IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

Appellant :

:

v. : No. 39-42 C.D. 2018

: Argued: October 16, 2018

Penn Township Zoning Hearing :

Board and Apex Energy (PA), LLC :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: November 8, 2018

In these four consolidated zoning appeals, Protect PT (Objector) 

challenges the order of the Court of Common Pleas of Westmoreland County (trial 

court) that affirmed the decisions of the Penn Township Zoning Hearing Board 

(ZHB) granting the four special exception applications filed by Apex Energy (PA), 

LLC (Applicant) for its oil and gas operations (unconventional gas wells), subject 

to conditions attached by the ZHB. Objector asserts the ZHB erred in granting the 

special exceptions where: (1) the record lacks substantial evidence that Applicant’s 

proposal satisfies Section 190-635(D)(1) of the Zoning Ordinance of Penn 

Township (zoning ordinance) relating to the storage of toxic-produced water; (2) 

the record lacks substantial evidence that Applicant’s proposal satisfies Section 

190-641(D) of the zoning ordinance relating to the protection of citizens’ 

environmental rights; and (3) the record contains substantial evidence that shows 

Applicant’s proposal would create a high probability of an adverse, abnormal or 
2

detrimental effect to the public health, safety, and welfare. Upon review, we 

affirm.

I. Background

At the outset of its opinion, the trial court noted that the parties agreed

on the procedural and factual background of the special exception applications at 

issue here.

In the fall of 2015, Applicant filed seven special exception 

applications with the Penn Township (Township) Zoning Office for oil and gas 

operations (unconventional gas wells). Applicant proposed to develop well pads 

on parcels located in the Township’s Rural Resource zoning district, which also lie 

in the Township’s Mineral Extraction Overlay District (MEO).

After hearings and decisions denying three of the applications in 

2016, Applicant filed suit in federal court against the ZHB, the Township and the

Township’s Board of Commissioners. The federal suit concluded with an 

agreement of the parties, which a federal trial court approved and incorporated into 

a stipulation for entry of consent judgment. The trial court here noted that, 

although the parties disagreed on the proper interpretation of the consent judgment, 

it effectively required Applicant to agree to implement a set of conditions on the 

well pads in exchange for the Township, the ZHB, and the Board of

Commissioners agreeing to be bound by certain interpretations of the zoning 

ordinance and Article I, Section 27 of the Pennsylvania Constitution (the 

Environmental Rights Amendment). Under the federal trial court’s consent order, 

the Township was directed to provide all permitting for the three denied special 
3

exception applications. Hearings ensued before the ZHB on Applicant’s remaining 

four special exception applications.1

 

1 The following additional background is helpful. In June 2014, Applicant’s 

representatives met with the Township’s staff to present a drilling plan consisting of seven 

proposed unconventional natural gas well pad sites, including the Numis, Backus, Deutsch, and 

Drakulic well pads, which are the four well pads at issue in these consolidated appeals. At that 

time, the Township permitted drilling in all zoning districts through a savings clause requiring an 

applicant to obtain special exception approval subject to four objective criteria. After receiving 

information regarding Applicant’s plans, in October 2014, the Township Commissioners enacted 

Resolution No. 85/2014. Through Resolution No. 85/2014, the Township Commissioners 

directed that all zoning applications be reviewed in accordance with a proposed “amended, 

revised, updated, codified, and recodified Zoning Ordinance and Zoning Map” (Pending 

Ordinance). Reproduced Record (R.R.) at 1553a. The Pending Ordinance limited “Oil and Gas 

Operations” to the MEO District--a district comprised of the Industrial Commerce District and 

the Rural Resource District--by conditional use. No public hearing occurred on the Pending 

Ordinance. R.R. at 3183a.

Thereafter, in December 2014, following discussions with the Township, Applicant 

prepared and submitted applications for conditional use and land development plan approval for 

the Quest Central Pad-7. In response, the Township amended the Pending Ordinance by 

approving Resolution 33/2015. R.R. at 1546a-48a. Resolution 33/2015 modified the permitting 

procedures to require applicants to seek a special exception for oil and gas operations in the 

MEO District.

Applicant proceeded with its application for the Quest Central Pad-7 in the MEO District, 

and the ZHB approved that application. In 2015, Applicant constructed and placed the Quest 

Central Pad-7 into production. Having placed the Quest Central Pad-7 into production, 

Applicant submitted seven additional applications for special exception approval to the ZHB. 

All seven applications sought to construct well pads in the MEO District under the Pending 

Ordinance and were consistent with the materials submitted for the Quest Central Pad-7. After 

several hearings, the ZHB denied three of the special exception applications. Applicant then 

filed its federal suit challenging, among other things, the denial of its applications under what it 

alleged was the unconstitutionally vague Pending Ordinance. At approximately the same time, 

in June 2016, the Township published the fifth “Penn Township Pending Ordinance” revision 

(Fifth Revision) on the Township website. R.R. at 631a-32a. The Township held a hearing on 

the Fifth Revision and ultimately adopted the Fifth Revision as its comprehensive zoning 

ordinance in September 2016 (Current Ordinance). R.R. at 1403a-70a.

Ultimately, Applicant, the Township, the ZHB, and the Township Commissioners entered

into an agreement to resolve the federal suit, which the federal trial court approved by order.

Under the consent order, the Township was directed to provide all permitting for the three denied 

special exception applications. The parties further agreed that the remaining four special 

exception applications for the Numis, Backus, Deutsch, and Drakulic well pads would proceed 

before the ZHB.
4

Specifically, in September and October 2016, the ZHB held hearings 

on Applicant’s request for a special exception to conduct unconventional gas 

drilling on property owned by Top Shop Manufacturing, known as the Backus well 

pad. The ZHB subsequently continued the hearings pending the outcome of 

Applicant’s federal suit. After entry of the consent judgment, the ZHB held 

hearings in January 2017. Ultimately, the ZHB issued a decision granting the 

special exception for the Backus well pad subject to various conditions.

In addition, in January 2017, the ZHB held a hearing on Applicant’s 

request for a special exception for unconventional gas drilling on property owned 

by the Numis Corporation (Numis well pad). After the hearing, the ZHB issued a 

decision granting the special exception for the Numis well pad subject to various 

conditions.

Also in January 2017, the ZHB held hearings on Applicant’s request 

for a special exception for unconventional gas drilling on property owned by 

Melvin and Susan Deutsch (Deutsch well pad). The ZHB subsequently issued a 

decision granting the special exception for the Deutsch well pad subject to various 

conditions.

Finally, the ZHB also held a hearing in January 2017 on Applicant’s 

request for a special exception for unconventional gas drilling on property owned 

by John and Mildred Drakulic (Drakulic well pad). At that time, by agreement of 

the parties, testimony from the prior hearings on the special exception applications 

was introduced and incorporated into the record. The ZHB subsequently issued a 
5

decision granting the special exception for the Drakulic well pad subject to various 

conditions. Objector fully participated in the ZHB hearings.

Objector appealed the ZHB’s decisions granting Applicant’s four 

special exception applications. Without taking additional evidence, the trial court 

affirmed.

In an opinion in support of its order, the trial court first rejected 

Applicant’s argument that Objector lacked standing to pursue its appeals.2 As to 

the merits, the trial court rejected Objector’s assertions that Applicant did not 

prove its proposed uses complied with Sections 190-635(D)(1) and 190-641(D) of 

the zoning ordinance. To that end, the trial court determined that, in its four 

detailed decisions, the ZHB carefully considered the evidence and correctly 

applied all relevant special exception requirements, including Sections 190-

635(D)(1) and 190-641(D) of the zoning ordinance. Additionally, the trial court 

determined the ZHB did not err in determining Applicant’s proposed oil and gas 

operations (unconventional gas wells) would not adversely impact the community. 

Objector now appeals to this Court.

II. Issues

On appeal,3 Objector raises three issues. Specifically, it argues the 

ZHB erred in granting the four requested special exceptions where: (1) the record

 

2 The issue of whether Objector has standing is not raised in these consolidated appeals.

3 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 

(Footnote continued on next page...)
6

lacks substantial evidence that Applicant’s proposal satisfies Section 190-

635(D)(1) of the zoning ordinance (relating to the storage of toxic-produced 

water); (2) the record lacks substantial evidence that Applicant’s proposal satisfies

Section 190-641(D) of the zoning ordinance (relating to the protection of citizens’ 

environmental rights); and (3) the record contains substantial evidence that shows 

Applicant’s proposal would create a high probability of an adverse, abnormal or 

detrimental effect to public health, safety, and welfare.

III. Discussion

A. Applicant’s Compliance with §190-635(D)(1) of the Zoning Ordinance

1. Contentions

Objector first argues4that the ZHB lacked substantial evidence to find 

that Applicant complied with Section 190-635(D)(1) of the zoning ordinance, 

which relates to the storage of toxic-produced water. Objector asserts that 

Applicant proposed to store toxic-produced water on-site, above ground and 

outdoors in quantities greater than permitted by the zoning ordinance. Objector 

contends that the ZHB did not make a specific finding regarding Applicant’s 

compliance with Section 190-635(D)(1) of the zoning ordinance. As a result, 

Objector maintains, the ZHB lacked substantial evidence to find compliance with 

Section 190-635(D)(1).

 

(continued...)

of law. Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118 

(Pa. Cmwlth. 2017).

4 Objector filed identical briefs for each of the four consolidated appeals. Additionally, 

the briefs filed by Applicant and the ZHB in each of the four consolidated appeals are 

substantially similar. Therefore, we address the ZHB’s grant of the four special exception 

applications together.
7

2. Analysis

The ZHB is the sole judge of the credibility of witnesses and the 

weight afforded their testimony. Tri-County Landfill, Inc. v. Pine Twp. Zoning 

Hearing Bd., 83 A.3d 488 (Pa. Cmwlth. 2014). It is the function of the ZHB to 

weigh the evidence before it. Id. This Court may not substitute its interpretation 

of the evidence for that of the ZHB. Id. Assuming the record contains substantial 

evidence, we are bound by the ZHB’s findings that result from resolutions of 

credibility and conflicting testimony rather than a capricious disregard of evidence. 

Id.

Further, a ZHB is free to reject even uncontradicted testimony it finds 

lacking in credibility, including testimony offered by an expert witness. Id. A 

ZHB does not abuse its discretion by choosing to believe the opinion of one expert 

over that offered by another. Id.

When performing a substantial evidence analysis, courts must view 

the evidence in the light most favorable to the party that prevailed before the factfinder. Liberties Lofts LLC v. Zoning Bd. of Adjustment, 182 A.3d 513 (Pa. 

Cmwlth. 2018). It is irrelevant whether the record contains evidence to support 

findings other than those made by the fact finder; the critical inquiry is whether 

there is evidence to support the findings actually made. Id. If there is, an appellate 

court may not disturb the ZHB’s findings. Id.

A special exception is neither special nor an exception, but rather a 

use expressly contemplated that evidences a legislative decision that the particular 

type of use is consistent with the zoning plan and presumptively consistent with the 
8

health, safety and welfare of the community. Greth Dev. Grp., Inc. v. Zoning 

Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007). Further, as 

Robert S. Ryan explains:

Zoning boards often hear protestants argue that an 

applicant for a special exception should be required to 

observe the law as set forth in the zoning ordinance. 

That argument is appropriate in an application for a 

variance, but not in a case involving a special exception. 

The applicant for an exception is following the zoning 

ordinance. His application is one envisioned by the 

ordinance and, if the standards established by the 

ordinance are met, his use is one permitted by its express 

terms.

Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE, §5.1.1 (2001) 

(emphasis in original).

An applicant for a special exception has both the duty of presenting 

evidence and the burden of persuading the ZHB that its proposed use satisfies the 

objective requirements of the zoning ordinance for the grant of the special 

exception. Manor HealthCare Corp. v. L. Moreland Twp. Zoning Hearing Bd., 590 

A.2d 65 (Pa. Cmwlth. 1991). Once the applicant meets its burdens of proof and 

persuasion, a presumption arises that the proposed use is consistent with the health, 

safety and general welfare of the community. Id. The burden then normally shifts 

to the objectors to present evidence and persuade the ZHB that the proposed use 

will have a generally detrimental effect on health, safety and welfare. Id. The 

evidence presented by the objectors must show, to a high degree of probability, 

that the use will generate adverse impacts not normally generated by this type of 

use and that these impacts will pose a substantial threat to the health and safety of 
9

the community. Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. 

Cmwlth. 2002).

Further, in Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. 

Cmwlth. 1980), this Court outlined the rules regarding the “initial evidence 

presentation duty (duty) and persuasion burden (burden) in special exception 

cases” as follows:

Specific requirements, e.g., categorical definition of the 

special exception as a use type or other matter, and 

objective standards governing such matter as a special 

exception and generally:

The applicant has both the duty and the burden.

General detrimental effect, e.g., to the health, safety and 

welfare of the neighborhood:

Objectors have both the duty and the burden; the 

ordinance terms can place the burden on the applicant but 

cannot shift the duty.

General policy concern, e.g., as to harmony with the 

spirit, intent or purpose of the ordinance:

Objectors have both the duty and the burden; the 

ordinance terms cannot place the burden on the applicant

or shift the duty to the applicant.

Id. at 912-13 (underlined emphasis added).

In Bray, we further explained the requirement that an applicant bears 

the burden of both persuasion and the initial duty to present evidence “to show that 

the proposal complies with the ‘terms of the ordinance’ which expressly govern 

such a grant.” Id. at 910. This rule means the applicant must bring the proposal 
10

within the specific requirements expressed in the ordinance for the use (or area, 

bulk, parking or other approval) sought as a special exception. Those specific 

requirements, standards or “conditions” can be classified as follows:

1. The kind of use (or area, bulk, parking or other 

approval)—i.e., the threshold definition of what is 

authorized as a special exception;

2. Specific requirements or standards applicable to the 

special exception—e.g., special setbacks, size limitations; 

and

3. Specific requirements applicable to such kind of use 

even when not a special exception—e.g., setback limits 

or size maximums or parking requirements applicable to 

that type of use whenever allowed, as a permitted use or 

otherwise.

Id. at 911.

The interpretation of a zoning ordinance is a question of law. THW 

Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330 (Pa. Cmwlth. 2014). As 

with statutes, the primary objective of interpreting ordinances is to determine the 

intent of the legislative body that enacted the ordinance. Id. In pursuing that end, 

we are mindful that a statute’s plain language generally provides the best 

indication of legislative intent. Id. Thus, statutory construction begins with an 

examination of the text itself. Id.

In reading the plain language of a statute, “[w]ords and phrases shall 

be construed according to rules of grammar and according to their common and 

approved usage.” 1 Pa. C.S. §1903(a). Further, every statute shall be construed, if 

possible, to give effect to all its provisions so that no provision is “mere 
11

surplusage.” 1 Pa. C.S. §1921(a). Where the words in an ordinance are free from 

all ambiguity, the letter of the ordinance may not be disregarded under the pretext 

of pursuing its spirit. 1 Pa. C.S. §1921; see also 1 Pa. C.S. §1903 (words and 

phrases in a statute shall be construed in accordance with their common and 

accepted usage).

Also, where a court needs to define an undefined term, it may consult 

dictionary definitions for guidance, although such definitions are not controlling. 

THW Grp.

In addition, zoning ordinances must be construed expansively so as to 

afford the landowner the broadest possible use and enjoyment of his land. Id.

Further,

a [ZHB] is the entity charged with the interpretation and 

application of the zoning ordinance. It is well settled that 

a [ZHB’s] interpretation of its own zoning ordinance is 

entitled to great weight and deference from a reviewing 

court. This principle is also codified in Section 

1921(c)(8) of the Statutory Construction Act of 1972, 1 

Pa. C.S. § 1921(c)(8). The basis for the judicial 

deference is the knowledge and expertise that a [ZHB] 

possesses to interpret the ordinance that it is charged with 

administering.

Tri-County, 83 A.3d at 510 (citation omitted).

Here, Objector asserts Applicant did not prove compliance with 

Section 190-635(D)(1) of the zoning ordinance. Section 190-635 sets forth 
12

“Performance Standards” for “[a]ll uses in all districts[.]” Subsection (D)(1) of 

that provision states:

D. Storage and waste disposal.

(1) No highly flammable, explosive or toxic liquids, 

solids or gases shall be stored in bulk (over 500 gallons), 

above ground, except in an enclosed building and except 

new tanks or drums of fuel connected directly with 

energy devices or heating appliances located and 

operated on the same lot as the tanks or drums of fuel.

In all four of its decisions approving Applicant’s special exception 

applications, the ZHB explicitly determined that Applicant met the performance 

standards set forth in Section 190-635 of the zoning ordinance. ZHB Op. 

(Drakulic Site), Findings of Fact (F.F.) No. 90, Concls. of Law Nos. 134, 138; 

ZHB Op. (Numis Site), F.F. No. 74, Concl. of Law No. 107; ZHB Op. (Backus 

Site), F.F. No. 92, Concl. of Law 139; ZHB Op. (Deutsch Site), F.F. No. 92, 

Concl. of Law No. 140. Additionally, in none of its four decisions approving 

Applicant’s special exception requests did the ZHB determine Applicant’s 

proposed uses involved the storage of toxic liquids so as to implicate Section 190-

635(D)(1) of the zoning ordinance.

Nevertheless, Objector argues that wastewater associated with 

Applicant’s proposed uses is “toxic,” is produced in quantities over 500 gallons, 

and is stored on-site while the wells are in production in violation of Section 190-

635(D)(1) of the zoning ordinance. We reject this argument.
13

The zoning ordinance does not define the term “toxic.” However, it 

states,“[i]n the absence of a specific definition in [Section] 190-202 [(of the zoning 

ordinance) (“Definitions”)], any word used in this Chapter shall have its customary 

dictionary definition as contained in the most recent edition of Webster’s 

Collegiate Dictionary.” Section 190-201(B) of the zoning ordinance.

In turn, Merriam-Webster’s Collegiate Dictionary defines “toxic” as 

“containing or being poisonous material especially when capable of causing death 

or serious debilitation[.]”5

In support of its argument that the wastewater associated with 

Applicant’s proposed uses is “toxic,” Objector points to the cross-examination 

testimony of Ed Long, Applicant’s Chief Operations Officer. Contrary to 

Objector’s argument, Long testified that the “wastewater” Applicant would store 

here is “brine,” which is “water with salt.” Reproduced Record (R.R.) at 760a. 

Long testified the wastewater is not explosive or flammable. R.R. at 759a. 

Further, although Long testified, “you probably don’t want to drink [the 

wastewater][,]” contrary to Objector’s assertions, he did not testify the wastewater 

is “toxic” as that term is defined in the dictionary. Indeed, Long indicated he could 

not answer whether the wastewater was, in fact, toxic. Id. Thus, contrary to 

Objector’s assertions, Long’s testimony on cross-examination does not establish 

that the wastewater constitutes a toxic liquid as contemplated by Section 190-

635(D)(1) of the zoning ordinance.

 

5

https://iklearn.com/en/home/?r=dictionary/collegiate/toxic (last visited October 18, 

2018).
14

In addition, Objector’s attempt to characterize “wastewater” as a 

“toxic liquid” is not supported by the applicable provisions of the zoning 

ordinance. The zoning ordinance defines “Oil and Gas Operations (unconventional 

gas wells),” the uses at issue here, as including, among other things: “Water and 

other fluid storage or impoundment areas used exclusively for oil and gas 

operations[.]” Section 190-202 of the zoning ordinance. Further, the zoning 

ordinance defines the term “wastewater (unconventional well)” as: “The postdrilling liquids or fluids used in the fracking or extraction process.” Id. Therefore, 

contrary to Objector’s assertions, the zoning ordinance classifies and expressly 

defines wastewater distinctly from the “toxic liquids” referred to in Section 190-

635(D)(1) of the zoning ordinance.

Our review of the more specific zoning ordinance provisions 

governing the MEO District, the overlay district in which the properties at issue lie, 

discloses further support for this conclusion. See Section 190-407 of the zoning 

ordinance. Section 190-407(E) of the zoning ordinance permits Applicant’s 

proposed “Oil and natural gas drilling (unconventional gas well)” uses by special 

exception. Further, Section 190-407(G), which contains “Development standards” 

for uses in the MEO district, states:

(3) Wastewater: Copies of all required Pennsylvania 

[Department of Environmental Protection (DEP)] permits 

or permits from the Municipal Authority with jurisdiction 

agreeing to accept any affluent produced shall be 

provided that cannot be treated on-site shall not be 

permitted to accumulate and shall be disposed of on a 

regular basis as required.

(a) In no case shall wastewater be dumped or permitted 

as flow or seep into a stream or drainage way.
15

(b) Wastewater that cannot be treated on-site shall not be 

permitted to accumulate and shall be disposed on a 

regular basis as required.

Section 190-407(G)(3) of the zoning ordinance.

In the subsection that immediately follows these wastewater 

standards, the zoning ordinance sets forth standards for “Hazardous or toxic 

waste.” Section 190-407(G)(4) of the zoning ordinance (“Hazardous or toxic 

waste: Hazardous or toxic waste shall not be permitted to accumulate on any 

property, and disposal shall be in compliance with applicable Commonwealth of 

Pennsylvania hazardous or toxic waste handling regulations.”). By setting forth 

separate standards for wastewater and toxic waste, it appears clear that the 

Township’s governing body intended to classify wastewater separately from 

“toxic” materials. Id. This distinction is consistent with DEP’s classification of 

wastewater as “residual waste” rather than “hazardous residual waste.” R.R. at 

1169a (emphasis added). Moreover, in each of its four decisions, the ZHB 

expressly determined that Applicant complied with the development standards set 

forth in Section 190-407 of the zoning ordinance, which includes the wastewater 

standards quoted above.6

 

6 More particularly, the ZHB made the following findings regarding wastewater 

generated by Applicant’s proposed uses:

72. Wastewater recovered from the fracking operation will be 

temporarily stored as recovered in mobile tanks on site and 

removed from the site on a regular basis.

73. The mobile tanks contain a barrier that includes an 

impermeable Kevlar liner underneath.

(Footnote continued on next page...)
16

For all these reasons, Objector’s argument that Applicant did not 

prove compliance with Section 190-635(D)(1) of the zoning ordinance fails.

B. Applicant’s Compliance with §190-641(D) of the Zoning Ordinance

1. Contentions

Objector next argues that the ZHB lacked substantial evidence to find 

that Applicant complied with Section 190-641(D) of the zoning ordinance, which 

 

(continued...)

74. Wastewater recovered from the fracking operation will be 

approximately 15-20% of the freshwater amounts injected into 

wells at the site.

75. Adequate containment is to be provided to protect from 

accidental wastewater release.

76. No wastewater treatment will occur on site.

77. No wastewater will be injected into any injection wells as a 

method of disposal.

* * * *

80. Clean up will take approximately thirty days requiring the 

removal of fracking equipment, temporary wastewater and 

freshwater storage tanks, residential trailers and other related 

equipment.

81. Final site clean-up and securing will require the presence of 

four to five individuals once the equipment has been removed from 

the site.

82. Post-completion visits to producing site will involve two 

pickup trucks per day and water removal trucks one to two times 

per month.

ZHB Op. (Drakulic Site), F.F. Nos. 72-77, 80-82; ZHB Op. (Numis Site) F.F. Nos. 62-65, 68-70; 

ZHB Op. (Backus Site), F.F. Nos. 73-78, 82-83; ZHB Op. (Deutsch Site), F.F. Nos. 72-77, 81-

83.
17

relates to the protection of environmental rights. Objector asserts Section 190-

641(D) requires a site-specific pre-action analysis to show that the proposed 

activities will not harm or degrade the community’s environmental rights. Here, 

Objector contends there is no evidence to show: (1) how normal operation of the 

well pads during the construction, drilling, completion and production stages 

would impact air quality and health; or (2) how a subsurface release of fluid may 

impact water resources. Objector maintains that Applicant failed to quantify air 

emissions from each stage of its operations and failed to identify subsurface 

pathways that a release of fluid may follow. Objector further argues that the 

federal consent judgment conditions do not constitute a pre-action analysis. Thus, 

Objector argues, the ZHB lacked substantial evidence to find that Applicant 

complied with Section 190-641(D) of the zoning ordinance.

2. Analysis

As indicated above, the various burdens in special exception cases can 

be summarized as follows:

[A]s to specific requirements of the zoning ordinance, the 

applicant has the persuasion burden, as well as the initial 

evidence presentation burden. The objectors have the 

initial evidence presentation duty with respect to the 

general matter of detriment to health, safety and general 

welfare, even if the ordinance has expressly placed the 

persuasion burden upon the applicant, where it remains if 

detriment is identified ....

Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 

1202, 1213 (Pa. Cmwlth. 2014) (quoting Bray 410 A.2d at 912) (emphasis added). 

As we summarized in Williams (with emphasis added):
18

Thus, if a requirement is interpreted as one upon which 

the burden is placed on an applicant, but the requirement 

is nonobjective or too vague to afford the applicant 

knowledge of the means by which to comply, the 

requirement is either one that is not enforceable ..., or, if 

it relates to public detriment, the burden shifts to an 

objector, who must demonstrate that the applicant’s 

proposed use would constitute such a detriment.

Id.

Section 190-641(D) of the zoning ordinance states:

The applicant shall demonstrate that the drill site 

operations will not violate the citizens of Penn 

Township’s right to clean air and pure water as set forth 

in Art. 1 Sec. 27 of the Pennsylvania Constitution (The 

Environmental Rights Amendment). The applicant shall 

have the burden to demonstrate that its operations will 

not affect the health, safety or welfare of the citizens of 

[the] Township or any other potentially affected land 

owner. The application submitted shall include reports 

from qualified [e]nvironmental individuals attesting that 

the proposed location will not negatively impact the 

Township residents’ Environmental Rights; and, will 

include air modelling and hydrogeological studies as 

potential pathways that a spill or release of fluid may 

follow.

Thus, the plain language of this criterion: (1) requires an applicant to 

show that drill site operations will not violate the Township citizens’ right to clean 

air and pure water as set forth in Article I, Section 27 of the Pennsylvania 

Constitution; (2) places the burden on an applicant to show its operations will not 

affect the health, safety or welfare of the Township’s citizens; and (3) requires an 

applicant to submit reports from qualified environmental individuals attesting that 

the proposed location will not negatively impact the Township residents’ 
19

environmental rights and include air modelling and hydrogeological studies as 

potential pathways that a spill or release of fluid may follow.

The first two components of this criterion relate to general detrimental 

effects. As such, although the zoning ordinance can (and here does) place the 

burden of persuasion on Applicant, it cannot shift the initial evidence presentation 

duty. Williams; Bray. And, as set forth in greater detail below, in our analysis of 

Objector’s third issue, the ZHB here determined that Objector did not present 

sufficient, credible evidence, to show to a high degree of probability, that 

Applicant’s use would generate adverse impacts not normally generated by this 

type of use and that these impacts would pose a substantial threat to the health and 

safety of the community.

As to the third component of this criterion, requiring submission of 

environmental reports, Applicant bore both the initial evidence presentation duty 

and the persuasion burden.

Regardless of which party bore the initial evidence presentation duty 

and persuasion burden, the ZHB determined that Applicant provided sufficient, 

satisfactory information to satisfy Section 190-641(D) of the zoning ordinance in 

each of its four decisions approving Applicant’s special exception applications.

More particularly, the ZHB made the following determinations 

regarding Applicant’s submissions:

10. Pursuant to a Stipulation and Consent Order dated 

December 16, 2016 in the matter of [Apex Energy v. 
20

Penn Township], in the United States District Court for 

the Western District of Pennsylvania at case 16-cv-769 

(‘Stipulation’), [Applicant] has agreed to several 

conditions concerning sound wall containment, noise 

monitoring, air quality monitoring, permit submission, 

traffic coordination and control and other matters, said 

conditions to be included in the Decision of the [ZHB]. 

[See] Applicant Exhibits 4 & 5.

11. [Applicant] has received approval and an ESCGP-2

[(Erosion and Sediment Control General Permit-2)]

permit from [DEP] for development of the site. [See] 

Apex Exhibit 3A.

12. [Applicant] has received the required [DEP] permit 

for the drilling of one well at the site. [See] Apex Exhibit 

3B.

13. Pursuant to the terms of the [Stipulation,] [Applicant] 

will be required to provide all necessary third party 

permits to the Township prior to initiation of 

development activity at the Drakulic site.

* * * *

41. The pad area will be protected by three barriers 

consisting of alternating layers of liners and wooden 

board mats with polyurethane sealant coating surrounded 

by an eight-inch high containment barrier to handle 

potential spills of liquids during the operations.

* * * *

44. [Applicant] outlined a casing and cementing regimen 

that must be [DEP-approved] involving five casing 

strings that will protect the well bores.

45. All five casings protect the groundwater in the area.

* * * *

85. Pursuant to the [Stipulation,] [Applicant] has agreed, 

as part of the proposed air quality monitoring plan, that 
21

the Township will be provided immediate notice of any 

[DEP] reportable spills at the site with the Township 

having the option to request air quality sampling and 

monitoring of the spill and its remediation period.

* * * *

87. Per the Stipulation, [Applicant] will be required to 

monitor air quality and noise production through 

independent third party contractors during the 

construction, drilling and completion phases of the 

development.

* * * *

89. [Applicant] submitted Air and Hydrogeologic 

Assessment Reports prepared by Environmental 

Resources Management (ERM), prepared under the 

supervision of Brian Sterner, who holds a Bachelor of 

Science Degree and is certified in a variety of 

environmental disciplines.

90. ERM’s report was multi-disciplinary and prepared in 

response to the provisions [sic] Section 190-641(D) 

regarding the requirements that applicants demonstrate 

oil and gas drilling operations will not violate citizens’ 

right to clean air and water as guaranteed by Article I, § 

27 of the Pennsylvania Constitution.

91. The ERM report reviewed and analyzed the risks 

presented by ‘accidental’ release of materials at the 

Drakulic pad and set forth categorization of the nature 

and context of those risks.

92. ERM used formulas and procedures designed to 

include industry risk assessment standards that identified 

chemicals and other stored materials, [Applicant’s] prior 

... operational history including site operations, industry 

standards for those operations, topography, hydrology, 

geology and barriers and controls proposed for the site in 

terms of the redundancy of those barriers and their 

mitigation effects.
22

93. The preparation of the evaluation also took into 

consideration the location of receptors, such as 

residences or waterways, incorporating that information 

into formulas that looked to the frequency and severity of 

potential events.

94. Contributors to the report included a geologist and air 

quality specialist.

95. The ERM air risk calculation study established that 

the potential risk for hazardous emissions from an 

accidental or inadvertent spill at the Drakulic Pad would 

be low, although the report did not include any air 

dispersion modeling.

96. The report further indicated that there was a low 

chance of off-site migration of such emissions.

97. The ERM study also indicated that the risk for 

exposure to water sources as a result of a spill at the 

Drakulic Pad to be low to moderate.

98. The moderate risk assessment resulted from the 

acknowledged, though rare, possible catastrophic failure 

of the closed wastewater storage vessels onsite.

99. No review of subsurface contamination potential was 

conducted by ERM as part of its studies.

100. ERM air modeling studies and review related to the 

volatilization of chemicals if spilled or released.

101. ERM employed receptor-based air modeling to 

reach it conclusions on the low risk air assessment[.]

102. Mr. Sterner testified that receptor[-]based modeling 

is one of three approved methodologies endorsed by the 

federal Environmental Protection Agency (EPA).

103. [Applicant’s] proposed use is presently subject to 

Exemption 38, a delegation of authority from the EPA to 

the [DEP] that outlines certain exemptions applicable to 

unconventional gas wells from air permitting sources.
23

104. This exemption requires that the operator perform 

calculations with respect to anticipated total emissions 

and file ongoing information to demonstrate compliance 

with the Exemption’s requirements.

105. ERM’s analysis of the site characteristics along with 

the anticipated development operations indicated that the 

likelihood of an event occurring that would give rise to a 

moderate risk is remote.

* * * *

138. [Applicant’s] agreement to abide by the terms and 

conditions of the [Stipulation], along with the ERM Air 

& Hydrogeologic study, provides sufficient satisfactory 

information to demonstrate that requirements of Section 

190-641(D) have been satisfied.

ZHB Op. (Drakulic Site), F.F. Nos. 10-13, 41, 44-45, 85, 87, 89-105, 138; see also

ZHB Op. (Backus Site), F.F. Nos. 12-14, 41, 45-46, 87, 89, 91-106; ZHB Op. 

(Deutsch Site), F.F. Nos. 10-13, 41, 44-45, 86, 88, 91-107; ZHB Op. (Numis Site) 

F.F. Nos. 7, 11-12, 31, 36, 55, 73-81. The record supports the ZHB’s findings. 

R.R. at 718a-19a; 725a-26a; 788a; 943a-44a; 949a-951a; 953a; 989a; 990a; 

1185a; 1300a-01a; 1305a; 1309a; R.R. at 1318a; 1682a-1719a (Numis Well Pad 

Air and Hydrogeologic Report, Township of Penn, Westmoreland County, PA);

R.R. at 1720a-1749a; 1750a-52a; R.R. at 1781a-2096a (Backus Well Pad Air and 

Hydrogeologic Report, Township of Penn, Westmoreland County, PA); R.R. at 

2121a-2137a; 2138a-2140a; R.R. at 2552a-2801a (Deutsch Well Pad Air and 

Hydrogeologic Report, Township of Penn, Westmoreland County, PA); R.R. at 

2802a-2827a; R.R. at 2828a-2830a; R.R. at 2848a-3145a (Drakulic Well Pad Air 

and Hydrogeologic Report, Township of Penn, Westmoreland County, PA); R.R. 

at 3146a-3170a; R.R. at 3171a-3174a; R.R. at 3175a-3200a (Federal Consent 

Judgment).
24

Further, while Objector challenges the sufficiency of Applicant’s 

ERM Report’s air modelling and hydrogeology studies generally, Section 190-

641 of the zoning ordinance only requires that the report “include air modelling 

and hydrogeological studies as potential pathways that a spill or release of fluid 

may follow.” Id. (emphasis added). Here, the ZHB’s supported determinations 

reveal that Applicant’s ERM Report satisfied that requirement.

In addition, the ZHB attached several detailed conditions to its grant 

of the requested special exceptions aimed at mitigating and monitoring any 

potential adverse impacts. Of relevance here, the ZHB attached the following 

condition to its grant of all four requested special exceptions (with emphasis 

added):

[Applicant] shall participate with or agree to the 

monitoring of air quality emissions and particulate 

content during drilling and completion activities. 

[Applicant] will agree to pay for third-party monitoring 

and testing from a mutually acceptable expert with 

experience in this industry. The expert shall take 

baseline readings at the [well pads]. The expert shall 

engage in active monitoring twice a week on the [pads]. 

Testing locations shall be established on relevant parcel 

or leasehold boundaries but, in all events, the only 

location that will be used for air monitoring located 

within [Applicant’s] established limit of disturbance shall 

be situated at the access road entrance. No other air 

monitoring equipment will be located within 

[Applicant’s] limit of disturbance including, but not 

limited to, the [pads] or associated stormwater or erosion 

and sedimentation control facilities. [Applicant] will 

notify the Township if any monitoring for OSHA

[(Occupational Safety and Health Administration)] 

emissions requirements at the site exceed OSHA 

standards. In the event that a DEP reportable spill or any 

spill that is reported to [DEP] by [Applicant] occurs at 
25

the [p]ad site[s], the Township may require immediate air 

monitoring until the spill is abated or remediated. Other 

than in emergency situations, [Applicant] will not flare or 

incinerate natural gas at the [well pads] during 

completion or flowback operations and [Applicant] will 

comply with all state and federal regulations applicable 

to emissions relating to its operations on the [p]ad[s]. 

This condition shall conclusively establish compliance 

with Section 190-407(G)(9) and also show compliance 

with Section 190-641(D).

ZHB Op. (Drakulic Site) at 19 (condition 6); ZHB Op. (Backus Site) at 19 

(condition 6); ZHB Op. (Deutsch Site) at 19 (condition 6); ZHB Op. (Numis Site) 

at 16 (condition 6).

Further, while Objector relies on the testimony of its expert, Dr. Ron 

Sahu, in support of its assertions that Applicant did not perform an adequate sitespecific pre-action analysis, the ZHB did not accept the testimony of Objector’s 

expert. In declining to accept his testimony, the ZHB found that, while Objector’s 

expert criticized Applicant for using data and values from the Texas Commission 

on Environmental Quality (TCEQ), “Applicant offered uncontroverted testimony 

that the TCEQ provided the best available data and is routinely accepted by state 

and federal regulatory agencies.” ZHB Op. (Drakulic Site), F.F. No. 110; ZHB 

Op. (Backus Site) F.F. No. 111; ZHB Op. (Deutsch Site) F.F. No. 112. We cannot 

disturb the ZHB’s determinations regarding credibility and evidentiary weight. 

Tri-County.

In addition, although Objector asserts that Applicant experienced a 

mechanical malfunction at one of its other sites (referred to as the Quest well pad, 

which is not one of the four well pads at issue in this appeal) that resulted in a spill 
26

of an odorant, the ZHB here expressly found that, in response to this incident: 

“[Applicant] has undertaken remedial measures on its equipment to further 

minimize the risk of release if this would occur again.” F.F. No. 58 (Numis Site) 

(emphasis added). Objector does not dispute this finding.

Objector also maintains that, at a minimum, Section 190-641(D) of 

the zoning ordinance requires an applicant to show its proposal will comply with 

DEP regulations intended to protect environmental resources. In support, it cites 

an Environmental Hearing Board opinion concerning the application of Article I, 

Section 27 of the Pennsylvania Constitution. See Ctr. for Coalfield Justice & 

Sierra Club v. Dep’t of Envtl. Prot.7 Contrary to Objector’s assertions, our review 

of Section 190-641(D) discloses no requirement that an applicant prove 

compliance with DEP statutory or regulatory requirements as part of its burden to 

obtain a special exception for oil and gas operations (unconventional gas wells). 

Moreover, such issues fall within the jurisdiction of DEP, not the ZHB.

For these reasons, we reject Objector’s argument that Applicant did 

not prove compliance with Section 190-641(D) of the zoning ordinance.

 

7

(EHB Dkt. Nos. 2014-072-B, 2014-083-B, 2015-051-B, filed Aug. 15, 2017), 2017 WL 

3842580. In its reply brief, Objector also cites the Environmental Hearing Board’s analysis of 

Article I, Section 27 of the Pennsylvania Constitution as set forth in The Delaware Riverkeeper 

Network v. Department of Environmental Protection (EHB Dkt. Nos. 2014-142-B, 2015-157-B, 

filed May 11, 2018), 2018 WL 2294492.
27

C. Alleged Adverse Impacts

1. Contentions

As a final issue, Objector argues it presented substantial evidence that 

well pad development would cause detrimental impacts to the community. 

Objector asserts it presented evidence that the well pads would result in risks to 

health and safety, including harmful air emissions that would impact nearby 

residents and students at Level Green Elementary School. Objector contends it 

also presented evidence that the well pads would harm the use and enjoyment of 

private property, including disrupting normal activities and harming property 

values. Objector maintains it also presented evidence that the well pads would 

forever alter the character of the quiet residential neighborhoods where they are 

proposed by turning the area over to continued heavy industrial activity. In 

granting special exception approval, Objector argues, the ZHB failed to uphold its 

constitutional duty under Article I, Section 27 of the Pennsylvania Constitution to 

protect the citizens’ environmental rights. Objector asserts the weight of evidence 

showed that Applicant’s proposal would not comply with the zoning ordinance’s 

criteria and would, in fact, degrade the community’s environmental rights.

2. Analysis

Here, in each of its four decisions granting the requested special 

exceptions, the ZHB found: “Objecting parties have failed to establish sufficient, 

credible evidence ... that [Applicant’s proposed] use would create a high 

probability of an adverse, abnormal or detrimental effect [on] public health, safety 

and welfare.” ZHB Op. (Drakulic Site), F.F. No. 139 (emphasis added); ZHB Op. 

(Backus Site), F.F. No. 140; ZHB Op. (Deutsch Site), F.F. No. 141; ZHB Op. 

(Numis Site), F.F. No. 108. The ZHB did not credit Objector’s expert or lay 
28

testimony regarding the purported adverse impacts occasioned by Applicant’s 

proposed uses, and this Court cannot revisit the ZHB’s determinations as to 

credibility and evidentiary weight on appeal. Tri-County.

Further, to the extent Objector raised concerns over property values, 

general testimony regarding aesthetic concerns and a potential decrease in property 

values was not sufficient to satisfy Objector’s burden of proof. See, e.g., 

Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 

1118 (Pa. Cmwlth. 2017). Additionally, as to Objector’s concerns over increased 

traffic, this Court previously explained:

‘[A]n increase in traffic is generally not grounds for 

denial of a [special exception] unless there is a high 

probability that the proposed use will generate traffic not 

normally generated by that type of use and that the 

abnormal traffic threatens safety.’ Accelerated Enters., 

Inc. v. The Hazle Twp. Zoning Hearing Bd., 773 A.2d 

824, 827 (Pa. Cmwlth. 2001).

Marquise Inv., Inc. v. City of Pittsburgh, 11 A.3d 607, 617 (Pa. Cmwlth. 2010).

Moreover, our Supreme Court has stated:

The anticipated increase in traffic must be of such 

character that it bears a substantial relation to the health 

and safety of the community. A prevision of the effect of 

such an increase in traffic must indicate that not only is 

there a likelihood but a high degree of probability that it 

will affect the safety and health of the community, and 

such prevision must be based on evidence sufficient for 

the purpose. Until such strong degree of probability is 

evidenced by legally sufficient testimony no court should 

act in such a way as to deprive a landowner of the 

otherwise legitimate use of his land.
29

Appeal of O’Hara, 131 A.2d 587, 596 (Pa. 1957) (emphasis in original).

When what is presented by objectors is a mere ‘speculation of 

possible harms,’ the objectors have failed to meet their burden. Marquise Inv., 11 

A.3d at 617-18.

Thus, an application may be denied on traffic grounds only: (1) where 

there is a high probability that the proposed use will generate traffic not normally 

generated by the type of use; and (2) where the abnormal traffic threatens safety. 

Bailey v. U. Southampton Twp., 690 A.2d 1324 (Pa. Cmwlth. 1997). Proof of 

abnormal and hazardous traffic effects usually requires evidence in the form of 

traffic counts, accident records and expert evidence. In Re Brickstone Realty 

Corp., 789 A.2d 333 (Pa. Cmwlth. 2001). Here, Objector did not present sufficient 

evidence to meet its burden on this issue. Marquise Inv.

In addition, the ZHB’s findings that Objector did not prove that 

Applicant’s proposed uses would adversely impact public health, safety, and 

welfare, contrast this case with Hogan, Lepore & Hogan v. Pequea Township 

Zoning Board, 638 A.2d 364 (Pa. Cmwlth. 1994), disapproved of on other grounds

by Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board, 925 A.2d 768 

(Pa. 2007) and Blair v. Board of Adjustment of Borough of Hatboro, 169 A.2d 49 

(Pa. 1961), cited by Objector. Unlike in those cases where the fact-finders credited

evidence that the proposed uses would adversely impact the public health, safety, 

and welfare, the ZHB here found that Objector did not prove that Applicant’s 

proposed uses would create a high probability of an adverse, abnormal or 

detrimental effect to public health, safety and welfare. ZHB Op. (Drakulic Site), 
30

F.F. No. 139; ZHB Op. (Backus Site), F.F. No. 140; ZHB Op. (Deutsch Site), F.F. 

No. 141; ZHB Op. (Numis Site), F.F. No. 108.

Further, as explained above, the ZHB’s supported determinations 

reveal that Applicant satisfied Section 190-641(D) of the zoning ordinance 

(relating to the health, safety and welfare of the Township’s citizens or any other 

potentially affected land owner). And, as stated above, in granting the four 

requested special exceptions, the ZHB attached several detailed conditions aimed 

at mitigating Objector’s concerns over potential adverse effects, such as noise, 

lighting, air quality, and truck traffic, associated with Applicant’s proposed uses. 

The ZHB also attached a condition that requires Applicant to establish and 

maintain a 24-hour emergency hotline telephone number to allow for reporting of 

any emergencies that may occur.

Nevertheless, Objector maintains the ZHB did not uphold its 

constitutional duty to protect the environmental rights of the Township’s residents 

as required by Article I, Section 27 of the Pennsylvania Constitution. In support, it

references our Supreme Court’s decisions in Pennsylvania Environmental Defense 

Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (declaratory judgment suit 

brought by environmental advocacy entity, challenging constitutionality of 

statutory enactments relating to funds generated from leasing of state forest and 

park lands for oil and gas exploration and extraction) and Robinson Township v. 

Commonwealth, 83 A.3d 901 (Pa. 2013) (suit for declaratory and injunctive relief 

challenging constitutionality of Act 13 of 2012,8 amending the Pennsylvania Oil 

 

8 Act No. 13 of February 14, 2012, P.L. 87.
31

and Gas Act, 58 Pa. C.S. §§2301-3504). Clearly, those cases, which involved 

constitutional challenges, are distinguishable in that this case does not involve a 

constitutional or substantive validity challenge. Rather, this case involves 

applications for uses permitted by special exception, and appellate review of the 

ZHB’s application of the zoning ordinance’s special exception criteria to the facts 

presented.

Moreover, contrary to Objector’s assertions, Applicant’s proposed 

unconventional gas well operations are permitted by special exception in the MEO 

District, which evidences a legislative decision that the uses are consistent with the 

zoning plan and presumptively consistent with the health, safety and welfare of the 

community. Greth Dev. Grp. In light of the fact that Objector presented no 

credible evidence of harm, Objector’s claims are unsupported by the accepted

evidence of record. Further, as explained above, the ZHB attached several detailed 

conditions to the grant of the special exceptions in order to mitigate adverse effects 

associated with Applicant’s proposed unconventional gas drilling uses.

IV. Conclusion

In sum, no error is apparent in the ZHB’s grant of Applicant’s four 

special exception applications for its proposed unconventional gas wells, subject to 

detailed conditions aimed at mitigating the adverse impacts associated with the 

proposed uses. Accordingly, we affirm.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT, :

Appellant :

:

v. : No. 39-42 C.D. 2018

:

Penn Township Zoning Hearing :

Board and Apex Energy (PA), LLC :

O R D E R

AND NOW, this 8

th day of November, 2018, the order of the Court of 

Common Pleas of Westmoreland County is AFFIRMED.

 

ROBERT SIMPSON, Judge