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Home My WebLink About98-04200 ~ ~ d "' '} ~l I , . , ~' ..I OoJi , , i , t 11, 0' ~I cJI , I .Jni j c:;j p(" ~ ~ --- . ~ i ~i " ...; ~I ! v ~ ~I \ I ~I 0-\ i 4\ ! 4, Surfilce mining of shale has been conducted on a part of a 51.398 acre tract of land (the "Property") owned by Henry Nolt and leased to Snoke's Excavating for shale excavation since 1978 pursuant to a mining permit issued on March 20, 1978 by the Commonwealth of Pennsylvania. The permit encompassed a 4.6 acn: portion of the Property. 5. The use, which was in existence prior to the adoption of the Hopewell Township Zoning Ordinance in 1991 (the "Zoning Ordinance"), is a lawful, non-conforming use. 6. On June I, 1994, Snoke's Excavating filed an Application with the Pennsylvania Department of Environmental Protection ("PaDEP") seeking to expand the permitted area for non-coal surface mining activities upon the balance of a portion of the Property through various phases. 7. A non-coal surface mining shale permit was issued to Sna;;.,"s Excavating by PaDEP on December 8, 1994 to expand its shale pit operations on the Property. The previously mined area has been reclaimed and reseeded pursuant to PaDEP regulations. 8. On June 28, 1996, Snoke's Excavating submitted an application for the issuance of a zoning permit and cenificate of non-conformance for the expansion of the mining operations under the Zoning Ordinance, 9. The Hopewell Township Zoning Ordinance permits the expansion of a non- conforming use "throughout the premises" as a matter of right. 10. On April 16, 1998, the Hopewell Township Zoning Hearing Board rendered a decision, determining that only the 4.6 acre portion of the Property was "lawfully acquired" 2 by Snokc's for thc shalc cxcavation operation as of thc umc of thc auoptioll of thc Zoning Oruinancc and nnuing that Snokc's Excavating was not clltitlcu to cxpand its opcration ovcr thc balancc of thc Propcrty. Snokc's Excavating appcalcu thc ZllB's dccision which appcal is currently pcnding bcforc this Honorablc Court and is dockctcd at No, 2791 Civil 1998. II. On July 7, 1997, the Township approvcd a land dcvclopmcnt plan showing continuation of the shalc pi1. on thc Propcrty. 12. On April 20, 1998, Snoke's Excavating filcd an Application for Curative Amendment pursuant to Section 609.1 of the MPC challcnging the validity of the Hopewell Township Zoning Ordinances, asser1.ing, in part: (a) The Hopewell Township Zoning Ordinance fails to makc any provision for mineral cxtraction in any zoning district and, by reason of its failure to make provision for mineral eX1.raction wi1.hin the Township, the Zoning Ordinance is exclusionary in purpose and effect and therefore invalid. (b) The Township Zoning Hearing Board, by its decision of April 16, 1998, has prohibited the expansion of the existing shale pit beyond the area that has been reclaimed and prevents any mineral extraction in the Township. (c) The exclusion and total prohibition of Applicants' proposed use by l.he Zoning Ordinance consti1.utes a viola1.ion of Applican1.'s rights as guaranteed in the Uni1.cd States ConS1.i1.ution and the Constitution and laws of l.he Commonwealth of Pennsylvania. 3 (d) The prohibition und towl exclusion of Applieunts' proposed use constitutes un ullfeusOlmble und urbitmry restriction of the use of lund in the Township. (e) Snoke's Excuvuting proposed use is u legitimutc use, clearly uuthorized under the regulUlions by the Commonwealth of Pennsylvania und the United States. (t) The probibition and totul exclusion of Applicants' proposed use is confiscatory and constitutes a taking of Applicant's property without due process of law. (g) The effect of the Zoning Ordinance precludes Applicants' from removing important mineral resources on the Proper1.y. 13. Snoke's Excavating's Curative Amendment Application is attached hereto as Exhibit "A." Attached to the Curative Amendment Application is the proposed amendment submi1.ted to cure the invalidi1.y in the Township's Zoning Ordinance. 14. Shortly after Snoke's Excavating filed its curative amendment challenge, the Township adopted an amendment to the Zoning Ordinance purportedly allowing surface mining and quarrying upon first obtaining conditional use approval. 15. A hearing was held before the Township Board of Supervisors on June 22, 1998, pursuant to Section 916. 1 (a) (2) and 909, 1.1 (b)(4) of the MPC, to hear Snoke's Excavating's cura1.ive amendment challenge. 4 "",,;r:'," .,.'t.rl.llr..,....""....H fl'" ~l<:".'" 0 mineral extraction within the Township, the Zoning Ordinance is exclusionary in purpose and effect and therefore invalid. 2. The property contains at or near its surface formations of shale which were being mined previously. 3. The Township Zoning Hearing Board, by its decision of April 16, 1998, has prohibited the expansion of the existing shale pit beyond the area that has been reclaimed and prevents any mineral extraction in the Township. 4. The exclusion and total prohibition of Applicants' proposed use by the Zoning Ordinance constitutes a violation of Applicant's righ1.s as guaranteed in the United States Constitution and the Constitution and laws of this Commonweal1.h. 5. The prohibition and total exclusion of Applicants' proposed use constitutes an unreasonable restriction of the use of land in the Township. 6. The prohibition and total exclusion of Applican1.s' proposed use constitutes an arbitrary restriction on the use of land in the Township. 7. Applicant's proposed use is a legitimate, use, clearly authorized under the regulations by the Commonwealth of Pennsylvania and the United States. The total exclusion of this use by the Zoning Ordinance is invalid and unconstitutional since such exclusion is unrelated to the public's health, safety and welfare. 8. The prohibition and total exclusion of Applicants' proposed use is confiscatory and constitutes a taking of Applicant's property without due process of law. 9. The prohibition and total exclusion of Applicants' proposed use constitutes an unreasonable and invalid restriction on a legitimate land use. 10. The prohibition and total exclusion of Applicants' proposed use by the Township andlor the Zoning Ordinance does not protect those public interests which zoning statutes permit municipalities to regulate. 11. The effect of the Zoning Ordinance precludes Applicants' from removing important mineral resources on the Property. 12. The proposed Curative Amendment is attached hereto as Exhibit "A." "- ......., -'~-_..,-,.,-,-"~,'~.~.'~:~.;. ^-- ,.,~, ,-,,",,""_'~":'';"!'I'-;o.'';-'''':..~,~,'7. transporting it off of the site for sale or use elsewhere for personal or business use. The use includes on-site storage of overburden and rock or mineral removed from the ground; crushing, sorting or processing of the rock or mineral; use and storage of any necessary equipment for the removal or crushing, sorting or processing of the rock or mineral; and any facilities necessary to conduct such an operation pursuant to Commonwealth of Pennsylvania requirements." SECTION 2. Article 4 of Hopewell Township Zoning Ordinance shall be and is hereby amended by adding to the list of permitted uses in Section 4.02 the following additional use: "L. Mineral Extraction Use" SECTION 3. Section 4.05 of the Hopewell Township Zoning Ordinance shall be amended by adding new subparagraphs C and D which are as follows: "C. Mineral Extraction Use ReauiTements Land proposed for Mineral Extraction Use shall comply with the following requirements: 1. Lot size shall be not less than five acres. 2. Setbacks shall be as determined by a mining permit issued by the Pennsylvania Department of Environmental Resources. 3. The operation shall comply with all requirements of any existing or future mining permits issued by the Pennsylvania Department of Environmental Resources. I I i I I I I I "D. The Mineral Extraction Use is a temporary use over a period of years, as determined by the landowner or operator, and is required to be reclaimed upon comple1.ion of the extraction of the rock or mineral being removed. The use after reclamation is required to be in compliance with the provisions of the Zoning Ordinance as may exist at such time. Sine the use is temporary in nature, no other provision of this Ordinance or any other ordinance or regulation of this Township shall be applied or used in any manner to prevent or prohibit the rock or mineral extraction, " SECTION 4. This Ordinance shall take effect five (5) days afwr adoption. ENACTED AND ORDAINED this day of , 1998. ATTEST: (Township Seal) HOPEWELL TOWNSffiP BOARD OF SUPERVISORS BY: Secretary Chainnan Exhibit B BOARD OF SUPERVISORS OF HOPEWELL TOWNSIIIP, CUMBERLAND COUNTY APl'LICA TION OF SNOKE'S EXCAVATING ANI) I'A VING, INC. FOR CURATIVE AMENDMENT, FINDINGS AND CONCLUSIONS AFTER PUBLIC HEARING HELD JUNE 8,1998. Findings. I. Surface mining has taken place in Hopcwell Township. 2. Mincral, stone, or shalc extraction opcra1.ions must protcct the quality of thc environment and prescnt thc lowest impact on adjoining tracts ofland. 3, All mining operations must reclaim thc land whcnthe operations arc completcd whethcr they are bonded under Slate regulations or through local regulation as accessory and incidcntal uses. 4. Under the Hopewell Township Zoning Ordinance adopted April I, 1991, there was no specific delineation of mining as a use permittcd by right or as a special exccption or conditional use, 5. Under the Hopewell Township Zoning Ordinanc datcd April I, 1991. the extraction of shale or any other mineral resource was not addressed as a permitted use in any diS1.rict. 6, The proposed Curative Amendment was filcd April 20, ] 998, within several hours of the spccially advcrtised meeting of the Board of Supervisors at which the Supervisors adopted the current Hopewell Township Zoning Ordinance which does contain provisions for extractive industries and surface mining as a conditional use, 7. The effect of the 1991 Zoning ordinance was to exclude surface mining within the Township unless it would be determined to be a use similar to or compatible with a permitted use in the district. 8, The Zoning Hearing Board, by decision dated April 16, 1998, prohibited the expansion of the Applicant's existing shale pit beyond the arca that had been previously permitted under State Department of Environmental Protection regulations, 9, The Applicant currently holds a Department of Environmcntal Protection permit to mine shale as shown on Exhibit A-3, the Operations Map, 10. The Township Board of Supervisors adopted a revised Zoning Ordinance April 20, 1998, after proper advertisement and public hearing held April 13, 1998, ~ t' ~ c:2 ~ :,'- \,:"1 0, ~ 8 l!1 t'f': I;:) "1 ~ ~ ,'. ~' ~ 1:: , . ~ -... c_, - , L. 0) 0: () l "'? -g J u w ..........., ~ nJ t $ , 0 ~ CJ b * j " ~ ~ 0- e ca " <0 :!: ,CJl ~ r ":'!!!f~ ru :t: Ii: :!:! ITl i ~~ LI1 QJ~ ~~ UJ '~08-;;: ["- c:-... Q) 0 11l.... u- IJJ ~ Q,c: m ru._ f!:! ~ a. ~B~o~ ~a:Q)o ~~ ::J 20 ~ o . O::~ tJ1!!, ~~ ~!!! lQJ ~ of'" B i5 al"J~ ifl"'it V> " 1 ~r]l g ~ ~ .~ ~.2~ .r~ <Ill !!! - ~ ~~ &":E &,3 f ~ ,g-fij ~H ~ Ci ~ 'ai ~ :de '1rl~ 0... i!: "l:I 0 ti CCed n:od ;i ~ ~~~:sg~~";~1I1 J!I '€ :ll ~ ti~ ~8 ~ ~ .l! i:j &; a: a: 0... WJO~ Sd 566 ~ IPdV OOB ~ , SNOKE'S EXCAVATING AND PAVING. INC. IN THE COURT OF COMMON PLEAS OF :..,'"';";.;..::.......:;;:"..~~~' CUMBERLAND COUNTY, PENNSYLVANIA VS. HOPEWELL TCWNSHIP, CUMBERLAND COUNTY NO. 98-4200 Civil Term WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) TO: We, being willing for certain reasons, to have certified a certain action between .Snoke's Excavating and Pavinq. Inc. "" Ho[>pwpll 'f'own"hip. C'l1mhprl;mn County. Pennsylvania pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of COlTlllon Pleas at Carlisle, within 70 days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Commonwealth. WITNESS, the Honorable our said Court, at Carlisle. Pa., the 22 day of Jul y , 19 .JL. , i(~,/,t I,iffl, ,','!.: f I t'~( ii{,F..' r.1'.' :'.','.,':I,'~.. , ',~',"" ",-,; '~j.~r prothonota