Worthington v. Mount Pleasant Twp

212 A.3d 582

Jane WORTHINGTON, Appellant

v.MOUNT PLEASANT TOWNSHIP and Kathleen W. Yonker, George H. Yonker, Yonker Family Industries, LLP, Zenith Management, LLC and Range Resources - Appalachia, LLC

No. 1149 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued: May 7, 2019

Filed: June 6, 2019

Jordan B. Yeager, Doylestown, for appellant.

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

Thomas P. McDermott, Pittsburgh, for appellee Mount Pleasant Township.

Gretchen E. Moore, Pittsburgh, for appellees Kathleen W. Yonker, George H. Yonker, Yonker Family Industries, FLP, and Zenith Management, LLC.

BEFORE: HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE COVEY

Jane Worthington (Worthington) appeals from the Washington County Common Pleas Court's (trial court) July 17, 2018 order (docketed July 25, 2018) dismissing her appeal from the Mount Pleasant Township (Township) Board of Supervisors' (Board) decision granting Range Resources - Appalachia, LLC's (Range Resources) conditional use application (Application) for a proposed unconventional natural gas development well and well pad (Well Site). Worthington presents two issues for this Court's review: (1) whether the trial court erred by upholding the Board's decision denying Worthington party status; and (2) whether the Board's denial violated Worthington's due process rights, thereby rendering the Board's decision void ab initio .

On April 18, 2016, Range Resources submitted the Application to the Board for approval of the Well Site and accessory access on two tracts of land located along Baker Road in the Township's Rural Residential (R-1) Zoning District, which "is now or formerly owned by Kathleen W. Yonker, George H. Yonker, Yonker Family Industries, LLP, and Zenith Management, LLC (collectively, the Yonkers)."¹ Yonker Br. at 2 n.1. Range Resources proposed to commence work by upgrading Baker Road in October/November 2016. See Reproduced Record (R.R.) at 43a. After the Township's Planning Commission reviewed and approved the Application, the Board conducted a public hearing on August 22, 2016.²

As the Board hearing commenced, the Township's solicitor (Solicitor) explained conditional use standards, and notified the attendees that they could seek standing to be a party, as follows:

Legal standing is a term under common law and under the [Pennsylvania Municipalities Planning Code (MPC)³ ] that requires that in order to be a technical party with full rights of cross-examination of witnesses and whatnot [sic], and the right to appeal adversely [sic] to the [trial court] from an adverse decision, that you must prove that you are affected by the application in the sense that you have -- that you are arguably adversely, directly, immediately and substantively affected by potentially aggrieved [sic] by the decision in ways different from the general populous.

One way to show that is if you live in close proximity to the subject property and, in addition to that, can show adverse impact because of that proximity, you may have standing and, therefore, the ability to fully participate in the sense of being able to cross-examination and whatnot [sic] in the proceedings.

Again, if you don't wish to assert that or you don't have that standing and you're a resident, we're certainly still going to allow you to direct comments to the Board, which then in turn may be formulated into questions or otherwise taken into consideration.

Does anybody wish to assert themselves as a party having standing in the matter?

R.R. at 79a.

The Board afforded Worthington the opportunity to state why she should be granted legal standing in the action. Worthington represented that she resides at 405 Fourth Street in McDonald, which she admitted is more than three miles from the Well Site.⁴ See R.R. at 80a-81a. However, Worthington declared that she was "representing her daughter,⁵ who is 12 years old, [and] who is benzene exposed.... She's a student at Fort Cherry Elementary School [ (School)⁶ ].... [a]nd we are being advised to keep her away from ... any activities that would agitate her exposure." R.R. at 80a; see also R.R. at 111a. Worthington claimed that the Well Site was proposed to be located less than one mile from the School.⁷ See R.R. at 81a; see also R.R. at 111a.

The Board denied Worthington party status,⁸ see R.R. at 87a, but nevertheless permitted her to comment later in the hearing regarding her concerns. Worthington stated to the Board that wind could carry benzene from the Well Site to the School and negatively affect her granddaughter's already poor health. See R.R. at 111a-112a. Worthington read from literature regarding potential health hazards, declared that she had a baseline and medical records, and asked the Board to move the proposed Well Site another approximate 1,400 extra feet, so it is at least one mile from the School.⁹ See R.R. at 111a-112a.

On September 28, 2016, the Board approved the Application subject to 60 conditions. See R.R. at 10a-33a. Range Resources requested clarification on the conditions on October 10, 2016. Thereafter, the Board issued a modified decision. See R.R. at 36a-61a. Therein, the Board made a finding that "numerous members of the public ... were provided a full and fair opportunity to make public comment regarding the Application..., which the Board received and took into consideration in rendering its [d]ecision herein." Board Dec. at 4; R.R. 40a. The Board also found:

The proposed [Well Site] is located approximately 3,840 feet from Fort Cherry School District's complex; will not be visible from the School property; will not likely produce sounds that are excessive or otherwise readily audible from the School property; and the direction of the prevailing winds are such that the [Well Site] is said to be ‘downwind’ with prevailing air currents flowing generally from the direction of the School toward the direction of the proposed [Well Site].

Board Dec. at 7; R.R. 43a.

On October 28, 2016, Worthington appealed from the Board's denial of her party status to the trial court. See R.R. at 3a. Range Resources and the Yonkers intervened. See R.R. at 3a. On February 1, 2018, Worthington requested the trial court to hold a status conference.¹⁰ See R.R. at 3a. After a March 1, 2018 status conference, the trial court issued a briefing and argument schedule. The trial court heard argument on May 7, 2018. In the July 17, 2018 order, the trial court affirmed the Board's decision denying Worthington standing. On August 15, 2018, Worthington appealed to this Court.¹¹

Standing

Worthington argues that the trial court erred by upholding the Board's decision denying her party status. Worthington specifically asserts that the trial court confused procedural standing (party to the hearing) with substantive standing (party to the case on appeal), and erred by agreeing with the Board that she was not an aggrieved party.

Initially, "[m]unicipal corporations may do those things that the legislature expressly or by necessary implication has placed within their power to do." K. Hovnanian Pa. Acquisitions, LLC v. Newtown Twp. Bd. of Supervisors , 954 A.2d 718, 723 (Pa. Cmwlth. 2008). Section 909.1(b)(3) of the MPC¹² provides that the governing body shall have exclusive jurisdiction to hear and render final adjudications regarding "[a]pplications for conditional use under the express provisions of the zoning ordinance pursuant to [S]ection 603(c)(2) [of the MPC, 53 P.S. § 10603(c)(2) (relating to conditional use ordinance provisions) ]." 53 P.S. § 10909.1(b)(3). Accordingly, the Board, as the Township's governing body, has the authority to permit conditional uses according to the standards and criteria set forth in the Township's Zoning Ordinance (Ordinance) enacted by the Board to regulate Township land use. See Ordinance § 200-77, R.R. at 456a-458a.

Regarding conditional use approval procedures, Section 200-77.A(4) of the Ordinance directs that the Board shall conduct hearings, at which objectors may appear and "present[ ] ... their opposition to the application[.]" Ordinance § 200-77.A(4), R.R. at 457a. Both Section 913.2(b)(3) of the MPC (relating to conditional use hearings) and Section 200-77.A(6) of the Ordinance state: "Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction."¹³ 53 P.S. § 10913.2(b)(3)¹⁴ (emphasis added); Ordinance § 200-77.A(6), R.R. at 457a (emphasis added). Nonparties are not expressly afforded similar rights.

The MPC and the Ordinance are silent as to who is a party in conditional use cases .¹⁵ However, the law is well established that appeals from governing bodies' decisions rendered in their adjudicatory (rather than legislative) capacities are taken to trial courts pursuant to the Local Agency Law.¹⁶ See Giant Food Stores, LLC v. Penn Twp. , 167 A.3d 252 (Pa. Cmwlth. 2017) (township's denial of an intramunicipal liquor license transfer); see also Money v. Bd. of Supervisors of the Twp. of Westtown , 89 A.3d 308 (Pa. Cmwlth. 2014) (board of supervisors' approval of sign landscape and maintenance agreement); Butler v. Indian Lake Borough , 14 A.3d 185, 188 (Pa. Cmwlth. 2011) (borough council's grant of commercial boat dock easement); Consumer Inv. Fund v. Supervisors of Smithfield Twp. , 110 Pa.Cmwlth. 413, 532 A.2d 543 (1987) (board of supervisors' denial of a holding tank permit).

Relative to standing, Section 752 of the Local Agency Law provides that "[a]ny 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 ...." 2 Pa.C.S. § 752 (emphasis added). However, this Court has held that more than just a direct interest is necessary.¹⁷ In Whitehall Manor, Inc. v. Planning Commission of the City of Allentown , 79 A.3d 720 (Pa....