            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John T. Juskowich and                           :
Nancy Albanese,                                 :
                  Appellants                    :
                                                :
               v.                               :    No. 536 C.D. 2016
                                                :    ARGUED: November 14, 2016
Washington Township Zoning                      :
Hearing Board, Greene County,                   :
Pennsylvania                                    :


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER1                                                 FILED: May 1, 2017


               John T. Juskowich and Nancy Albanese (Appellants) appeal from the
March 15, 2016, order of the Court of Common Pleas of Greene County (trial
court) denying their land use appeal and affirming the decision of the Washington
Township Zoning Hearing Board (ZHB) granting the application of EQT
Production Company (EQT) for a special exception for gas well drilling and
related activities on two properties in Washington Township. The ZHB attached
two conditions to the grant of EQT’s application, one relating to traffic control and
the other relating to the width of a nearby road, Locust Lane.2 We affirm.

    1
       This opinion was reassigned to the author on December 13, 2016.
    2
       The ZHB refers to the road in question as Locust Lane. The trial court and the parties refer
to the road as either Locust Road or Locust Drive. We defer to the title used by the ZHB.
            EQT applied for a special exception to operate unconventional well
pads on two properties located off Locust Lane in Washington Township. The
current zoning of these properties is A-1 (Rural Agricultural District), which
permits “extractive operations” as a special exception use. The proposed gas wells
meet the definition of “extractive operations” under the Township’s Zoning
Ordinance (Ordinance). EQT has secured the necessary access agreements and
leases for the properties. Appellants are residents of Locust Lane. (Trial court op.
at 1-2.)
            EQT’s 125-page application to the Township included, inter alia: a
specific application for each parcel on which a well would be located; proof of
liability insurance; a Pennsylvania Department of Transportation map showing
approximate site locations and access route; a copy of the Erosion and
Sedimentation Control General Permit for Earth Disturbance Associated with Oil
& Gas Exploration, Production, Processing, or Treatment Operations or
Transmission Facilities (ESCGP -2) drawings with a site plan and proposed access
road location; a copy of the Well Permit Drilling Application for well 592464,
which was submitted to the Pennsylvania Department of Environmental Protection;
copies of the plats for the remaining wells; access agreements and leases for the
respective sites; and a map showing the property owners within 200 feet of the
affected parcel, along with a list of the owners and addresses. See Supplemental
Reproduced Record (S.R.R.) at 1-125b.
            After EQT submitted its application, the ZHB held a public hearing on
February 26, 2015. At this hearing, Mark Gordon, the Township’s zoning officer,
testified that everything seemed to be in order other than public safety concerns
regarding the width of Locust Lane, which was not wide enough to accommodate



                                         2
two lanes of traffic with each going in opposite directions. Several residents of
Locust Lane, not including Appellants, testified concerning their ability to turn
onto Locust Lane from Route 221 and the dangerous condition that would result if
traffic is backed up onto Route 221. These residents also raised concerns regarding
the ability of emergency responders to reach their homes in the event that Locust
Lane was blocked by well traffic.3 (Trial court op. at 2.) Ultimately, the hearing
was continued so that EQT could bring a plan to the Board to address the issues
and safety concerns regarding the road access.
              The continued hearing was held on May 28, 2015. At this hearing,
Todd Klaner, EQT’s manager of permitting, testified that EQT would widen Locust
Lane to a width of eighteen feet from Route 221 to the well sites and include two
travel lanes large enough for trucks, including well trucks and emergency vehicles
to pass by one another. Joe Zvara, an employee of EQT, stated that the road width
expansion required right-of-way agreements with five residents, all of whom were
agreeable, and that EQT was in the process of negotiating the terms of these
agreements. Zvara noted that Appellant Juskowich was one of these landowners.
Appellant Juskowich, speaking for the first time, voiced his concerns regarding the
proximity of the expanded road to his septic system, which was only twenty feet
from the road. (Trial court op. at 2-3.) Klaner responded that EQT was in
discussions with Juskowich and was willing to accommodate this concern.4
              At the conclusion of the second hearing, the ZHB voted to approve
EQT’s application for a special exception with a condition requiring EQT


    3
     Representatives of EQT also testified at this hearing regarding the nature and scope of
EQT’s proposed use. (ZHB’s Finding of Fact No. 7.)
   4
     No issue concerning Juskowich’s septic system has been raised in this appeal.



                                             3
personnel conducting traffic control to give priority to non-EQT vehicles. In a
subsequent written decision, the ZHB included a second condition requiring EQT
to widen/improve Locust Lane to allow for two-way traffic. (Trial court op. at 3.)
             Appellants thereafter filed a land use appeal with the trial court,
alleging multiple defects in EQT’s application in violation of the Ordinance.
However, the trial court concluded that Appellants failed to raise these issues
before the ZHB and, hence, they were waived. Instead, the trial court observed
that the only issue raised by the residents of Locust Lane, including Appellants,
concerned the width of Locust Lane. The trial court noted that these concerns had
been alleviated by EQT’s decision to widen the road to include two lanes of travel
and by the ZHB’s imposition of such a condition. (Trial court op. at 6-8.) Hence,
the trial court affirmed the ZHB’s decision, and this appeal followed.
             Initially we note that that “[a] special exception is not an exception to
a zoning restriction, but a use that is expressly permitted.” Broussard v. Zoning
Bd. of Adjustment of the City of Pittsburgh, 831 A.2d 764, 769 (Pa. Cmwlth. 2003),
aff’d, 907 A.2d 494 (Pa. 2006). Recently, this Court reiterated that a “requestor
has the burden of persuading the ZHB that the proposed use satisfies the objective
requirements of the ordinance.” Dunbar v. Zoning Hearing Bd., 144 A.3d 219,
224 (Pa. Cmwlth. 2016) (citing Bray v. Zoning Bd. of Adjustment, 410 A.2d 909,
910 (Pa. Cmwlth. 1980)). Once a requestor proves compliance with an ordinance,
the burden shifts to the objector to prove that the special exception use would have
an adverse effect on the general public that is not normally associated with the
proposed use. Id.




                                          4
              On appeal to this Court,5 Appellants argue that EQT failed to present
substantial evidence establishing compliance with the requirements for a special
exception as set forth in the Ordinance.6 However, at the initial hearing in this



    5
        Where, as here, common pleas did not take additional evidence, we are limited to
reviewing whether the local governing body committed an error of law or made findings which
are not supported by substantial evidence. Whitehall Manor, Inc. v. Planning Comm’n of the
City of Allentown, 79 A.3d 720, 724 (Pa. Cmwlth. 2013); Gerryville Materials, Inc. v. Planning
Comm’n of Lower Milford Twp., Lehigh Cnty., 74 A.3d 322, 325 (Pa. Cmwlth. 2013), appeal
denied, 87 A.3d 817 (Pa. 2014). Substantial evidence is defined as such relevant evidence as a
reasonable mind might find adequate to support a conclusion. Valley View Civic Ass’n v. Zoning
Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983).
     6
       Section 601 of the Ordinance provides that a special exception use must meet the following
requirements:
                A. That the use is a permitted special exception as set forth in
                Schedule I hereof.

              B. That the use is so designed, located and proposed to be operated
              that the public health, safety, welfare and convenience will be
              protected.

              C. That the use will be compatible with adjoining development and
              the proposed character of the zoning district where it is to be
              located.

              D. That adequate landscaping and screening is provided as required
              herein.

              E. That adequate off-street parking and loading is provided and
              ingress and egress is so designed as to cause minimum interference
              with traffic on abutting streets.

              F. That the use conforms to all applicable regulations governing the
              district where located, except as may otherwise be determined for
              large-scale planned developments.

              G. That the use will have a minimal effect on township facilities.
(Footnote continued on next page…)


                                               5
_____________________________
(continued…)
    Section 605.1(E) further addresses extractive operations and extractive industry, requiring
an applicant for such use to submit the following to the Township Planning Commission and the
ZHB:
               (A) A description of the character of the proposed operation, its
               timing and proposed duration, together with duplicates of maps
               and plans to be submitted to state and federal regulatory agencies
               or authorities for the issuance of necessary permits;

              (B) Identification of seams of coal, rock, ore, beds of sand and
              gravel, strata of soil, oil and gas, coal bed methane gas, or other
              material to be removed in connection with the proposed extractive
              operation;

              (C) An analysis of the possible impact of extractive operations
              upon ground water supplies in all affected areas of the Township
              and the measures that will be taken to guarantee that any loss,
              diminution or pollution of water supply will be corrected;

              (D) The location and identity of ownership of all structures and
              land uses that may be affected by the proposed operation, and the
              measures that will be taken to protect all structures and land uses
              from adverse impacts from the proposed extractive operation;

              (E) Plans for the restoration or reclamation of all land affected by
              the extractive operation;

              (F) Receipt of a certification from each state or federal agency or
              authority having enforcement jurisdiction for the issuance of all
              necessary permits, licenses or grants of authority for the
              installation and operation of the proposed extractive operation, that
              the owner or operator seeking the Special Exception Use has fully
              complied with all requirements for the issuance of such permits,
              licenses or grants of authority and that such will be granted,
              together with an undertaking to promptly advise the Zoning
              Hearing Board within thirty (30) days of any event which would
              constitute a violation of any requirement for the issuance or
              continued validity of any such permit, license or grant of authority
              or any condition thereto;

(Footnote continued on next page…)


                                               6
matter on February 26, 2015, the Township’s zoning officer was asked to provide a
brief overview of the matter. The Zoning Officer discussed EQT’s application for
well pad using Locust Lane as an access road. He went on to state as follows,
“Now, I reviewed what they have.                Everything seems in order. (Reproduced
Record (R.R.) at 12a.) Shortly thereafter, upon being questioned by the ZHB
Chairman as to whether EQT’s application meets the requirements of the
Township’s Ordinance, the Zoning Officer stated that “What I see, it is in order.
There is no problem.” (R.R. at 13a.)7 Neither Appellants nor anyone else sought
to further question the Zoning Officer with respect to EQT’s compliance with the
specific Ordinance requirements or to raise the issue of EQT’s compliance in any
other way, either at this or the subsequent hearing. Appellants had an opportunity
to raise an objection or seek to ask further questions of the Zoning Officer, but they

_____________________________
(continued…)
                 (G) A description of plans for the transportation of materials,
                 products and equipment to be used, removed from, or marketed in
                 connection with the proposed extractive operation including routes
                 of travel, number and weight of vehicles to be used and procedures
                 which will be made to maintain and repair roads that are targeted
                 for use.
     The Ordinance also requires an eight-foot fence around the perimeter of the operation,
section 605.1(E)(2); completion of the operation within the period of time designated in the
permit, section 605.1(E)(5); and deposit of a bond “for each and every mile of Township road or
portion thereof proposed to be traversed for removing material from the site,” section
605.1(E)(6). Moreover, section 605.2 sets forth specific performance standards, prohibiting
excessive noise, vibration, and odor, as well as air pollution, glare, erosion, and water pollution.
See Section 605.2a-g.
     7
        Appellants contend that these statements by the Zoning Officer did not constitute
testimony and, consequently, cannot support the ZHB’s decision granting EQT’s application.
However, the Zoning Officer’s statements followed a general swearing in of all persons planning
to speak at the February 26, 2015, hearing, R.R. at 11a, and these statements were made, at least
in part, in direct response to questioning from the ZHB Chairman. Thus, Appellants’ contention
lacks merit.



                                                 7
simply chose not to do so. Therefore, the trial court held that the issue was
waived.8 We agree.
              The waiver issue subsumes two discrete questions.                     First, did
Appellants waive the issue of whether EQT’s proposal satisfied the specific
requirements for a special exception and, second, did Appellants waive the issue as
to whether the Zoning Officer’s statements amounted to substantial evidence that
these criteria were met. As to the first, this Court stated in Poole v. Zoning Board
of Adjustment, 10 A.3d 381 (Pa. Cmwlth. 2010):
              Objector raised for the first time on appeal to the trial
              court and on appeal to this Court, the issue of whether the
              proposed development fails to comply with the formal
              requirements of a subdivision pursuant to the
              Philadelphia Zoning Ordinance. However, an issue must
              be raised before the Board in order to preserve it for
              appeal. See Pa. R.A.P. 1551 (No question shall be heard
              or considered by the Court which was not raised before
              the government unit.) By raising this issue for the first
              time with the trial court on appeal, Objector has waived
              it.
Id. at 384 n.3. Without a doubt, EQT bore the burden of proving that it met the
special exception requirements of the Ordinance, but here as in Poole, the issue
was waived.      Moreover, even if we were to say that the burden of showing
evidence of compliance with the requirements of a zoning ordinance could not be
waived,9 evidence was, in fact, presented here. By failing to question the
knowledge or basis upon which the Zoning Officer opined that these requirements

    8
       Following Appellants’ appeal to this Court, EQT filed a motion to quash alleging that any
issues relating to the requirements of the Ordinance were waived, as the trial court so held,
because they were not raised before the ZHB. However, by opinion and order dated August 16,
2016, we denied EQT’s motion without prejudice to address the waiver issue in its brief.
     9
       In this regard, we note that, even if we disagreed with Poole, which we do not, we are
bound by a prior reported panel opinion of this Court.



                                               8
were met, or in any way challenging his statement before the Board, Appellants
plainly waived the issue. Absent some challenge, we believe that the Board was
entitled to rely on the advice in this regard of its Zoning Officer, an official
charged with responsibility to understand and enforce the Township’s zoning
ordinance.10

               Accordingly, we affirm the decision of the Court of Common Pleas.




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    10
        We certainly believe that the better practice is for an applicant to come forward with
specific detailed evidence showing how its proposal meets the standards set forth in the
ordinance in question. However, we note that the doctrine of waiver serves the purpose of
fundamental fairness and adjudicative efficiency by putting both the litigants and the adjudicator
on notice of a claimed error or deficiency at a time when it may still be corrected. Because
Appellants waited until the parties were before the trial court, this opportunity was lost.



                                                9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John T. Juskowich and              :
Nancy Albanese,                    :
                  Appellants       :
                                   :
           v.                      :   No. 536 C.D. 2016
                                   :
Washington Township Zoning         :
Hearing Board, Greene County,      :
Pennsylvania                       :



                                ORDER


           AND NOW, this 1st day of May, 2017, the order of the Court of
Common Pleas of Greene County is hereby AFFIRMED.




                                 _____________________________________
                                 BONNIE BRIGANCE LEADBETTER,
                                 Senior Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John T. Juskowich and                    :
Nancy Albanese,                          :
                  Appellants             :
                                         :   No. 536 C.D. 2016
            v.                           :
                                         :   Argued: November 14, 2016
Washington Township Zoning               :
Hearing Board, Greene County,            :
Pennsylvania                             :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McCULLOUGH                                      FILED: May 1, 2017


            The applicant, EQT Production Company (EQT), did not meet its
burden of establishing compliance with the requirements for a special exception as
set forth in Washington Township’s Zoning Ordinance (Ordinance), and John T.
Juskowich and Nancy Albanese (Appellants) did not waive their objections to
EQT’s application. Therefore, I respectfully dissent.
            As this Court explained in Morrell v. Zoning Hearing Board of the
Borough of Shrewsbury, 17 A.3d 972 (Pa. Cmwlth. 2011):

            A special exception is a use that is expressly permitted by
            the zoning ordinance, absent a showing of a detrimental
            effect on the community. The applicant for a special
            exception has the burden to demonstrate that the
            proposed use satisfies the objective requirements of
             the ordinance. Once the applicant has met his or her
             burden, a presumption arises that the proposed use is
             consistent with the health, safety, and general welfare of
             the community. The burden then shifts to the objectors
             to demonstrate that the proposed use will have a
             detrimental effect on the health, safety, and general
             welfare of the community.
Id. at 975 (emphasis added).
             Such a burden has long been established by this Court. In the seminal
case of Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980), we
explained that an applicant for a special exception “has both the persuasion burden
and the initial evidence presentation duty to show that the proposal complies with
the terms of the ordinance which expressly govern such a grant.” Id. at 910
(citations omitted). In other words, we explained that the applicant “must bring the
proposal within the specific requirements expressed in the ordinance for the use . . .
sought as a special exception.” Id. at 911. In Greaton Properties v. Lower Merion
Township, 796 A.2d 1038 (Pa. Cmwlth. 2002), we similarly explained that an
applicant for a proposed special exception use “has both the duty to present
evidence and the burden of persuading the board that the proposed use satisfies the
objective requirements of the ordinance for the grant of a special exception.” Id. at
1045-46.
             Footnote 6 of the Majority opinion aptly sets forth the Ordinance’s
extensive requirements that must be met before an applicant can be granted a
special exception. (Slip op. at 5-7.) The Majority proceeds to conclude that EQT
met its burden through the submission of a 125-page application to Washington
Township (Township), the brief testimony of EQT’s representatives, and some
brief statements by the Township’s Zoning Officer at the first hearing before the
Township’s Zoning Hearing Board (ZHB). At this hearing, the ZHB Chairman

                                      PAM - 2
asked the Zoning Officer to provide a brief overview of the matter and he
responded that “Now, I reviewed what they have. Everything seems in order.”
(Reproduced Record (R.R.) at 12a.) Shortly thereafter, upon being questioned by
the ZHB Chairman as to whether EQT’s application meets the special exception
requirements of the Township’s Ordinance, the Zoning Officer merely stated that
“What I see is in order.       There is no problem.”       (R.R. at 13a.)    While
representatives of EQT testified before the ZHB, they simply described their
general plan for construction of the well pads and the issue regarding the width of
the access road, Locust Lane. EQT’s representatives did not address the specific
requirements of the Ordinance for a special exception.
            As discussed above, EQT, as the applicant for a special exception, has
both a duty to present evidence and the burden of persuading the ZHB that the
proposed use satisfies the objective requirements of the Township’s Ordinance.
Respectfully, I do not believe that the submission of EQT’s application, coupled
with the limited testimony of EQT’s representatives and the limited statements by
the Township’s Zoning Officer at the initial ZHB hearing, was a sufficient basis
upon which to conclude that EQT met its burden. Indeed, neither the Zoning
Officer’s statements nor the testimony of EQT’s representatives mention the
relevant sections of the Township’s Ordinance or how EQT satisfied the numerous
requirements for a special exception contained therein.
            However, the Court of Common Pleas of Greene County (trial court),
and now the Majority, go even further to conclude that Appellants’ failure to
further question the Zoning Officer with respect to EQT’s compliance with the
specific requirements of the Ordinance, or to otherwise raise an objection at either
hearing before the ZHB, amounts to a waiver of any issue in that regard. However,


                                     PAM - 3
such conclusion ignores the initial duty and presentation burden on EQT. At the
ZHB hearings, EQT failed to present its application or any other evidence as to
how it met the Ordinance’s requirements for a special exception; hence, there was
nothing to which Appellants could object.                The trial court and the Majority
essentially require Appellants to challenge a statement by the Township’s Zoning
Officer that the application met these requirements, despite the lack of evidence
from the applicant itself, EQT, in support thereof.
               Moreover, the Majority’s reliance on Poole v. Zoning Board of
Adjustment, 10 A.3d 381 (Pa. Cmwlth. 2010), in support of waiver is misplaced, as
the municipal entity in that case concluded that the applicant had presented
substantial evidence to meet its initial burden. In Poole,1 the Zoning Board of
Adjustment of the City of Philadelphia granted the applicant a use variance,
concluding that he met the requirements for the same set forth in the local
ordinance. However, the Zoning Board of Adjustment failed to make necessary
findings of fact with respect to three other zoning variances requested by the
applicant; hence, we remanded to the Zoning Board of Adjustment to make such
findings.    The waiver question in that case related to an entirely new issue

       1
          In Poole, the applicant proposed a residential development of several lots located within
an L-4 Limited Industrial District and a North Delaware Avenue Special Control District. The
applicant applied for a use permit from the City of Philadelphia’s Department of Licenses and
Inspections (L&I) and several variances. L&I denied the application, citing violations of several
sections of the local ordinance. On appeal, the Zoning Board of Adjustment held a public
hearing and reversed the decision of L&I, concluding that applicant “adequately meet [sic] the
criteria” for a use variance. Id. at 383. Objector appealed to the common pleas court, which
affirmed. In that appeal, objector raised for the first time an issue regarding whether applicant
met the requirements for a subdivision under the local ordinance. On appeal to this Court,
objector again raised the subdivision issue, as well as an issue regarding three additional
variances requested by applicant. We vacated and remanded regarding the variances issue, but
held that the subdivision issue was waived because objector failed to raise it before the Zoning
Board of Adjustment.
                                            PAM - 4
regarding whether the proposed development complied with the formal
requirements for a subdivision, which objector first raised on appeal to the
common pleas court and this Court. Because this issue was not raised before the
Zoning Board of Adjustment, we held that it was waived.
              In the present case, while EQT presented a substantial amount of
supporting documentation with its application, there remains a question as to the
sufficiency of that documentation in relation to the special exception requirements
of the Township’s Ordinance.           The ZHB’s decision does not address these
requirements or the relevant sections of the Ordinance, nor does it include any
findings of fact relating to the same in its decision. Indeed, as noted by Appellants,
the ZHB’s decision was only one and a half pages long with no citations to the
record and no discussion of any of the specific criteria required for granting an
extractive industry special exception. Thus, the present case is distinguishable
from Poole.
              For these reasons, I would reverse the trial court’s order denying
Appellants’ land use appeal and affirming the decision of the ZHB granting EQT’s
application for a special exception.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                        PAM - 5
