Plum Borough v. ZHB of the Borough of Plum

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Plum Borough, :
Appellant :
:
v. : No. 1198 C.D. 2022
: Argued: October 10, 2023
Zoning Hearing Board of the Borough :
of Plum, Penneco Environmental :
Solutions, LLC and Protect PT :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: January 29, 2024

Appellant Plum Borough (Borough) and Intervenor Protect PT (together,
Objectors) appeal from the Order of the Court of Common Pleas of Allegheny
County (common pleas) affirming the decision of the Zoning Hearing Board of the
Borough of Plum (ZHB), which granted Intervenor Penneco Environmental
Solutions, LLC’s (Penneco) application for a special exception to expand a
preexisting nonconforming use (Application). After careful review, we vacate
common pleas’ Order and remand with instructions to further remand to the ZHB to
make findings of fact and conclusions of law sufficient to grant or deny the
Application and enable appellate review.
I. BACKGROUND
At issue in this appeal is Penneco’s 69-acre property located at 1815 Old
Leechburg Road within Plum Borough (property) and zoned as Rural Residential
(RR) per the PLUM BOROUGH ZONING ORDINANCE, ORDINANCE NO. 916-17 (2017),
as amended (Ordinance). (ZHB Decision, Findings of Fact (FOF) ¶¶ 1-4.) Penneco
(or predecessor-in-interest Sedat, Inc.) has operated a production gas well on the
property since 1989. (Id. ¶ 5.) In 2016, Penneco sought permission from the United
States Environmental Protection Agency (EPA) to operate an underground injection
well (also known as an Underground Injection Control well, or UIC well) on the
property, the subject of this Court’s decision in In re Penneco Environmental
Solutions, LLC, 205 A.3d 401, 402 (Pa. Cmwlth. 2019). (See also FOF ¶ 6.) There,
we explained that “[a]n underground injection well serves to dispose of exploration
and production fluids from oil and gas operations by placing the fluids into porous
geologic formations[,] . . . [which] is subject to the oversight of the [EPA].”
Penneco, 205 A.3d at 402. (See also FOF ¶¶ 7-8.) Those fluids are also referred to
as brine. (Reproduced Record (R.R.) at 14a.) Common pleas granted site-specific
relief to Penneco as to the first proposed injection well, which was affirmed.
Penneco, 205 A.3d at 410.1

1
Penneco involved a substantive validity challenge to the Ordinance, which Penneco
alleged at the time excluded injection wells and was preempted by state and federal law. Penneco,
205 A.3d at 402-03. However, before this Court, the only issue was whether the ZHB erred in
finding the challenge not ripe for review, Penneco having not secured the approval of the EPA
and Pennsylvania Department of Environmental Protection (DEP). Id. at 403. Our decision was
limited to ripeness. Id. at 410. Because the only issue raised on appeal was ripeness, and there
was no appeal of common pleas’ merits determination that the then-current zoning ordinance
was exclusionary, the effect of our decision was to affirm common pleas’ order granting site-
specific relief as to the well at issue in that litigation. (See FOF ¶ 18.)

2
 After securing the necessary approval from the EPA and the Pennsylvania
Department of Environmental Protection (DEP), Penneco began operating a UIC
well on the property. (FOF ¶¶ 18-19.) Specifically, it converted a well it refers to
as “Sedat 3A” from a natural gas production well to an injection well. (R.R. at 17a,
164a.) In November 2021, Penneco submitted its Application, styled as a “Special
Exception Application . . . for the expansion of a non[]conforming use,” seeking to
“add another [UIC well] and observation well to be serviced by the already[ ]existing
. . . [f]acilit[ies].” (Id. at 155a; FOF ¶¶ 22-23.) The Application refers to the
proposed injection well as “Sedat 4A.” (R.R. at 17a, 164a.)
The ZHB held a hearing on the Application in January 2022. Penneco called
its Chief Operating Officer Ben Wallace (Wallace), who testified that “much of the
brine in Pennsylvania is exported to Ohio. So, there is [sic] millions of gallons of
brine moving around the state, and there are only a few injection wells in
Pennsylvania that accept these brines.” (Id. at 15a.) Wallace further explained that
Penneco’s “customers could easily deliver us more fluid. We are constrained by our
ability to receive fluid” and “have our customers currently rationed on the amount
of fluid that they can bring us on a daily basis.” (Id. at 22a.) He also testified that
Penneco would benefit from having both wells be UIC wells. (Id. at 25a.) That is
because, in part, Penneco could service customers more effectively if it could
“operate either well in the event that either well is being serviced,” which he referred
to as creating an important “redundancy” in its UIC well operations. (Id.) Wallace
also indicated no new roads would be required, but the pipeline would have to be
replaced with a new injection pipeline. (Id. at 18a.) He further testified that the EPA
application for the proposed injection well was administratively complete, and he
expected the EPA to schedule hearings on that application within six months. (Id.

3
at 26a.) He explained that bringing the proposed injection well online would
increase its capacity by 50%, from the then-30 loads to 45 loads per day. (Id.)
Wallace also confirmed there would be no additional noise from the injection well
itself, but an increase in truck traffic could increase the noise level. (Id. at 27a-28a.)
Protect PT called witnesses to testify about their concerns regarding
Penneco’s current operations and the contemplated expansion thereof. One
community member testified that she has had issues with air quality and water
quality since July 2021, for which she requested a report from Duquesne University
and filed a complaint with DEP. (Id. at 62a.) She indicated she filed a complaint
with the Borough related to water, air quality control, and truck traffic, with
Allegheny County related to air quality, and with the state police related to truck
traffic. (Id. at 62a-63a.) She testified further that since the injection well began
operating, truck traffic has increased, sometimes a truck every 30 minutes in the
middle of the night. (Id. at 63a.) Moreover, she testified to “a chemical odor in the
air that has caused headaches.” (Id.) Generally, she indicated that she is “just
concerned for [her] health, for [her] family’s health, [and] for the community’s
health.” (Id. at 64a.)
Two other residents who live on the same road as the property testified. One
indicated concerns about his property becoming “swampy,” and truck traffic
“com[ing] up and down that road 24 hours a day.” (Id. at 110a-11a.) Another
community member indicated that “we have had some very bad acid odors that will
make your eyes water, [create a] bad taste in your mouth. We actually had to leave
at times[] because it is so bad.” (Id. at 111a.) He also testified about his concerns
regarding light and noise from the property, as well as truck traffic. (Id. at 111a-
12a.)

4
 Another resident testified as to his concerns with residential properties being
within 500 feet of the property. (Id. at 114a.) Yet another resident testified to the
“mental anguish” resulting from the increased truck traffic and lost sleep. (Id. at
115a.) Another community member testified that, at one point, his water began
tasting like mold. (Id. at 67a.) He explained that he called Penneco’s president for
help, who brought water and ultimately made arrangements for “water buffaloes” to
supply water. (Id. at 67a-68a.) He said that in “40 years of drinking water from that
spigot, [he] never had an issue prior to them working across the street.” (Id. at 69a.)
He also expressed a concern about the increased truck traffic. (Id.)
Finally, Protect PT called registered nurse Laura Dagley who serves as
“medical advocacy coordinator for Physicians for Social Responsibility.”2 (Id. at
77a.) She testified that she had “reviewed dozens of studies, health studies, as well
as EPA and DEP documents and studies, just over the course of [her] working years
and in preparation for this.” (Id. at 78a.) She testified about the relationship between
air quality and health, (id. at 84a), and chemicals from fracking and their negative
health impacts, (id. at 85a), as well as chemicals present in fracking wastewater that
might cause health problems, (id. at 87a-92a).
The Borough called Tysen Miller, who had served as Borough engineer for
the past 30 years. (Id. at 116a.) He testified that the proposed UIC well is
approximately 325 feet away from the nearest property line, and approximately 430
feet from the nearest existing structure. (Id. at 117a.)
At the end of the hearing, Timothy Joyce, a member of the ZHB, commented
that

2
Penneco objected to qualifying Dagley as an expert after a brief voir dire as to her
qualifications. (R.R. at 80a-83a.) The ZHB took the objection under advisement, permitted her
to testify, and did not ultimately rule on the objection. (Id. at 83a.)

5
 no matter what we rule tonight as a local [ZHB], it doesn’t matter. This
was a formality. . . . So, I am going to make a motion to vote yes on
the motion [to approve the Application], because to do otherwise would
be a waste of money to the taxpayers of Plum Borough and to the
manpower of Plum Borough, because we would be turned over in court
anyway.

(Id. at 120a-21a.)
Another ZHB member, Andy Zarroli, stated, “we can’t stop this, we can’t
regulate it, and we can’t prevent this expansion,” echoing Joyce’s characterization
of the proceeding as “a formality that Penneco has to go through.” (Id. at 122a.)
Finally, Michelle Chapkis, chairperson of the ZHB, explained to those in
attendance that “we have been informed that this is not a special exception . . . [so]
all the various elements in the [O]rdinance, and in Section 403 [of the Ordinance,
ORDINANCE, § 403,] under special exception, that, indeed, is not applicable this
evening.” (Id. at 124a.) The ZHB then voted to approve Penneco’s Application.
(Id. at 126a-27a.)
The ZHB issued a written decision. In its findings of fact, the ZHB found that
Penneco presented evidence that the new injection point and observation well would
require no new roads and no new construction, as the footprint of its operation would
not change, and the necessary changes would occur underground. (FOF ¶¶ 25-26,
29.) Further, it found that Penneco predicted that truck traffic to its property would
increase from 30 to 45 loads per day, and that its product capacity would increase
by 50% as a result of the proposed expansion. (Id. ¶¶ 27-28.) The ZHB explained
that such use qualifies as “a preexisting nonconforming use because . . . [it]
commenced prior to the adoption of the current Ordinance.” (Id. ¶ 20.)3

3
The Borough adopted its current Ordinance regulating injection wells on December 11,
2017. (Original Record (O.R.) Item 10.) Penneco applied to convert the first injection in March
2016, well prior to the Ordinance’s adoption. Penneco, 205 A.3d at 403.

6
 The ZHB observed that the Ordinance, consistent with Pennsylvania law,
gives landowners the right to apply to expand preexisting nonconforming uses made
“necessary by the natural expansion and growth of trade.” (Id. ¶¶ 32-33 (quoting
Section 1002(C) of the Ordinance, ORDINANCE, § 1002(C)).) Subsection C of
Section 1002 of the Ordinance is entitled “Expansion or extension of nonconforming
use,” and provides in relevant part:

No . . . nonconforming use shall be enlarged or increased or extended
to occupy a greater lot area than was occupied at the effective date of
adoption or amendment of this Ordinance, unless the ZHB shall
interpret that the enlargement or extension is necessary by the natural
expansion and growth of trade of the nonconforming use. For the
purposes of determining if an enlargement or expansion . . . meets this
requirement, the applicant shall file an application for Special
Exception pursuant to the requirements of Article IV of this Ordinance.
The applicant must meet all the applicable requirements and criteria of
Article IV in addition to providing evidence that the enlargement or
extension is necessitated by the natural expansion and growth of trade
of the nonconforming use.

ORDINANCE, § 1002(C)(2).4
The ZHB’s Decision, which was captioned as addressing Penneco’s
“Application for Variance,” described the Application as a “request to permit the
expansion of a nonconforming use.” (ZHB Decision at 5.) The ZHB summarily
determined that Penneco met its burden of proving that adding another UIC well was
“a natural expansion of [Penneco’s] current existing non[]conforming use and is
necessary for the growth of its trade.” (FOF ¶ 37.) However, the ZHB also stated
that its members, as “residents of the Borough [were] gravely concerned with
[Penneco’s] use of the property” but felt “constrained under the law to allow” the

4
(O.R. Item 10.)

7
new injection well. (Id. ¶ 39.) The Borough appealed the ZHB’s decision to
common pleas.
Taking no new evidence, and relying substantially on the logic of the ZHB’s
decision, common pleas affirmed. (Common Pleas’ Opinion at 4.) Notably,
common pleas did not analyze the extent to which the special exception requirements
applied. (Id.) The Borough then filed the instant appeal to this Court.

II. PARTIES’ ARGUMENTS
A. The Borough

The Borough begins by noting that applicants must satisfy a zoning
ordinance’s specific requirements for a special exception. The Borough points out
that Section 1002(C)(2) of the Ordinance cross references the requirements of
Article IV for special exceptions, concluding that “all of the requirements contained
in Article IV . . . [are] applicable to Special Exceptions filed for the expansion of a
nonconforming use before the ZHB.” (Borough’s Brief (Br.) at 29.) It argues that
if all of the requirements are applicable, Article IV’s special exception requirements
for injection wells, (Section 434(A)-(N) of the Ordinance, ORDINANCE, § 434(A)-
(N)), apply, requiring a “traffic study, noise management plan, environmental impact
analysis, air quality study, hydrological study, geological study, and Pre-
Development and Post-Development Soil Testing.” (Borough’s Br. at 31). It also
submits that Penneco failed to prove that its growth of trade required expansion of
its nonconforming use. (Id. at 32-33.) Accordingly, in the Borough’s view, the ZHB
erred in not “properly analyz[ing] or consider[ing] in [its] Findings of Fact and
Conclusions of Law” the above requirements. (Id. at 33.)

8
 Second, the Borough argues that Section 1002(C)(1) of the Ordinance, which
prohibits, generally, the extension, expansion, or moving of any nonconforming use,
bars Penneco from “moving” a nonconforming use, though the Borough does
acknowledge that subsection (C)(2) is an exception to that general rule. (Id. at 36.)
It nonetheless argues that because “an injection well does not currently exist at the
proposed location . . . the [Ordinance] estops Penneco’s proposed expansion into a
new area of the subject property.” (Id.)
It then turns to the specific setback requirements in Section 434 of the
Ordinance, which require well operations to be located no fewer than 500 feet from
the nearest property line. (Id. at 37.) The Borough argues that because the proposed
location for the new injection well is less than 500 feet from property lines, the
expansion violates Section 434’s setback requirements. (Id.)

B. Protect PT

Protect PT’s arguments largely track those of the Borough. It emphasizes that
Section 405 of the Ordinance, ORDINANCE, § 405, which applies to all special
exceptions, requires traffic studies and a showing that the proposed use will not
cause a public health or safety hazard. (Protect PT’s Br. at 9-10.) Protect PT reasons
that the Ordinance required Penneco to submit a conditional use application by way
of Section 434(C)(8), which provides that “[c]hanges in the site plan, including . . .
any expansion of the ground surface area used and/or devoted towards drilling
operations, requires a new conditional use approval. . . .” (ORDINANCE, § 434(C)(8).)
Protect PT also believes that the natural expansion doctrine does not apply to
Penneco, setting forth three distinct reasons. First, “[i]f Penneco is considered to be
changing the use of its current production well on the property into an injection well,

9
then that change is not sufficiently similar to invoke the doctrine of natural
expansion.” (Protect PT’s Br. at 16.) Protect PT appears to characterize the
nonconforming use in general as the operation of production wells, as it states “[i]f
Penneco is arguing that [it is] expanding [its] non[]conforming use to the existing
production well, then [it is] impermissibly changing the use of that well, because an
injection well is not ‘sufficiently similar’ to the current production well.” (Id. at 20.)
Protect PT also asserts that expansion of nonconforming uses is subject to setback
requirements, and that applicants must seek a variance where the nonconforming use
would violate a dimensional requirement of an ordinance. (Id. at 21.) It argues that
“Penneco could potentially be considered to be moving the location of the current
injection well to a new location on the same property,” which in Protect PT’s view,
is not permissible. (Id. at 22.)
Finally, Protect PT asserts that the natural expansion doctrine does not permit
uses that “would have an adverse impact on the public’s health, safety, or welfare.”
(Id. at 24.) It argues that record evidence from the hearing shows that the expansion
is injurious to public health and safety, and that Penneco failed to prove otherwise.
(Id.)

C. Penneco

Penneco argues that the ZHB correctly interpreted the Ordinance to not
require the Article IV requirements to which Objectors point, and that the ZHB’s
interpretation is entitled to deference. (Penneco’s Br. at 17.) In its view, because
Penneco seeks expansion of a preexisting, nonconforming use and not a new special
exception or conditional use, Article IV of the Ordinance does not apply. (Id. at 18.)
Penneco roundly rejects the Borough and Protect PT’s argument that Section

10
1002(C)(1) of the Ordinance applies, noting that it is “simply incorrect” that Penneco
is moving a nonconforming use—it is expanding one. (Id. at 19.) It asserts that the
only applicable provision of Article IV is strictly procedural, namely Section 404 of
the Ordinance, ORDINANCE, § 404 (“Special Exception Procedure for Approval”).
(Id. at 20.) It is entitled, Penneco argues, to expansion of its nonconforming use
under Pennsylvania law. (Id. at 21.) It asserts that the ZHB’s interpretation of the
Ordinance is the only correct one because application of the irrelevant provisions of
Article IV would render Penneco’s right to natural expansion “meaningless.” (Id. at
22.) Penneco also urges this Court to disregard “[a]ny attempt to misconstrue
Penneco’s [A]pplication before the ZHB as seeking a change in use . . . because
Penneco made no such application.” (Id. at 23.)
Penneco argues that the ZHB correctly concluded that the nonconforming use
here will not be detrimental to public health, safety, or welfare. (Id. at 25, 29-31.)
In its view, the Borough and Protect PT had the opportunity to cross-examine
Penneco’s witness and put forth their own evidence. Penneco asserts that “[a]fter
consideration of the substantial evidence presented, the ZHB appropriately weighed
it and reached a conclusion.” (Id. at 25.) Penneco also argues that sufficient
evidence supports the ZHB’s finding that expansion is necessary for Penneco’s
business based on increase in customer demands and inability to meet customers’
needs without expansion. (Id. at 26-28.)

III. DISCUSSION
A. Standard of Review

When common pleas takes no additional evidence, we must limit our review
to whether the ZHB “committed an abuse of discretion or an error of law.”

11
Harrisburg Gardens, Inc. v. Susquehanna Twp. Zoning Hearing Bd., 981 A.2d 405,
410 (Pa. Cmwlth. 2009). We will find that a ZHB has abused its discretion where it
has made factual findings that are not supported by substantial evidence. Bene v.
Zoning Hearing Bd. of Windsor Twp., 550 A.2d 876, 879 (Pa. Cmwlth. 1988). We
apply this deferential standard of review because we do not sit as “a super [zoning
hearing board]” and thus “[t]he necessity must be clear before there is justification
for judicial interference with the municipality’s exercise of its zoning power.”
Robert Louis Corp. v. Bd. of Adjustment of Radnor Twp., 274 A.2d 551, 555 (Pa.
Cmwlth. 1971).
Where a zoning hearing board’s interpretation of its ordinance is at issue, we
must “begin[] with examination of the text itself.” Gouwens v. Indiana Twp. Bd. of
Supervisors, 260 A.3d 1029, 1037-38 (Pa. Cmwlth. 2021). As a general rule, “a
zoning board’s interpretation of its zoning ordinance is to be given great weight as
representing the construction of a statute by the agency charged with its execution
and application.” In re Brickstone Realty Corp., 789 A.2d 333, 339 (Pa. Cmwlth.
2001). However, we will not defer to a zoning hearing board’s interpretation where
such interpretation is “clearly erroneous,” and generally, a board’s failure to heed
the plain text of the ordinance amounts to legal error which this Court will not ignore.
Gouwens, 260 A.3d at 1037-38.

B. Applicability of the Doctrine of Natural Expansion

A threshold issue is whether the doctrine of natural expansion applies in the
first instance.5 In its supplemental brief, the Borough largely reiterates the

5
On November 14, 2023, the Court requested supplemental briefing on the applicability
of two cases: Pennridge Development Enterprises, Inc. v. Volovnik, 624 A.2d 674 (Pa. Cmwlth.
(Footnote continued on next page…)

12
arguments it advanced in its opening brief. Protect PT argues in its supplemental
brief that Pennridge Development Enterprises, Inc. v. Volovnik, 624 A.2d 674 (Pa.
Cmwlth. 1993), and Smith v. Zoning Hearing Board of Conewago Township, 713
A.2d 1210 (Pa. Cmwlth. 1998), are not applicable to the resolution of this case. First,
it points out that the UIC use is not permitted by conditional use in the RR district,
so the ZHB did not err in concluding the doctrine of natural expansion applied in the
first instance. However, it emphasizes that “a nonconforming use is not entitled to
greater rights tha[n] those afforded a conforming use.” (Protect PT’s Supplemental
Br. at 9 (quoting Pennridge, 624 A.2d at 677).) It flows from that proposition, it
argues, that not requiring Penneco to comply with all conditional use criteria would
amount to “afford[ing Penneco] greater rights than those afforded to a conforming
use.” (Id.) In its supplemental brief, Penneco points out that UIC wells are only
allowed by conditional use in the Heavy Industrial (HI) zoning district. Because the
UIC use on the property remains a preexisting, nonconforming use, and it remains
prohibited in the RR district, it argues Pennridge and Smith do not apply.6
With these arguments in mind, we turn to the relevant law. The doctrine of
natural expansion is as old as Euclidean zoning itself.7 Almost a century ago, our
Supreme Court explained that where a given use of property predates a zoning
ordinance purporting to restrict that use,

the [municipality is] without power to compel a change in the nature of
the use, or prevent the owner from making such necessary additions to
the existing structure as were needed to provide for its natural

1993), and Smith v. Zoning Hearing Board of Conewago Township, 713 A.2d 1210 (Pa. Cmwlth.
1998). (Order 11/14/23.)
6
Penneco’s supplemental reply brief largely reiterates points it made in its initial brief.
7
1927 is the year the Pennsylvania Supreme Court, citing Village of Euclid, Ohio v. Ambler
Realty Co., 272 U.S. 365 (1926), upheld a zoning ordinance in Appeal of Ward, 137 A. 630 (Pa.
1927), ushering in zoning regulation in the Commonwealth as we know it today.

13
 expansion and the accommodation of increased trade, so long as such
additions would not be detrimental to the public welfare, safety[,] and
health.

In re Gilfillan’s Permit, 140 A. 136, 138 (Pa. 1927).
In the leading case on this issue, Silver v. Zoning Board of Adjustment, 255
A.2d 506 (Pa. 1969), our Supreme Court struck down as unconstitutional a zoning
ordinance which prevented the expansion of nonconforming apartment buildings. In
Silver, the owner of an apartment building desired to increase the number of units in
the building from 46 to 50, which “would be accomplished . . . by subdividing larger
apartments[,]” and the zoning board there denied a permit to do so, looking to the
zoning ordinance. Id. at 507. In holding for the apartment building owner, the
Supreme Court concluded that “the tenor of [its prior] decisions [is] that the right of
natural expansion is a constitutional right protected by the due process clause.” Id.
Of course, to trigger the right recognized in Silver, the property owner must
be able to demonstrate the use in question amounts to a preexisting, nonconforming
use in the first instance. A nonconforming use is one that “does not comply with
present zoning provisions but which existed lawfully and was created in good faith
prior to the enactment of the zoning provision.” Pennridge, 624 A.2d at 675.8 We
have explained, “[a] lawful nonconforming use is a vested property right which
cannot be abrogated or destroyed unless it is a nuisance, or it is abandoned by the
owner, or it is extinguished by eminent domain.” Id. That said, “[t]here is no
constitutional right to require that a municipality maintain a use as nonconforming.”
ROBERT S. RYAN, PA. ZONING LAW & PRAC. § 7.4.6 (2022). Therefore, if a
municipality changes a zoning ordinance to allow a given use by conditional use

8
The Ordinance tracks this definition: a “use . . . that does not comply with the applicable
provisions in this Ordinance . . . , where such use was lawfully in existence prior to the enactment
of this Ordinance[.]” Section 202 of the Ordinance, ORDINANCE, § 202.

14
where it was once not allowed, the property can no longer be characterized as a
nonconforming use to which the doctrine of natural expansion is applicable. Smith,
713 A.2d at 1213; Pennridge, 624 A.2d at 676.
Here, the Ordinance, enacted in 2017, does allow UIC wells as a conditional
use in the Borough. Section 318 of the Ordinance, ORDINANCE, § 318; Table of
Authorized Uses (Table 11).9 However, it only allows them as a conditional use in
the HI zoning district, not in the RR district at issue in this Application. Section 315
of the Ordinance, ORDINANCE, § 315; Table 11. The UIC well currently in existence
at the property was not permitted by the zoning ordinance in effect when common
pleas granted site-specific relief. Penneco, 205 A.3d at 402-04. And because the
Ordinance still does not permit UIC wells in the RR district, the UIC well use on the
property remains a preexisting, nonconforming use. As such, the doctrine of natural
expansion does apply in this instance. Cf. RYAN, PA. ZONING LAW & PRAC. § 7.4.6.

C. Necessity of the Expansion
Having concluded this case implicates the natural expansion doctrine, we next
address the Borough’s argument that the ZHB erred in concluding Penneco’s
proposed expansion is necessary to support the expansion of its growth or trade
where, in the Borough’s view, substantial evidence did not support that finding.
The right to natural expansion of an existing nonconforming use “must be
shown to be needed to provide for natural expansion and the accommodation of
increased trade.” Harrisburg Gardens, Inc., 981 A.2d at 411-12 (declining to invoke

9
Notably, while UIC wells are permitted as a conditional use only in the HI district, Oil
and Gas Compressor Stations, Oil and Gas Processing Plans, and Oil and Gas Wells/Pads are
permitted as conditional uses in the RR zoning district, as well as the Light Industrial and HI
zoning districts. Table 11.

15
the doctrine of natural expansion where record was “bereft of any evidence . . . as to
the necessity of the activity at issue as an element of the purported expansion”)
(emphasis in original) (internal quotation marks and citation omitted). We have
explained that “the expansion or modernization [must be] a matter of necessity for
the business rather than merely to take advantage of an increase in business” for the
doctrine to be triggered. Richards v. Borough of Coudersport Zoning Hearing Bd.,
979 A.2d 957, 967 (Pa. Cmwlth. 2009) (citation omitted). The prerequisite that the
expansion be a matter of necessity derives from the Silver Court’s explanation that
“it is inequitable to prevent [a landowner] from expanding [an existing
nonconforming use] as the dictates of business or modernization require.” Silver,
255 A.2d at 507 (emphasis added).
Accordingly, for a zoning hearing board to find the doctrine of natural
expansion applicable in a given scenario, it must make sufficient findings of fact to
support a conclusion that the expansion is necessary. Section 908 of the
Pennsylvania Municipalities Planning Code10 (MPC) requires that “each decision
[of a zoning hearing board] shall be accompanied by findings of fact and conclusions
based thereon with the reasons therefor.” 53 P.S. § 10908(9) (emphasis added).
We have explained that zoning hearing boards must present “essential findings of
fact, conclusions of law, and sufficient rationale to demonstrate that its action was
reasoned and not arbitrary.” Taliaferro v. Darby Twp. Zoning Hearing Bd., 873
A.2d 807, 816 (Pa. Cmwlth. 2005) (emphasis added).
We find ourselves in a similar position to that of the Court in Mill-Bridge
Realty, Inc. v. Manchester Township Zoning Board of Adjustment, 286 A.2d 483 (Pa.

10
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9).

16
Cmwlth. 1972). There, in the context of a zoning hearing board’s grant of special
exceptions, President Judge Bowman observed that

on the present state of the record, we cannot properly exercise even our
limited function of review, for while we have an ample record before
us containing the complete testimony presented to the [zoning hearing
board] as well as the exhibits . . . we are unable to determine on what
basis the [zoning hearing board] made its decision. Were we to make
an independent review of the record and to make a decision . . . we
would be assuming the role assigned to the [zoning hearing board].

Id. at 485 (emphasis added). Notably, the Mill-Bridge Court explained that even
though the appellant there had not specifically based its argument on Section 908(9)
of the MPC,11 the Court could “[]not ignore this failure[,] as compliance by the
[zoning hearing board] is essential to our reviewing responsibility[,]” reasoning that
the Court could not “assess the substantive merits of the appeal absent such
findings.” Id. at 486. Therefore, it remanded the matter to the court of common
pleas with instructions for that court to remand to the zoning hearing board to comply
with Section 908(9) and make the required findings.
Here, the ZHB, in a conclusory fashion, stated that Penneco “met its burden
when it provided competent evidence that the addition of another injection point . . .
is a natural expansion of the current existing non[]conforming use and is necessary
for the growth of its trade.” (FOF ¶ 37.)12 However, the ZHB made no factual
findings, nor did it explain its reasoning, to support that conclusion. The ZHB did
not specify which “competent evidence” it credited with respect to this issue. And

11
The relevant text of Section 908(9) has remained unchanged since the Court’s decision
in Mill-Bridge. See Mill-Bridge, 286 A.2d at 485.
12
Although the ZHB does not distinguish between findings of fact and conclusions of law
in its Decision, it is clear that paragraph 37 is a conclusion of law, as it applies a legal principle to
a particular set of facts.

17
while Penneco points to evidence in the record that might elucidate the ZHB’s
conclusion, the bottom line is that the ZHB has not made sufficient findings of fact
for us to engage in meaningful appellate review as to this conclusion. For us to comb
through the record for evidence on which the ZHB made no findings or credibility
determinations would require us to act as fact finder and abandon our proper, limited
role as an appellate tribunal. We decline to do so.
In sum, just like the Mill-Bridge Court, we have a record before us, but we are
unable to meaningfully review the ZHB’s legal conclusion as to necessity of the
expansion because the ZHB made no specific findings to support that conclusion,
nor did it spell out its reasons for arriving at it. Accordingly, we must remand to
common pleas with instructions to remand to the ZHB to make adequate findings of
fact, and in its discretion, to take additional evidence, to support a conclusion as to
the necessity of the expansion of the nonconforming use, Harrisburg Gardens, Inc.,
981 A.2d at 411-12, and to fully explain its reasoning, 53 P.S. § 10908(9). Put
simply, in the absence of factual findings and reasoning, we are unable to determine
whether the ZHB’s conclusion is the product of principled reasoning or mere
arbitrariness. Taliaferro, 873 A.2d at 816.

D. Applicability of Article IV’s Special Exception Requirements
We next consider the extent to which, under the natural expansion doctrine,
Article IV’s special exception requirements apply in the instant matter. The Silver
Court was careful to reiterate, consistent with Gilfillan’s Permit, that the right to
natural expansion “is not unlimited . . . [; t]he contemplated expansion must not be
detrimental to the public health, welfare, and safety. We have never questioned the
right of a municipality to impose reasonable restrictions on the expansion of a

18
non[]conforming use.” Silver, 255 A.2d at 507 (footnotes omitted) (emphasis
added). It made clear that a “municipality certainly can condition such expansion
on certain prerequisites and standards necessary for the preservation of the
health, safety[,] and welfare of the community.” Id. at 508 (emphasis added). See
also Tuckfelt v. Zoning Bd. of Adjustment of City of Pittsburgh, 471 A.2d 1311,
1314-15 (Pa. Cmwlth. 1984) (affirming denial of special exception for expansion of
nonconforming use where substantial evidence supported conclusion that such
expansion would be “detrimental to the public health, morals, safety, and general
welfare of the neighborhood”). In addition, “nonconforming use[s are] not entitled
to greater rights tha[n] those afforded a conforming use[.]” Pennridge, 624 A.2d at
677.
Special exceptions, we have said, are neither special, nor are they exceptions;
rather they are “conditionally permitted use[s], legislatively allowed if the standards
are met.” Siya Real Est. LLC v. Allentown City Zoning Hearing Bd., 210 A.3d 1152,
1157 (Pa. Cmwlth. 2019) (quoting Bray v. Zoning Bd. of Adjustment, 410 A.2d 909,
911 (Pa. Cmwlth. 1980)). Section 912.1 of the MPC states that where a zoning
ordinance provides that special exceptions “be granted or denied by the board
pursuant to express standards and criteria, the board shall hear and decide requests
for such special exceptions in accordance with such standards and criteria.” 53 P.S.
§ 10912.1.13 It follows, then, that a prerequisite to meaningful appellate review in
the special exception context is that “there must be findings and conclusions . . .
concerning[, inter alia,] . . . . whether all [] objective requirements of the [o]rdinance
for a special exception have been or will be met[] and whether the proposed use
would be against the best interests and welfare of the community.” Allied Servs. for

13
Section 912.1 was added by Section 91 of the Act of December 21, 1988, P.L. 1329.

19
the Handicapped, Inc. v. Zoning & Hearing Bd. of City of Scranton, 459 A.2d 60,
62 (Pa. Cmwlth. 1983). Remand is appropriate for a zoning hearing board to make
the appropriate findings of fact and conclusions of law where they are absent. Id.
We note that municipalities often require applicants to proceed via special
exception to expand a nonconforming use. See, e.g., Bernotas v. Zoning Hearing
Bd. of City of Bethlehem, 68 A.3d 1042, 1046 (Pa. Cmwlth. 2013) (relevant
ordinance provided for nonconforming use expansion to proceed under special
exception though applicant there ultimately needed to seek variance); Domeisen v.
Zoning Hearing Bd. of O’Hara Twp., 814 A.2d 851, 855 (Pa. Cmwlth 2003)
(applicant seeking expansion of nonconforming use proceeded under special
exception and variances); Tuckfelt, 471 A.2d at 1314 (applicant seeking expansion
of nonconforming use proceeded under special exception and was required to
comply with requirements applicable to all special exceptions). A municipality’s
choice to require applicants to proceed under a special exception to expand a
nonconforming use is consistent with the Silver Court’s observation that
municipalities may require that applicants satisfy certain conditions as prescribed
in an ordinance as a condition to expansion. See Silver, 255 A.2d at 507 (“We have
never questioned the right of a municipality to impose reasonable restrictions on
the expansion of a non[]conforming use.”) (emphasis added).
We now turn to the Ordinance itself. The logical place to start is Article X of
the Ordinance, which pertains to “Nonconforming Uses, Structures, and Lots.”
Section 1002(C)(1) provides, in general that

no nonconforming use may be extended or expanded in any building or
structure, or in or on the lot on which it is located, nor may any
nonconforming use be moved to a different location upon the lot on
which it is located, so as to alter the use or location which existed at the
time the use became nonconforming.

20
ORDINANCE, § 1002(C)(1).
However, Section 1002(C)(2) provides the exception to that general rule and
explains, consistent with Silver, that “no such nonconforming use shall be enlarged
or increased or extended to occupy a greater lot area . . . unless the ZHB shall
interpret that the enlargement of or extension is necessary by the natural
expansion and growth of trade of the nonconforming use.” Id., § 1002(C)(2)
(emphasis added). The Ordinance then directs those seeking to invoke the
“expansion and growth of trade” exception to file

an application for Special Exception pursuant to the requirements of
Article IV. . . . The applicant must meet all the applicable
requirements and criteria of Article IV in addition to providing
evidence that the enlargement or extension is necessitated by the natural
expansion and growth of trade of the nonconforming use.

Id. (emphasis added).
Thus, at the outset, we note that Penneco began by proceeding under Article
IV, as it styled its Application as a request for a special exception, as directed by the
Ordinance. (R.R. at 155a.)14
Consistent with the requirements under Section 1002(C)(2), we must turn to
Article IV of the Ordinance titled “Express Standards and Criteria for Special
Exceptions and Conditional Uses,” to determine specifically which requirements
from Article IV apply here. Section 404 sets forth procedural requirements for
applicants seeking a special exception, and relevant here, it also explains that the
applicant has the burden of proving “that the proposed use is authorized as a use by
Special Exception and satisfies the specific or objective requirements for the grant

14
Despite the plain text of the Ordinance and the language on the face of the Application,
the ZHB came to believe that the Application was not for a special exception, but rather a variance.
(ZHB Decision at 5 n.1.)

21
of a use by Special Exception as set forth in this Ordinance.” ORDINANCE,
§ 404(A)(6).15 It also purports to require the applicant to “demonstrate that the
request is not detrimental to the health, safety, and welfare of the neighborhood.”
Id. Section 405 sets forth “General Standards for all Conditional Uses and Special
Exceptions.” Id., § 405 (emphasis added). It requires, inter alia, that the applicant
“establish by credible evidence that the application complies with all applicable
requirements of this Ordinance.” Id., § 405(A)(2). It also requires the applicant to
show “that the traffic from the proposed use will be accommodated in a safe and
efficient manner . . . .” Id., § 405(A)(5). It states that “[t]he proposed use shall not
create a significant hazard to the public health[,] safety, and welfare.” Id.,
§ 405(A)(7).
Pausing here, we observe that the ZHB made no findings with respect to
traffic beyond its saying that Penneco’s representative testified that no new road

15
In Bray, Judge Craig explained in detail how the burdens of proof and persuasion operate
and shift in the special exception context. There, we explained that as to specific requirements
and objective criteria for a special exception, applicants bear both the burden of production and
the burden of persuasion. 410 A.2d at 913. In general, objectors bear both burdens with respect
to “general detrimental effect” (including health, safety, and welfare considerations), and while a
given ordinance might purport to shift both burdens to the applicant, it can only validly shift the
burden of persuasion to the applicant, not the burden of production. Id. Finally, with respect to
general policy concerns (like harmony with the spirit of an ordinance), objectors, invariably and
without exception, bear both burdens. Id. We more recently summarized:

[I]f a requirement is interpreted as one upon which the burden is placed on an
applicant, but the requirement is nonobjective or too vague to afford the applicant
knowledge of the means by which to comply, the requirement is either one that is
not enforceable . . . , or, if it relates to public detriment, the burden shifts to an
objector, who must demonstrate that the applicant’s proposed use would constitute
such a detriment.

Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202, 1213 (Pa.
Cmwlth. 2014).

22
would be necessary and that “truck traffic is estimated to increase from 30 to 45
loads per day.” (FOF ¶¶ 26-27.) It made no specific finding with respect to health,
safety, and general welfare.16 Without any findings as to several requirements for
a special exception, we are unable to determine whether Penneco and Objectors met
their respective burdens. Indeed, Penneco urges us to essentially infer from the
ZHB’s lack of finding on the issue that the ZHB made an implicit conclusion with
regard to health, safety, and general welfare, having heard, inter alia, testimony put
forth by Protect PT on that issue. However, as an appellate tribunal, we are not the
finder of fact, and it would be inappropriate for us to make such an inference.
Moreover, the record belies the suggestion we should accept the ZHB’s lack of
finding as a positive finding about health, safety, and welfare, as the ZHB indicated
it was “gravely concerned with [Penneco’s] use of the property.” (Id. ¶ 39.)
Therefore, on remand, the ZHB must carefully consider each of the requirements
under Section 405, including health, safety, and general welfare, and make the
appropriate findings to support a conclusion as to whether to grant the Application.
City of Scranton, 459 A.2d at 62.
In sum, consistent with Silver, the Borough has placed reasonable restrictions
on the expansion of a nonconforming use by requiring applicants to satisfy the
requirements applicable to all special exceptions. Thus, the foregoing analysis
requires us to reject Penneco’s suggestion that application of special exception
requirements beyond purely procedural ones renders its right to expand its

16
Even if we were to accept Penneco’s argument that its right to natural expansion is
rendered meaningless by imposition of reasonable zoning requirements, Silver itself, and its
progeny, still requires a showing that expansion of the use would not impinge on health, safety,
and general welfare. Jenkintown Towing Serv. v. Zoning Hearing Bd. of Upper Moreland Twp.,
446 A.2d 716, 718 (Pa. Cmwlth. 1982). Thus, even relying purely on the caselaw and ignoring
the Ordinance, we would still have to remand for the ZHB to make a specific finding as to that
important fact.

23
nonconforming use meaningless.17 The doctrine of natural expansion does not
provide landowners carte blanche to expand in violation of reasonable and duly
enacted requirements of zoning ordinances.
Section 405(A) of the Ordinance contains relevant requirements for the
Application at issue here. We cannot engage in meaningful appellate review of
whether Penneco met its burden as to any of those requirements because the ZHB
did not make findings of fact with respect to them. Therefore, upon remand, the
ZHB is to consider those requirements and make findings of fact necessary to reach
a conclusion, taking additional evidence as it deems necessary in its discretion, as to

17
In support of the notion that any restrictions beyond Article IV’s procedural requirements
renders its right to natural expansion meaningless, Penneco cites to, inter alia, Chartiers Township
v. William H. Martin, Inc., 542 A.2d 985 (Pa. 1988). However, Chartiers’ unique procedural
posture and factual distinguishability bear mention here. The land at issue in Chartiers was a tract
with two valleys. Until the litigation, the landfill operator that owned the tract had only used the
west valley for landfill operations, though the entire tract was already licensed by the
Department of Environmental Resources, predecessor of the DEP, for that use, and
“operation and maintenance of a landfill . . . exist[ed] as a legal nonconforming use” under the
ordinance. Id. at 986.
Notably, the Chartiers litigation did not involve the request on the part of an applicant to
expand its operations, but rather a municipality seeking to stop a landowner from engaging in a
use by seeking injunctive relief. There, the trial court granted an injunction requested by the
township to stop landfill operators from operating in the western valley of the tract. The trial court
granted the injunction, and we lifted the injunction against the landfill operators, granting a stay.
Id. at 987. Thus, the issue before the Supreme Court was whether we had properly granted the
stay pending appeal, and in so analyzing, it turned to factors enunciated in Pennsylvania Public
Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983), one of which is
the likelihood of success on the merits. Chartiers, 542 A.2d at 987. Given the fact that the use in
question on the entire tract in Chartiers was already permitted, and that litigation only involved
expansion of the business on that tract, the Court found the landfill operator likely to succeed on
the merits. Thus, both as a matter of procedure—Chartiers involving analysis of likelihood of
success on the merits, not a special exception application—and factually—Chartiers involving a
tract on which the use was already entirely permitted by the state—we decline to view Chartiers
as persuasive here.

24
whether Penneco has met the general requirements for a special exception under
Section 405(A) of the Ordinance.18

IV. CONCLUSION

On remand from common pleas, the ZHB must consider and make findings
of fact as to the requirements for the grant of a special exception for the expansion
of a preexisting nonconforming use (Section 1002 of the Ordinance) and the
standards applicable to the grant of all special exceptions (Section 405 of the
Ordinance). Further, based on our clarification of the findings it must make, the
ZHB, in its discretion, may take additional evidence to the extent it believes such
additional evidence is necessary. Once it has made the necessary findings of fact, it
may then appropriately consider whether to grant or deny the Application.
Despite its perception to the contrary, the ZHB was not powerless—consistent
with Silver and the Ordinance—to apply the requirements of the natural expansion
doctrine and the plain terms of the Ordinance to regulate the location of the proposed
expansion of the nonconforming use at issue here. It erred in believing otherwise.
To sum up, the ZHB did not support its conclusion that Penneco’s proposed
expansion was necessary for the expansion of its trade, as required by our caselaw,
with adequate findings of fact and reasoning. Moreover, the Ordinance here requires
applicants seeking to expand a nonconforming use due to an increase or growth in
trade to proceed via a special exception. Consistent with a municipality’s right to
condition such right to expansion on compliance with reasonable restrictions, the
Ordinance’s plain text requires compliance with those requirements applicable to all
special exceptions. It was an error of law for the ZHB not to consider those relevant

18
Because the first issue raised by the Borough is dispositive and requires vacatur and
remand, we need not reach the remaining issue.

25
requirements in Article IV and to proceed as if Penneco had not applied for a special
exception. Because the ZHB erred in not making specific findings of fact to support
its conclusion as to the necessity of the expansion, and as to each of the Ordinance’s
special exception requirements contained in Section 405, we vacate common pleas’
order with instructions to remand to the ZHB to make findings of fact and
conclusions of law, and, if the ZHB deems additional evidence necessary, to take
such additional evidence, sufficient to determine whether to grant or deny the
Application.

__________________________________________
RENÉE COHN JUBELIRER, President Judge

26
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Plum Borough, :
Appellant :
:
v. : No. 1198 C.D. 2022
:
Zoning Hearing Board of the Borough :
of Plum, Penneco Environmental :
Solutions, LLC and Protect PT :

ORDER

NOW, January 29, 2024, the Order of the Court of Common Pleas of
Allegheny County in the above-captioned matter is VACATED, and this matter is
REMANDED with instructions to remand to the Zoning Hearing Board of the
Borough of Plum to make findings of fact and conclusions of law consistent with the
foregoing opinion, taking additional evidence if it deems necessary to enable such
factfinding.
Jurisdiction relinquished.

__________________________________________
RENÉE COHN JUBELIRER, President Judge