IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware Riverkeeper Network, :

Clean Air Council, David Denk, :

Jennifer Chomicki, and Joann Groman, :

:

Appellants :

:

 v. : No. 2609 C.D. 2015

: Argued: June 6, 2019

Middlesex Township Zoning :

Hearing Board :

:

 v. :

:

PennEnergy Resources, LLC, :

Middlesex Township, and :

Robert G. Geyer :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 26, 2019

This is an appeal by Objectors1from the order of the Butler County 

Court of Common Pleas (trial court) denying their appeal of the Middlesex 

Township (Township) Zoning Hearing Board’s (Board) decision that denied their 

substantive challenge to the Township’s Ordinance 127 and denied their appeal of 

 

1 The Objectors are the Delaware Riverkeeper Network (DRKN), the Clean Air Council 

(CAC), and David Denk, Jennifer Chomicki, and Joann Groman, landowners in Weatherburn

Heights Planned Residential Development in Middlesex Township near the well site.
2

the zoning permit that the Township issued to R.E. Gas Development, LLC (Rex).2 

Initially, this Court affirmed the Board’s decision. See Delaware Riverkeeper 

Network v. R.E. Gas Development, LLC (Pa. Cmwlth. Nos. 1229 C.D. 2015, 1323 

C.D. 2015, 2609 C.D. 2015, filed June 7, 2017) (Delaware Riverkeeper I).

3

The matter returns to this Court on remand from the Pennsylvania 

Supreme Court pursuant to the following order:

AND NOW, this 3rd day of August, 2018, the 

Petition for Allowance of Appeal is GRANTED. The 

Order of the Commonwealth Court is VACATED and 

this matter is REMANDED to Commonwealth Court for 

reconsideration of its decision in light of Pa. Envtl. Def. 

Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017)

[(PEDF II)]. In addition, in light of the amendments 

contained in Middlesex Township Ordinance 127, which 

expressly include gas well development as a permitted 

use in the subject R-AG zone, and our decision in 

Gorsline v. Bd. of Sup. of Fairfield Twp., [186 A.3d 375

(Pa. 2018) (Gorsline II)] wherein we noted “this decision 

should not be misconstrued as an indication that oil and 

gas development is never permitted in 

residential/agricultural districts, or that it is 

fundamentally incompatible with residential or 

agricultural uses,” we direct Commonwealth Court to 

reconsider the relevance of Gorsline to its analysis of the 

issues on appeal in this case.

 

2 By January 25, 2019 order, we granted the application of PennEnergy Resources, LLC 

(PennEnergy) to be substituted as appellee for Rex. Nevertheless, for the sake of clarity, we will 

continue to refer to the relevant appellee as Rex rather than PennEnergy.

3 We also dismissed as moot stay orders issued by the trial court in our prior 

memorandum opinion and order in Delaware Riverkeeper I, which are not at issue in the instant 

remand proceedings.
3

Delaware Riverkeeper Network v. Middlesex Township Zoning Hearing Board, 

190 A.3d 1126-27 (Pa. 2018) (Delaware Riverkeeper II) (emphasis in original).

4

 

Upon reconsideration, we again affirm the Board’s order.

I.

The facts of this case, as outlined in Delaware Riverkeeper I, are as 

follows. Robert G. Geyer (Geyer) owns farm property along the south side of the 

east-west Route 228 corridor in the Township near its boundary with Adams 

Township, which is near the Weatherburn Heights (Weatherburn) Planned 

Residential Development (PRD). In November 2012, the Township’s Board of 

Supervisors enacted Ordinance 125 creating an R-AG Residential Agriculture 

Zoning District, a mixed-use district, to limit suburban growth and the location of 

PRD developments from a majority of the zoning districts in the Township.5 The 

 

4 As this Court has explained:

“[I]t has long been the law in Pennsylvania that following remand, 

a lower court is permitted to proceed only in accordance with the 

remand order.” Commonwealth v. Sepulveda, [144 A.3d 1270, 

1280 n.19 (Pa. 2016)]. In Levy v. Senate of Pennsylvania, 94 A.3d 

436 (Pa. Cmwlth.), appeal denied, [] 106 A.3d 727 (Pa. 2014), 

which the Supreme Court cited with approval in Sepulveda, this 

Court explained: “Where a case is remanded for a specific and 

limited purpose, ‘issues not encompassed within the remand order’ 

may not be decided on remand. A remand does not permit a 

litigant a ‘proverbial second bite at the apple.’” Levy, 94 A.3d at 

442 (quoting In re Indep. Sch. Dist. Consisting of the Borough of 

Wheatland, 912 A.2d 903, 908 (Pa. Cmwlth. 2006)).

Marshall v. Commonwealth, 197 A.3d 294, 306 (Pa. Cmwlth. 2018).

5 Ordinance 125 added Section 175-243 to the Township’s Zoning Ordinance, which 

states that the purpose of the R-AG Zoning District “is to provide for agricultural uses, low-

(Footnote continued on next page...)
4

Geyer farm is located in the R-AG Residential Agriculture District and Rex has 

leased the oil and gas underlying Geyer’s property. 

In August 2014, the Township’s Board of Supervisors enacted 

Ordinance 127, over the objection of the Township’s Planning Commission. 

Ordinance 127 states that the “Township Zoning Ordinance as currently written 

does not expressly provide for the use or regulation of oil and gas operations,” and 

the “Township Board of Supervisors desires to expressly provide for the use and 

regulation of oil and gas operations within the Township.” Reproduced Record 

(R.R.) at 34a. Ordinance 127 allows for “oil and gas well site development” as a 

permitted principal and accessory use in the AG-A Rural Residential District;6 AG-

 

(continued...)

density residential development and planned higher density development in areas where the 

general character is defined by rural areas which are in close proximity to major roads, 

infrastructure and areas near existing concentrated residential development and to provide for 

compatible public, semipublic and accessory uses as conditional uses or uses by special 

exception.” Reproduced Record (R.R.) at 1760a. Ordinance 125 also added Section 175-

244(A)(1) to the Zoning Ordinance that provided the following permitted principal uses in the RAG Residential Agriculture District: farms; greenhouse or tree nursery; single-family dwellings; 

two-family dwellings; government buildings; municipal firehouses; schools; public utilities, 

except buildings; and municipal recreation. Id. 

6 Ordinance 127 added the definition of “oil and gas well site development” to Section 

175-8 of the Township’s Zoning Ordinance, which is defined as “well location assessment, 

including seismic operations, well site preparation, construction, drilling, water or fluid storage 

operations, hydraulic fracturing and site restoration associated with an oil and gas well of any 

depth,” “includ[ing] conventional (vertical) and non-conventional (horizontal) methods of 

drilling.” R.R. at 35a. Ordinance 127 also added Section 175-155.2 to the Zoning Ordinance 

which imposes a number of restrictions and requirements with respect to oil and gas well site 

development including: a 10-acre minimum lot size; compliance with state and federal 

regulations; access roads; traffic safety; dust control measures; noise standards; light restrictions; 

water storage requirements; limits to times of operation; signage and site identification; and any 

other restrictions necessary for the grant of a conditional use. See R.R. at 38a-45a.
5

B Agricultural District; I-1 Restricted Industrial District; and the R-AG Residential 

Agriculture District; and as a conditional use in the C-2 Highway Commercial 

District; TC Town Center District; and C-3 Regional Commerce District. 

Ordinance 127 provides natural gas compressor stations as a permitted use in the I1 Restricted Industrial District and as a conditional use in the AG-A Rural 

Residential District; AG-B Agricultural District; C-2 Highway Commercial 

District; TC Town Center District; and C-3 Regional Commerce District. The 

ordinance also provides natural gas processing plants as a conditional use in the I-1 

Restricted Industrial and C-3 Regional Commerce Districts. See R.R. at 48a. 

In September 2014, the Pennsylvania Department of Environmental 

Protection (DEP) issued well permits for drilling on the Geyer farm (Geyer site). 

The Township also granted Rex’s application for a zoning permit for the drilling.

In October 2014, Objectors filed a substantive validity challenge to 

Ordinance 127 and an appeal of the zoning permit, which the Board consolidated 

for disposition.7 In the substantive validity challenge, Objectors claimed that 

Ordinance 127: (1) violates Article 1, Section 1 of the Pennsylvania Constitution8 

because it was not designed to protect the health, safety, morals, and public welfare 

of its citizens and, therefore, is not a valid exercise of the Township’s police 

power; (2) violates Article 1, Section 1 by injecting incompatible industrial uses 

into a non-industrial zoning district in violation of the Township’s Comprehensive 

 

7 Rex and MarkWest Liberty Midstream & Resources (MarkWest), a natural gas 

gathering, processing and transportation company, intervened in the proceedings.

8 Article 1, Section 1 states, in relevant part, that “[a]ll men . . . have certain inherent and 

indefeasible rights, among which are those of enjoying and defending life and liberty, of 

acquiring, possessing and protecting property . . . and of pursuing their own happiness.” Pa. 

Const. art. I, §1.
6

Plan thereby making the ordinance irrational; and (3) unreasonably infringes on 

their rights under Article 1, Section 27 of the Pennsylvania Constitution

(Environmental Rights Amendment)9to clean air, pure water, and a healthy local 

environment in which to live, work, recreate, and raise their children.10 

The Board held nine public hearings at which the parties presented 

expert and lay testimony and evidence. Development at the Geyer site was stayed 

during the proceedings. 

David Denk, one of the Objectors and a member of DRKN and CAC, 

testified that he lives in Weatherburn with his wife and two children approximately 

1200 feet from the Geyer site. He stated that he did not expect industrial activity 

from a well pad at the Geyer site when he purchased his house and he did not 

check with the Township to see if a well site was a permitted use. He said that he 

had retained the mineral rights in his property, but that he had concerns about the 

 

9 Article 1, Section 27 states:

 The people have a right to clean air, pure water, and to the 

preservation of the natural, scenic, historic and esthetic values of 

the environment. Pennsylvania’s public natural resources are the 

common property of all the people, including generations yet to 

come. As trustee of these resources, the Commonwealth shall 

conserve and maintain them for the benefit of all the people.

Pa. Const. art. I, §27.

10 In their appeal of the zoning permit issuance, Objectors raised similar claims, asserting 

that the Township’s approval of the Geyer site well pad development: (1) violates their rights 

under Article 1, Section 1 by injecting an incompatible industrial use with industrial standards 

into a zoning district where there is no expectation of industrial activity and where it will cause a 

nuisance; (2) violates their rights under Article 1, Section 27 to a healthy community in which to 

live; and (3) breached the Township’s obligations as trustee under Article 1, Section 27.
7

health impact of fracking activities if they take place nearby. The Board accepted 

Denk’s testimony as credible.

Robert Zaccari, a member of DRKN and CAC, testified that in 2011, 

he purchased his house in Weatherburn and understood that the area is zoned for 

residential and agricultural uses. He acknowledged that residential construction in 

Weatherburn has been ongoing since he moved there, but that well pad 

construction is more intense. He stated that he did not know that the Township has 

a noise ordinance and that he refused to lease his subsurface rights to Rex. He said 

that he is concerned that well pad activity will impact the future value of his home, 

but he did not know to what extent. The Board accepted Zaccari’s testimony as 

credible.

Kathleen Wagner lives on Denny Road in the Township and is 

opposed to the well pad at the Geyer site. However, she stated that she signed a 

gas lease with Rex under which she was paid by Rex. As a result, the Board found 

the remainder of her testimony to be not credible.

Henrich Hartge testified that he resides in Weatherburn with his wife 

and daughter and that he is most worried about an explosion from fracking 

activities. The Board found that his concern, although not entirely outside the 

realm of possibility, was exaggerated for purposes of the hearing and not credible.

Crystal Yost testified that she lives with her husband and children 

approximately 1300 feet from an operating Rex fracking facility, the Reno well. 

The Board found that her testimony was not credible because she substantially 

exaggerated her testimony and was evasive.

Melissa Brown testified that she resides with her husband and 

daughter on Forsyth Road adjacent to an oil and gas pipeline. She stated that she 
8

has concerns about the pipeline near the rear of her property contaminating the 

environment, her water well and her trees. However, she signed a subsurface gas 

lease with Rex and the Board found her testimony to be not credible.

Michael Endler, Rex’s vice president and regional manager, testified 

regarding the construction activities and the timetable for the construction of a well 

pad. However, the Board found that his testimony was not credible because he 

was combative and evasive on cross-examination.

Jane Hawkins Peterson testified that she lives in the Township with 

her husband and is a part owner of a farm property that is leased to Rex and also to 

MarkWest for a pipeline. She stated that leasing the land for oil and gas 

financially helps her property remain agricultural, as opposed to being developed 

for residential uses. The Board accepted her testimony as credible.

Catherine Morely testified that she resides in the Township and her 

father’s farm is the site of an existing Rex well pad, the Ferree well site. She stated 

that she lives 1900 feet from the Reno well site and 1900 feet from the Ferree well 

site. She said that her family’s farming operations continue around the Ferree well 

site and the intrusion of the well pad drilling and construction was minimal. The 

Board accepted her testimony as credible.

Janice Kennedy testified that she lives adjacent to Weatherburn and 

would be approximately 1,015 feet from the Geyer well pad, the closest residence 

to the pad. She said that she began residing in the area before residential 

construction in Weatherburn, and that there has been ongoing construction from 

2010. She stated that she considers the residential development to be a greater 

concern than the Geyer well pad due to increased lighting, ongoing construction, 

and denser population. She acknowledged that she has a subsurface lease with Rex 
9

and that she has no objection to the construction of the well pad and fracking for 

gas and oil at the Geyer site. The Board accepted her testimony as credible.

Scott Fodi (Fodi), the Township’s manager and zoning officer, 

testified that the Township’s Zoning Ordinance was silent as to oil and gas 

facilities prior to the enactment of Ordinance 127 so the Township was at risk for 

such facilities being permitted in every district due to exclusionary zoning. He 

stated that oil and gas leasing reached a peak in intensity in the Township around 

the time the General Assembly enacted the Pennsylvania Oil and Gas Act (Act 13),

58 Pa. C.S. §§2301-3504, and that 80% of the properties in the Township are now 

leased for oil and gas development. He said that after this Court held that the 

zoning provisions in Act 13 were invalid in Robinson Township v. Commonwealth, 

52 A.3d 463 (Pa. Cmwlth. 2012) (Robinson I), aff’d in part and rev’d in part, 83 

A.3d 901 (Pa. 2013) (Robinson II), the Township’s Board of Supervisors directed 

him to develop an oil and gas development zoning ordinance for the Township. He 

testified that he submitted the draft ordinance to the Township’s Planning 

Commission in June 2014. He stated that, in July 2014, the Planning Commission 

voted to request the Board of Supervisors to postpone a vote on the draft ordinance 

for one month, but that the Board enacted Ordinance 127 in August 2014, 

nonetheless. The Board accepted his testimony as credible.

Thomas Daniels (Daniels), Objectors’ land use expert, asserted that 

Ordinance 127 is not valid because it is not consistent with the Township’s current 

joint Comprehensive Plan with Richland Township.11 He calculated that 

 

11 Objectors also offered Jay Parrish as an expert in geology and geography. However, 

the Board found that “Dr. Parrish’s methodology is not generally accepted in the relevant field” 

and that “he admitted that the opinion he was offering is not supported by any scholarly support 

and is indeed ‘novel.’ [R.R. at 1911a].” Id. at 1773a. As a result, the Board determined that 

(Footnote continued on next page...)
10

Ordinance 127 opens up 90.2% of the Township to oil and gas development, but he 

did not provide a basis for this calculation. He opined that oil and gas operations 

constitute a heavy industrial use associated with noise, odor, dust, pollution, fires 

and evacuations, which is inconsistent with the residential and agricultural uses in 

the R-AG Zoning District.

Attorney William Sittig (Sittig), the Township’s and Rex’s land use 

expert,12 asserted that oil and gas operations include industrial components but

cannot be characterized as a heavy industrial use. He opined that Daniels only 

focused on a temporary period of industrial development and did not consider the 

entire lifespan of a well pad during drilling operations and the post-reclamation 

period. He disputed Daniels’ assertion regarding breadth of development, stating 

that less than 30% of the land in the Township can be drilled pursuant to Ordinance 

127. With respect to the Township’s Comprehensive Plan, Sittig asserted that the 

issue is whether Ordinance 127 is a valid exercise of Township power and not 

 

(continued...)

“[Objectors] failed to lay a proper foundation to establish the acceptance of [] Parrish’s methods 

and conclusions,” “decline[d] to accept [] Parrish as an expert,” and “rejected [his testimony] in 

toto.” Id.

12 The Board noted that Sittig “has a Bachelor’s Degree in mechanical engineering as 

well as a Juris Doctor[],” that “[h]e has extensive experience in land use planning issues as 

counsel for both municipalities and developers,” and that “[h]is methodology is generally 

accepted in the field.” R.R. at 1773a. The Board stated that “[t]he issue with Mr. Sittig is 

whether he can ‘bring to the table’ specialized knowledge beyond the scope of a layperson” and 

that “[a]s a general rule, expert testimony on questions of law is not permitted.” Id. (citations 

omitted). Nevertheless, the Board accepted Sittig as an expert explaining that “during closing, 

counsel for [CAC] relied on, in large part, the testimony of Attorney Sittig in support of its own 

case, thereby waiving its objection,” and “reserve[d] to itself . . . any decision as to questions of 

law.” Id. at 1774a.
11

whether it fell within the plan’s framework. The Board accepted Sittig’s testimony 

as credible.

Daniel Carpenter (Carpenter), Objectors’ public health expert, opined 

that there is a public risk for significant contamination by pollutants within a twomile radius of a well pad based on his examination of studies relevant to fracking. 

However, the Board found that his opinion is based on flawed data and failed to 

take into account contrary studies.

Julie Panko (Panko), Rex’s expert in human health risk assessments, 

conducted a study of the fracking operations at Fort Cherry High School in 

Washington County, from which she determined that the release of chemical 

pollutants into the air during fracking and flaring do not significantly exceed the 

background concentrations or health-based exposure limits. She opined that the oil 

and gas production authorized by Ordinance 127 does not constitute a risk to 

public health or neighboring residents, contradicting Carpenter’s opinion. 

However, the Board found that her studies did not consider a number of emission 

sources and failed to include a variety of pollutants caused by gas development 

including contaminant volatile organic chemicals.

Dana Bowen (Bowen), Objectors’ expert in noise assessment, 

prepared a study in which she concluded that the predicted noise levels would be 

65 to 75 dBa at the Geyer site and would not reach 60 dBa for a distance of 3,200 

feet from the site. She opined that sound mitigation techniques such as barriers 

would not effectively mitigate the noise. However, the Board found that she did 

not undertake any noise measurements at the Geyer site, did not accurately locate 

the position of the proposed well pad, and assumed that all equipment would be 

running simultaneously from the same spot and not arrayed across the site. 
12

Ultimately, the Board rejected the expert testimony of Carpenter, 

Panko, and Bowen, stating that “[i]t is apparent from cross-examination that of 

these three scientific expert witnesses, each failed to take into account underlying 

data that did not support their conclusions, chose to take shortcuts in their research 

by only utilizing favorable data and overlooked or substantially downplayed 

inconvenient data.” R.R. at 1784a-1785a. As a result, the Board found that “Dr. 

Carpenter, Ms. Panko and Ms. Bowen are not credible witnesses.” Id. at 1785a.

In disposing of Objectors’ claims, the Board initially explained that 

the Township’s Board of Supervisors is granted the authority to amend its Zoning 

Ordinance under Section 601 of the Municipalities Planning Code (MPC)13 and 

that Section 603(i) provides that “zoning ordinances shall provide for the 

reasonable development of minerals in each municipality.” 53 P.S. §10603(i). In 

turn, Section 107 of the MPC defines “minerals” as including “crude oil and 

natural gas.” 53 P.S. §10107. The Board also stated that under Section 603(g) and 

(h) and Section 604(5) of the MPC, “[z]oning ordinances must protect ‘prime 

agricultural land’ and encourage the continuity, development and viability of 

agricultural operations while also accommodating reasonable overall community 

growth. 53 P.S. §§10603(g) and (h), 10604(5).” R.R. at 1789a. The Board 

rejected “Daniels’ view that oil and gas operations should be limited to industrial 

districts” because “it views residential as the preeminent use, to which all other 

uses are subordinate.” Id. Rather, the Board found Sittig’s testimony to be more 

persuasive and credible that “the need to balance interests and uses is a far better 

 

13 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10601. Section 601 states that 

“[t]he governing body of each municipality . . . may enact, amend and repeal zoning ordinances 

to implement comprehensive plans and to accomplish any of the purposes of this act.”
13

view of a mixed-use zoning district, [which is] one of the aims of the MPC and 

indeed the balance spoken of in Article 1, Section 27 of the Pennsylvania 

Constitution.” Id.

The Board explained:

The Township Supervisors, through the passage of 

Ordinance 127, view oil and gas drilling activities as a 

way to help preserve agricultural activity. Their view is 

supported by the competent expert testimony of [] Sittig 

and the lay testimony of [] Morley and [] Hawkins 

Peterson. The Supervisors also view unchecked 

suburban growth as being associated with air and water 

pollution, traffic issues, and sewer and water costs. 

Where [Objectors] view agriculture and residential to be 

nearly synonymous, with a perspective that favors 

residential, the Supervisors do not, instead viewing 

residential and agricultural as distinct and different uses 

in a mixed-use district that must be balanced. The 

[Board] finds the Supervisors’ view, espoused through 

the passage of Ordinance 127, to be credible.

R.R. at 1789a-1790a.

The Board found that “[t]he answer to whether the temporary 

industrial use poses a danger to the health, safety and welfare of the residents of 

[the] Township remains unanswered by the woefully inadequate scientific expert 

testimony presented in this case.” R.R. at 1790a. The Board concluded that 

Objectors “failed to prove a health hazard to the community by their use of 

woefully inadequate scientific testimony” and, “[t]o the extent [that they] seek to 

limit oil and gas operations to a traditional industrial zone, the net effect would be 

to engage in the exclusionary zoning of oil and gas.” Id.

The Board rejected Objectors’ assertion that Ordinance 127 conflicts 

with the Township’s Comprehensive Plan, concluding that “oil and gas operations 

are not specifically mentioned within the Comprehensive Plan” and that it “does 
14

not refer to the evaluation and development of [an] approval process for the 

production of natural resources.” R.R. at 1791a. To the extent that they are 

inconsistent, the Board asserted that “a comprehensive plan is an abstract 

recommendation as to land utilization” so that “inconsistency with a 

comprehensive plan . . . cannot be a basis for a substantive challenge to a zoning 

ordinance.” Id. (citations omitted). The Board stated that it “does not view 

Robinson, supra, [sic] as reversing prior case law on this issue” or “to require 

absolute adherence to an adopted comprehensive plan.” Id.

Regarding Article 1, Sections 1 and 27, the Board explained that 

“[t]he substantive due process inquiry requires a balancing of [landowners’] rights 

and the public interest to be protected by the exercise of the police power” and that 

“[t]his balancing of interests is the same inquiry that must be made to determine 

whether an ordinance meets [the] requirements of Trustee [under Section 27].” 

R.R. at 1792a. The Board found that “[t]he totality of oil and gas drilling on a site, 

such as the Geyer [site], is not an industrial use, but it is instead a use traditionally 

exercised in agricultural areas, containing [temporary] components of an industrial 

use” and that “[t]o limit oil and gas drilling activities to a traditionally zoned 

industrial district based on their industrial incidents, is irrational.” Id. at 1793a.

The Board explained that the Township’s Supervisors “balanced the 

community’s costs and benefits of oil and gas production as evidenced by, on one 

hand, Ordinance 127’s exclusion of oil and gas activity from ‘purely’ residential 

zones, such as R-1, R-2 and PRD districts, to on the other hand, viewing oil and 

gas drilling as part and parcel of an agricultural district.” R.R. at 1792a.14 The 

 

14 The Board determined that Ordinance 127 properly balanced these interests:

(Footnote continued on next page...)
15

Board noted the PRD overlay located in the R-AG Residential Agriculture District 

and that “[m]ixed use districts, and even seemingly incompatible mixed-use

districts with crowded residential areas, have been recognized as an acceptable 

planning tool.” Id. (citation omitted). The Board stated:

In mixed use districts of residential and 

agricultural districts, such as the epicenter R-AG district, 

it is rational to preserve agricultural districts to maintain 

a check on the growth of residential districts. Oil and gas 

drilling provides a financial mechanism by which the free 

market can preserve agriculture. Ordinance 127 

therefore bears a substantial relationship to public health, 

safety and welfare as well as a balancing of interests.

Id. at 1793a-1794a.

The Board found that the burden was on Objectors and that they 

“failed to meet their burden that oil and gas drilling pads will injure their 

neighbors.” R.R. at 1794a. The Board stated that the Township’s Supervisors 

“acted in their role as trustee for future generations, as required by Article 1, 

§27 . . . by helping to preserve agricultural resources for future generations.” Id. 

 

(continued...)

Oil and gas activities are specifically excluded by 

Ordinance 127 from exclusively zoned residential districts, be it R1, R-2 or within any PRD overlay district. The exclusion 

encompasses the three components of oil and gas drilling – well 

pads, processing plants and compressor stations. In addition, 

compressor stations and processing plants are not permitted in the 

R-AG district. The only oil and gas activity permitted in the R-AG 

mixed use district is an oil and gas well pad and its temporary 

industrial components. All of these limitations on oil and gas use 

evidence rational planning and a balancing of interests.

R.R. at 1793a.
16

The Board concluded that “the effect of Ordinance 127 constitutes a balancing of 

the benefits of preserving agriculture including utilizing oil and gas use upon 

agricultural areas encompassing no more than 30% of the Township, and, by 

limiting suburban growth.” Id. As a result, the Board denied Objectors’ 

substantive challenge to Ordinance 127 and their appeal of the zoning permit.

Objectors appealed the Board’s decision to the trial court, and Rex, 

Geyer, and the Township intervened in Objectors’ zoning appeal. The trial court 

ultimately affirmed the Board’s decision without taking additional evidence. 

Objectors, the Township, Rex, and Geyer then filed the instant appeals of the trial 

court’s affirmance of the Board’s decision.15

II.

We previously summarized Objectors’ substantive due process claims

as follows:

Objectors first claim that the trial court erred in 

failing to correctly apply a substantive due process 

analysis under Article 1, Section 1 because Ordinance 

127 was not a valid exercise of the Township’s police 

powers and places an incompatible industrial use in the 

R-AG Residential Agriculture District in violation of the 

MPC. Specifically, Objectors assert that Ordinance 127 

has substantially similar problems to Act 13’s zoning 

scheme that was held to be invalid by this Court in 

Robinson I wherein this Court determined that the 

 

15

“In an appeal from a trial court’s order affirming a decision of a zoning hearing board, 

where the trial court takes no additional evidence, our review is limited to considering whether 

the zoning hearing board abused its discretion or erred as a matter of law. The zoning hearing 

board abuses its discretion when it issues findings of fact that are not supported by substantial 

record evidence[.]” In re Bartkowski Investment Group, 106 A.3d 230, 237 (Pa. Cmwlth. 2014) 

(citation omitted).
17

placement of industrial uses in districts set aside for nonindustrial uses makes zoning schemes irrational and 

unconstitutional. See Robinson I, 52 A.3d at 484 n.21, 

485 n.23. They contend that Ordinance 127 is illogical, 

arbitrary, and discriminatory by permitting oil and gas 

development by right in agricultural and 

residential/agricultural zones and that it unduly disturbs 

their established expectations regarding their property 

rights, including public health, safety, and welfare. 

Likewise, Objectors submit that the trial court erred in its 

analysis of their MPC claims because Section 603 

requires consistency with the Comprehensive Plan and 

protection of natural and historic features and resources, 

and Section 604 requires that ordinances be designed to 

provide adequate land for housing and to promote proper 

emergency response and to prevent the loss of health, life 

or property from fire, flood, panic or other dangers.

Delaware Riverkeeper I, slip op. at 17-18 (footnotes omitted).

This Court’s opinion in Frederick v. Allegheny Township Zoning 

Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018), appeal denied, ___ A.3d ___ 

(Pa., No. 449 WAL 2018, filed May 14, 2019), controls the disposition of the 

foregoing constitutional claim16 rather than our prior analysis under Gorsline I. In 

 

16 Objectors claim that Frederick is not controlling with respect to the claims raised 

herein because Frederick is factually distinguishable, and the legal analysis therein is merely 

dicta because this Court found the undisputed facts in that case to be dispositive. See Remand 

Brief of Appellants at 54-57. We reject this assertion. In support, Objectors rely on evidence 

specifically rejected by the Board as not credible and continue to base their claims on the faulty 

premise that unconventional gas drilling is a fundamentally incompatible industrial use as a 

matter of law in the relevant zoning district. See id. In short, we will not accede to Objectors’ 

request to reweigh the evidence, see Frederick, 196 A.3d at 688 (“[The board] ‘as the fact finder, 

is the ultimate judge of credibility and resolves all conflicts of evidence’ [and] ‘has the power to 

reject even uncontradicted testimony if [it] finds the testimony lacking in credibility.’”) (citations 

omitted); we are bound by the Board’s findings that are supported by substantial record 

evidence, see id. (“Where [the board’s] findings of fact are supported by substantial evidence, 

‘those findings of fact are binding upon this Court for purposes of appellate review.’”) (citation 

omitted); and unconventional gas drilling does not constitute an incompatible industrial use in a 

residential/agricultural zoning district per se as a matter of law. See Gorsline II, 186 A.3d at 389 

(Footnote continued on next page...)
18

Frederick, Allegheny Township enacted a zoning ordinance that established oil 

and gas development as a permitted use in all township zoning districts so long as a 

number of standards relating to public health, safety, and welfare were met, such as

road safety, land clearing, security measures, emergency planning, and noise and 

 

(continued...)

(“[T]his decision should not be misconstrued as an indication that oil and gas development is 

never permitted in residential/agricultural districts, or that it is fundamentally incompatible with 

residential or agricultural uses[.]”). See also Delaware Riverkeeper I, slip op. at 25-26 n.22 in 

which we stated:

 The General Assembly has also recognized the compatibility 

between agricultural and oil and gas development uses in other 

contexts. See Section 14.1(c)(6)(i) of the Agricultural Area 

Security Law, Act of June 30, 1981, P.L. 128, as amended, added 

by Act of December 14, 1988, P.L. 1202, 3 P.S. §914.1(c)(6)(i) 

(“An agricultural conservation easement [purchased by the State 

Agricultural Land Preservation Board] shall not prevent . . . [t]he 

granting of leases . . . or the issuing of permits . . . for the 

exploration, development, storage or removal of . . . oil and gas by 

the owner of the subject land or the owner of the underlying . . . oil 

and gas or the owner of the rights to develop the underlying . . . oil 

and gas, or the development of appurtenant facilities related to . . . 

oil or gas development or activities incident to the removal or 

development of such minerals.”); Section 6(c.1)(1) of the 

Pennsylvania Farmland and Forest Land Assessment Act of 1974, 

Act of December 19, 1974, P.L. 973, as amended, 72 P.S. 

§5490.6(c.1)(1) (“Land subject to preferential assessment may be 

leased or otherwise devoted to the exploration for and removal of 

gas and oil, including the extraction of coal bed methane, and the 

development of appurtenant facilities, including new roads and 

bridges, pipelines and other buildings or structures, related to 

exploration for and removal of gas and oil and the extraction of 

coal bed methane.”).

As a result, we find the extensive and exhaustive legal analyses contained in Frederick to be 

dispositive with respect to the identical constitutional claims raised herein.
19

light controls. The zoning ordinance also required operators to meet all state and 

federal permitting requirements. Allegheny Township issued a “zoning 

compliance permit” to CNX Gas Company (CNX) to develop an unconventional 

gas well on property owned by Northmoreland Farms, LP (the Porter Pad) located 

in the R-2 Zoning District, which permits agricultural and residential uses. 

As in the instant matter, a number of neighboring landowners 

(Neighbors) filed a validity challenge to the zoning ordinance with the Allegheny 

Township Zoning Hearing Board (ZHB) arguing:

[The] Zoning Ordinance [] contravenes substantive due 

process because the Township failed to (1) consider the 

public interest of the community as a whole; (2) protect 

the lives, morals, health, comfort and general welfare; 

and (3) insure that an individual’s use of his property will 

not infringe upon the property rights of neighboring 

property owners. [Neighbors] contend that the Township 

has failed to designate uses within the same district that 

are compatible and, thus, has engaged in impermissible 

“spot zoning.”

Frederick, 196 A.3d at 687.

Initially, we outlined the standards by which we are to analyze these 

claims:

A zoning ordinance is a valid exercise of the police 

power when it promotes public health, safety or welfare 

and its regulations are substantially related to the purpose 

the ordinance purports to serve. . . . In applying that 

formulation, Pennsylvania courts use a substantive due 

process analysis which requires a reviewing court to 

balance the public interest served by the zoning 

ordinance against the confiscatory or exclusionary impact 

of regulation on individual rights. . . . The party 

challenging the constitutionality of certain zoning 

provisions must establish that they are arbitrary, 

unreasonable and unrelated to the public health, safety, 
20

morals and general welfare. . . . Where their validity is 

debatable, the legislature’s judgment must control. . . .

Our Supreme Court has further explained:

[t]he substantive due process inquiry, involving a 

balancing of landowners’ rights against the public 

interest sought to be protected by an exercise of 

the police power, must accord substantial 

deference to the preservation of rights of property 

owners, within constraints of the ancient maxim of 

our common law, sic utere tuo ut alienum non 

laedas . . . [advising to] use your own property as 

not to injure your neighbors. A property owner is 

obliged to utilize his property in a manner that will 

not harm others in the use of their property, and 

zoning ordinances may validly protect the interests 

of neighboring property owners from harm.

[Additionally, w]here a zoning hearing board’s findings 

of fact are supported by substantial evidence, “those 

findings of fact are binding upon this Court for purposes 

of appellate review.”

Id. at 687-88 (citations omitted and emphasis in original). 

In rejecting Neighbors’ substantive due process claims, we stated the 

following, in relevant part:

Here, [ZHB] found that oil and gas operations 

have long existed in the R-2 Zoning District and provide 

needed income to Township residents, particularly 

farmers, so that they can maintain “their livelihood and 

way of life.” Notably, in Robinson Township II, 83 A.3d 

at 954, the plurality recognized “that development 

promoting the economic well-being of the citizenry 

obviously is a legitimate state interest.” [ZHB] found, as 

fact, that oil and gas operations, including shale gas 

development, have compatibly coexisted with other uses 

in the Township’s rural areas for many years. To issue a 

permit, DEP, inter alia, specifically considers the impact 

of oil and gas drilling upon the community and 

environment and requires compliance with the setback 
21

requirements in 58 Pa. C.S. §3215. See, e.g., 

Pennsylvania Independent Oil and Gas Association v. 

Department of Environmental Protection, 146 A.3d 820 

(Pa. Cmwlth. 2016), [aff’d, 161 A.3d 949 (Pa. 2017)]

(discussing DEP’s permitting process for unconventional 

gas wells). In accordance with these findings, [ZHB]

concluded that [the] Zoning Ordinance [] represented an 

appropriate exercise of the police power.

Relying on the testimony of Dr. Stoltz and Steven 

Victor, [Neighbors] contend that unconventional gas 

wells will have a negative impact on the surrounding 

community. However, [ZHB] rejected the testimony of 

these witnesses as not credible because of their lack of 

knowledge about the Township’s geography, its water 

resources or CNX’s operations. A zoning hearing board, 

“as fact finder, is the ultimate judge of credibility and 

resolves all conflicts of evidence.” In re Appeal of 

Brickstone Realty Corporation, 789 A.2d 333, 339 (Pa. 

Cmwlth. 2001). Indeed, a zoning hearing board “has the 

power to reject even uncontradicted testimony if [it] finds 

the testimony lacking in credibility.” Constantino v. 

Zoning Hearing Board of Borough of Forest Hills, [618 

A.2d 1193, 1196 (Pa. Cmwlth. 1992)]. Here, [ZHB]

determined that [Neighbors] “did not present credible, 

substantial evidence” that the Porter Pad “will, in fact, 

have any adverse effect on public health, safety, welfare 

or the environment.” [ZHB]’s reasons for this 

determination are fully explained and supported by the 

record.

* * *

[Neighbors] next argue that an “industrial” use 

such as a natural gas well is incompatible with and must 

be segregated from the other uses in the R-2 Zoning 

District. They argue that this Court's holding in 

Robinson Township I, 52 A.3d 463, supports this 

argument. We disagree.

In Robinson Township I, this Court held that Act 

13 violated substantive due process because it deprived 

municipalities of the ability to evaluate their own 
22

territorial features and to decide, as a local matter, where 

oil and gas operations should take place. We described 

Act 13’s encroachment on a municipality’s ability to 

determine what uses to allow in a zoning district to 

constitute a type of illegal “spot use.” See Robinson 

Township I, 52 A.3d at 485 n.23.

By contrast, here, the municipality has evaluated 

its landscape and has chosen to allow oil and gas 

operations to take place in every zoning district, so long 

as certain exacting standards are satisfied. This Court’s 

Robinson Township I substantive due process analysis is 

not applicable here because it addressed Act 13’s 

deprivation of a municipality’s ability to determine the 

placement of oil and gas operations. By contrast, [the] 

Zoning Ordinance [] expressed the will of the 

Township’s residents by their elected Board of 

Supervisors.

[ZHB] held that [Neighbors] failed to prove that 

[the] Zoning Ordinance [] violated substantive due 

process. It held, to the contrary, that [the] Zoning 

Ordinance [] preserves the protected “rights of property 

owners” to realize the value of their mineral deposits but 

without causing cognizable injury to their neighbors. In 

re Realen Valley Forge [Greenes Associates, 838 A.2d 

718, 728 (Pa. 2003)]. Discerning no error in [ZHB]’s 

conclusion, we hold that [the] Zoning Ordinance [] does 

not violate substantive due process.

Id. at 688, 690-91 (citations and footnotes omitted).

Likewise, in the case sub judice, the Board found that the 

“Township’s history is steeped in the production of oil and gas from agricultural 

properties since the mid-nineteenth century to the present,” and that the Township 

“has experienced residential growth as an exurb of the City of Pittsburgh.” R.R. at 

1778a (citations omitted). The Board also found that “Mr. Fodi, in drafting 

Ordinance 127 under [the] supervision of the Township Supervisors, viewed oil 

and gas activity as an integral part of agriculture and agricultural preservation,” 
23

and that “[a]s drafted, Ordinance 127 balances between benefiting agricultural 

preservation and limiting sprawl.” Id. at 1785a.

As the Board explained:

Although the Township Supervisors’ view, that oil 

and gas production is part and parcel of an agricultural 

use, is contrary to the conclusion asserted by [Objectors] 

that oil and gas production is not part and parcel of an 

agricultural use, the contrary conclusions do not make the 

Supervisors’ conclusion wrong. Instead their view is 

merely different. The Township Supervisors, through the 

passage of Ordinance 127, view oil and gas drilling 

activities as a way to help preserve agricultural activity. 

Their view is supported by the competent expert 

testimony of Attorney Sittig and the lay testimony of Ms. 

Morley and Ms. Hawkins Peterson. The Supervisors also 

view unchecked suburban growth as being associated 

with air and water pollution, traffic issues, and sewer and 

water costs. Where [Objectors] view agriculture and 

residential to be nearly synonymous, with a perspective 

that favors residential, the Supervisors do not, instead 

viewing residential and agricultural as distinct and 

different uses in a mixed-use district that must be 

balanced. The [Board] finds the Supervisors’ view, 

espoused through the passage of Ordinance 127, to be 

credible.

R.R. at 1786a.

The Board further found, “The Township Supervisors and Mr. Fodi in 

preparing Ordinance 127 acted as trustees for the benefit of future generations of 

Middlesex Township residents by weighing the necessity of oil and gas production 

in farm areas versus the containment of residential growth in farm areas,” and that 
24

“[t]he Township Supervisors, in enacting Ordinance 127, properly exercised their 

legislative function.” Id.17 

As we stated in our prior opinion in this matter:

[T]here is substantial evidence supporting the Board’s 

determination that the “oil and gas well site 

development” use is compatible with the other permitted 

agricultural and residential uses and that it will limit 

sprawl and protect agricultural land. R.R. at 2188a, 

2193a, 2194a, 2207a- 2208a, 2214a, 2231a. See also id.

at 693a-694a, 703a-705a, 2574a-2576a, 2581a-2582a. 

This is consistent with the stated general purposes of 

Ordinance 127 and the R-AG Residential Agriculture 

District created by Ordinance 125. Id. at 34a, 1760a. As 

the Board explained, the Township’s Supervisors 

“balanced the community’s costs and benefits of oil and 

gas production as evidenced by, on one hand, Ordinance 

127’s exclusion of oil and gas activity from ‘purely’ 

residential zones, such as R-1, R-2 and PRD districts, to 

on the other hand, viewing oil and gas drilling as part and 

parcel of an agricultural district.” R.R. at 1792a.

Moreover, Objectors failed to sustain their burden 

of demonstrating by credible testimony that the 

presumptively valid Ordinance 127 is “arbitrary, 

unreasonable and unrelated to the public health, safety, 

morals and general welfare.” Boundary Drive Associates

[v. Shrewsbury Township Board of Supervisors, 491 A.2d 

86, 90 (Pa. 1985)]. As noted above, the Board found that 

“[t]he answer to whether the temporary industrial use 

poses a danger to the health, safety and welfare of the 

residents of [the] Township remains unanswered by the 

woefully inadequate scientific expert testimony presented 

in this case,” and concluded that Objectors “failed to 

 

17 See also R.R. at 1793a-1794a (“In mixed use districts of residential and agricultural 

districts, such as the epicenter R-AG district, it is rational to preserve agricultural districts to 

maintain a check on the growth of residential districts. Oil and gas drilling provides a financial 

mechanism by which the free market can preserve agriculture. Ordinance 127 therefore bears a 

substantial relationship to public health, safety and welfare as well as a balancing of interests.”).
25

prove a health hazard to the community by their use of

woefully inadequate scientific testimony.” R.R. at 

1790a. See, e.g., Christman v. Zoning Hearing Board of 

the Township of Windsor, 854 A.2d 629, 635 (Pa. 

Cmwlth. 2004) (“It was Landowners’ burden to establish 

the zoning map amendment was arbitrary and 

unreasonable. As discussed hereafter, the ZHB was 

unpersuaded by Landowners’ vague proof on the issue, 

and it found Landowners offered no credible evidence 

that the Ordinance was arbitrary and unreasonable. As 

the ZHB concluded Landowners failed to meet their 

burden based on credibility findings, no error is 

evident.”) (citations omitted).

Delaware Riverkeeper I, slip op. at 27-28 (footnote omitted).

As in Frederick, the Board’s findings in the instant matter are not 

subject to our review because they are based on substantial evidence, and amply 

support its determination that the enactment of Ordinance 127 was an appropriate 

result of the Township Board of Supervisors’ exercise of its legislative function of 

weighing the foregoing competing interests. As a result, Objectors have not 

presented a cognizable substantive due process claim with respect to the enactment 

of Ordinance 127.

Additionally, as in Frederick, we have properly rejected Objectors’ 

“spot use” claim in our prior opinion in this matter:

Objectors’ reference to “spot use” in Robinson I, 

52 A.3d at 484 n.21, 485 n.23, was in the context of the 

statewide mandate of the invalid provisions of Act 13. In 

contrast, the “oil and gas well site development” use in 

Ordinance 127 is permitted in mixed-use districts in the 

Township. As noted above, the Board found that natural 

gas compressor stations are permitted uses in nonresidential I-1, AG-A, AG-B, and C-3 Zoning Districts, 

but are not permitted in the R-AG Agriculture 

Residential District because it is within the Township’s 

PRD district. R.R. at 1780a, 1793a. The Board properly 

concluded that “[t]he only oil and gas activity permitted 
26

in the R-AG mixed use district is an oil and gas well pad 

and its temporary industrial components. All of these 

limitations on oil and gas use evidence rational planning 

and a balancing of interests.” Id. at 1793a. This is not an 

impermissible “spot use.” See Plaxton v. Lycoming 

County Zoning Hearing Board, 986 A.2d 199, 211 (Pa. 

Cmwlth. 2009), appeal denied, 8 A.3d 900 (Pa. 2010) 

(“Here, Objectors’ spot zoning and/or special legislation 

claims are unavailing. To that end, we observe that the 

property upon which [the lessee] proposes to construct its 

wind energy facility was not rezoned in a manner so as to 

subject it to unjustifiably different treatment from similar 

surrounding land. Indeed, the ordinance amendments did 

not rezone the property at issue at all; rather, the effect of 

the amendments is simply to permit, by right, wind 

energy facilities in all of the County’s Agricultural, 

Countryside and RP zoning districts. Therefore, 

Objectors’ spot zoning claim fails here.”).

Delaware Riverkeeper I, slip op. at 26 n.23.

Finally, as in Frederick, we have properly rejected Objectors’ claims 

of purported MPC violations:

Section 603(g)(1), (h) and (i) of the MPC states that 

“ordinances shall protect prime agricultural land,” “shall 

encourage the continuity, development and viability of 

agricultural operations,” and “shall provide for the 

reasonable development of minerals.” 53 P.S. 

§§10603(g)(1), (h), (i). In turn, Section 107 of the MPC 

defines “minerals” as including “crude oil and natural 

gas.” 53 P.S. §10107. Likewise, Section 604(3) and (5) 

states that “[t]he provisions of zoning ordinances shall be 

designed . . . to preserve prime agriculture and farmland” 

while “accommodat[ing] reasonable overall community 

growth.” 53 P.S. §10604(3), (5). The substantial 

evidence demonstrates that Ordinance 127 accomplishes 

the foregoing while limiting oil and gas development to 

certain zoning districts in the Township. The fact that 

such a use may conflict with the Township’s 

Comprehensive Plan is not a basis upon which the Board 

may invalidate Ordinance 127. See Section 303(c) of the 

MPC, 53 P.S. §10303(c) (“[N]o action by the governing 
27

body of a municipality shall be invalid nor shall the same 

be subject to challenge or appeal on the basis that such 

action is inconsistent with, or fails to comply with, the 

provision of a comprehensive plan.”).

Delaware Riverkeeper I, slip op. at 28-29.

In sum, we again conclude that “[b]ased on the foregoing, the Board 

did not err in rejecting Objectors’ substantive challenge to Ordinance 127 as 

violative of Article 1, Section 1 of the Pennsylvania Constitution and the trial court 

did not err in affirming this determination.” Id. at 29.

III.

We previously summarized Objectors’ claims regarding the 

Environmental Rights Amendment as follows:

Objectors next claim that the trial court also failed 

to apply the relevant constitutional analysis for their 

Article 1, Section 27 claims. They argue that the 

Township failed to assess whether the ordinance would 

cause unreasonable “actual or likely degradation” of air 

or water quality. See Robinson II, 83 A.3d at 951-55. 

They contend that the Township also violated its 

fiduciary duty as trustee under Section 27 by issuing the 

permit without first considering the environmental effect 

of the action on the constitutionally protected features; 

failing to exercise prudence respecting the environment; 

treating all beneficiaries of the trust equally; and 

protecting the natural environment over development and 

disturbance. Robinson II, 83 A.3d at 952, 957-58, 959, 

973 n.55.

Objectors argue that Ordinance 127 suffers from 

the same infirmity of Act 13 that was stricken in 

Robinson II, i.e., that it permits “industrial” oil and gas 

development in non-industrial zoning districts.
28

Delaware Riverkeeper I, slip op. at 29-30. We again find that Frederick controls 

our analysis and disposition of this claim.

With respect to the Township’s duty under the Environmental Rights 

Amendment, in Frederick we explained:

The plurality in Robinson Township II criticized 

Payne v. Kassab, [312 A.2d 86 (Pa. Cmwlth. 1973), 

aff’d, 361 A.2d 263 (Pa. 1976)], which established a 

three-part test to determine whether government action 

complied with the Environmental Rights Amendment.

Robinson Township II did not reverse [Payne], and this 

Court continued to apply the Payne test to analyze 

alleged violations of the Environmental Rights 

Amendment. See, e.g., Funk v. Wolf, 144 A.3d 228, 234 

(Pa. Cmwlth. 2016) (“The Payne test is particularly 

applicable in situations where a person challenges a 

government decision or action.”).

However, in 2017, the Supreme Court overruled 

the Payne test in [PEDF II]. . . .

In [PEDF II], the Supreme Court addressed each 

of the three sentences in the Environmental Rights 

Amendment. It observed that “the right of citizens to 

clean air and pure water, and to the preservation of 

natural, scenic, historic values of the environment[]” set 

forth in sentence one “places a limitation on the state’s 

power to act contrary to this right, and while the subject 

of this right may be amenable to regulation, any laws that 

unreasonably impair the right are unconstitutional.” [161 

A.3d] at 931 (citing Robinson Township II, 83 A.3d at 

951). Also, in Robinson Township II, the plurality stated 

expressly that “the constitutional obligation binds all 

government, state or local, concurrently.” Robinson 

Township II, 83 A.3d at 952 (citation omitted).

The precise duties imposed upon local 

governments by the first sentence of the Environmental 

Rights Amendment are by no means clear. In the first 

case to address the Environmental Rights Amendment, 
29

our Supreme Court observed that the values protected in 

the first sentence are subject to interpretation:

“[C]lean air” and “pure water” require technical 

definitions, since they depend, to some extent, on 

the technological state of the science of 

purification. The other values, “the natural, scenic, 

historic and esthetic values” of the environment 

are values which have heretofore not been the 

concern of government.

Shapp v. National Gettysburg Battlefield Tower, Inc., 

[311 A.2d 588, 593 (Pa. 1973)]. The uncertainty posed 

by these values placed a property owner at risk of not 

knowing to what use he could put his property, a result 

the Supreme Court described as “unjust.” Id. The 

Supreme Court cautioned that this lack of certainty raised 

“serious questions under both the equal protection clause 

and the due process clause of the United States 

Constitution.” Id.

In Robinson Township II, the Supreme Court 

plurality acknowledged these constitutional concerns. 

The plurality explained that the “Environmental Rights 

Amendment does not call for a stagnant landscape” or 

“for the derailment of economic or social development” 

or “for a sacrifice of other fundamental values.”

Robinson Township II, 83 A.3d at 953. The plurality 

further explained that

the first clause of Section 27 does not impose 

express duties on the political branches to enact 

specific affirmative measures to promote clean air, 

pure water, and the preservation of the different 

values of our environment . . . .

Id. at 951 (emphasis added). Nevertheless, when the 

government acts, “it must reasonably account for the 

environmental features of the affected locale. . . .” Id.

(emphasis added). Judicial review of the government’s 

action requires an evidentiary hearing to determine, first, 

whether the values in the first clause of the 

Environmental Rights Amendment are implicated and, 
30

second, whether the governmental action unreasonably 

impairs those values.

Zoning accounts for the “natural, scenic, historic 

and esthetic values of the environment.” PA. CONST. art. I, 

§27. It does so by placing compatible uses in the same 

zoning district; by establishing minimum lot sizes and 

dimensional requirements; providing parking and signage 

controls; and requiring landscape and screening controls. 

This list goes on. It is axiomatic that a zoning ordinance 

must balance the public interests of the community with 

the due process rights of private property owners. 

Village of Euclid v. Ambler Realty Company, 272 U.S. 

365, 387-88 [(1926)]; National Gettysburg Battlefield 

Tower, Inc., 311 A.2d at 593-94. Further, as a creature of 

statute, the Township can exercise only those powers that 

have been expressly conferred upon it by the General 

Assembly in the MPC and in the Second Class Township 

Code,[18] by which the Township was created. When a 

municipality enacts a zoning ordinance, it is bound by the 

Environmental Rights Amendment and by all the rights 

protected in Article I of the Pennsylvania Constitution.

All must be considered. See Cavanaugh v. Davis, [440 

A.2d 1380, 1382 (Pa. 1982)] (“[B]ecause the 

Constitution is an integrated whole, effect must be given 

to all of its provisions whenever possible.”).

Objectors assert the Township did not “genuinely 

consider” the environment in the enactment of [the] 

Zoning Ordinance [] or in the issuance of the permit to 

CNX. Objectors’ Brief at 47. They presume, contrary to 

the plurality’s instruction in Robinson Township II, 83 

A.3d at 952, that local governments must enact “specific 

affirmative measures” to protect the environment that are 

duplicative of the many state laws that regulate oil and 

gas operations in Pennsylvania.

 

18 Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701. Like the township 

in Frederick, the Township in the case sub judice is a Second Class Township. See 123 The 

Pennsylvania Manual 6-122 (2017); Emert v. Larami Corporation, 200 A.2d 901, 902 n.1 (Pa. 

1964) (“Courts will take judicial notice of geographical facts such as the county in which a town 

or city is located.”) (citations omitted).
31

Moreover, Robinson Township II did not give 

municipalities the power to act beyond the bounds of 

their enabling legislation. Municipalities lack the power 

to replicate the environmental oversight that the General 

Assembly has conferred upon DEP and other state 

agencies. Neither [PEDF II] nor Robinson Township II

has altered these fundamental principles of 

Pennsylvania’s system of state and local governance.

Section 3302 of the Oil and Gas Act specifically 

states that a municipality lacks the power to regulate how 

gas wells operate. Section 3302 provides that “local 

ordinances purporting to regulate oil and gas operating 

regulated by Chapter 32 (relating to development) are 

hereby superseded. No local ordinance adopted pursuant 

to the MPC or the Flood Plain Management Act[19]shall 

contain provisions that impose conditions, requirements 

or limitations” on oil and gas operations regulated by the 

Oil and Gas Act. 58 Pa. C.S. §3302. Although the last 

sentence of Section 3302 has been declared 

unconstitutional, this preemption language was left 

intact.

In sum, a municipality may use its zoning powers 

only to regulate where mineral extraction takes place. 

Huntley & Huntley v. Borough Council, [964 A.2d 855 

(Pa. 2009)]. A municipality does not regulate how the 

gas drilling will be done. Objectors’ complaints about 

the purported harm to the environment from the 

operations of the Porter Pad project should have been 

addressed to the state agencies that issued CNX its 

operating permits.

In any case, [ZHB] found that oil and gas 

development and agricultural uses “have long safely 

coexisted within rural communities.” Board Decision at 

42. The only feature of the Porter Pad that will be visible 

from any of Objectors’ homes is the portion of the 

drilling rig that rises over the treetops. Board Decision at 

37; Finding of Fact No. 69. Once drilling operations 

 

19 Act of October 4, 1978, P.L. 851, 32 P.S. §§679.101–679.601.
32

cease, the rig will be removed during the pumping phase. 

When pumping ends, the land can be returned to its 

original state. Id. at 40; Finding of Fact No. 97. In the 

meantime, oil and gas drilling will support the 

agricultural use of land in the R-2 Zoning District. 

Objectors did not challenge any of these factual findings.

Objectors did not prove that [the] Zoning 

Ordinance [] is a law that “unreasonably impairs” their 

rights under the Environmental Rights Amendment.

Objectors did not prove that [the] Zoning Ordinance []

does not reasonably account for the natural, scenic, 

historic and esthetic values of the Township’s 

environment. Indeed, [ZHB] reached the contrary 

conclusion. It credited the testimony of CNX’s expert, 

Professor Pifer, who stated that there is a long history of 

oil and gas development safely coexisting with 

agricultural uses in the rural areas of the Township and 

that unconventional gas development will actually help 

preserve farming in the R-2 District. We hold that [the] 

Zoning Ordinance [] does not violate the Environmental 

Rights Amendment.

Frederick, 196 A.3d at 692-98 (footnotes omitted and emphasis in original).

Likewise, in the case sub judice, the Board credited Fodi’s testimony 

that the “Township’s history is steeped in the production of oil and gas from 

agricultural properties since the mid-nineteenth century to the present,” and that 

“in drafting Ordinance 127 under the supervision of the Township Supervisors, 

viewed oil and gas activity as an integral part of agriculture and agricultural 

preservation.” R.R. at 1777a, 1778a, 1785a, 2138a. Again, as stated in our prior 

opinion in this matter:

[T]here is substantial evidence supporting the Board’s 

determination that the “oil and gas well site 

development” use is compatible with the other permitted 

agricultural and residential uses and that it will limit 

sprawl and protect agricultural land. R.R. at 2188a, 

2193a, 2194a, 2207a- 2208a, 2214a, 2231a. See also id.
33

at 693a-694a, 703a-705a, 2574a-2576a, 2581a-2582a. 

This is consistent with the stated general purposes of 

Ordinance 127 and the R-AG Residential Agriculture 

District created by Ordinance 125. Id. at 34a, 1760a. As 

the Board explained, the Township’s Supervisors 

“balanced the community’s costs and benefits of oil and 

gas production as evidenced by, on one hand, Ordinance 

127’s exclusion of oil and gas activity from ‘purely’ 

residential zones, such as R-1, R-2 and PRD districts, to 

on the other hand, viewing oil and gas drilling as part and 

parcel of an agricultural district.” R.R. at 1792a.

Delaware Riverkeeper I, slip op. at 27-28.

Based upon their findings of fact, the Board properly concluded:

[] The Township Supervisors’ view that the totality 

of oil and gas production, both during drilling and after 

reclamation, is compatible with an agricultural district is 

rational. First, that has been the history of Middlesex 

Township, both in the very long term and in its more 

recent experience with the three prior unchallenged oil 

and gas well pads. Second, competent testimony was 

provided that oil and gas production helps support 

agricultural activity and preservation, which in turn helps 

keep suburban growth in check. Third, to limit oil and 

gas drilling to a traditional industrial zone, or to subject a 

well pad to a two-mile exclusion zone, as advocated by 

the experts for the [Objectors] would constitute 

exclusionary zoning.

[] The totality of oil and gas drilling on a site, such 

as the Geyer farm, is not an industrial use, but it is 

instead a use traditionally exercised in agricultural areas, 

containing components of an industrial use. The 

industrial use components, although of a great impact, 

are temporary in nature and largely cease after 

reclamation. To limit oil and gas drilling activities to a 

traditionally zoned industrial district based on their 

industrial incidents[, as in “connected with” and not as in 

“accidents,”] is irrational.
34

[] Oil and gas activities are specifically excluded 

by Ordinance 127 from exclusively zoned residential 

districts, be it R-1, R-2 or within any PRD overlay 

district. This exclusion encompasses the three 

components of oil and gas drilling – well pads, 

processing plants and compressor stations. In addition, 

compressor stations and processing plants are not 

permitted in the R-AG district. The only oil and gas 

activity permitted in the R-AG mixed use district is an oil 

and gas well pad and its temporary industrial 

components. All of these limitations on oil and gas use 

evidence rational planning and a balancing of interests.

[] In mixed use districts of residential and 

agricultural districts, such as the epicenter R-AG district, 

it is rational to preserve agricultural districts to maintain 

a check on the growth of residential districts. Oil and gas 

drilling provides a financial mechanism by which the free 

market can preserve agriculture. Ordinance 127 

therefore bears a substantial relationship to public health, 

safety, and welfare as well as a balancing of interests.

[] As previously stated, [Objectors] have failed to 

meet their burden that oil and gas drilling pads will injure 

their neighbors. Admittedly, the oil company has not 

established that no harm will occur. The concerns of the 

credible witnesses are reasonable. But, the burden of 

proof lies upon [Objectors] and the evidence they 

presented was woefully inadequate and did no justice to 

their local constituents.

[] The Township Supervisors, as set forth above, 

have acted in their role as trustee for future generations, 

as required by Article I, §27 of the Pennsylvania 

Constitution, by helping to preserve agricultural 

resources for future generations. They did not act in a 

vacuum, they did not act with due disregard for the 

residents of [the] Township. Instead the effect of 

Ordinance 127 constitutes a balancing of the benefits of 

preserving agriculture including utilizing oil and gas use 

upon agricultural areas encompassing no more than 30% 

of the Township, and by limiting suburban growth.
35

R.R. at 1792a-1794a (footnote omitted). Based on the foregoing and based on our 

analysis in Frederick applying the Supreme Court’s opinion in PEDF II, we hold 

that Ordinance 127 does not violate the Environmental Rights Amendment to the 

Pennsylvania Constitution.

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware Riverkeeper Network, :

Clean Air Council, David Denk, :

Jennifer Chomicki, and Joann Groman, :

:

Appellants :

:

 v. : No. 2609 C.D. 2015

: 

Middlesex Township Zoning :

Hearing Board :

:

 v. :

:

PennEnergy Resources, LLC, :

Middlesex Township, and :

Robert G. Geyer :

O R D E R

AND NOW, this 26th day of June, 2019, the order of the Butler 

County Court of Common Pleas dated November 19, 2015, at No. 15-10429, is 

AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge