IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marcia Carnahan, Donald M. :

Carnahan, Paul Boas, and :

Christopher Coleman, :

Appellants :

:

v. : No. 1082 C.D. 2022

: 

Slippery Rock Township Zoning :

Hearing Board, Slippery Rock :

Township, and Heilman Pavement :

Specialties, Inc. : Submitted: October 10, 2023

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION 

BY JUDGE CEISLER FILED: November 8, 2023

Appellants Marcia Carnahan, Donald M. Carnahan, Paul Boas, and 

Christopher Coleman (collectively Appellants) appeal from the Court of Common 

Pleas of Butler County’s (Common Pleas) September 7, 2022 order. Through that 

order, Common Pleas affirmed Appellee Slippery Rock Township Zoning Hearing 

Board’s (Zoning Board) November 22, 2021 decision (Decision), in which the Board 

had denied Appellants’ substantive validity challenge to Slippery Rock Township 

(Township) Ordinance No. 2020-1.1 We affirm.

I. Background

On April 6, 2020, HEI-WAY Premium Asphalt (HEI-WAY)2filed an 

application with the Township’s Board of Supervisors regarding a property located 

1 Slippery Rock Township, Butler County, Pa. Ordinance No. 2020-1 (2020).

2 HEI-WAY was Appellee Heilman Pavement Specialties, Inc.’s (Heilman) predecessorin-interest regarding the Property. Heilman’s Br. at 6; see Common Pleas Op., 11/23/22, at 2.
2

at the intersection of Stoughton Road and New Castle Road in Slippery Rock, 

Pennsylvania (Property). Reproduced Record (R.R.) at 1a-2a, 229a.

3

[The Property] is a relatively large parcel as compared to 

its residentially[ ]zoned neighbors, comprising 14.52 

acres, and is rectangular in shape, with the longer, parallel 

boundary lines arranged, roughly, in a north/south 

direction, and the shorter boundary sides arranged, again 

roughly, in an east/west direction. [Id. at 242a]. The

property is bisected by the Slippery Rock Township and 

Worth Township boundary line, into approximately two 

triangles, such that the eastern/northeastern portion of the 

property is located within Slippery Rock Township, and 

the western/southwestern portion is located within Worth 

Township. [Id. at 242a; Supplemental Reproduced Record 

(S.R.R.) at 291a4]. 

Common Pleas Op., 11/23/22, at 2. In its application, HEI-WAY listed its proposed 

use for the Property as “[c]ommercial development for [c]old-mix asphalt plant with 

product storage and associated facilities including scale(s) and scale house[,]” and 

requested that the Board of Supervisors rezone the Property from RC-1 Rural 

Conservation to L-I Light Industrial. R.R. at 1a.5 On May 11, 2020, the Township’s 

Planning Commission voted unanimously to recommend that the Board of 

Supervisors rezone as Light Industrial both the Property and two nearby parcels of 

land. Id. at 4a. The Board of Supervisors then held a public hearing on June 8, 2020, 

regarding the proposed zoning changes and, on June 22, 2022, enacted Ordinance 

3 The Property’s street address is listed in different portions of the Reproduced Record as 

661 New Castle Road and 490 Stoughton Road. See R.R. at 1a-2a, 229a.

4 This document is not a true supplemental reproduced record, as it was submitted by 

Appellants as an addendum to their Reproduced Record. However, for simplicity’s sake, we will 

refer to it as such, because that is how Appellants elected to title their filing.

5 At that point in time, the Property was owned by Glen and Ruth Cooper, while HEI-WAY 

was merely the Property’s proposed buyer. R.R. at 1a. HEI-WAY ultimately completed its 

purchase of the Property on August 8, 2020. Heilman’s Br. at 5.
3

No. 2020-1, which changed the zoning classification of those three lots from Rural 

Conservation to Light Industrial. Id. at 35a-36a; S.R.R. at 264a-303a.

Thereafter, on September 8, 2021, Appellants filed their substantive validity 

challenge to Ordinance No. 2020-1, but only as to its effect upon the Property. See

R.R. at 65a-67a. The Zoning Board held a hearing regarding Appellants’ challenge 

on October 27, 2021, and, after considering the parties’ respective arguments and 

evidentiary submissions, denied the challenge on November 22, 2021. Appellants 

then appealed this denial to Common Pleas, which took no additional evidence and, 

on September 7, 2022, affirmed the Board’s Decision, in full. This appeal to our 

Court followed shortly thereafter.

II. Discussion

Preliminarily, we must address Heilman’s argument that Paul Boas does not 

have standing to maintain the instant appeal. Heilman’s Br. at 16-20. Heilman 

moved to challenge Boas’ standing during the course of the Zoning Board’s October 

27, 2021 hearing, and though the Zoning Board stated in its Decision that “[b]ased 

on the testimony given in this matter by Boas, [it did] not believe he [met] the 

standard for being a [p]arty,” the Zoning Board nevertheless declined to grant 

Heilman’s motion. Decision at 6-7. Heilman then reiterated its challenge to Boas’ 

standing during the course of appellate proceedings before Common Pleas, but 

Common Pleas denied that challenge without explanation. See Common Pleas 

Order, 9/7/22, at 2. As a prevailing party that was not ultimately aggrieved by either 

the Zoning Board’s Decision or Common Pleas’ subsequent order, Heilman was not 

required to file a protective cross-appeal in order to preserve this issue for 

consideration at a later juncture. See McGuire on behalf of Neidig v. City of 

Pittsburgh, 250 A.3d 516, 526 (Pa. Cmwlth. 2021); Lebanon Valley Farmers Bank 

v. Com., 83 A.3d 107, 112-13 (Pa. 2013); but see Firearm Owners Against Crime v. 
4

Papenfuse, 261 A.3d 467, 476 nn. 8 & 13 (Pa. 2021) (appellees waived ability to 

challenge determination that they lacked standing regarding certain claims due to 

their failure to file cross-appeal).

In order to have standing, a party must be “aggrieved,” in that the party must 

have an interest in the matter that is substantial, direct, and immediate. William Penn 

Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282-83 (Pa. 1975). 

A substantial interest is one in which there is “some 

discernible adverse effect to some interest other than the 

abstract interest of all citizens in having others comply 

with the law.” William Penn, . . . 346 A.2d at 282. A 

“direct” interest requires a showing that the matter 

complained of causes harm to the party’s interest. Upper 

Bucks [Cnty.] Vocational–Technical [Sch. Educ. Ass’n] v. 

Upper Bucks [Cnty.] Vocational-Technical School Joint 

Comm[.], . . . 474 A.2d 1120 ([Pa.] 1984). An “immediate” 

interest is something more than a “remote consequence” 

and centers on the causal nexus and proximity between the 

action complained of and the injury to the party 

challenging it. William Penn, . . . 346 A.2d at 283; 

Skippack [Cmty.] Ambulance [Ass’n], Inc. v. [Twp.] of 

Skippack, . . . 534 A.2d 563 ([Pa. Cmwlth.] 1987). The 

requirement that the interest be “immediate” is also met 

where it falls within the “zone of interests sought to be 

protected by the statute or constitutional guarantee in 

question.” Upper Bucks [Cnty.], . . . 474 A.2d at 1122. 

Finally, the rationale underlying the requirement that the 

party be “aggrieved” or “adversely affected” by the action 

at issue is to ensure that a legal challenge is made by the 

appropriate party.

Pittsburgh Tr. for Cultural Res. v. Zoning Bd. of Adjustment of City of Pittsburgh, 

604 A.2d 298, 303-04 (Pa. Cmwlth. 1992). “[A] party who appears before a zoning 

board may only appeal an adverse decision to court if that party has standing per this 

. . . traditional understanding of the concept.” S. Bethlehem Assocs., LP v. Zoning 

Hearing Bd. of Bethlehem Twp., 294 A.3d 441, 448 (Pa. 2023); see Section 916.1(b) 
5

of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10916.1(b)6

(“Persons aggrieved by a use or development permitted on the land of another by an 

ordinance or map, or any provision thereof, who desires to challenge its validity on 

substantive grounds shall first submit their challenge to the zoning hearing board for 

a decision thereon under [S]ection 909.1(a)(1) [of the MPC7].”); 2 Pa. C.S. § 752 

(“Any person aggrieved by an adjudication of a local agency who has a direct interest 

in such adjudication shall have the right to appeal therefrom to the court vested with 

jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and 

judicial procedure).”).

A key component of the William Penn standing analysis, 

and whether an objector is “aggrieved” for purposes of the 

MPC, is whether the proposed use in question, or, in a 

substantive validity challenge, the challenged ordinance, 

actually causes the injury complained of by the objector. 

William Penn, 346 A.2d at 282; see also Worthington [v. 

Mount Pleasant Twp.], 212 A.3d 582, 593 (Pa. Cmwlth. 

2019)] (“theoretical concerns do not satisfy the legal 

requirement that [the objector] have a substantial, direct, 

and immediate interest to have standing”); Laughman [v. 

Zoning Hearing Bd. of Newberry Twp., 964 A.2d 19, 23

(Pa. Cmwlth. 2009)] (a mere concern of remote 

consequences is not direct because all citizens share 

concerns regarding traffic and safety).

Lodge v. Robinson Twp. Zoning Hearing Bd., 283 A.3d 910, 926 (Pa. Cmwlth. 

2022).

In this instance,8 Boas testified before the Zoning Board that he resides along 

Slippery Rock Creek, “about seven or eight miles” from the Property. R.R. at 167a. 

6 Act of July 31, 1968, P.L. 805, as amended, added by Act of December 21, 1988, P.L. 

1329.

7 Added by Act of December 21, 1988, P.L. 1329, 53 P.S. § 10909.1(a)(1).

8 The relevant case law offers conflicting guidance regarding the proper standard of review 

regarding standing in zoning matters. In Lodge, we stated that an appellate court is bound by the 

(Footnote continued on next page...)
6

Boas’ residence is thus not in close proximity to the Property and its location, 

standing alone, cannot support a determination that he has standing in this matter. 

See Laughman, 964 A.2d at 22. Boas also stated that he is an avid kayaker who 

regularly spends time on the Creek, which abuts the Property, often passes by the 

Property while kayaking to-and-from his home downstream, and is concerned that 

pollution from the proposed cold-mix asphalt plant (whose placement on the 

Property would not be allowed absent the Property’s rezoning) will negatively affect 

his ability to use and enjoy the Creek. See R.R. at 167a-71a. Such concerns, however, 

are merely speculative at this juncture, and cannot serve as a basis for conferring 

standing upon him. Worthington, 212 A.3d at 593. Consequently, we conclude that 

Boas was not aggrieved in this instance and dismiss him from this matter for lack of 

standing.

With that question resolved, we now turn to the substance of the arguments

posed by Marcia Carnahan, Donald M. Carnahan, and Christopher Coleman

credibility and evidentiary weight determinations made by the factfinder regarding an individual’s 

standing and, thus, is limited to applying a narrow abuse of discretion and error of law standard of 

review to such a determination. 283 A.3d at 925-26. However, more recently in South Bethlehem, 

the Supreme Court noted that “[s]tanding exists as a jurisprudential doctrine to protect the courts 

and the public from improper plaintiffs” and went on to “find” that the appellant in that matter 

lacked standing to appeal an adverse zoning ruling, due to his failure to articulate a substantial, 

direct, and immediate interest in the outcome of that ruling, without expressing any apparent 

deference to the factfinder. See 294 A.3d at 446-48. Given the Supreme Court’s treatment of 

standing in South Bethlehem, as well as its observations in other cases that “[s]tanding is a 

justiciability concern, implicating a court’s ability to adjudicate a matter[,]”Papenfuse, 261 A.3d 

at 481, and that “[j]usticiability questions are issues of law, over which our standard of review is 

de novo and the scope of review is plenary[,]” Robinson Township, Washington County v. 

Commonwealth of Pennsylvania, 83 A.3d 901, 917 (Pa. 2013), we conclude that Lodge is not 

consistent with Supreme Court precedent in the context of standing. This is somewhat of an 

academic point here, though, because the Board also effectively found that Boas lacked standing, 

despite its ultimate failure to grant Heilman’s motion.
7

(Remaining Appellants).

9 As they did when before the Zoning Board and Common 

Pleas, Remaining Appellants assert that Ordinance No. 2020-1 is substantively 

invalid with regard to the Property because the Ordinance (a) had spot zoned the 

Property; (b) violated article I, section 27 of the Pennsylvania Constitution,10

otherwise known as the Environmental Rights Amendment; (c) contravened the 

development objectives laid out in the Township’s Zoning Ordinance11 and Butler 

County’s comprehensive plan; and (d) would both harm the public health, safety, 

and welfare and potentially create a private nuisance. Appellants’ Br. at 38-59. 

Accordingly, Remaining Appellants maintain that the Zoning Board abused its 

discretion and committed errors of law by denying their challenge to Ordinance No. 

2020-1. Id. at 38.

9 As Common Pleas took no additional evidence in this instance, our standard of review is 

restricted to determining whether the Zoning Board committed an abuse of discretion or an error 

of law in this matter. Penn St., L.P. v. E. Lampeter Twp. Zoning Hearing Bd., 84 A.3d 1114, 1119 

n.4 (Pa. Cmwlth. 2014). “We may conclude that the [Zoning] Board abused its discretion only if 

its findings are not supported by substantial evidence. . . . By ‘substantial evidence’ we mean such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Valley 

View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983). (citations omitted).

In light of this limited standard of review, we must avoid the inclination to measure and 

assess the multitude of factors and considerations that support a zoning ruling, and “must exercise 

self-restraint as to substituting our opinions far removed from the particular zoning hearing for the 

well-considered decision of [the Zoning Board].” Cohen v. Zoning Bd. of Adjustment of City of 

Phila., 276 A.2d 352, 355 (Pa. Cmwlth. 1971). “It is, after all, the sole function of the [Zoning] 

Board, in the performance of its role as fact[]finder, to evaluate witness credibility and assign 

evidentiary weight.” Lower Allen Citizens Action Grp., Inc. v. Lower Allen Twp. Zoning Hearing 

Bd., 500 A.2d 1253, 1258 (Pa. Cmwlth. 1985) (punctuation omitted). Indeed, the “Zoning . . .

Board as fact[]finder is the ultimate judge of credibility and resolves all conflicts in the evidence,” 

Eichlin v. Zoning Hearing Board of New Hope Borough, 671 A.2d 1173, 1175 (Pa. Cmwlth. 1996), 

and has “the power to reject even un-contradicted testimony if it finds it lacking in credibility.” 

Lower Allen, 500 A.2d at 1258.

10 PA. CONST. art. I, § 27.

11 Zoning Ordinance of the Township of Slippery Rock, Butler County, Pa., as amended

(2017).
8

A zoning ordinance is valid when it promotes public 

health, safety or welfare, and its regulations are 

substantially related to the purpose the ordinance purports 

to serve. Boundary Drive Assocs. v. Shrewsbury Twp. Bd. 

of [Sup’rs], . . . 491 A.2d 86 ([Pa.] 1985) (citing Village of 

Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, . . .

(1926)). A validity challenge generally attacks zoning on 

substantive due process grounds, i.e., whether an 

ordinance is substantially related to a legitimate interest. 

Springwood Dev. Partners, L.P. v. Bd. of [Sup’rs] of N. 

Cornwall Twp., 985 A.2d 298 (Pa. Cmwlth. 2009).

In Pennsylvania, the constitutionality of a zoning 

ordinance is reviewed under a substantive due process 

analysis. McGonigle v. L. Heidelberg Twp. Zoning 

Hearing Bd., 858 A.2d 663 (Pa. Cmwlth. 2004). Under 

such analysis, the party challenging the validity of 

provisions of the zoning ordinance must establish that they 

are arbitrary and unreasonable and have no substantial 

relationship to promoting the public health, safety and 

welfare. Id.; see also Open Pantry Food Marts v. Twp. of 

Hempfield, . . . 391 A.2d 20 ([Pa. Cmwlth.] 1978) (court 

may declare an ordinance to be an invalid exercise of the 

police power only where it is proven that its provisions are 

clearly unreasonable and have no relation to public safety).

. . . .

Before a reviewing tribunal may declare a zoning 

ordinance unconstitutional, the challenging party must 

clearly establish the provisions of the ordinance are 

arbitrary and unreasonable. Adams Outdoor Adver., LP v. 

Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469 (Pa.

Cmwlth. 2006). . . . A legislative enactment can be 

declared void only when it violates the fundamental law 

clearly, palpably, plainly and in such a manner as to leave 

no doubt or hesitation in the mind of the court. Id. Indeed, 

“[w]here the validity of an ordinance is debatable, the 

ordinance will be upheld as valid, and if there is room for 

difference of opinion as to whether the ordinance is 

designed to serve a proper public purpose, the court should 

not substitute its judgment for that of the governing body 

which enacted the legislation.” Trigona v. Lender, 926 

A.2d 1226, 1233 (Pa. Cmwlth. 2007) . . . (citing Bilbar 

Constr. Co. v. Bd. of Adjustment of Easttown Twp., . . . 141 

A.2d 851 (Pa. 1958)).
9

Plaxton v. Lycoming Cnty. Zoning Hearing Bd., 986 A.2d 199, 205 (Pa. Cmwlth. 

2009).

As for spot zoning in particular, substantive validity

challenges [of that nature] have at their conceptual core 

the principle that lawful zoning must be directed toward 

the community as a whole, concerned with the public 

interest generally, and justified by a balancing of 

community costs and benefits. These considerations have 

been summarized as requiring that zoning be in 

conformance with a comprehensive plan for the growth 

and development of the community. Spot zoning is the 

antithesis of lawful zoning in this sense. In spot zoning, 

the legislative focus narrows to a single property and the 

costs and benefits to be balanced are those of particular 

property owners.

In Appeal of Mulac, . . . 210 A.2d 275, 277 (Pa.] 1965), we 

[defined] “spot zoning” . . . “as a singling out of one lot or 

a small area for different treatment from that accorded to 

similar surrounding land indistinguishable from it in 

character, for the economic benefit of the owner of that lot 

or to his economic detriment is invalid ‘spot’ zoning.” 

Viewed more generally, “spot zoning . . . is an arbitrary 

exercise of police powers that is prohibited by our 

Constitution.” United Artists’ Theater Circuit, Inc. v. City 

of Philadelphia, . . . 635 A.2d 612, 620 ([Pa.] 1993).

While the size of the zoned tract is a relevant factor in a 

spot zoning challenge, “the most important factor in an 

analysis of a spot zoning question is whether the rezoned 

land is being treated unjustifiably different from similar 

surrounding land.” Schubach v. Silver, . . . 336 A.2d 328, 

336 ([Pa.] 1975).

In re Realen Valley Forge Greenes Assocs., 838 A.2d 718, 729 (Pa. 2003). For a 

substantive validity challenge based upon an allegation of spot zoning to be 

successful, the challenger must prove that the contested ordinance treats a parcel of 

land differently than “surrounding land [that is] similar in character[,]” as well as 

“that the provisions at issue are arbitrary and unreasonable and that they have no 

relation to the public health, safety, morals, and general welfare.” Conshohocken 
10

Borough v. Conshohocken Borough Zoning Hearing Bd., 261 A.3d 582, 596 (Pa. 

Cmwlth. 2021). As concerns regarding an ordinance’s effect upon the public health, 

safety, and welfare are part of the spot zoning analysis, we will address Remaining 

Appellants’ first and fourth arguments in tandem. 

In denying Appellants’ spot zoning challenge and concluding that Ordinance 

No. 2020-1 did not endanger the public health, safety, and welfare, the Zoning Board 

found, in relevant part:

11. The evidence . . . establishes that the . . . Property is 

and was before 2020 adjoined by a parcel that was zoned 

Light Industrial. In addition, the evidence establishes that 

the . . . Property was rezoned along with two other parcels, 

which have been used for salvage yard operations and 

which adjoin the same Light Industrial parcel as the . . .

Property, so that the effect of the rezoning was to expand 

the Light Industrial [z]one to accommodate existing and 

proposed uses. In addition, the evidence establishes that 

the . . . Property was given a zoning classification that was 

consistent with the uses of adjacent properties which

include a concrete products manufacturing plant, a salvage 

yard, and a large mining operation.

. . . .

13. Under these circumstances where the rezoned property 

is combined with other previously Light Industrial[-

]zoned property, and is being permitted to be used in a 

manner consistent with existing surrounding uses of land, 

. . . the change of the zoning classification to Light 

Industrial for the . . . Property did not constitute improper 

[s]pot [z]oning.

. . . .

20. Although there was evidence presented by residents of 

the area regarding their fears and concerns about how 

Light Industrial uses, or the proposed cold[-]mix asphalt 

facility might harm the neighboring property owners and 

citizens by creating increased industrial and truck traffic 

noise and odors, by causing environmental hazards by 

release of hazardous chemicals and substances during the 

course of the industrial operations that would pollute the 
11

Slippery Rock Creek and cause harm to aquatic and wild 

life in the area, and cause health risks to neighbors, there 

was no scientific or substantive evidence presented to 

demonstrate that such uses including the proposed cold[-]

mix asphalt facility would cause such harms. In addition, 

there is no evidence, or suggestion, that the uses permitted 

in the Light Industrial [z]oning [d]istricts in other areas of

[the] Township[,] or elsewhere, are dangerous to the 

health, safety and welfare of the citizens such they should 

not be permitted.

21. For the above reasons, the [Zoning] Board concludes 

that there was insufficient evidence to establish that the 

health and safety of Township residents would be harmed 

by the change of the zoning classification for the . . .

Property.

. . . .

23. Although the zoning change was prompted by a single 

company making the request for purposes of 

accommodating that company’s proposed use, there was 

no direct evidence supporting a conclusion that the change 

would not have been granted if proposed by any other 

person, or that that company would be granted the permits 

for its proposed use. The [Zoning] Board finds that there 

is no evidence that the Board of Supervisors was acting 

solely to benefit a single business entity to the exclusion 

of others. Accordingly, the [Zoning] Board concludes 

there is no basis to overturn the action to rezone the . . .

Property on this basis.

Decision, Findings of Fact and Conclusions of Law (F.F. & C.L.) ¶¶11, 13, 20-21, 

23. As cogently explained by Common Pleas, these determinations find ample 

support in the record:

Directly to the south of the subject parcel, in Worth

Township, is property owned by Allegheny Mineral 

Corporation, which is mined for limestone. [R.R. at 242a]. 

Situate[d] directly to the west of the subject parcel, also in 

Worth Township, is property owned by Sidley R.W. Inc., 

on which is operated a concrete plant. [Id.] Located 

directly to the northwest and situate in both Worth and 

Slippery Rock Townships is property owned by SAC 

Citrus, Inc., which is utilized as a car wash. [Id.] Finally, 

to the north/northeast of the property, yet not quite 
12

abutting the subject parcel, are the two parcels owned by 

PCS Metals, Inc., that were also rezoned Light Industrial 

per Slippery Rock Township Ordinance No. 2020-1. 

These two properties are utilized as a scrap yard.

Christopher Coleman and Marcia Carnahan were among a 

number of residents who testified before the Zoning . . . 

Board as to the general nature of the area and the

properties surrounding the subject parcel. Christopher 

Coleman testified that he lives approximately 250 to 300 

yards from the subject property. [R.R. at 143a, 153a]. He 

also lives [50] yards away from the Sidley R.W. Inc.,

concrete production plant. [Id. at 153a-54a]. One parcel of 

property separates his property from the concrete plant. 

[Id. at 154a]. He can look out of his kitchen window and

see the entire operation. [Id. at 156a]. The PSC Metals, 

Inc., scrap yard is located 500 to 600 yards from his 

property. [Id. at 159a-60a]. He further testified the 

limestone quarry operated by Allegheny Mineral 

Corporation lies to the east and slightly down Stoughton

Road from Marcia Carnahan’s property. [Id. at 160a, 162a]. 

Marcia Carnahan testified that the PSC Metals, Inc., 

“junkyard” has existed across the street from her house 

since 1978 through the present. [Id. at 121a, 135a]. She 

further testified that the area is not quiet, [id. at 117a], and 

that, “we have trucks coming in and out and we also have 

the highway on [Route] 108/New Castle Road.” [Id. at 

134a]. The trucks enter and leave from the limestone 

quarry owned and operated by Allegheny Mineral 

Corporation. [Id. at 102a; see also S.R.R. at 277a] (similar 

testimony as to adjacent property uses). During the June 8, 

2020[] Board of Supervisors hearing, resident Dennis 

Allen testified that the limestone trucks pass right by the 

subject property. [S.R.R. at 280a].

Thus, the evidence before the Zoning . . . Board 

established that the uses of the properties immediately 

abutting three of the four sides of the subject parcel are 

industrial in nature, and that the area already sustains 

heavy industrial truck use. Additionally, the PSC Metals, 

Inc., properties, while not abutting the subject property, 

are also utilized for industrial ventures. . . .

With regard to the issue of whether the decision to rezone 

the subject property was arbitrary or unreasonable, during 

the June 8, 2020 . . . Board of Supervisors public hearing, 
13

Chairman Paul A. Dickey noted that the Supervisors’

reasoning for including the two PSC Metals, Inc., parcels 

in the zoning map change stemmed from these properties

having inadvertently and erroneously not been labeled as 

Light Industrial on the previous zoning map, stating, 

[It was the intention of the Planning Commission 

and Supervisors to have the . . .] PSC Metals

[properties] as [sic] industrial and somehow it got 

mislabeled on the map. That was the whole point in 

having the industrial site up there, is because that 

facility was there when zoning was enacted. And 

until [recently], we all believed that the [PSC] 

Metals [properties were zoned] Light Industrial.

[S.R.R. at 278a]. Also during said meeting, when asked by 

a township resident as to what benefit the rezoning would 

bring to the [T]ownship, Tracy Frampton, Chairman of the 

[Township’s] Planning Commission, testified as follows. 

First, he noted that the Planning Commission recognized 

that there exist few industrial uses throughout the entire 

Township. [S.R.R. at 281a]. He further noted that the 

Planning Commission (recognizing that a portion of the 

subject property lies in Worth Township) considered that

one of the abutting properties in Worth Township, the 

cement factory, has been in industrial use for [60] years or 

more. [Id.] He testified that the Planning Commission

reviewed aerial photos of the region, and considered that 

industrial uses were already “bleeding” into the area. He 

stated the subject parcel appeared to be part of a complex

already served by access roads. [Id. at 281a-82a].

The above evidence demonstrates that pre[]existing 

conditions prompted the placement of the [L]ight 

[I]ndustrial zone in the northwestern area of the Township 

where the [Property] is located, that there exists very little 

light industrial use in the entire Township, that the area 

wherein the subject parcel lies is already supporting 

industrial traffic and industrial uses, and that the subject 

property is currently served by access roads that will

support an industrial use. . . .

During the June 8, 2020[] Board of Supervisors[] hearing,

residents expressed concern about possible pollution from 

the proposed cold-mix plant. Scott Foreman, an engineer 

with HEI-WAY, testified as to the differences between a 

hot[-]mix asphalt plant and a cold[-]mix asphalt plant. He 
14

testified that the proposed cold[-]mix asphalt plant is 

considerably different from a hot[-]mix plant, as it is much 

smaller, roughly 10 feet by 45 feet, and does not use heat; 

therefore, it does not need or utilize any smokestacks. [Id.

at 293a, 301a]. Mark Lazzari, [the Township’s] Assistant 

Zoning Officer, noted that special exceptions to zoning 

ordinances (a cold[-]mix asphalt plant being a special

exception in a [L]ight [I]ndustrial zone) must meet 

specific performance and development standards, which 

standards address fire protection, electric disturbances, 

noise, odors, and air pollution, and that any application for 

a special exception for the cold[-]mix asphalt plant would 

have to meet these standards prior to approval. [Id. at 

294a-96a]. He further testified that there exist zoning 

regulations that can be utilized to minimize impacts on 

residential properties, such as setbacks and screenings. [Id.

at 296a].

Common Pleas Op., 11/23/22, at 6-10. Furthermore, as the sole arbiter of witness 

credibility and evidentiary weight, the Zoning Board was operating well within its 

discretion when it deemed Appellants’ testimony unpersuasive regarding the 

potential impact of the Property’s rezoning. Eichlin, 671 A.2d at 1175; Lower Allen, 

500 A.2d at 1258.

Remaining Appellants also assert, in the context of this argument, that 

Ordinance 2020-1 will harm the public health, safety, and welfare, because the 

Property’s rezoning “may” eventually result in the creation of a public nuisance if 

and when a cold-mix asphalt plant is erected thereon. Appellants’ Br. at 56-59.

The courts of the Commonwealth follow the description 

of private nuisance developed in the Restatement (Second) 

of Torts. Private nuisances are “nontrespassory 

invasion[s] of another’s interest in the private use and 

enjoyment of land.” 4 Restatement Torts, 2d, § 821D, p. 

100. [Am. Law. Inst. 1979.]

Section 822 of the Restatement sets forth the elements of 

liability for private nuisance as follows:

One is subject to liability for private nuisance if, but 

only if, his conduct is a legal cause of an invasion 
15

of another’s interest in the private use and 

enjoyment of land, and the invasion is either:

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable 

under the rules controlling liability for 

negligent or reckless conduct, or for 

abnormally dangerous conditions or 

activities.

[Restatement (Second) of Torts § 822 (Am. Law Inst. 

1979)]. In evaluating a private nuisance claim, the key 

question is whether one person has impaired another 

person’s private right of use or enjoyment of their land. 

The Restatement indicates that []any one of the types of 

conduct that serve in general as the bases for all tort 

liability may invade a person’s private right of use or 

enjoyment of their land.[ Id.] A defendant may be liable 

for the invasion of such use and enjoyment when the 

interference is intentional and unreasonable or the result 

of negligent, reckless or abnormally dangerous conduct. 

Id.

Diess v. Pa. Dep’t of Transp., 935 A.2d 895, 905 (Pa. Cmwlth. 2007) (cleaned up).

In order “to restrain a threatened nuisance it must clearly appear that a nuisance will 

necessarily result from a contemplated act which it is sought to enjoin.” Kelly v. City 

of Phila., 115 A.2d 238, 241 (Pa. 1955).

Where [relief] is sought [regarding] an anticipated 

nuisance, it must be shown (a) that the proposed 

construction or the use to be made of property will be a 

nuisance per se; (b) or that, while it may not amount to a 

nuisance per se, under the circumstances of the case a 

nuisance must necessarily result from the contemplated act 

or thing. The injury must be actually threatened, not 

merely anticipated; it must be practically certain, not 

merely probable.

Pa. Co. for Ins. on Lives & Granting Annuities v. Sun Co., 138 A. 909, 912 (Pa. 

1927).

Remaining Appellants do not dispute that a private nuisance does not exist at 

this point; instead, they only raise prospective concerns about the potential harm that 
16

might result if a cold-mix asphalt plant is built on the Property. Moreover, 

Remaining Appellants’ implicit argument that Ordinance No. 2020-1 will itself 

potentially create a private nuisance is incorrect. Even if a private nuisance 

eventually comes into existence, it would not be directly attributable to the 

Property’s rezoning; rather, any such nuisance would be spawned by the precise 

manner in which the Property is or will be used, not by the predicate zoning change.

See Diess, 935 A.2d at 905 (a private nuisance results from nontrespassory conduct 

that impairs another person’s use and enjoyment of their land). In other words, 

Remaining Appellants’ private nuisance argument is far too speculative and 

attenuated at this juncture to be viable.

Thus, in sum, the Zoning Board did not abuse its discretion or commit an error 

of law when it rejected Appellants’ spot zoning challenge. There is substantial 

evidence to support its determinations that Ordinance No. 2020-1 did not treat the 

Property differently than similar, surrounding parcels of land, was not arbitrary or 

unreasonable, and did not pose a threat to the public health, safety, and welfare.

Remaining Appellants’ first and fourth arguments are therefore without merit.

Moving on to Remaining Appellants’ second argument, the Environmental 

Rights Amendment reads as follows:

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.

This constitutional provision grants two separate rights to 

the people of this Commonwealth. The first right is 

contained in the first sentence, which is a prohibitory 

clause declaring the right of citizens to clean air and pure 

water, and to the preservation of natural, scenic, historic 
17

and esthetic values of the environment. This clause 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.

The second right reserved by [the Environmental Rights 

Amendment], set forth in its second sentence, is the 

common ownership by the people, including future 

generations, of Pennsylvania’s public natural resources.

. . . .

The third clause of [the Environmental Rights 

Amendment] establishes a public trust, pursuant to which 

the natural resources are the corpus of the trust, the 

Commonwealth is the trustee, and the people are the 

named beneficiaries.

Pa. Env’t Def. Found. v. Com., 161 A.3d 911, 931-32 (Pa. 2017) (citations and 

footnote omitted). Thus, the Commonwealth, as trustee, has a fiduciary obligation

to comply with the terms of the trust and with standards 

governing a fiduciary’s conduct. The explicit terms of the 

trust require the government to “conserve and maintain” 

the corpus of the trust. See PA. CONST. art. I, § 27. The 

plain meaning of the terms conserve and maintain 

implicates a duty to prevent and remedy the degradation, 

diminution, or depletion of our public natural resources. 

As a fiduciary, the Commonwealth has a duty to act 

toward the corpus of the trust—the public natural 

resources—with prudence, loyalty, and impartiality.

Id. at 932 (quoting Robinson Twp, 83 A.3d at 956-57). The term “Commonwealth,” 

as used here, “encompasses all agencies and entities of the Commonwealth 

government, both statewide and local,” meaning that each one has “a fiduciary duty 

to act toward the corpus with prudence, loyalty, and impartiality.” Id. at 928 n.23.

Our Supreme Court, referencing Pennsylvania trust law, has determined that

the Environmental Rights Amendment

imposes two basic duties on the Commonwealth as the 

trustee. First, the Commonwealth has a duty to prohibit the 

degradation, diminution, and depletion of our public 

natural resources, whether these harms might result from 
18

direct state action or from the actions of private parties. 

Second, the Commonwealth must act affirmatively via 

legislative action to protect the environment. Although a 

trustee is empowered to exercise discretion with respect to 

the proper treatment of the corpus of the trust, that 

discretion is limited by the purpose of the trust and the 

trustee’s fiduciary duties, and does not equate to mere 

subjective judgment.

Id. at 932-33. Consequently, the Township, as a local component of our 

Commonwealth’s government, must act in accordance with these duties as trustee 

of the environment and the public natural resources within its domain. Furthermore, 

the Township must pursue “not only reactive but also anticipatory protection of the 

environment [and public natural resources] for the benefit of current and future 

generations.” Id. at 919 (quoting Robinson Twp., 83 A.3d at 963); see id. at 931 

(“The second right reserved by [the Environmental Rights Amendment], set forth in 

its second sentence, is the common ownership by the people, including future 

generations, of Pennsylvania’s public natural resources.”); Robinson Twp., 83 A.3d 

at 959.12

Remaining Appellants’ assertion that Ordinance No. 2020-1 violates the 

Environmental Rights Amendment is unviable for largely the same reasons that its 

aforementioned spot zoning allegations cannot carry the day. In their brief, 

Remaining Appellants argue that

[p]ermitting an incompatible, “Island of Industry” to

benefit one particular developer in this community with 

zero considerations of health, safety, quiet enjoyment, 

12 Within the public trust paradigm of [the Environmental Rights 

Amendment], the beneficiaries of the trust are ‘all the people’ of 

Pennsylvania, including generations yet to come. The trust’s 

beneficiary designation has two obvious implications: first, the 

trustee has an obligation to deal impartially with all beneficiaries and, 

second, the trustee has an obligation to balance the interests of 

present and future beneficiaries.

Robinson Twp., 83 A.3d at 959.
19

property values, community welfare, air quality, water 

quality, noise, either citied comprehensive plan, etc. is not 

an action of a reasonably prudent trustee, is penny wise 

and dollar foolish and is the action of a “mere proprietor” 

of the people’s natural resources, which in the 

Commonwealth of Pennsylvania is clearly 

unconstitutional.

Appellants’ Br. at 52-53. As already mentioned, though, there is substantial evidence 

in the record that supports the Zoning Board’s determinations that the Property was 

not treated differently than similar, surrounding parcels of land, many of which were 

either already zoned for or used for Light Industrial purposes, as well as that rezoning

the Property did not pose a threat to the public health, safety, and welfare. In 

addition, the Zoning Board specifically rejected Appellants’ Environmental Rights 

Amendment-based claim, ruling:

15. The evidence presented [by Appellants] consisted of 

speculation and nothing more than personal opinions 

based on various experiences and conjecture. It did not 

establish substantive or scientific evidence of 

environmental harm that may befall the area as a result of 

the cold[-]mix asphalt facility, or of any other industrial 

use that might be permitted in a Light Industrial [z]one.

Furthermore, the impact of any proposed use in the Light 

Industrial [z]one that requires a [s]pecial [e]xception to be 

permitted, such as the cold[-]mix asphalt facility, is 

subject to an examination of its potential environmental 

hazards in conjunction with the special exception 

proceeding.

Decision, F.F. & C.L. ¶15. Given the evidence of record and the Zoning Board’s 

broad latitude regarding witness credibility and evidentiary weight determinations, 

we see no basis for disturbing its conclusion that Ordinance No. 2020-1 does not 

violate the Environmental Rights Amendment.

Finally, Remaining Appellants’ third argument is, to reiterate, that Ordinance 

No. 2020-1 is inconsistent with the development objectives articulated in the 

Township’s Zoning Ordinance and Butler County’s comprehensive plan. Remaining 
20

Appellants quote part of Section 102 of the Zoning Ordinance and highlight that it 

states that one of the Zoning Ordinance’s purposes is “[t]o preserve prime agriculture 

and farmland considering topography, soil type and classification and present use.” 

Zoning Ordinance § 102.C.; see Appellants’ Br. at 53-54. Remaining Appellants, 

however, provide no legal analysis whatsoever regarding this purported clash 

between the Zoning Ordinance and Ordinance No. 2020-1. Of even greater concern, 

they misleadingly omit another part of Section 102, which provides that the Zoning 

Ordinance is also designed “[t]o accommodate reasonable overall community 

growth, including population and employment growth and opportunities for 

development of a variety of residential dwelling types and nonresidential uses.” 

Zoning Ordinance § 102.E. Facilitating the Property’s development by rezoning it 

as Light Industrial, i.e., a nonresidential use, certainly comports with the language 

used in Section 102.E. As for Butler County’s comprehensive plan, it is well settled 

that, though this type of

plan is a useful tool for properly guiding growth and 

development of the community, it is only intermediate and 

inconclusive steps in the land use planning. Unlike a 

specific and regulatory zoning ordinance, a 

comprehensive plan is, by its nature, an abstract 

recommendation as to desirable approaches to land 

utilization and development of the community.

CACO Three, Inc. v. Bd. of Sup’rs of Huntington Twp., 845 A.2d 991, 995 (Pa. 

Cmwlth. 2004). As such, a substantive validity challenge cannot be brought against 

a zoning ordinance on the basis of its alleged incompatibility with a comprehensive 

plan. Briar Meadows Dev., Inc. v. S. Ctr. Twp. Bd. of Sup’rs, 2 A.3d 1303, 1307 (Pa. 

Cmwlth. 2010); see Section 303(c) of the MPC, 53 P.S. § 10303(c) 

(“Notwithstanding any other provision of [the MPC], no action by the governing 

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 
21

provision of a comprehensive plan.”). Thus, Remaining Appellants’ third argument 

is utterly baseless.

III. Conclusion

In light of the foregoing analysis, we affirm Common Pleas’ September 7, 

2022 order.

__________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marcia Carnahan, Donald M. :

Carnahan, Paul Boas, and :

Christopher Coleman, :

Appellants :

:

v. : No. 1082 C.D. 2022

: 

Slippery Rock Township Zoning :

Hearing Board, Slippery Rock :

Township, and Heilman Pavement :

Specialties, Inc. :

O R D E R

AND NOW, this 8

th day of November, 2023, it is hereby ORDERED that the 

Court of Common Pleas of Butler County’s September 7, 2022 order is AFFIRMED.

__________________________________

ELLEN CEISLER, Judge