IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY PROTECT PT, Appellant, V. PENN TOWNSHIP ZONING HEARIN BOARD, Appellee, V. HUNTLEY HUN TLEY ENERGY EXPLORATION, LLC and APEX ENERGY (PA), LLC, Intervenors. CIVIL DIVISION No. 3499 of2017 BRIEF OF HUNTLEY HUNTLEY ENERGY EXPLORATION, LLC IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Filed on behalf of Intervenor, Huntley Huntley Energy Exploration, LLC Counsel of Record for this Party: Blaine A. Lucas, Esquire PA Id. No. 35344 bluoas@babstoalland.com Steven B. Silverman, Esquire PA Id. No. 56829 ssilverman@babstcalland.com Robert Max Junker, Esquire PA Id. No. 201228 riunker@babstcalland.oom BAB ST, CALLAND, CLEMENTS ZOMNIR, PC. 603 StanWiX Street TWO Gateway Center, 6th Floor Pittsburgh, PA 15222 (412) 394-5400 Firm ID. No. 812 IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY PROTECT PT, CIVIL DIVISION Appellant, No. 3499 of 2017 . PENN TOWNSHIP ZONING HEARING BOARD, Appellee, V. HUN TLEY HUN TLEY ENERGY EXPLORATION, LLC and APEX ENERGY (PA), LLC, Intervenors. BRIEF OF HUNTLEY HUNTLEY ENERGY EXPLORATION, LLC IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Protect PT asks this Court to impose a moratorium on a legitimate land use throughout Penn Township (?Township?), an action that is not contemplated by the Municipalities Planning Code and that would be blatantly unconstitutional if done by a municipality. If successful, Protect PT will have invented a new concept in land use law that permits it to unilaterally close a municipality?s doors to new development and to plant a ?ag of conquest on another individual?s private property and the inherent rights thereto. Not content with exercising its purported rights as an objector to a land use application, Protect PT has invoked this Court?s equity jurisdiction to not just stop construction activity or actual use of a nearby property, but rather to halt altogether the Township Zoning Hearing Board from even considering the legitimate applications submitted by Huntley Huntley Energy Exploration, 1 LLC (?Huntley?) and its landowner?lessors to develop their properties and mineral interests. The arguments raised by Protect PT in support of its radical endeavor are meritless. For the reasons set forth below, Protect PT cannot meet the high bar required to obtain its preliminary injunctionl. Its motion should be denied because Protect challenge to the substantive validity (?Substantive Validity Challenge?) of the Township zoning ordinance (?Zoning Ordinance?) is likewise meritless, as the arguments raised in that challenge have been repeatedly rejected by numerous zoning hearing boards and the Courts of this Commonwealth. Moreover, the delay in the Zoning Hearing Board?s consideration of Huntley?s special exception2 applications will in?ict substantial harm not only on Huntley, but also on its many landowner?lessors who will receive royalties from oil and gas wells located on the Gaia and Metis well pads. Accordingly, should there be any further delay in the Zoning Hearing Board?s ability to hear the land use applications due to Protect Motion, Huntley requests that it be conditioned on the posting of a substantial bond. Protect action is an attack on both the Township Zoning Ordinance that regulates oil and natural gas operations and on Huntley?s applications to the Zoning Hearing Board for special exception approval of well pads and associated wells for the Gaia and Metis well pads (?Gaia 1 A preliminary injunction is a harsh remedy for which ?essential prerequisites? must be proven. Marinara: GP Inc. v. Pepper, Hamilton Scheez?z, 602 A.2d 1277, 1282?83 (Pa. 1992). The six essential prerequisites required to obtain a preliminary injunction are: the injunction is necessary to prevent immediate and irreparable harm that cannot be compensated adequately by damages; (2) greater injury would result ?om refusing the injunction than from granting it, and, concomitantly, the issuance of an injunction will not substantially harm other interested parties in the proceedings; (3) the preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (4) the party seeking injunctive relief has a clear right to relief and is likely to prevail on the merits; (5) the injunction is reasonably suited to abate the offending activity; and, (6) the preliminary injunction will not adversely affect the public interest. Healthcare v. Com, 104 A.3d 495, 501?02 (Pa. 2014). 2 The term ?special exception? is a misnomer because there is nothing special about the use nor is there any exception being made under the Zoning Ordinance. It is simply the phrase used to denote certain permitted uses that must be reviewed and approved by the zoning hearing board as opposed to ?conditional uses?, which are reviewed and approved by the governing body. Both special exceptions and conditional uses are legislatively declared to be permitted under the zoning ordinance provided that the applicant can establish compliance with the objective criteria contained in the zoning ordinance governing the use. 83706.1} 2 and Metis Applications?). The proposed well pads will be located within the Mineral Extraction Overlay District. Huntley ?led the Gaia and Metis Applications with the Township on September 11 and 12, 2017. On September 25, 2017 and October 2, 2017, the Township published notice of a public hearing on the Gaia and Metis Applications to be held before the Zoning Hearing Board on October 12, 2017. Protect PT attempted to have the Zoning Hearing Board impose a stay on itself, and when that was unsuccessful, served Huntley with its notice of presentation and motion for preliminary injunction on September 29, 2017. Huntley agreed to continue the public hearings until November 9, 2017 . The preliminary injunction hearing is scheduled for October 25, 2017. I.- SUMMARY OF ARGUMENT A. Protect PT has no clear right to relief and its Substantive Validity Challenge is unlikely to succeed on the merits because: 1. The Zoning Ordinance enjoys a strong presumption of validity. 2. The Substantive Validity Challenge relies upon the Robinson [1 and PEDF opinions, neither of which is applicable. 3. The litany of Post?Robinson II decisions supports the validity of the Zoning Ordinance. a. Allegheny Township, Westmoreland County, Middlesex Township, Butler County, Pulaski Township, Lawrence County, Mount Pleasant Township, Washington County, Cecil Township, Washington County and Robinson Township, Washington County substantive validity challenge decisions. b. The. Commonwealth Court decisions in Gorsline, Farms, and EQT. 4. Permitting oil and natural gas development in rural and agricultural areas does not violate substantive due process. B. The injunction sought by Protect PT will dramatically alter the status quo. C. The stay imposed on ?land developments? by Section 915.1 of the MPC is inapplicable to special exception applications like the Gaia and Metis Applications. 3 D. Neither Protect PT nor the general public will be harmed by the Zoning Hearing Board proceeding to conduct hearings and render decisions on the Gaia and Metis Applications. II. ARGUMENT A. Protect PT has no clear right to relief and its Substantive Validity Challenge is unlikely to succeed on the merits. The rise or fall of Protect motion for preliminary injunction is dependent on its Substantive Validity Challenge attacking the Township?s Zoning Ordinance succeeding on the merits. However, an examination of Protect Substantive Validity Challenge reveals that it has no clear right to relief and cannot successfully overturn the Township?s regulation of oil and natural gas development as expressed in the Zoning Ordinance. 1. The Zoning Ordinance enjoys a strong presumption of validity. Zoning ordinances carry a strong. presumption of validity, as the challenger faces ?an extremely heavy burden? to invalidate an ordinance. McClimans v. Bd. of Supers. of Shenango wp., 529 A.2d 562, 564 (Pa. 1987); Plaxton v. Lycoming Co. Zoning Hearing Bd, 986 A.2d 199 (Pa. melth. Ct. 2009). Before a court or other tribunal may declare a zoning ordinance invalid, the challenging party must clearly establish that its provisions are arbitrary and unreasonable and have no relation to the public health, safety, morals and general welfare, and, if the validity is debatable, the legislative judgment is allowed to control (emphasis supplied). Plaxton v. Lycoming County Zoning Hr ?g Bd, 986 A.2d 199, 207 (Pa. Commw. Ct. 2009). As the Commonwealth Court noted, 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. at 205, citing Adams Outdoor Adver. v. Zoning Hearing Bd. of Smith?eld Twp, 909 A.2d 469 (Pa. Commw. Ct. 2006), appeal denied, 923 A.2d 705.1} 4 1175 (Pa. 2007). Protect PT is unable to show that the Zoning Ordinance violates fundamental law for the reasons set forth below and, therefore, cannot meet its heavy burden to overturn the Zoning Ordinance. 2. The Substantive Validity Challenge relies upon the Robinson II and PEDF opinions, neither of which is applicable. The Substantive Validity Challenge and Protect motion rely heavily on the Supreme Court?s decisions in Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013) (?Robinson and Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) Neither case, however, addressed a challenge to the legality of a local zoning ordinance. Robinson II involved a challenge by several municipalities to certain sections of the legislature?s 2012 update to the Oil and Gas Act (Act 13), which had placed limits on the ability of municipalities to regulate oil and gas development. Ultimately, the municipalities succeeded, as the Supreme Court declared those sections invalid. However, Robinson 11 did not address the constitutionality of a local ordinance, such as the one at issue here. In fact, the challengers asserted that Act 13 was constitutionally de?cient precisely because it imposed a ?one size fits all? rule on local government regulation of oil and gas development, a contention with which the plurality decision agreed. 83 A.3d at 979 (protection of environmental values ?is a quintessential local issue that must be tailored to local conditions?); see also, id. at 1008 (Baer, ., concurring). Now, ironically, Protect PT is trying to turn Robinson 11 on its head and use it as a sword to impose its own one size fits all rule?that oil and gas development is incompatible per se with all uses other than industrial ones and must be limited. to industrial zoning districts. Such a position, if accepted, would effectively ban oil and gas development, not only in the Township, but throughout the Commonwealth of to the detriment of not only oil and gas 5 operators, but also thousands of landowner-lessors. It is respectfully submitted that if the legislature was not permitted to curtail municipalities? zoning powers related to the regulation of oil and gas development, neither can Protect PT. Indeed, Protect position, taken to its logical conclusion, would mean that any municipality which does not have a zoning ordinance (there are two dozen such municipalities in Westmoreland County) automatically would be in violation of the Constitution. The Supreme Court?s decision in PEDF is even more distinguishable. PEDF involved a challenge to the Commonwealth?s use of funds generated by the lease of its oil and gas rights in the state forests and state parks. The Supreme Court ruled that Article 1, Section 27 of the Constitution, commonly known as the Environmental Rights Amendment, required that the proceeds of these public natural resources be held in trust for conservation purposes, and that they could not be directed to the Commonwealth?s general fund. PEDF did not involve a challenge to the right to drill in the Commonwealth?s parks and forests, let alone to a local zoning ordinance permitting oil and gas development. In fact, it is quite obvious that the drilling activity undertaken pursuant to those leases does not occur on industrially zoned land. Signi?cantly, neither the Substantive Validity Challenge nor Protect motion for preliminary injunction even mentions the Supreme Court?s 2016 decision in Robinson wp. v. Commonwealth, 147 A.3d 536 (Pa. 2016) (?Robinson Although most of the issues addressed in that case are not relevant here, the Court went out of its way to emphasize the importance of local zoning controls. The majority opinion expounded at great length upon the ?locally tailored policy goals?_ and the factors that vary from ?municipality to municipality depending on local conditions and the needs of residents.? 147 A.3d at 566. The Court observed that local zoning hearing boards and governing bodies are best suited to sit as {833837061} 6 triers of fact and to make land use determinations based on unique local conditions or needs. This was the structure that the General Assembly sought to replace in the enactment of the Act l3 provisions that imposed statewide standards, created a new review process for local ordinances, and penalized municipalities. The Court observed that as a result of its ruling in Robinson 11, ?municipalities may again, as they did prior to the passage of Act 13, regulate the environmental impact, setback distances, and the siting of oil and gas wells in land use districts through local ordinances enacted in accordance with provisions of the MPC . . . provided that such ordinances do not impose conditions on the features of well operations, which the remaining valid provisions of Act 13 regulate.? Id. Simply put, Protect PT, by advocating a ban on oil and gas development except in industrial zones, is attempting to do an end run around the Supreme Court?s decisions in Robinson II and Robinson IV. Protect PT has no right to substitute its judgment for that of the duly elected officials of the Township and impose such a ban upon its citizens. 3. The litany of Post-Robinson II decisions supports ihe validity of the Ordinance. The to Protect Substantive Validity Challenge is that oil and gas development is allegedly an ?industrial use?, which is incompatible with uses in virtually all I zoning districts. See Notice of Appeal of Substantive Validity Challenge Deemed Denial, Paragraph 78 (?The Township failed to account for the health, safety, and environmental concerns of its citizens and the differing environmental concerns of each zoning district, by allowing for industrial shale gas development in the RR District, adjacent to residential developments, schools and other incompatible land uses?); Paragraph 83 (?Protect PT requests that the Court declare the Penn Township Ordinance No. 912?2016 Chapter 190 substantively invalid, and recommend to the Board of Commissioners that the Penn Township Zoning 83706.1} 7 Ordinance be revised to limit unconventional oil and gas development to industrial zoned districts?). Protect PT asserts that because of this alleged incompatibility the Township Zoning Ordinance is ?unconstitutional because permitting industrial unconventional natural gas development in the entire Rural Resource District, through the MEO, violates substantive due process principals of zoning, contradicts the purposes and objectives of the underlying Rural Resource zoning district, fails to meet the standards for the appropriate use of an overlay district, and violates Article 1, Section 27 of the Constitution.? Motion for Preliminary Injunction, Paragraph 3. Unfortunately for Protect crusade, these very same legal arguments have been repeatedly rejected by zoning hearing boards, Common Pleas Courts, and the Commonwealth Court. These cases are of binding or persuasive precedential value and provide ample basis for a determination that Protect PT has no right to relief and there is no likelihood for success on the merits. a. Allegheny ownship, Westmoreland County, Middlesex Township, Butler County, Pulaski Township, Lawrence County, Mount Pleasant Township, Washington County, Cecil Township, Washington County and Robinson Township, Washington County substantive validity challenge decisions. Zoning ordinances that permit oil and gas development across zoning districts, including residential and agricultural areas, similar to the Zoning Ordinance here, have been held to be valid following the plurality decision in Robinson 11, despite the objection of outside activist groups like Protect PT. Of paramount and precedential importance, in Frederick v. Allegheny Township Zoning Hearing Board, Civil Division No. 1898 of 2015 (GP. Westmoreland Cnty., October 21, 2015), this Court rejected constitutional arguments identical to the ones asserted by Protect PT in the Substantive Validity Challenge here. In Frederick, the objectors asserted that the Allegheny 8 Township zoning ordinance, which authorized oil and gas wells as a permitted use by right in all zoning districts, violated their due process rights under Article 1, Section 1 of the Constitution and the Environmental Rights Amendment. As required by applicable provisions of the MPC, objectors ?rst asserted their constitutional claims before the Allegheny Township zoning hearing board. After multiple nights of hearings, the zoning hearing board found that oil and gas operations are consistent with agricultural and rural residential uses and rejected the constitutional claims asserted by the objectors there. Findings of Fact, Conclusions of Law and Reasoning of the Allegheny Township Zoning Hearing Board). Appendix to Brief of Huntley Huntley Energy Exploration, LLC in Opposition to Appellant?s Motion for Preliminary Injunction (?Appendix?), Exhibit On appeal to this Court, President Judge McCormick upheld the zoning hearing board?s decision, concluding that the challenged ordinance contained provisions aimed at protecting residents? health and safety and that the Robinson II decision was not binding precedent. Appendix, Exhibit This Court?s decision is currently on appeal to the Commonwealth Court. I Judge McCormick?s well?reasoned decision established the law of this judicial district, and barring the most compelling circumstances should be followed in this case. Yua?acu?ski v. Commonwealth, 454 A.2d 923 (Pa. 1982). Protect arguments are almost identical to those made by the objectors in Frederick, and fail for the same reasons identi?ed by both the zoning hearing board and Judge McCormick. In fact, the Allegheny Township zoning ordinance in Frederick was far less restrictive than the Zoning Ordinance here because it permitted oil and gas wells as a use by right in all zoning districts. See Allegheny Decision at 1] 6. By comparison, 9 here the Township?s Zoning Ordinance permits oil and gas development as a special exception in the Mineral Extraction Overlay District only. Moreover, in sharp contrast to a use by right, which can be granted administratively by the zoning of?cer, a special exception requires public notice and a public hearing on the application before the Township Zoning Hearing Board. In Delaware Riverkeeper Network 12. Middlesex Township Zoning Hearing Board, A.D. No. 15?10429, at 8?10 (Butler County Ct. Comm. Pls., November 19, 2015), the zoning hearing board denied a zoning ordinance validity challenge and well permit appeal brought by four residents, the Clean Air Council of Philadelphia and the Delaware Riverkeeper Network. The zoning hearing board upheld the ordinance, which permitted oil and gas wells in areas including rural, residential and commercial districts. Findings of Fact and Conclusions of Law of the Middlesex Township Zoning Hearing Board (?Middlesex Decision?). Appendix, Exhibit In reaching this conclusion, the zoning hearing board: noted the long history of oil and gas production in the Township (Middlesex Decision 1] 60); found the balancing of residential and oil and gas interests in the challenged ordinance to be credible ?(Middlesex Decision at 11106); and found challengers? arguments would render the zoning ordinance exclusionary (Middlesex Decision at On appeal, the Butler County Common Pleas Court af?rmed. Appendix, Exhibit Just recently, on June 7, 2017, the Commonwealth Court af?rmed the zoning hearing board and the Common Pleas Court. Appendix, Exhibit Additionally, in Chito v. Pulaski Township Zoning Hearing Board, Civil Division No. 10467 of 2015 (Lawrence County Ct. Comm. Pls.), the zoning hearing board denied a zoning ordinance validity challenge appeal brought by four residents. The zoning hearing board upheld the ordinance, which permitted oil and gas wells as a conditional use in the township?s 3 Although unreported, the Commonwealth Court?s decision may be cited for its persuasive value. Commonwealth Court Internal Operating Procedures, ?4104(a). . 0 agricultural, residential and industrial zoning districts. Findings of Fact and Conclusions of Law of the Pulaski Township Zoning Hearing Board. Appendix, Exhibit An appeal of this decision is currently pending before the Lawrence County Court of Common Pleas. Recently, the zoning hearing board of Mount Pleasant Township, Washington County, heard a challenge to that township?s zoning ordinance brought by Citizens for . Future (?PennFuture?). In Re: Substantive Validity Challenge to Ordinance?No. 105, Chapter 200. The zoning hearing board rejected PennFuture?s argument that the township zoning ordinance was invalid because it permitted oil and gas wells as a conditional use in all zoning districts. In so ruling, the zoning hearing board expressly rejected PennFuture?s contention that oil and gas development was inconsistent with agricultural and rural residential uses, and concluded that PennFuture?s position would prohibit the development of oil and gas rights and- could potentially constitute an unconstitutional taking of property. Findings of Fact and Conclusions of Law of the Mt. Pleasant Zoning Hearing Board. Appendix, Exhibit Signi?cantly,iPennFuture chose not to appeal this decision. In what must be the ultimate irony, Mount Pleasant was one of the original municipal plaintiffs in the Robinson 1] case, which also included Cecil Township and the titular Robinson Township. Both Cecil Township and Robinson Township also have been subject to substantive validity challenges attempting to impose the same ?one size fits all? argument that they defeated in Robinson II. Their victory in overturning a state?wide zoning scheme has now been used against them to attempt to impose a state?wide zoning scheme that relegates oil and natural gas development exclusively to industrial zoning districts. On July 17, 2017, the Cecil Township zoning hearing board voted to deny a substantive validity challenge ?led by several residents. Findings of Fact and Conclusions of Law of the Cecil Township Zoning Hearing Board. Appendix, Exhibit The residents chose not to appeal the decision. On October 3, 2017, the zoning hearing board in Robinson Township denied a substantive validity challenge based on both Robinson Township?s motion to dismiss for lack of standing/ripeness and Range Resources Appalachia motion to dismiss as a matter of law based on the substantive merits. A written decisiOn has not been issued yet. In each of these six challenges, the objectors, like Protect PT here, argued that the zoning ordinance in question was invalid because it allowed incompatible oil and gas development in zoning districts other than industrial ones. As the chart in Appendix Exhibit illustrates, the Zoning Ordinance challenged by Protect PT here is identical in relevant respects to the ordinances in those six other communities in that they all authorize oil and gas wells in agricultural and rural residential districts. In fact, two of them are even less restrictive than the Township Zoning Ordinance here, and allow oil and gas wells in all zoning districts as either a permitted use by right (Allegheny Township) or conditional use (Mount Pleasant Township). The attached chart also identi?es the legal claims asserted against the challenged ordinances. In the other six validity challenges, the objectors alleged that the ordinance in question violated their constitutional rights to due process and under the Environmental Rights Amendment. In each instance, the zoning hearing board found that there were no constitutional violations. In light of these rulings, Protect PT has no likelihood of success on the merits of its Substantive Validity Challenge. b. The Commonwealth Court decisions in Gorsline, Farms, and EQT. Since the Robinson [1 decision, the Commonwealth Court has had three additional opportunities to address the applicability of the ERA to local government permitting decisions related to oil and gas development. In each case, it rejected the contention that local government 12 A approval of these facilities violated that constitutional provision. See Gorsline V. Bd. of Supervisors of Fair?eld Wp., 123 A.3d 1142 (Pa. Commw. Ct. 2015), petition for allowance of appeal granted 139 A.3d 178 (Pa. 2016); Kretsehmann Farm, LLC v. Twp. of New Sewiekley, 131 A.3d 1044 (2015) (Pa. Commw. Ct. 2016), petition for allowance of appeal denied, 145 A.3d 168 (Pa. 2016); EQT Production Co. V. Borough of Je??erson Hills, 2017 WL 2180878 (Pa. Commw. Ct. 2017). Copies of these three decisions are provided as Appendix Exhibits and respectively. Gorsline involved a challenge by neighboring property owners to a township board of supervisors? conditional use approval of a natural gas well pad. The board found that the proposed use was of the same general character as other uses permitted in the township?s RA Residential Agricultural District. After the trial court reversed the board?s decision, the Commonwealth Court reversed the trial court and reinstated the approval. In doing so, the Commonwealth Court dismissed objectors? contention that the township?s action violated Article 1, Section 27, stating: The constitutional claim was that the proposed use violated Neighboring Landowners? right of ?enjoying and defending life and liberty, [and] of acquiring, possessing and protecting property,? as expressed in Article 1, Section 1 of the Constitution, and their right to ?clean air,? pure water and . . . the preservation of . . . environment,? as guaranteed to all citizens in Article 1, Section 27 of the Constitution. This claim presumed that the proposed use was not compatible with permitted uses in the RA District and would cause environmental harm. Because the record supports the Board?s determination that In?ection?s proposed use is compatible with the permitted uses in the RA District and no evidence of harm was presented, neighboring Landowners? claims are unsupported by the accepted evidence of record. Gorsline, 123 A.2d at 1154 11. This case is currently on appeal to the Supreme Court. {B3383706.i} I 13 Similarly, the Commonwealth Court upheld the conditional use approval of a gas compressor station located in New Sewickley Township?s A-l Agricultural District in Farm. There, owners of an organic farm adjacent to the proposed compressor station objected to the application and appealed its approval to both the trial court and Commonwealth Court. Both courts rejected the objectors? arguments that the compressor station would adversely affect public health, safety and welfare in violation of the ERA, ?nding that objectors presented no probative evidence of risk of harm. The Commonwealth Court found that applicant proved compliance with the zoning ordinance and, therefore, ?it established that its proposed use was presumptively consistent with the public welfare.? Id. at 1056. On August 3, 2016, the Supreme Court entered an order denying the petition for allowance of appeal ?led by the objectors. In EQT, the Commonwealth Court in June of this year af?rmed the Allegheny County Common Pleas Court?s granting of a conditional use for a natural gas well pad, which had been denied initially by the Jefferson Hills Borough Council. The Commonwealth Court ruled that the Borough zoning ordinance?s designation of an overlay district for 'oil and gas development evidenced a legislative decision that the use was consistent with the zoning plan and was presumptively consistent with the health, welfare and safety of the community. Conversely, the Court found that the Borough ?Council?s decision to augment the conditional use requirements based on the ERA is tantamount to an attempt to . . . abrogate the legislative determination that a conditional use for oil and gas drilling is consistent with the public health, safety and welfare, including protection of the environment.? 2017 WL 2180678 at These Commonwealth Court decisions have all rejected the foundation for Protect claims that oil and natural gas development can only be conducted in industrial zoning districts. l4 4. Permitting oil and gas development in rural and agricultural areas does not violate substantive due process. Protect PT asserts that the Zoning Ordinance fails to protect the public health, safety and welfare and therefore violates substantive due process under Article 1, Section 1 of the Constitution. Under law, an ordinance may be invalidated for violatingsubstantive due process under Article 1, Section 1 of the Constitution only if it restricts a constitutionally protected right and is not narrowly tailored to promote a compelling state interest. Khan v. State Bd. of Auctioneer Examiners, 842 A.2d 936, 946 (Pa. 2004). Consistent with due process protections, municipalities may reasonably limit constitutionally protected property rights by enacting zoning ordinances pursuant to their police power to protect or preserve the public health, safety, morality, and welfare. In re Realen Valley Forge Greenes Assocs., 838 A.2d 718, 728 (Pa. 2003). As such, ?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 bene?ts. . . in conformance with a comprehensive plan for the growth and development of the community.? In re Realen Valley Forge Greenes Assocs., 838 A.2d 718, 729 (Pa. 2003). Notably, ?[w]hether a statute is wise or whether it is the best means to achieve the desired result are matters left to the [legislative body], and not the courts. Moreover, the [legislative body] is presumed to have investigated the question and ascertained what is best for . . . the good of the people.? Khan, 842 A.2d at 947. The presumption of constitutionality may be overcome only if an ordinance is ?unreasonable, arbitrary, or not substantially related to the police power or interest that the ordinance purports to serve.? Penn St, LP. v. E. Lampeter Wp. Zoning Hr ?g 361., 84 A.3d 1114, 1120 (Pa. Commw. Ct. 2014) (quoting In re Realen, 838 A.2d at 728 (Pa. 2003)). Where an ordinance restricts a landowner?s constitutionally protected private property rights, a I 5 substantive due process inquiry requires balancing ?[the] landowners? rights against the public interest sought to be protected by an exercise of the police power.? Id. Protect generalized, abstract and unsupported claims do not constitute the concrete harm or deprivation that a party must demonstrate in order to bring a due process claim. See Ethan Michael 17. Union Wp. Bcl. of Supervisors, 108 Fed. App?x 43, 47 (3d Cir. 2004) (rejecting plaintiff?s substantive due process claim against a zoning hearing board where plaintiff was not threatened with ?concrete injury? and noting that ?suspicions and even educated guesses as to what will happen based on what has happened are simply not enoug Gorsline (adjacent landowners? questions, expressed concerns and speculation of possible harms not basis for denial of conditional use for unconventional natural gas well); and Farm, (?concerns? about impact of proposed compressor station do not equate to evidence; governing body did not abuse its discretion in approving conditional use). Even if the rights of Protect PT are somehow affected by construction, drilling and operation of the Gaia and Metis well pads, the Zoning Ordinance promotes public health, safety, and welfare of the community by requiring that any such activity comply with rigorous state and federal permitting requirements, and by supplementing those requirements with additional standards and criteria aimed at mitigating local impact. Applying the substantive due process balancing test, the Court can determine that there is no likelihood of success on this claim. B. The injunction sought by Protect PT will dramatically alter the status quo. Protect improper and misguided attempt to utilize inapplicable provisions of the MPC is a direct assault on the status quo, as it would preclude the Township Zoning Hearing Board from acting on, and Huntley and its lessors from receiving the benefit of, a decision on the Gaia and Metis Applications. Huntley filed the applications on September 11 and 12, 2017 and l6 was entitled to a public hearing within sixty (60) days. The Zoning Hearing Board is mandated by Sections 908 and 912.1 of the MPC to make (and Huntley is entitled to receive) a decision on the Gaia and Metis Applications within 45 days of the close of the public hearing. As shown by its attempt to invoke Section 915.1 of the MPC in its demand to the Zoning Hearing Board to stay the public hearings, Protect PT hasa fundamental misapprehension of what the status quo was before it ?led its motion for preliminary injunction. As eXplained in more detail below, Section 915.1 of the MPC is inapplicable now that there is no validity challenge pending before the Zoning Hearing Board. Thus, the status quo was that any land owner could apply for any type of approval under the Zoning Ordinance related to oil and natural gas development. Moreover, the standard requires that the injunction ?will restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.? Here, there was no stay in place because there is no wrongful conduct on the part of Huntley or any other landowner exercising its rights under the Zoning Ordinance and applying for required approvals. The injunction sought by Protect PT, far from restoring the status of the? parties, is nothing more than an attempt to impose a stay that is not authorized by the MPC when a validity challenge is ?led. C. The stay imposed on ?land developments? by Section 915.1 of the MPC is inapplicable to special exception applications like the Gaia and Metis Applications. Protect PT bases its position on an erroneous interpretation and misapplication of Section 915.1 of the MPC, 53 PS. ?10915.l. Critically, Section 915.1 of the MPC only provides for a stay of ?land development? activities while a substantive validity challenges is pending before the Zoning Hearing Board. There is no substantive validity challenge currently pending before the Zoning Hearing Board; thus Section 915.1 of the MPC simply does not apply. 83706.1} 17 Moreover, the MPC provides for a stay of only certain ?land development? activities, which do not include special exception applications like the Gaia and Metis Applications: Upon ?ling of any proceeding referred to in section 913.3 and during its pendency before the board, all land development pursuant to any challenged ordinance, order or approval of the zoning of?cer or of any agency or body, and all of?cial action thereunder, shall be stayed unless the zoning of?cer or any other. appropriate agency or body certi?es to the board facts indicating that such stay would cause imminent peril to life or property, in which case the development or of?cial action shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals, on petition, after notice to the zoning of?cer or other appropriate agency or body. When an application for development, preliminary or ?nal, has been duly approved and proceedings designed to reverse or limit the approval are ?led with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board. 53 RS. ?10915.l(a) (emphasis added). A substantive validity challenge is a proceeding referred to in Section 913.3 of the MPC, but the stay only applies to all ?land development? as that term is de?ned in the MPC: ?Land development,? any of the following activities: (1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving: a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or (ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features. (2) A subdivision of land. (3) Development in accordance with section 503(1 . 53 RS. ?10107 (emphasis added). The well pad activities that will be undertaken after approval of the Gaia and Metis Applications do not meet the MPC de?nition of ?land development.? There are no permanent . 8 buildings or utilities associated with the natural gas wells that will be constructed either before, during or after drilling. Because the Gaia and Metis Applications are not a ?land development,? Protect PT cannot rely on Section 915.1(a) to halt the Zoning Hearing Board?s consideration and action on the Gaia and Metis Applications.4 Consistent with this analysis, the Supreme Court has explained that the MPC does not apply when improvements to a parcel do not include a building, streets and utilities: The MPC, when viewed as a whole, clearly is intended to apply to the allocation of land in such a way that issues related to public use, water management, sewers, streets and the like must be addressed. Consistently with this focus, the case law typically involves the division of a tract of land into smaller parcels for the construction of either residential or commercial buildings. See, Kassouf v. Township of Scott, 584 Pa. 219, 883 A.2d 463 (2005) (residential subdivision); Mountain Village v. Bd of Supervisors of Longswamp 582 Pa. 605, 874 A.2d 1 (2005) (110?unit expansion of mobile home park); Meadows of Hanover Development, Inc. v. Board of Sup ?rs of South Hanover 557 Pa. 478, 734 A.2d 854 (1999) (construction of homes and commercial buildings on 221?acre tract); Shoemaker v. Lehigh 544 Pa. 304, 676 A.2d 216 (1996) (subdivision of property into 65 one-half acre residential lots); Hart v. OMalley, 544 Pa. 315, 676 A.2d 222 (1996) (increase in number of units in mobile home park); Pocono Green, Inc. v. Board of Sup ?rs of Kidder p. (Carbon County), 523 Pa. 601, 568 A.2d 612 (1990) (planned residential development). We believe that it is precisely this kind of large?scale development of land, with an inevitable and concomitant effect on the public generally, that is contemplated by the MPC and the SALDO. Upper Southampton Twp. v. Upper Southampton Wp. Zoning Hearing Bd, 594 Pa. 58, 68, 934 A.2d 1162, 1168 (2007) (emphasis added). 4The applicability of Section 915.1(a) to only land developments and not conditional uses is further reinforced by the section?s second sentence, which refers to ?when an application for development, preliminary or ?nal, has been duly approved . . . Article of the MPC, entitled ?Subdivision and Land Development?, references review and approval of plats ?whether preliminary or ?na 53 PS. ?10508. In sharp contrast, Article VI of the MPC, entitled ?Zoning?, addresses variances, special exceptions (such as the Gaia and Metis Applications) and conditional uses, but in no instance makes a distinction between preliminary and ?nal approvals. The General Assembly obviously was only concerned with halting ?land developments? when the underlying ordinance is challenged, and did not expand the stay provision in Section 915.1 beyond this deliberately chosen de?ned term. l9 Signi?cantly, the applicability of the Section 915.1 stay provision was litigated recently in Washington County, with the court rejecting the exact same stay argument asserted by Protect PT here. Citizens for Future v. Board of Supervisors 0sz?. Pleasant Township, el? al., No. 2016?4998 (C.P. Washington Co. 2014). There, Citizens for Future (?PennPuture?) filed a challenge to~ the oil and gas provisions of the Mount Pleasant Township zoning ordinance with the township?s zoning hearing board, asserting substantive validity issues virtually identical to those here. Protect counsel here, Attorney Hamilton, was co?counsel to PennFuture in the proceedings before the Mount Pleasant zoning hearing board. At the same . time, Range Resources Appalachia, LLC sought conditional use approval of what is known as the Yonker well pad from the Mount Pleasant Township board of supervisors. After PennFuture obtained an ex parte special injunction staying the conditional use proceedings, a hearing was held before President Judge Katherine B. Emery. President Judge Emery rejected the same argument made by Protect PT now, dissolved the ex parte injunction and denied PennFuture?s motion for preliminary and permanent injunction, stating: An analysis of Section 915 is critical and after extensive research on the issue, the Court ?nds that land development is an essential element to invoke the stay of proceedings and not any ?of?cial action? by the municipality as argued by Complainants. Lacking legal authority and because this Court does not ?nd that a conditional use application to be land development as considered by Section Complainants have failed to meet their burden of showing they are likely to prevail on the merits that they are entitled to a stay. (emphasis added). Appendix, Exhibit After Judge Emery dissolved the injunction, the board of supervisors proceeded to hold a public hearing on and subsequently granted approval of the Yonker well pad application, subject to a number of conditions. Thereafter, the Mount Pleasant Township zoning hearing board . 20 conducted a hearing on PennFuture?s substantive validity challenge, and, as discussed supra at page 11, rejected that challenge. In summary, despite Protect protestations to the contrary, there was no automatic stay in place halting all special eXception applications once it ?led its Substantive Validity Challenge. Only ?land developments? are subject to the stay provision in Section 915.1 of the MPC. As such, there is no basis to extend a further stay on all special exception applications now that the Substantive Validity Challenge is under appeal. To hold otherwise imposes a de facto moratorium on a legitimate land use. D. Neither Protect PT nor the general public will be harmed by the Zoning Hearing Board proceeding to conduct hearings on and render decisions on the Gain and etis Applications. Based on the foregoing, it should be readily apparent that Protect PT has failed to meet perhaps the most critical element necessary to establish its entitlement to preliminary injunctive relief having a clear right to relief and being likely to prevail on the merits.5 Nor can it establish that it or the. public at large would be irreparably harmed if the injunction it seeks is not granted. Under the MPC, Huntley has a statutory right and the Township has a statutory obligation to a publicly process the Gaia and Metis Applications. The special exception process involves published legal notice, a public hearing that may span several nights and several months, and ultimately a public vote and written decision by the Zoning Hearing Board. During these proceedings, any aggrieved party may contest the applications, cross-examine witnesses 5 At paragraph 25 of its brief, Protect PT misstates this basic and long recognized standard, asserting that the test is whether ?the party seeking the injunction my succeed on the merits?. Neither of the two cases it cites even comes close to establishing this as the standard. See Summit owne Centre, Inc. 12. Shoe Show of Rocky Mt. Inc, 828 A.2d 995, 1001 (Pa. 2003) (?the party seeking the injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits?); John G. Bryant Co. V. Sling Testing Repair, Inc, 369 A.2d 1164 (Pa. 1977) (?unless the plaintiff?s right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded?). Protect sophistry aside, it is respect?illy submitted that Protect PT would not even meet its own altered, watered?down test. and present its own evidence on, among other things, alleged adverse impacts on either the aggrieved party or the public at large. In fact, as the Court is aware, Protect PT has participated in a number of other special exception applications before the Township Zoning Hearing Board, its appeals of which are currently pending before the Court. In the case of the Gaia and Metis Applications, Protect PT presumably will similarly participate in a process that similarly will take several months, during the pendency of which Huntley will not (and legally cannot) undertake any site development or drilling activity. Simply put, no harm will befall Protect PT if the special exception process moves forward while the Substantive Validity Challenge is pending before the Court. CONCLUSION For the foregoing reasons, Protect motion for preliminary injunction should be denied. Date: October 20, 2017 Respectfully submitted, BABST, CALLAND, CLEMENTS ZOMNIR, By: Blaine A. Lucas, Esquire PA Id. No. 35344 Steven B. Silverman, Esquire PA Id. No. 56829 Robert Max Junker, Esquire PA Id. No. 201228 603 Stanwix Street Two Gateway Center, 6th Floor Pittsburgh, PA 15222 (412) 394-5400 Attorneys for Intervenor Huntley Huntley Energy Exploration, LLC 83706.1} 22 CERTIFICATE OF SERVICE I, Blaine A. Lucas, do hereby certify that a true and correct copy of the foregoing Brief of Huntley Huntley Energy Exploration, LLC in Opposition to Appellant?s Motion for Preliminary Injunction and the Appendix were served via regular mail this 20?l day of October, 2017, upon the following: Ryan E. Hamilton, Esquire air Shake Environmental Legal Services 3495 Butler Street, Suite 102 Pittsburgh, PA 15201 (Counsel for Appellant, Protect PT) John K. Sweeney, Esquire 116 North Main Street Greensburg, PA 15601 (Counsel for Appellee, Penn Township Zoning Hearing Board) Michael Korns, Esquire Avolio Law Group, LLC 117 North Main Street Greensburg, PA 15601 . (Counsel for Penn Township) (Courtesy Copy) Jeffrey G. Wilhelm, Esquire Reed Smith LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222 (Counsel for Intervenor, Apex Energy (PA), LLC) Blaine A. Lucas, Esquire 23