Every trial lawyer knows that credibility determinations are typically left to the finder of fact. Whether it’s a jury, a judge, or a zoning hearing board, the finder of fact has the opportunity to personally observe the witnesses who present evidence in a matter. As a result- so the theory goes- reviewing courts should defer to those first-person observers rather than trying to substitute their judgment after merely reading the transcript. But what are the limits of this deferential standard?

Recently, the Pennsylvania Supreme Court positioned itself to address this issue in the context of a land use appeal when it granted allocator in the case of Project PT v. Penn Township Zoning Hearing Board and Olympus Energy LLC. The Project PT case originated in Penn Township (“Township”), Westmoreland County, where unconventional natural gas development (often referred to as “fracking”) is permitted by special exception within the Mineral Extraction Overlay District. Olympus Energy LLC (“Olympus”) requested a special exception from the Township’s Zoning Hearing Board (“ZHB”) to construct unconventional gas wells on a 53-acre parcel. In support of its application, Olympus presented several expert witnesses at the hearing, including a civil engineer and a toxicologist. All of Olympus’ experts opined that the proposed wells would not present a public health concern to the residents of the Township. To rebut this testimony, the objectors offered several experts of their own, including two chemists who expressed concern about Olympus’ proposed operations. Ultimately, the ZHB sided with Olympus’ experts and approved the application. The objectors appealed to the Westmoreland County Court of Common Pleas, which denied the appeal. An appeal to the Commonwealth Court followed.

On July 6, 2020, a three-judge panel of the Commonwealth Court affirmed the Court of Common Pleas’ decision. The Commonwealth Court concluded that it could not substitute its judgment for that of the ZHB with regard to the credibility determinations.  In addition, the Court noted that a zoning hearing board is “free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness” and that it “does not abuse its discretion by choosing to believe the opinion of one expert over that offered by another.” Notwithstanding the foregoing, the Commonwealth Court acknowledged that a zoning hearing board’s decision must be based on resolutions of credibility and conflicting evidence rather than a “capricious disregard of evidence.”

In a separate concurring opinion, Judge Patricia McCullough wrote to express her concern that the Court’s judicial review in such matters had been “severely reduced” to a point where the Commonwealth Court functioned “merely to ascertain whether a zoning hearing board found the objector’s evidence credible.” Observing that one of the objectors’ witnesses based his opinion on peer-reviewed literature and a specific analysis of this site, Judge McCollough questioned whether there was a proper legal framework in place to evaluate the issues presented in the case.

Apparently agreeing with Judge McCollough, the Pennsylvania Supreme Court granted allocator specifically to address whether the Commonwealth Court’s opinion “conflicts with the [Supreme] Court’s previous application of the capricious disregard of evidence standard,” and whether the Commonwealth Court failed to “meaningfully evaluate the cumulative impacts of developing multiple unconventional natural gas wells in close proximity to residential neighborhoods.”

While Pennsylvania Supreme Court’s decision to grant allocator doesn’t necessarily mean that it will overturn the Commonwealth Court decision on the merits, it does mean that the Court has something to say on this issue. The McNees Land Use Group will be following this case closely and will provide an update when the Supreme Court weighs in.