IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Penneco :

Environmental Solutions, LLC :

from the decision of The Zoning : No. 931 C.D. 2018

Hearing Board of the Borough of Plum : Argued: February 11, 2019

:

Appeal of: Borough of Plum :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION

BY JUDGE SIMPSON FILED: March 8, 2019

In this zoning appeal, the Borough of Plum (Borough) asks whether 

the Court of Common Pleas of Allegheny County1(trial court) erred in reversing 

the decision of the Zoning Hearing Board of the Borough of Plum (ZHB), that 

denied Penneco Environmental Solutions, LLC’s (Penneco) substantive validity 

challenge to Borough Ordinance No. 731-004 (zoning ordinance). The ZHB 

denied Penneco’s substantive validity challenge on the ground that it was not ripe 

for review where Penneco had not yet obtained federal and state permits for the 

proposed conversion of its production oil and gas well into an underground 

injection well. Agreeing that the ZHB erred in concluding Penneco’s substantive 

validity challenge was not ripe for review, we affirm the trial court.

 

1 The Honorable Joseph M. James presided.
2

I. Background

The ZHB made the following findings. Sedat, Inc. (Sedat) owns the 

property located at 1800 Old Leechburg Road in the Borough (property). Penneco 

is an affiliate of Sedat. The property lies in a rural residential zoning district.

Since approximately 1989, Penneco Oil Company (Penneco Oil) 

operated a gas production well on the property. Penneco Oil has a permit from the 

Pennsylvania Department of Environmental Protection (DEP) to operate the gas 

production well. Penneco, whose association to Penneco Oil is unknown, seeks to 

convert the well from a producing well to an underground injection well. An 

underground injection well serves to dispose of exploration and production fluids 

from oil and gas operations by placing the fluids into porous geologic formations. 

The disposal of waste products from oil and gas operations is subject to the 

oversight of the U.S. Environmental Protection Agency (EPA).

In March 2016, Penneco submitted an application to the EPA 

requesting permission to operate an underground injection well on the property. 

About six months later, Penneco filed a substantive validity challenge to the zoning 

ordinance with the ZHB. Penneco challenged the zoning ordinance claiming it 

excluded the operation of an underground injection well in all zoning districts in 

the Borough. Penneco also asserted the zoning ordinance was preempted by state 

and federal law. The parties consented to postponement of a hearing before the 

ZHB on the validity challenge until after the EPA conducted a public hearing on 

Penneco’s application to the EPA to operate the injection well on the property.
3

In June 2017, the Borough publicly announced its plan to adopt or 

propose a new zoning ordinance. The EPA subsequently conducted a hearing at 

which it received public comment regarding Penneco’s proposed injection well.

In August 2017, Penneco requested that its substantive validity 

challenge be placed on the ZHB’s agenda. A few weeks later, Penneco and the 

ZHB agreed to list the matter on the ZHB’s October 2017 agenda. A hearing 

ensued before the ZHB.

In its subsequent decision, the ZHB explained:

The current status of the EPA’s consideration of the 

permit is that subsequent to the hearing the EPA is 

considering and responding to the public comments from 

that meeting and comments that were submitted 

subsequent to that during the comment period. It is 

Penneco’s understanding that the EPA intends to respond 

to those comments by the end of 2017 and then will go 

on through the remaining permitting process in early 

2018.

ZHB Dec., 11/17/17, Finding of Fact (F.F.) No. 18.

Penneco represented that it would file an application with DEP for a 

permit to operate the injection well if the EPA gave its approval, as EPA approval 

must precede DEP approval. As a result, Penneco had not yet submitted an 

application to DEP. Penneco will not be permitted to operate an injection well on 

the property if the EPA and DEP do not grant the required permits and approvals.
4

Based on these findings, the ZHB made the following conclusions of 

law. Ripeness is defined as the presence of an actual controversy. In re Borough 

of Blakely, 25 A.3d 458 (Pa. Cmwlth. 2011). The ripeness doctrine requires an 

evaluation of “the fitness of the issues” for determination, as well as the hardship 

to the parties of withholding judicial consideration. Am. Council of Life Ins. v. 

Foster, 580 A.2d 448, 451 (Pa. Cmwlth. 1990). The ZHB determined no actual 

controversy yet existed here, and one may never exist, because Penneco had not 

yet received the required approvals from the EPA and DEP.

The ZHB stated that the issue of whether the zoning ordinance is 

invalid because, as alleged, it is exclusionary or preempted is of no consequence if 

the EPA and DEP do not grant the required approvals. The ZHB explained that, if 

it invalidated the zoning ordinance, Penneco would not be permitted to operate its 

proposed injection well because it lacked the requisite federal and state approvals. 

The ZHB further determined this matter would be moot if those approvals were not 

granted. The ZHB also stated the zoning ordinance imposes no hardship on 

Penneco unless Penneco receives the required approvals. For these reasons, the 

ZHB denied Penneco’s substantive validity challenge. Penneco appealed to the 

trial court.

Without taking additional evidence, the trial court reversed. The trial 

court stated that, contrary to the ZHB’s determinations, under Pennsylvania law, 

municipalities may not require outside agency permits before providing zoning 

approval. Therefore, the trial court determined the ZHB erred in concluding 

Penneco’s substantive validity challenge was not ripe for review.
5

Further, the trial court determined Penneco met its burden of proving 

the zoning ordinance improperly excluded a recognized, legitimate business 

activity; thus, the trial court held the zoning ordinance was de jure exclusionary 

and invalid. As a result, the trial court determined Penneco was entitled to sitespecific relief as to its proposed underground injection well on the property. The 

Borough now appeals to this Court.

II. Issue

The Borough raises only one issue on appeal.2 It asserts the ZHB 

properly denied Penneco’s substantive validity challenge for lack of ripeness.

Whether the zoning ordinance is de jure exclusionary, and whether, if so, Penneco 

is entitled to site-specific relief, are not matters before us in this appeal.

III. Discussion

A. Contentions

The Borough argues that “[r]ipeness has been defined as the presence 

of an actual controversy; it requires a court to evaluate the fitness of the issues for 

judicial determination, as well as the hardship to the parties of withholding court 

consideration.” Blakely, 25 A.3d at 466. The Borough further asserts a court 

should look to “existing facts” when evaluating the ripeness of an issue. Borough 

of Centralia v. Commonwealth, 658 A.2d 840, 842 (Pa. Cmwlth. 1995). Here, it 

 

2 Because the parties presented no additional evidence after the ZHB’s decision, our 

review is limited to determining whether the ZHB committed an abuse of discretion or an error 

of law. Penn Street, L.P. v. E. Lampeter Twp. Zoning Hearing Bd., 84 A.3d 1114 (Pa. Cmwlth. 

2014).
6

contends no actual controversy exists as Penneco has yet to receive final, unappealable approval from either the EPA or DEP.

The Borough maintains that, when a ZHB member questioned 

Penneco’s counsel as to the effect that denial of approval by the EPA or DEP could 

have on Penneco’s proposed injection well, Penneco’s counsel stated:

It’s possible that the [ZHB] could grant Penneco’s 

petition and Penneco from the [ZHB] has the authority to 

go forward with placing an underground injection well at 

its proposed location, but if the EPA or DEP rejects 

[Penneco’s] permit or places other conditions on it, then 

Penneco is certainly subject to that federal and state 

authority.

Reproduced Record (R.R.) at 103a-04a.

Without EPA or DEP approval, the Borough argues, Penneco will 

have no ability to develop the property for purposes of installing an injection well. 

R.R. at 104a. Thus, the Borough asserts, absent approval of both outside agencies, 

and the issuance of necessary permits, Penneco was deprived of no legal rights. Id.

The Borough further contends that, at the October 2017 ZHB hearing, 

Penneco’s counsel indicated that the EPA and DEP permits remained outstanding. 

R.R. at 123a. Specifically, Penneco’s counsel stated: “We are here today asking 

with our petition for the Borough, but the EPA permit, once that is approved, then 

we would go through the DEP permitting process.” Id. As such, the Borough 

maintains, the ZHB’s actions have not affected the immediate use of the property, 

and any alleged loss is purely conjectural. Centralia.
7

The Borough argues Penneco’s lack of the necessary federal and state 

approvals renders any alleged injury or deprivation hypothetical, and, therefore, 

not ripe for consideration. Centralia. The Borough contends the current situation, 

where a lack of existing facts renders an issue unripe, is analogous to the situation 

presented in Centralia. The Borough asserts that, as of the date it filed its brief to 

this Court, there exist no facts or actions taken by the Borough or the ZHB that 

impacted Penneco’s use of the property, and any asserted loss by Penneco is 

hypothetical. Id.

For its part, the ZHB argues Penneco filed its challenge, claiming the 

zoning ordinance excluded the operation of an underground injection well in all 

zoning districts in the Borough, and that the zoning ordinance was preempted by 

state and federal law. In order to operate an underground injection well, the ZHB 

asserts, Penneco concedes it is required to obtain EPA and DEP approval. At the 

time Penneco challenged the zoning ordinance, it lacked approval from either 

agency.

Without an actual controversy, the ZHB argues, a matter is not 

suitable for judicial determination. The ZHB asserts it denied Penneco’s challenge 

because there was no actual controversy, as Penneco had yet to obtain regulatory 

permission from the relevant federal and state agencies. Thus, the ZHB contends, 

the matter was not ripe for determination.

The ZHB maintains that, before obtaining EPA or DEP approval, 

Penneco challenged the zoning ordinance claiming it excluded the operation of 
8

underground injection wells in all zoning districts, and that the zoning ordinance 

was preempted by federal and state law. R.R. at 12a.

The ZHB argues it decided no actual controversy existed, and one 

may never exist, because Penneco had yet to receive the required approvals from 

the EPA and DEP. F.F. No. 18. Under the ripeness doctrine, the ZHB asserts, this 

Court should refrain from making a determination as the answer would be based on 

Penneco’s assertions of speculative, hypothetical events that may or may not occur 

in the future. The ZHB contends a determination by the ZHB regarding the 

validity of the zoning ordinance would have been speculative and based on 

hypothetical events because Penneco had yet to receive the necessary federal and 

state approvals.

Penneco counters that the trial court correctly reversed the ZHB 

because the ZHB erred in denying Penneco’s challenge to the validity of the 

exclusionary zoning ordinance. Penneco argues the Borough waived all bases for 

appeal except for that stated in its question presented and argued in its brief—that 

the ZHB correctly denied Penneco’s challenge to the zoning ordinance for want of 

“ripeness” where Penneco had not received permits for its proposed use from state 

or federal agencies. Appellee Penneco Environmental Solutions, LLC’s Br. at 10.

Penneco asserts Pennsylvania law is clear that a municipality may not 

require outside agency permits or approvals before providing zoning approval. 

Penneco contends that, while it is undisputed that at the time of the ZHB hearing it 

had not yet received federal and state permits to operate an underground injection 
9

well, that is not an appropriate basis upon which the ZHB could deny Penneco’s 

challenge to the validity of the exclusionary zoning ordinance. Nevertheless, 

Penneco maintains, the ZHB denied Penneco’s challenge on that basis, committing 

reversible error. Therefore, Penneco requests that this Court affirm the trial court’s 

reversal of the ZHB and the grant of site-specific relief.

Penneco asserts its substantive validity challenge was ripe for review

by the ZHB because the zoning ordinance’s failure to provide for the use of an 

underground injection well anywhere in the Borough directly and presently 

prevented Penneco’s proposed use of the property. See, e.g., Braksator v. Zoning 

Hearing Bd. of Northampton Twp., 641 A.2d 44, 45 (Pa. Cmwlth. 1994) (holding 

that a landowner is directly affected when “prevented from doing something that 

he wants to do[,]” and appeal was ripe where landowners were “presently faced 

with a choice” as to their development).

Specifically, Penneco contends, Pennsylvania law is clear that 

municipalities may not require outside agency permits before providing zoning 

approval. Lehigh Asphalt Paving & Constr. Co. v. Bd. of Supervisors of E. Penn 

Twp., 830 A.2d 1063 (Pa. Cmwlth. 2003). Thus, courts repeatedly reject 

arguments that federal or state permits are prerequisites to challenging the validity 

of an ordinance or seeking zoning approval. See Hydropress Envtl. Servs., Inc. v. 

Twp. of U. Mount Bethel, Cty. of Northampton, 836 A.2d 912 (Pa. 2003); Lehigh 

Asphalt; see also Seneca Res. Corp. v. Highland Twp., No. 15-60 ERIE, 2016 WL 

1213604, at *4 (W.D. Pa. Mar. 29, 2016) (unreported) (stating that because a 

developer must obtain zoning approval to obtain a DEP permit, a municipality may 
10

not require the developer to obtain a DEP permit before challenging the validity of 

an ordinance; otherwise, such reasoning would invoke “images of the proverbial 

cat chasing its tail”); Pa. Gen. Energy Co., LLC v. Grant Twp., C.A. No. 14-209 

ERIE, 2015 WL 6001550, at *9 (W.D. Pa. Oct. 14, 2015) (unreported) (rejecting 

township’s argument that “focuse[d] on the proposition that [the applicant] must 

obtain both ... DEP and EPA permits as a ‘condition precedent’ for standing to 

pursue this legal action”; “lack of a DEP permit is irrelevant to the legal claims 

pled in this case”).

For example, Penneco maintains, addressing the issue of standing to 

challenge the validity of an ordinance, the Pennsylvania Supreme Court noted that 

the ordinance at issue did “not require that a party receive a permit from [DEP] 

before receiving a permit from the [t]ownship,” but only required that a DEP 

permit be obtained “prior to the onset of site application.” Hydropress, 836 A.2d at 

916-17. Thus, the Court in Hydropress held, “the [t]ownship’s reliance on [DEP] 

approval as a prerequisite to standing is unfounded as [the applicant] is free to seek 

a permit from the [t]ownship without [DEP] approval as long as it obtains a [DEP] 

permit prior to” conducting any activities requiring such a permit. Id. As in 

Hydropress, Penneco argues, the express terms of the zoning ordinance here do not

require a party to obtain approvals from federal or state agencies as a pre-condition 

to receiving zoning approval or substantively challenging the zoning ordinance.

Likewise, Penneco argues, in the context of a special exception 

application, this Court explained that the Pennsylvania Municipalities Planning 
11

Code3(MPC), “does not require the prior issuance of state permits before a ZHB 

decision” can be made. Lehigh Asphalt, 830 A.2d at 1074. Rather, federal and

state permits are not prerequisites to zoning approval because “[n]othing in the 

MPC or the particular ordinance ... relieves the ZHB of its statutory duty to decide 

the application nor does the absence of a DEP permit hamper the ZHB’s ability to 

perform that duty.” Id.; accord Oasis v. Zoning Hearing Bd. of S. Annville Twp., 

94 A.3d 457, 463 (Pa. Cmwlth. 2014).

At most, Penneco asserts, while this Court consistently holds that 

local municipalities must approve zoning applications even where federal and state

permits will be required, but have not yet been obtained, it acknowledges that in 

some cases a zoning permit may include a condition that the applicant obtain 

necessary federal and state permits before beginning development, rather than 

rejecting an application outright. See, e.g., In re Drumore Crossings, L.P., 984 

A.2d 589 (Pa. Cmwlth. 2009).

Here, Penneco contends, contrary to the above authority, the ZHB did 

not consider any specific conditions related to ancillary permits, but instead 

rejected Penneco’s substantive validity challenge outright. As such, Penneco 

maintains, the ZHB’s denial of Penneco’s substantive validity challenge on the 

basis that Penneco had not yet received EPA and DEP permits was an error of law.

Penneco further argues the Borough cites no relevant authority to 

support its legal arguments. It asserts the Borough cites only two cases in its brief 

 

3 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
12

to attempt to support its assertion that Penneco’s validity challenge was not ripe for 

review by the ZHB. Penneco contends these cases, Blakely and Centralia, are 

distinguishable and do not provide a basis for the Borough’s appeal.

Moreover, Penneco maintains, the improper, exclusionary zoning 

ordinance presents an actual controversy ripe for judicial review, because it stands 

as an obstacle to Penneco’s ability to obtain a DEP permit. See 53 P.S. §10916.14; 

DEP Policy for Consideration of Local Comprehensive Plans and Zoning 

Ordinances in DEP Review of Authorizations for Facilities and Infrastructure 

(DEP Land Use Policy) at 55; see also Seneca. Therefore, Penneco asserts, this 

Court, like the trial court, should conclude the ZHB erred in denying Penneco’s 

substantive validity challenge based on a lack of ripeness.6

B. Analysis

Pursuant to Section 916.1(a)(1) of the MPC: “A landowner who, on 

substantive grounds, desires to challenge the validity of an ordinance ... or any 

provision thereof which prohibits or restricts the use or development of land in 

which he has an interest shall submit the challenge ... to the [ZHB] under [S]ection 

 

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

5 See DEP Land Use Policy, Doc. No. 012-0200-001, available at 

http://www.depgreenport.state.pa.us/elibrary/GetDocument?docId=7448&DocName=POLICY%

20FOR%20CONSIDERATION%20OF%20LOCAL%20COMP%20PLANS%20AND%20ZON

ING%20ORD%20IN%20DEP%20REVIEW%20OF%20PERMITS%20FOR%20FAC%20AND

%20INFRASTRUCTURE.PDF%20%20%3Cspan%20style%3D%22color%3Ablue%3B%22%3

E%3C%2Fspan%3E# (last visited February 15, 2019).

6

In a footnote, Penneco explains, in March 2018, the EPA granted Penneco’s permit for 

the underground injection well, authorizing Penneco to operate its well in the Borough. See EPA 

Permit No. PAS2D701BALL.
13

909.1(a) [of the MPC,] [53 P.S. §10909.1(a)7] ....” See also Section 1204.2 of the 

zoning ordinance (“The [ZHB] shall hear challenges to the validity of th[e] 

[zoning] [o]rdinance ... raising substantive questions.”). This is the procedure 

Penneco followed here.

Rather than considering the merits of Penneco’s challenge, however, 

the ZHB denied it on the ground it was not ripe for review, as Penneco had not yet 

obtained (and could possibly never obtain) EPA and DEP approval for its proposed 

underground injection well. See ZHB Op., Concls. of Law Nos. 4-8. The ZHB 

erred in denying Penneco’s substantive validity challenge on this basis.

The rationale behind the ripeness doctrine is “to prevent the courts, 

through avoidance of premature adjudications, from entangling themselves in 

abstract disagreements over administrative policies ....” Braksator, 641 A.2d at 45 

(citation omitted). The criteria a court will consider are: (1) whether the issues are 

adequately developed for judicial review; and (2) what hardship the parties will 

suffer if review is delayed. Id. (citing Foster). “This Court will only take 

jurisdiction over a particular matter where a[n] ... ordinance has actually been 

applied to a litigant.” Id.

Here, Penneco’s substantive validity challenge is ripe for review. 

Through its petition, Penneco claimed that, as presently written, the zoning 

ordinance does not permit Penneco’s proposed underground injection well, the use 

it seeks to commence, in any zoning district throughout the Borough. R.R. at 63a-

 

7 Section 909.1(a) of the MPC was added by the Act of December 21, 1988, P.L. 1329.
14

83a. Thus, it asserted, the zoning ordinance, on its face, directly prohibits its 

proposed use. As such, the issue of whether the zoning ordinance was, in fact, de 

jure exclusionary was sufficiently developed for review by the ZHB. Braksator.

In addition, Penneco will suffer hardship if consideration is delayed as 

it already expended resources surveying the site and creating a plat map in 

connection with its validity challenge. R.R. at 36a. Penneco also expended 

resources applying for an EPA permit and undergoing a public hearing before the 

EPA in connection with its proposed underground injection well. F.F. Nos. 9, 14. 

Moreover, it appears Penneco’s inability to obtain a merits review by the ZHB will

delay its ability to obtain a DEP permit because, prior to commencing review of a 

permit application, DEP requires information as to a proposal’s compliance with 

applicable local ordinances. See DEP Land Use Policy at 5.

Further, in Lehigh Asphalt, this Court held, where an applicant sought 

a special exception for its proposed quarry expansion, and the ordinance did not 

require presentation of a DEP permit prior to the ZHB’s consideration of the 

requested zoning relief, the ZHB erred in denying the application as incomplete on 

the ground the applicant did not provide a DEP permit. We stated: “Nothing in the 

MPC or the particular ordinance applicable here relieves the ZHB of its statutory 

duty to decide the application nor does the absence of a DEP permit hamper the 

ZHB’s ability to perform that duty.” Id. at 1074.

Here, as in Lehigh Asphalt, neither the MPC nor the zoning ordinance 

requires submission of an EPA or DEP permit with an applicant’s substantive 
15

validity challenge as a prerequisite to review by the ZHB. Thus, the ZHB erred in 

denying Penneco’s challenge on that basis. Id.; accord Hydropress (party had 

standing to challenge ordinance and seek permit from township where it applied 

for permit from DEP and ordinance did not require party to receive DEP permit 

before receiving township approval).

In addition, this Court repeatedly holds that, where permits from an 

agency outside a municipality are required for a land development proposal, 

approving the proposal with a condition that outside agency permits are received, 

as opposed to outright denial, is appropriate. See, e.g., Whitehall Manor, Inc. v. 

Planning Comm’n of City of Allentown, 79 A.3d 720 (Pa. Cmwlth. 2013); In re 

McGlynn, 974 A.2d 525 (Pa. Cmwlth. 2009); Kohr v. L. Windsor Twp. Bd. of 

Supervisors, 910 A.2d 152 (Pa. Cmwlth. 2006); CACO Three, Inc. v. Bd. of 

Supervisors of Huntington Twp., 845 A.2d 991 (Pa. Cmwlth. 2004); Morris v. S. 

Coventry Twp. Bd. of Supervisors, 836 A.2d 1015 (Pa. Cmwlth. 2003). Indeed, 

our Supreme Court cautions that when assessing the propriety of conditional 

approval, the practicalities of the situation must be considered. Broussard v. 

Zoning Bd. of Adjustment of City of Pittsburgh, 907 A.2d 494 (Pa. 2006) (grant of 

special exception with conditions where applicant showed willingness and ability 

to satisfy conditions and where it was reasonable that approval precede formal 

execution of binding contract for off-site parking). Here, the ZHB did not consider 

any conditions on Penneco’s requested zoning relief relating to Penneco obtaining 

EPA or DEP permits; instead, it issued an outright denial of Penneco’s substantive 

validity challenge.
16

In addition, this case is distinguishable from Blakely and Centralia,

the two takings cases cited by the Borough. First, in Centralia, the 

Commonwealth, its Department of Community Affairs, and the Columbia County 

Redevelopment Authority (redevelopment authority) initiated a program to 

relocate the borough’s residents based on health and safety threats from a longburning fire in the borough’s underground mines. A small number of residents 

declined to relocate. The redevelopment authority notified these residents that it 

would condemn their surface properties. However, the borough owned the 

subsurface areas of the properties, which included mineral and coal reserves.

The borough filed a petition for appointment of a board of viewers, 

alleging the planned surface acquisition of the borough’s remaining occupied 

properties and relocation of residents would result in a de facto taking of the 

subsurface mineral and coal reserves. Ultimately, this Court held the borough’s 

petition was not ripe for review where it did not aver existing facts that could 

establish a de facto taking. Rather, it merely alleged the redevelopment authority 

will effect a de facto taking once it completed the acquisition and relocation plan. 

The borough alleged the planned condemnation of all remaining surface properties 

would ultimately result in the “destruction and elimination of [b]orough 

government and effective elimination of the [b]orough as an entity.” Id. at 842.

Thus, the borough alleged its rights to the subsurface mineral and coal reserves 

would ultimately escheat to the Commonwealth. Given the hypothetical nature of 

these averments, we held the borough’s petition was not ripe for review as no 

actual controversy existed. To that end, the borough did not aver facts “which are 

certain to occur .... ” Id. Thus, we reasoned:
17

The averments in [the borough’s] petition are 

hypothetical. No party has presently restricted [the 

borough’s] right to mine. There is no allegation that [the 

borough] cannot now mine the subsurface areas it owns 

because surface areas will be taken and residents will be 

relocated. Nor can it be established at this point that [the 

borough] will cease to exist or will be definitely 

prevented from mining in the future. In sum, there has 

been no de facto taking of [the borough’s] right to use 

and enjoy the subsurface. It could be said that, in a 

sense, there may eventually be a de facto taking of the 

borough itself, but not the rights to the subsurface. Apart 

from the plain circumstance that governmental activity 

has not affected the immediate use of the property, any 

threatened loss of the property is conjectural.

Id. at 843 (citation omitted).

More recently, in Blakely, relying on Centralia, we upheld a common 

pleas court’s order that dismissed a landowner’s petition for appointment of a 

board of viewers. There, the landowner claimed he could not build homes on lots 

he owned because the borough installed a plastic drainage pipe in a ditch that cut 

off vehicular access to his property from an adjacent road. The landowner alleged 

this prohibited him from building homes along the road, and, in order to develop 

the lots, he would need to replace at least part of the plastic pipe with reinforced

concrete pipe.

Contrary to the landowner’s assertions, this Court explained, among 

other things: (1) the borough never informed the landowner he could not build 

homes on the lots; (2) the landowner did not consult the planning commission or 

submit actual plans to the borough; (3) the landowner did not explain why access 

was not possible from another road abutting the landowner’s property; and (4) the 
18

landowner did not explain how he intended to resolve his need for variances for the 

lots. Thus, we held the landowner’s claims of injury and substantial deprivation of 

the use of his property were speculative; as a result, his de facto taking claim was 

premature.

Unlike Blakely and Centralia, the case before us does not involve a 

claimed de facto taking. Additionally, unlike the speculative claims at issue in 

those cases, here Penneco filed its petition with the ZHB challenging the

substantive validity of the zoning ordinance on the ground that it presently 

excludes Penneco’s proposed use in all zoning districts throughout the Borough. 

R.R. at 63a-83a. Thus, before the ZHB, Penneco asserted: “There’s no mechanism 

by which Penneco can apply to the Borough for this use.” R.R. at 136a. Further, 

Penneco planned for its proposed underground injection well by surveying the 

property and creating a plat map, which it submitted as an exhibit to its petition 

challenging the validity of the zoning ordinance. R.R. at 36a. Also, as stated 

above, Penneco expended resources applying for an EPA permit to operate its 

proposed underground injection well, and it underwent a hearing on the 

application. Further, as indicated above, Penneco’s petition is ripe for review 

because it impacts Penneco’s ability to obtain a DEP permit.

IV. Conclusion

Based on the foregoing, we affirm the trial court’s determination that 

the ZHB erred in concluding Penneco’s substantive validity challenge was not ripe 

for review. Because this is the sole issue raised by the Borough in its brief on 

appeal, we do not consider the propriety of the trial court’s determinations that 
19

Penneco met its burden of proving the zoning ordinance is, in fact, impermissibly 

exclusionary, or that Penneco is entitled to site-specific relief.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Penneco :

Environmental Solutions, LLC :

from the decision of The Zoning : No. 931 C.D. 2018

Hearing Board of the Borough of Plum :

:

Appeal of: Borough of Plum :

O R D E R

AND NOW, this 8

th day of March, 2019, the order of the Court of 

Common Pleas of Allegheny County is AFFIRMED.

 

ROBERT SIMPSON, Judge