Lodge v. Robinson Twp. Zoning Hearing Bd.

283 A.3d 910

Christopher LODGE, Cathy Lodge, Nolan Vance, Brenda Vance, Richard Barrie, and Irene Barrie, Appellants

v.ROBINSON TOWNSHIP ZONING HEARING BOARD

v.Robinson Township, Range Resources - Appalachia, LLC, and Moore Park, L.P.

No. 813 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued May 10, 2021

Decided August 4, 2022

Publication Ordered October 6, 2022

Dwight D. Ferguson, Sewickley, for Appellants.

Gretchen E. Moore, Pittsburgh, for Appellee Robinson Township.

Blaine A. Lucas, Pittsburgh, for Appellee Range Resources – Appalachia, LLC.

Thomas A. Lonich, Washington, for Appellee Robinson Township Zoning Hearing Board.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge¹

OPINION BY JUDGE McCULLOUGH

Christopher Lodge, Cathy Lodge (Lodges), Nolan Vance, Brenda Vance (Vances), Richard Barrie, and Irene Barrie (Barries) (collectively, Objectors) appeal from the July 16, 2020 order of the Court of Common Pleas of Washington County (trial court), which dismissed their substantive validity challenge to Robinson Township (Township) Ordinance 1-2014² for lack of standing.

I. Factual and Procedural Background

i. History of Ordinance

On May 8, 2006, the Board of Supervisors of Robinson Township (Board) enacted a comprehensive Zoning Ordinance (2006 Ordinance). The 2006 Ordinance provided that oil and gas drilling "may be approved" as a conditional use in all zoning districts, except the Floodplain Overlay District. (Reproduced Record (R.R.) at 1237a.) The 2006 Ordinance articulated standards that included a drilling setback distance of 50 feet from property lines, a prohibition of drilling within 300 feet of a residence, a requirement that all drilling activities conform to an "Environmental Plan" and such other factors and criteria established by the Township Zoning Hearing Board (ZHB).

On December 23, 2013, departing members of the Board adopted Ordinances 3-2013 and 4-2013 (collectively, 2013 Ordinances). Ordinance 3-2013 designated "Oil and Gas Operations and Development" to be a use by "special exception." (R.R. at 1257a-61a, 1868a-69a.) The 2013 Ordinances also created an Interchange Business Development (IBD) District to provide for high impact land uses that require significant infrastructure. (R.R. at 782a.) Ordinance 3-2013 provided that Oil and Gas Operations and Development was a use by special exception in an IBD District.

On August 7, 2014, a newly elected majority of the Board amended the Township Zoning Ordinance and zoning map and adopted Ordinance 1-2014, the challenged ordinance at issue here. According to Ordinance 1-2014, Oil and Gas Well Site Development, Oil and Gas Sub-Surface Facilities and Activities and Natural Gas Compressor Stations are "permitted principal uses" in the IBD District, Agricultural, Rural Residential, and Industrial Districts. (R.R. at 1286a-336a.) Pursuant to Ordinance 1-2014, Oil and Gas Well-Site Development is defined to include: well location, preparation, construction, drilling hydraulic fracturing, seismic operations, and water or fluid storage operations. Id . Ordinance 1-2014 amended the "Performance Standards" for the IBD District. Specifically, a "65 dBA" maximum noise level for the IBD District was enacted. Id . Ordinance 1-2014 further amended the 2013 Ordinances to allow "oil and gas development" as permitted by conditional use in the Special Conservation and Commercial Districts and not permitted in Single Family Residential and General Residential Districts. Id .

ii. First Substantive Validity Challenge

On September 2, 2014, based in large part on the Supreme Court's decision in Robinson Township v. Commonwealth , 623 Pa. 564, 83 A.3d 901 (2013),³ Objectors submitted a pre-enforcement, substantive validity challenge to the ZHB pursuant to section 909.1(a) of the Pennsylvania Municipalities Planning Code (MPC).⁴ Objectors argued that Ordinance 1-2014 is invalid because it does not promote the public health, safety and welfare, fails to satisfy the constitutional and statutory mandate that zoning laws promote and protect the preservation of the natural, scenic and historic values of the environment under the Environmental Rights Amendment.⁵ They further alleged that Ordinance 1-2014 violates both the federal due process protections for property owners and State Constitutional protections regarding private property ( Pa. Const. art. I, § 1 ) because it fails to conserve and maintain the constitutionally protected aspects of the public environment and of a certain quality of life for all the people. (R.R. at 73a.)

iii. Moore Park Well Pad

On September 15, 2014, shortly after Objectors’ substantive validity challenge was filed, the Township, pursuant to Ordinance 1-2014, approved the issuance of a zoning permit application for Range Resources. The permit application involved the construction of the "Moore Park well pad," a natural gas drilling and production site on property located next to U.S. Route 22, a four-lane highway. (Finding of Fact (F.F.) Nos. 4-5.) The Moore Park well pad is located in an IBD District. Under Ordinance 1-2014, such use is now a use permitted by right. The Moore Park well pad and its associated pig launcher is located approximately 2,725 feet from the Vance property, approximately 1.17 miles from the Barrie property, and approximately 2.22 miles from the Lodge property. (R.R. at 1342a, 1579a.)

iv. Hearing before the Zoning Hearing Board

The ZHB conducted a hearing on October 30, 2014, concerning Objectors’ substantive validity challenge. During the hearing, Range Resources moved to dismiss the challenge for lack of standing and ripeness. The ZHB allowed the parties to file legal briefs and took the matter under advisement.

v. Second Substantive Validity Challenge

While their first substantive validity challenge was still pending, Objectors submitted a second substantive validity challenge on December 17, 2014, asserting claims as applied to the Township's approval of Range Resources’ Moore Park well pad. The ZHB held a hearing on January 6, 2015, concerning the first and second validity challenges. Objectors argued that they are longtime residents of Robinson Township who have enjoyed the Township's rural, residential, and agricultural character, and the assurances that such character would continue as provided in the zoning ordinance in the districts in which they live. Objectors argued that they have children, grandchildren, and animals who could be exposed to industrial noise and traffic and/or pollution from the Moore Park well pad and related operations. The Vances argued that, in reliance on the stated purposes of the Special Conservation zoning district in which they live, they made a significant investment in, recently completed construction on, and moved into their new home at 9812 Steubenville Pike. They did not expect they would be living next door to an oil and gas well pad and other related industrial facilities and activities. The Vances argued that they have reasonable concerns that the construction, development, and operation of the Moore Park well pad and other nearby oil and gas industrial facilities will affect their health, property values, aesthetic values, and way of life.

The Barries argued that they have lived at their residence for 39 years and that during this time, they have enjoyed the rural, residential, and agricultural nature of Robinson Township and have come to rely on that way of life. The Barries complained that they did not expect to live near industrial operations. They feared that because the Moore Park well pad is less than a mile and a half from their property, it is likely that the actual site operations and horizontal wellbores will be much closer. They asserted that in the last few years, they began to experience the construction and operation of nearby oil and gas facilities and operations, including neighboring well pads and a pipeline. These new impacts have affected the Barries’ way of life, particularly due to the related traffic, noises, emissions, and concerns for their well water.

On January 21, 2015, the ZHB issued two decisions, dismissing Objectors’ first and second substantive validity challenges. The ZHB dismissed the first validity challenge because Objectors did not allege that the use or development of their properties were prohibited or restricted by Ordinance 1-2014 and they also failed to establish that they had standing because they only presented generalized interests common to the entire Township's population, and their interests are neither substantial nor immediate. With respect to the second challenge, the ZHB dismissed this challenge pursuant to section 916.1(i) of the MPC, 53 P.S. § 10916.1(i),⁶ because it was filed while the first substantive validity challenge had not been finally determined or withdrawn.

On February 20, 2015, Objectors filed a Notice of Land Use Appeal in the trial court. Range Resources and others intervened in support of the Ordinance. (R.R. at 86a-92a.) Upon review of the record of proceedings before the ZHB, the trial court concluded that the ZHB record was insufficiently developed on the issue of standing. Specifically, on matters relevant to whether any Objectors would be impacted by activities at the Moore Park well pad the evidentiary record was incomplete and critical findings including credibility determinations were lacking. Accordingly, the trial court scheduled a hearing to address the issue of Objectors’ standing. (R.R. at 653a.) Prior to that future hearing, the parties agreed that the issue of Objectors’ standing should be bifurcated and determined first.

In advance of the hearing, Range Resources presented a motion, and the trial court entered an order for a view of the Moore Park well pad and the area in the vicinity of the Vance Objectors’ residence, which at over a half mile away, is the closest Objector residence to the well pad. (R.R. at 705a-16a, 719a-20a.) Range...