Protect PT v. Penn Township Zoning Hearing Board, 111419 PACCA, 1632 C.D. 2018

Docket Nº:1632 C.D. 2018
Party Name:Protect PT, Appellant v. Penn Township Zoning Hearing Board v. Olympus Energy LLC, Apex Energy (PA), LLC, and The Township of Penn
Case Date:November 14, 2019
Court:Commonwealth Court of Pennsylvania

Protect PT, Appellant


Penn Township Zoning Hearing Board


Olympus Energy LLC, Apex Energy (PA), LLC, and The Township of Penn

No. 1632 C.D. 2018

Commonwealth Court of Pennsylvania

November 14, 2019

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...

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