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March 4, 2026 Get Citation Alerts Download PDF Add Note

Protect PT & P.R. Wendell v. Twp. of Penn & Bd. of Commissioners of the Twp. of Penn v. EQT Artemis Production, LLC

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 1254 C.D. 2024
• Precedential Status: Non-Precedential

• Judges: Leadbetter

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (40.6K)

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Lead Opinion

                        by [Bonnie Brigance Leadbetter](https://www.courtlistener.com/person/8209/bonnie-brigance-leadbetter/)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT and Patricia R. Wendell, :
Appellants :
:
v. : No. 1254 C.D. 2024
: ARGUED: November 6, 2025
Township of Penn and Board of :
Commissioners of the Township :
of Penn :
:
v. :
:
EQT Artemis Production, LLC :

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: March 4 , 2026

Protect PT and Patricia R. Wendell, Objectors, appeal from the order of
the Court of Common Pleas of Westmoreland County affirming the decision of the
Penn Township Board of Commissioners and the Township of Penn, Appellees,
granting preliminary and final approval for the revised land development application
of EQT Artemis Production, LLC, Intervenor-Appellee (Applicant1), for an
unconventional natural gas well pad in the Township. We affirm.

1
Upon recent application of Olympus Energy LLC, the original Intervenor-Appellee in this
matter, the Court substituted EQT Artemis Production, LLC as Intervenor-Appellee. EQT Artemis
(Footnote continued on next page…)
In December 2021, Applicant applied for a special exception for the
construction and operation of an unconventional natural gas well pad and associated
wells, to be known as the Aphrodite Well Pad, from the Penn Township Zoning
Hearing Board (ZHB). The Aphrodite Well Pad originally was to be located on two
properties located in both the Industrial Commerce (IC) and Mineral Extraction
Overlay (MEO) zoning districts of the Township. Under the Township’s zoning
ordinance, unconventional natural gas wells are authorized by special exception in
the MEO District. Zoning Ordinance § 190-641. The ZHB conducted a hearing in
which Protect PT appeared in opposition and was granted standing over Applicant’s
objection, because of Protect PT’s previous involvement in similar matters before
the Board. Ms. Wendell, who resides on a property approximately 1.8 miles from
the well pad site, testified as a witness for Protect PT. In July 2022, the ZHB
approved the application for a special exception subject to conditions. Protect PT
appealed the ZHB’s approval of the special exception to the trial court, which
affirmed the decision. Protect PT appealed to this Court, which dismissed the appeal
as untimely. See Mem. and Order, Protect PT v. Penn Twp. Zoning Hr’g Bd. (Pa.
Cmwlth., No. 423 C.D. 2023, filed Jan. 9, 2024) (per curiam).
After the ZHB’s approval of the special exception, Applicant applied
for approval of the Aphrodite Well Pad under the Township’s subdivision and land
development ordinance (SALDO). The Commissioners granted approval of the land
development plan in October 2022; no appeal was filed from that approval.

Production is a wholly owned subsidiary of EQT Corporation, which purchased all assets of
Olympus Energy, and succeeds Olympus Energy as the proper Intervenor-Appellee.

Appellees join in Applicant’s Brief.

2
Prior to beginning the zoning and land development processes,
Applicant had applied for and was granted an erosion and sediment control general
permit (ESCGP) from the Pennsylvania Department of Environmental Protection
(DEP). After the approval of the special exception and the land development
applications, a previously unidentified stream was discovered near the approved,
original well pad site necessitating the moving/reorientation of the original site.
Although the sites as depicted on the maps appear to have considerable overlap, the
surface hole was moved approximately 178 feet and was to be located on only one
of the two properties that would have been used for the original site. Objectors’ Br.
at 9 and Exs. 1 and 2. Applicant amended its prior ESCGP plan and DEP approved
the amendment. As a result of this movement, Applicant submitted a revised request
for land development approval to the Township, which was approved by resolution
of the Commissioners subject to conditions, including that Applicant comply with
the ZHB’s special exception conditions (i.e., the conditions on the original well pad
site).
It is from this resolution that Objectors appealed to the trial court.
Applicant responded that the site changes were de minimis and did not warrant
beginning the zoning process again, and that Ms. Wendell’s residence was too far
away to establish standing. Counsel for the Township and the Commissioners
confirmed that it was the Commissioners’ belief that the change was de minimis and
did not require further approval of the ZHB. The trial court found that Objectors
lacked standing to appeal the Commissioners’ decision to grant approval of the
revised land development plan and affirmed the Commissioners’ approval.2 Upon

2
In the body of the opinion, the trial court stated that the appeal must be dismissed but
ultimately styled its order as affirming the decision of the Board of Commissioners.
(Footnote continued on next page…)

3
Objectors’ appeal to this Court, the trial court filed an opinion pursuant to Rule
1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a)
(Supplemental Rule 1925(a) Opinion), in support of its earlier opinion and order.
On appeal, Objectors raise 14 numbered questions. Objectors begin
with the substantive argument that the trial court erred in finding that they lacked
standing under a geographical proximity test and also argue that they have other
routes to standing, including under Section 715 of the Sunshine Act, 65 Pa.C.S. §
715 (relating to jurisdiction and venue of judicial proceedings), and by estoppel.
However, Objectors’ central contention is that provisions in the Township’s zoning
ordinance and SALDO required that Applicant apply to the ZHB for a new special
exception for the modified well pad site before applying for approval of the revised
land development plan, that failing to do so was a violation of those provisions, and
that the trial court erred in “relying on . . . [the original] special exception approval”
from the ZHB. In this scheme, the trial court “usurped the power of the ZHB” in
making a standing determination and erred in not finding that the ZHB had exclusive
jurisdiction to determine compliance with the zoning ordinance’s requirements.
Other issues emanate from this central contention, including that by dint of there
being no new application for a special exception, there were no proceedings
compliant with the requirements of the Pennsylvania Municipalities Planning Code3

Notably, Applicant moved for a site view and hearing on the issue of standing, which motion
Objectors opposed. The trial court denied Applicant’s motion.

3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.

4
(MPC), the Sunshine Act,4 and the Fourteenth Amendment5 to the United States
Constitution.6 Because we believe that the issue of standing is dispositive, we affirm
the trial court.
Standing Based upon Physical Proximity
In some situations, an objector will be deemed to have standing based
solely upon close physical proximity.7 In this regard, the trial court cited various
cases of this Court finding that objectors in zoning cases living one-half mile or more
from proposed developments lacked standing:

The Commonwealth Court has held that persons who live
as far away as Ms. Wendell (approximately 1.8 miles) or
even closer to proposed well pad sites do not have standing
in a zoning appeal based on their lack of geographic
proximity. Lodge v. Robinson Twp. Zoning [Hr’g] Bd.,
283 A.3d 910, 922 (Pa. Cmwlth. 2022) (property owners
2.22 miles, 1.17 and .51 miles away from a well pad do
not have standing). Objectors residing half a mile or more
from various types of proposed developments have
repeatedly been denied standing by the Commonwealth
Court. See[] Active Amusement Co. v. Zoning Bd. of
Adjustment, 479 A.2d 697 (Pa. Cmwlth. 1984) ([.5]
mile[s]); Appeal of Farmland Indus[.], Inc., 531 A.2d 79
(Pa. Cmwlth. 1987) ([.5] mile[s]); Laughman v. Zoning
[Hr’g] Bd. of Newberry Twp., 964 A.2d 19 (Pa. Cmwlth.
2009) ([0.8] . . . mile); [Soc’y] Created to Reduce Urban
Blight (SCRUB) v. Zoning Bd. of Adjustment of the City of
Philadelphia, 951 A.2d 398, aff’d as

4
65 Pa.C.S. §§ 701 - 716.

5
U.S. Const. amend. XIV.

6
The Fourteenth Amendment issue is not listed in the statement of questions presented.

7
There is no assertion that Protect PT would have anything other than derivative standing
through Ms. Wendell.

5
Spahn v. Zoning Bd. of Adjustment of the City of
Philadelphia, 977 A.2d 1132 (Pa. 2009) ([1] mile).

Trial Ct. Op. at 6. We agree with the trial court that Ms. Wendell does not live close
enough to the well pad to have automatic standing.
Nevertheless, an objector may have standing if s/he can prove that s/he
is aggrieved by the project. In appeals of land development decisions to the courts
of common pleas, as in zoning appeals, “[p]etitioners must be ‘persons aggrieved’
in order to have standing to initiate an appeal of the [b]oard of [s]upervisors'
[d]ecision.” See Whitehall Manor, Inc. v. Planning Comm. of City of Allentown, 79
A.3d 720 (Pa. Cmwlth. 2013) [quoting Application of Rouse & Assocs. Ship Rd.
Land Ltd. P'ship, 636 A.2d 231, 234–35 (Pa. Cmwlth. 1993)]. In this regard, the
Court has indicated that the “[t]he proximity necessary to confer standing varies
depending on the land use at issue.” Lorenzen v. West Cornwall Twp. Zoning Hr’g
Bd., 222 A.3d 893, 898 (Pa. Cmwlth. 2019); see also In re Broad Mt. Dev. Co., LLC,
17 A.3d 434, 440-441 (Pa. Cmwlth. 2011) (holding that property owners who
resided 1.5 miles from proposed wind turbines had standing based on testimony
concerning possible fires, health problems, incidents of flickering, and low
frequency vibrations); Grant v. Zoning Hr’g Bd. of the Twp. of Penn, 776 A.2d 356,
359 (Pa. Cmwlth. 2001) (holding that property owners who resided 1.25 miles from
proposed electric generating facility had standing where “wind and sound from the
proposed site flow to their land”).
To achieve standing on this basis, a person must be impacted negatively
or “aggrieved” in some real and direct fashion. Pittsburgh Palisades Park, LLC v.
Commonwealth of Pa., 888 A.2d 655, 660 (Pa. 2005). To be aggrieved, a person
must possess a “substantial, direct, and immediate interest” in the claim sought to be
litigated. William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269,

6
282-283 (Pa. 1975). Our Supreme Court has summarized the standard of the William
Penn test as follows:

In order to be substantial, there must be some discernable
effect or some interest other than the abstract interest all
citizens have in the outcome of proceedings. In order to
be direct, the party must show some causation of harm to
his interest. In order to be immediate, there must be a
causal connection between the action complained of and
the injury to the person challenging it.

Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132, 1151 (Pa. 2009).
Nowhere do Objectors argue that they have shown the requisite
substantial, direct, and immediate interest to establish standing before the trial court,
nor do they directly contest the trial court’s finding that there was no factual basis
showing that Ms. Wendell was aggrieved. Rather, they contend that a factual record
should have been established before the ZHB, which they assert should have first
considered a new application for a special exception on the revised well pad site. In
other words, Objectors are seeking a second bite at the apple. While we find that
Objectors’ failure to establish standing is dispositive, we will briefly address the
claim that they should be given a second chance to do so.
Process for Determining Standing
In contending that a new special exception application and hearing
before the ZHB were required to determine the threshold issue of standing, Objectors
cite the zoning ordinance’s requirement that unconventional well applications “shall
be reviewed and approved by the [ZHB] as a special exception prior to the issuance
of any required Township permits,” Zoning Ordinance § 190-641.A,8 and the

8
Section 190-641(A) of the Zoning Ordinance provides as follows:

(Footnote continued on next page…)

7
SALDO’s requirement that “[t]he land development plan shall demonstrate
compliance with all appliable requirements of this chapter and Chapter 190,
Zoning,” SALDO § 156-23.H.9,10 However, as the trial court noted:

In considering whether a new special exception was
required, it is important to keep in mind the differing
purposes of zoning ordinances and subdivision and land
development ordinances. “Special exception or
conditional use proceedings involve only the proposed use
of the land, and do not involve the particular details of the
design of the proposed development.” In re Thompson,
896 A.2d 659, 670 (Pa. Cmwlth. 2006). “Zoning only
regulates the use of land and not the particulars of
development and construction.” Id. “[A] zoning
application addresses the use of the land, while a
subdivision plan addresses how the land is to be
developed.” Bd. of Commissioners of Cheltenham Twp. v.
Hansen-Lloyd, L.P., 166 A.3d 496, 504 (Pa. Cmwlth.
2017), aff[’]d sub nom. In re Bd. of Commissioners of

Oil and gas operations, which include the drilling of oil or natural
gas wells in the MEO Mineral Extraction Overlay District, or in the
construction of compressor stations and gas processing plants in the
IC Industrial Commerce District, shall be reviewed and approved by
the Penn Township Zoning Hearing Board as a special exception
prior to the issuance of any required Township permits . . . .

Zoning Ordinance § 190-641(A).

9
Section 156-23(H) of the Penn Township SALDO provides as follows: “The land
development plan shall demonstrate compliance with all applicable requirements of this chapter
and Chapter 190, Zoning.” SALDO § 156-23(H).

10
Objectors point out that the requirements for standing in land development appeals are
different from those for zoning appeals. See Miravich v. Twp. of Exeter, 6 A.3d 1076, 1079 (Pa.
Cmwlth. 2010) (holding that the procedural requirements for establishing standing applicable to
zoning proceedings do not apply to land development appeals, which only require an objector to
show substantive standing, because the MPC does not establish equivalent requirements).
However, whether Objectors have substantive standing—a requisite for appeal under Miravich—
is the issue here.

8
Cheltenham Twp., 211 A.3d 845 (Pa. 2019) (citation
omitted).

Protect PT can point to no precedent that requires that a
new special exception must be obtained every time a
modification is made to the land development plan under
the SALDO. Whether or not the DEP considers the 178-
foot location change of the well pad a major modification
for the purpose of issuing an ESCGP-3 is irrelevant to the
question at hand. The zoning decision was made,
permitting the use of unconventional natural gas on the
property. The details of development were then refined
through the land development plans under the SALDO.
Nothing that occurred in this process runs contrary to
Pennsylvania law, and it is clear that Penn Township and
the Board considered [Applicant] in compliance with the
[Zoning] Ordinance and the SALDO, based on the two
respective grants of the land development plan
applications.

“[C]ourts ordinarily afford deference to municipalities in
interpreting their ordinances.” Mitman v. Police Pension
Comm’n of City of Easton, 972 A.2d 1276, 1282 (Pa.
Cmwlth. 2009), aff[’]d sub nom. Mitman ex rel. City of
Easton v. Police Pension Comm’n of City of Easton, 23
A.3d 527 (Pa. 2011). If Penn Township had believed that
a new special exception was required before a revised land
use plan was admitted, they could have required it. None
of the municipal entities involved appear to find that
necessary under their governing laws, and the court will
not read into the SALDO requirements that are not
articulated. The original special exception grant was
clearly adequate to support the second land use
application, in the opinion [of] the Board and the
Township. An absurd result would occur if, every time
there was a slight variation in the contents of a land use
plan, the developer was required to start over from the
beginning by once again asking the Zoning Hearing Board
for permission for a use that was already granted.

Trial Ct. Op. at 7-8. We agree.

9
Finally, Objectors at no time during the pendency of their appeal
requested a hearing in the trial court to establish standing, as Applicant asserts they
could have done pursuant to Section 1005-A of the MPC, 53 P.S. § 11005-A (“If,
upon motion, it is shown that proper consideration of the land use appeal requires
the presentation of additional evidence, a judge of the court may hold a hearing to
receive additional evidence . . . .”). Applicant argues that the failure to request a
hearing means that they have waived the right to one. Applicant’s Br. at 23 In fact,
Objectors opposed such a hearing when it was requested by Applicant. In sum,
Objectors’ argument would appear to be no more than a futile attempt to justify their
failure to make their case for standing when they had the opportunity.
Standing by Estoppel
Objectors argue that Applicant has waived the issue of standing because
during the hearing on the original well pad site, the ZHB voted to recognize Protect
PT as having standing and Ms. Wendell testified before the ZHB without objection
to her standing at that time. Further, Applicant did not subsequently challenge this
procedure by the ZHB. This, Objectors argue, collaterally and judicially estops
Applicant from asserting that they lack standing. However, before the trial court,
Applicant did argue that Objectors were not aggrieved and lacked standing to pursue
their appeal.11
As our Supreme Court recently held in South Bethlehem Associates, LP
v. Zoning Hearing Board of Bethlehem, 294 A.3d 441 (Pa. 2023):

[The a]ppellant was allowed to make its case to the zoning
board consistent with the MPC’s liberal allowance of party
status before that administrative body. But it does not
follow that the MPC or this Court’s standing jurisprudence

11
Ms. Wendell was not a party to the appeal to the trial court or this Court.

10
must recognize a right in favor of [the a]ppellant to
continue its opposition through an appeal to court . . . .

In sum, then, we hold that a party who appears before a
zoning board may only appeal an adverse decision to court
if that party has standing per this Court’s traditional
understanding of the concept.

Id. at 448. Insofar as standing to appeal to the trial court involves a different inquiry
than the determination of whether a person was able to testify before the ZHB, we
do not agree with Objectors that Applicant is estopped from challenging their
standing to appeal.
The Court need not address Objectors’ additional arguments
concerning violations of the MPC, the Sunshine Act and the Fourteenth Amendment,
given that Objectors lack standing to pursue them.12

12
Nonetheless, we note that the trial court opined with respect to the MPC and Sunshine Act
arguments as follows:

[Objectors] also allege[] that the Township violated the MPC
because there was not a public hearing with published legal notice
prior to the land development plan's approval. As discussed briefly
above regarding standing, proceedings under zoning ordinances and
SALDOs have different procedural requirements. Unlike zoning
matters which require public notice, hearing and allowance for
comment, “similar procedural protections are not required in
subdivision and land development proceedings.” Whitehall Manor,
Inc. v. Plan. Comm’n of City of Allentown, 79 A.3d 720, 727 (Pa.
Cmwlth. 2013). There was thus no legal basis to require [the]
Township to provide any type of notice and hearing before approval
of the second land development plan.

[Objectors’] final contention is that the Township violated the
Sunshine Act. The Sunshine Act generally provides that municipal
agency meetings be held open to the public. 65 Pa.C.S. § 704.
Exceptions to this general provision, however, include the holding
of “quasi-judicial deliberations.” 65 Pa.C.S. § 708(a)(5); see also
(Footnote continued on next page…)

11
Conclusion
In light of the foregoing, we affirm the order of the trial court.

BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

Kennedy v. Upper Milford Twp. Zoning Hr’g Bd., 834 A.2d 1104,
1118 (Pa. 2003). In any case, there is no requirement under the MPC
that these types of decisions about SALDO compliance
determinations require the holding of any public hearing or meeting
at all, and so there is no colorable argument that the []
Commissioners violated the Sunshine Act in making their
November 15, 2023 determination.

Trial Ct. Op. at 8-9. Once again we agree and find no merit in Objectors’ contentions.

12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Protect PT and Patricia R. Wendell, :
Appellants :
:
v. : No. 1254 C.D. 2024
:
Township of Penn and Board of :
Commissioners of the Township :
of Penn :
:
v. :
:
EQT Artemis Production, LLC :

ORDER

AND NOW, this 4th day of March, 2026, the order of the Court of
Common Pleas of Westmoreland County is AFFIRMED.

BONNIE BRIGANCE LEADBETTER,
President Judge Emerita