 744-45).
Section 641(D) requires that the developer of a proposed UNGD well specifically 'demonstrate that the drill site operations will not violate the [Township citizens'] right to clean air and pure water as set forth in the [ERA] through the submission of reports from 'qualified environmental individuals' stating that the proposed drilling will not negatively impact these rights. [Ord.] §190-641(D). Specifically required are 'air modeling and hydrogeological studies as potential pathways that a spill or release of fluid may follow.' [Ord.] §190-641(D).

Tr. Ct., slip op., 11/9/18, at 3-4 (emphasis added). The trial court also noted the subject of UNGD in the Zoning Ordinance was addressed at 19 Planning Commission meetings, 53 Commissioners' meetings, 2 public meetings and a town hall meeting at which Protect PT presented 7 speakers, including its executive director. Id. at 4.

         C. Protect PT's Expert Witnesses

         At trial, Protect PT presented testimony from three expert witnesses. Anthony Ingraffea, Ph.D. (Dr. Ingraffea) is an engineer and co-founder of Physicians, Scientists and Engineers for Healthy Energy (PSE). Ultimately, the trial court rejected Dr. Ingraffea's opinion that UNGD causes significant adverse impacts to air and water quality, community development, human-induced seismicity, climate change, and animal health. The trial court also rejected Dr. Ingraffea's opinion that UNGD is a heavy industrial activity. These credibility findings are material to our analysis.

         Protect PT also presented testimony from Edward C. Ketyer, M.D. (Dr. Ketyer), a pediatrician in Washington County, and a consultant with the Southwest Pennsylvania Environmental Health Project, which solicits patients who believe they may have health symptoms as a result of oil and gas development. Dr. Ketyer is also a board member of Physicians for Social Responsibility, whose goal is to develop a fossil fuel free world. Ultimately, the trial court rejected Dr. Ketyer's opinion that emissions from UNGD presently pose a threat to human health. This credibility finding is also significant to our analysis.

         Protect PT's third expert, Thomas Daniels, Ph.D. (Professor Daniels), is a professor of city and regional planning at the University of Pennsylvania. Professor Daniels testified regarding the Township's Comprehensive Plan. He noted that the MPC requires the reasonable development of minerals and gas. However, Professor Daniels opined that he considers UNGD to be a heavy industrial use and that the MEO District does not fulfill the purpose of the Comprehensive Plan because the Resource District is predominantly residential. He further stated that the MEO District as it exists resulted in a scattered pattern of wells with heavy truck traffic and inconvenience to the Township's residents. However, the trial court declined to adopt Professor Daniels' opinions that UNGD is a heavy industrial use that is incompatible with the Comprehensive Plan and agricultural areas in general. These credibility findings also impact our analysis.

         D. Intervenor Huntley's Expert Witnesses

         In response, Intervenor Huntley, an oil and gas exploration and production company operating in the Township, presented testimony from three experts. Huntley presented Samuel A. Flewelling, Ph.D. (Dr. Flewelling), an environmental science consultant and a member of the Geophysical Union and the Geological Society of America. Dr. Flewelling has extensive experience regarding the impact of hydraulic fracturing on groundwater and general matters of hydrogeology. Dr. Flewelling opined that both conventional and unconventional oil and gas development have an extensive history in Westmoreland County, dating back over a hundred years. Between 1980 and 2017, approximately 5, 380 conventional and 252 unconventional wells have been drilled in the county. Unconventional wells are more compact and produce more gas than conventional wells.

         Dr. Flewelling stated that the risks of gas leaks into the drinking water are unlikely due to DEP casing and cementing requirements. Dr. Flewelling further indicated that contamination to drinking water is not likely through the deep hydraulically fractured rock as the fractures are normally lower than the aquifer. In addition, a low permeability layer creates a barrier, and there is no force driving the fluid upward. Important to our analysis, the trial court adopted Dr. Flewelling's above-expressed opinions regarding groundwater and hydrogeology.

         Intervenor Huntley also presented expert testimony from Dr. Christopher Long (Dr. Long), who holds a doctoral degree in environmental health from Harvard University's School of Public Health. Dr. Long is a certified toxicologist. He routinely conducts human health risk assessments, and he has experience studying the air quality impacts and risks caused by UNGD. Without objection, the trial court qualified Dr. Long as an expert in toxicology, air emission exposure assessment and human health risk assessment.

         Dr. Long testified that all air emissions associated with all phases of UNGD, excepting production, are transient and short-term. Various air pollutants associated with UNGD are ubiquitous in everyday life, such as fine particulate matter (FPM). Most persons are regularly exposed to the same on a short-term basis from everyday activities. A large amount of air monitoring now occurs in the Marcellus Shale region near gas development and is conducted by various groups.

         Dr. Long further testified that DEP monitored FPM in Greene, Bradford and Tioga Counties with no findings of elevated FPM levels. Also, monitors in Bradford, Tioga and Washington Counties found nitrogen dioxide levels far below the relevant national standard. Further, DEP monitors near UNGD in Washington, Wyoming and Susquehanna Counties all reported average benzene levels. In addition, the Allegheny County Health Department, which placed monitors for volatile organic compounds (VOC) near well pad activity, found VOC levels far below levels of concern for human health. Based on these and other VOC studies related to UNGD in Pennsylvania, the trial court adopted Dr. Long's expert opinions regarding toxicology, air emission exposure assessment and human health risk assessment. This credibility determination is material to our analysis. It is within the exclusive province of the trial court, as the fact-finder in a zoning case, to resolve all matters of witness credibility and evidentiary weight. See Penn St., L.P. v. E. Lampeter Twp. Zoning Hearing Bd., 84 A.3d 1114 (Pa. Cmwlth. 2014).

         As its third expert witness, Intervenor Huntley presented Professor Ross Pifer (Professor Pifer), a professor at the Penn State School of Law. Professor Pifer is the director of the Center for Agriculture and Shale Law and Rural Economic Development Clinic. Professor Pifer, who also testified in Frederick, visited numerous UNGD sites during various stages of development. He focused his research on the interplay between UNGD and the community, especially in agricultural areas. Professor Pifer made over 300 presentations regarding oil and gas development in the past 10 years. His expert testimony regarding the compatibility of oil and gas with rural and agricultural communities has been accepted by zoning hearing boards in Westmoreland, Lawrence and Washington Counties.

         Professor Pifer further testified that UNGD primarily takes place in rural and semi-rural counties in the Commonwealth, and that Westmoreland County ranks ninth in the state for UNGD, with 283 wells already drilled. UNGD, in existence since 1947, provides more benefit to agricultural regions than conventional drilling. UNGD has less surface impact and can access more acreage.

         Professor Pifer identified approximately 100 municipalities in Pennsylvania, some with zoning and some without, where UNGD, single-family homes, and agricultural uses coexist. In Westmoreland County, 24 municipalities have no zoning ordinances and allow UNGD throughout the entire municipality.

         Professor Pifer further noted that Pennsylvania law explicitly encourages the coexistence of oil and gas development and agriculture through protections provided in the Pennsylvania Farmland and Forest Land Assessment Act of 1974, popularly known as the Clean and Green Act, [6] and the Agricultural Area Security Law (AASL), [7] which involve many farmers in the Township. The Clean and Green Act also recognizes that the financial benefits of UNGD from gas leasing enables farmers to maintain agricultural operations on their land throughout generations of farmers. This permits rural lands to remain rural and prevents the forced sale of farmlands to commercial or residential development. Ultimately, the trial court adopted Professor Pifer's opinion that UNGD is compatible with agricultural and rural land uses, both generally and as laid out in the MEO District under the Zoning Ordinance. See Tr. Ct., slip op., 11/9/18, at 12. This credibility finding is also critical to our analysis.

         Intervenor Huntley also presented testimony from Jason Paul Gehringer (Analyst Gehringer), a primary Geographic Information System analyst. He testified to the existence of the Oakford Storage Field, a mostly depleted natural gas reservoir that lies beneath one-quarter of the Township's land mass. Analyst Gehringer calculated that upon taking into consideration all setbacks and regulatory requirements imposed by the Zoning Ordinance, only 9.46% of the Township's land mass is available for UNGD.

         E. Apex Witness

         Intervenor Apex presented testimony from Christopher James Hess (Hess), its general counsel, vice president of land development and corporate secretary. Hess oversees regulatory compliance, leasing and land functions. Apex leases about 7, 509 acres and maintains exclusive rights to drill in the Marcellus Shale beneath the Oakford Storage Field in the Township. Apex received approval to develop the Quest UNGD well pad, which is now in production. Apex has seven other well pads planned in the Township.

         Hess testified regarding the steps of development in UNGD, including leasing, design, permitting and construction. He described the measures taken by Apex to prevent spills and releases at the site. Apex entered into an agreement with Westmoreland County to obtain water through municipal taps, thereby eliminating about 3, 000 water trips per well. He also described DEP well permit requirements for protecting surrounding water sources and DEP permit requirements for surface disturbance and mitigation.

         In sum, Hess testified that during the production phase, UNGD generates no light at the well site, and no noise audible at the property line. Truck traffic during the production phase is limited to two truck trips per day and a few waste-water truck visits per month. Hess noted that Apex has not received any noise, light or traffic complaints regarding the Quest well site since it entered the production phase.

         F. Lay Witnesses

         Protect PT presented lay testimony from its executive director, Gillian Graber (Graber). She described Protect PT's mission as the protection of Township residents in the Penn-Trafford area from the effects of UNGD. Protect PT members often engage in special exception hearings, meetings and other public forums. Graber testified that Protect PT has also placed noise and air quality monitors at residences around the Township at property owners' requests.

         Protect PT also presented lay testimony from eight additional members or property owners living near proposed well sites in the Township. They expressed concerns regarding noise, light and air emissions, truck traffic, adverse effects on groundwater and water pressure, adverse effects on property values, and other health and safety issues.

         Conversely, Intervenor Huntley presented lay testimony from Richard J. Hajnosz and Adam Ferri (Ferri), two property owners who rely on UNGD lease and royalty payments to maintain their agricultural property and to avoid selling it for residential development. Ferri, a real estate developer who owns a 133-acre tract in the Resource District, testified residential development negatively impacts the agricultural nature of the property in the Resource District. Ferri testified that permanent impacts from residential development include traffic and impervious surface loss. See Notes of Testimony (N.T.), 6/4/18, at 844-45; Reproduced Record (R.R.) at 722a.

         G. Trial Court's Discussion and Analysis

         1. Generally

         As discussed above, when reviewing a challenge to a zoning ordinance in which it takes evidence, the trial court performs a de novo review. Coal Gas Recovery Grp. Because a zoning ordinance is presumed valid, a challenger bears a heavy burden of establishing its invalidity. Woll v. Monaghan Twp., 948 A.2d 933 (Pa. Cmwlth. 2008). A validity challenge generally attacks zoning on substantive due process grounds, i.e., whether an ordinance is substantially related to a legitimate interest. Plaxton v. Lycoming Cty. Zoning Hearing Bd., 986 A.2d 199 (Pa. Cmwlth. 2009). Where the validity of an ordinance is debatable, it must be upheld. Main Street Dev. Grp., Inc. v. Tinicum Twp. Bd. of Supervisors, 19 A.3d 21 (Pa. Cmwlth. 2011).

         In Pennsylvania, the constitutionality of a zoning ordinance is reviewed under a substantive due process analysis. Plaxton. Under such analysis, the party challenging the validity of the provisions of a zoning ordinance must establish that the challenged provisions are arbitrary or unreasonable and have no substantial relationship to promoting the public health, safety and welfare. Id. In examining whether the ordinance is a valid exercise of the police powers, reviewing courts must balance the public interest to be served by the ordinance against the confiscatory or exclusionary impact of the ordinance on individual rights. Delchester Developers, L.P. v. Zoning Hearing Bd. of London Grove, 161 A.3d 1081 (Pa. Cmwlth. 2017); Penn St.

         Protect PT alleged the MEO District violates the Township residents' substantive due process rights, as well as their constitutional rights under the ERA in Article I, Section 27 of the Pennsylvania Constitution, by allowing UNGD in the Resource District. Protect PT alleged the Resource District is primarily residential. Protect PT claimed the MEO District is designed in such a way that UNGD is able to be developed in a haphazard manner, creating nuisances and health risks for neighboring property owners. Thus, Protect PT maintains the MEO District is invalid.

         2. Substantive Due Process

         Protect PT first argued that in enacting the Zoning Ordinance, the Township failed to consider the effects of UNGD on neighboring property owners. Protect PT maintained that UNGD is a heavy industrial use, and that allowing UNGD, in what Protect PT perceives as a majority of the Township, creates nuisance, health and safety risks for neighboring property owners in the Resource District, thereby violating their substantive due process rights.

         The trial court recognized UNGD is a lawful and not a disfavored use in Pennsylvania. Section 603(i) of the MPC states: "Zoning ordinances shall provide for the reasonable development of minerals in each municipality." 53 P.S. §10603(i). An integral purpose of the Resource District is resource management. See Ord. §190-402(A). Section 107(a) of the MPC defines "minerals" as including "crude oil and natural gas." 53 P.S. §10107(a). Notably, our Supreme Court determined that pursuant to Section 601 of the MPC, the governing body of a municipality may amend its zoning ordinances to permit oil and gas development in any or all of its zoning districts. Gorsline v. Bd. of Supervisors of Fairfield Twp. (Gorsline II), 186 A.3d 375 (Pa. 2018).

         Here, the trial court observed that the Township carefully balanced its obligation to provide for the management and development of minerals with the inherent rights of the neighboring property owners in the MEO District.

         The trial court further noted that under Pennsylvania law, zoning regulates only the use of the land, not the particulars of development and construction. Frederick; Gorsline v. Bd. of Supervisors of Fairfield Twp. (Gorsline I), 123 A.3d 1142 (Pa. Cmwlth. 2015), rev'd on other grounds, 186 A.3d 375 (Pa. 2018); Schatz v. New Britain Twp. Zoning Hearing Bd. of Adjustment, 596 A.2d 294 (Pa. Cmwlth. 1991). Therefore, the trial court reasoned, the development and construction of a well pad prior to its production phase or use phase, should not be taken into account in analyzing the zoning ordinance in a validity challenge. Similarly, it would be improper to assess the industrial activities that take place during the construction of any commercial or residential property, prior to the structures being used.

         3. Compatibility with ...

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