C. Lodge v. Robinson Twp. ZHB v. Robinson Twp. ( 2022 )

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)
10
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.)
12
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