The Pennsylvania Supreme Court recently granted allocatur in a zoning case involving, among other things, the role of the appellate courts and standard applied upon review of credibility determinations made by municipal zoning boards.
Protect PT (“Appellant”) objected to the application for special exception of Olympus Energy, LLC (“Appellee”)to develop oil and gas operations (unconventional gas wells), in a process commonly known as ‘fracking.’ Appellee’s application involved a 53.5-acre property located at in the Mineral Extraction Overlay (MEO) of Penn Township’s Rural Resource (RR) Zoning District.
The Penn Township Zoning Hearing Board (“Board”), granted Appellee’s application (subject to certain conditions), concluding that, in its objections, Appellant “failed to establish sufficient, credible evidence that if [Appellee] has been found to have met the Ordinance requirements and the application is granted, with conditions, that the said use would create a high probability that an adverse, abnormal or detrimental effect will occur to public health, safety and welfare.”
The Westmoreland County Court of Common Pleas (“Trial Court”) affirmed the Board’s decision, and Appellant appealed.
In an unpublished opinion affirming the Trial Court, the Commonwealth Court noted that, “Because [Appellant] pointed to evidence of traffic counts and hazardous road conditions, it met its burden of proving that the proposed use will generate traffic that threatens health and safety,” and further, that Appellant’s expert witness testified “[Appellant’s] construction and operation will result in air emissions and significantly increased exposure to volatile organic compounds such as ozone and particulate matter that is not usually experienced in the Township.” Protect PT v. Penn Twp. Zoning Hearing Bd., 238 A.3d 530, (Pa.Cmwlth. 2020), appeal granted in part, 243 A.3d 969 (Pa. 2021).
Appellant argued that the foregoing evidence went uncontradicted in the proceedings before the Board, but the Court held, “[a]ssuming the record contains substantial evidence, we are bound by the [B]oard’s findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence. [The Board] is free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness.” Id.
In a separate opinion, Judge McCullough, while concurring in the Court’s decision, noted concern that “judicial review in matters such as the one presently before the Court has been severely reduced to a point where this Court functions merely to ascertain whether a zoning hearing board found the objector’s evidence credible.” Id.
The Supreme Court may share in Judge McCullough’s concern, given one of the limited issues upon which allocatur was granted: “Whether the Commonwealth Court’s opinion conflicts with the Court’s previous application of the capricious disregard of evidence standard and creates an issue of such substantial public importance as to require prompt and definitive resolution by this Honorable Court?”
Lindsay Dunn is a partner in MacElree Harvey’s Land Use Department and represents diverse clientele in matters related to zoning, land use, and construction litigation. She can be reached directly at (610) 840-0202 or [email protected].
