HomeMy WebLinkAbout97-3663 CivilRONALD E. CHAMBERLIN and
FRANCES P. CHAMBERLIN,
Appellants
HOPEWELL TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
Ve
SNOKE'S EXCAVATING AND
PAVING, INC.,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND USE APPEAL
NO. 97-3663 CIVIL TERM
IN RE: LAND USE APPEAL; PETITION TO STRIKE APPEAL
BEFORE BAYLEY and OLER, JJ.
ORDER OF COURT
AND NOW, this ~ day of April, 1998, upon consideration of
Appellants' land use appeal, and of Intervenor's petition to strike
the appeal, and for the reasons stated in the accompanying opinion,
the petition to strike the appeal is denied, and Appellants, appeal
is sustained to the extent that a notation is to be recorded
applicable to Intervenor's land development plan to the effect that
the project shall not commence without a zoning permit for the
expanded use approved by the zoning hearing board of Hopewell
Township.
THE STAY issued on July 9, 1997, shall be deemed vacated as of
the recording of the notation.
BY THE COURT,
David E. Lehman, Esq.
Steven J. Weingarten, Esq.
Gregory B. Abeln, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Appellant
Sally J. Winder, Esq.
701 East King Street
Shippensburg, PA 17257
Attorney for Appellee
Charles E. Zaleski, Esq.
John R. Kachur, Esq.
213 Market Street
Harrisburg, PA 17101
Attorneys for Intervenor
: rc
RONALD E. CHAMBERLIN and
FRANCES P. CHAMBERLIN,
Appellants
Ve
HOPEWELL TOWNSHIP
BOARD OF SUPERVISORS,
Appellee
Ve
SNOKE'S EXCAVATING AND
PAVING, INC.,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND USE APPEAL
NO. 97-3663 CIVIL TERM
IN RE:
LAND USE APPEAL; PETITION TO STRIKE APPE~T.
~EFORE BAYLEY a~d OLER, JJ.
OPINION and ORDER OF COURT
Oler, J., April 3, 1998.
In this land use appeal,
operation have appealed from
neighbors of a shale pit mining
municipal approval of a land
development plan for expansion of the operation. In addition, the
applicant has petitioned to strike the appeal.
The primary basis for the appeal from the approval of the land
development plan is that it sanctioned a use of land not permitted
by the zoning ordinance. The primary basis for the petition to
strike the appeal is that the approval did not, in fact, determine
the zoning issue.
For the reasons stated in this opinion, the appeal will not be
stricken and the approval will be clarified of record to exclude
any implication that it resolved an outstanding zoning issue.
STATEMENT OF FACTS
On or about March 12, 1997, Snoke's Excavating and Paving,
Inc. (Intervenor) filed an application with the Hopewell Township
NO. 97-3663 CIVIL TERM
Board of Supervisors (Appellee) for approval of a land development
plan entitled Martin Shale Pit Operation Plan.~ The land in
question adjoined property of Ronald E. Chamberlin and Frances P.
Chamberlin (Appellants).2 Both properties were located in Hopewell
Township, Cumberland County, Pennsylvania.3
The plan contemplated expansion of a shale pit operation~ on
a 50-acre tract of land.5 The land was in an A-1 Agricultural
zoning district, and the existing shale pit operation was
apparently a non-conforming use.~ The expansion was to be in
accordance with a permit that had been issued by the Pennsylvania
Department of Environmental Protection,? and apparently involved a
~ See Pro FormaHopewell Township Application for Subdivision
and Land Development Plans, dated March 12, 1997.
~ See Preliminary/Final Land Development Plan, dated April
15, 1997.
3 Id.
4 See Report of Douglas S. Brehm and Wayne E. Statler, dated
March 27, 1997.
5 See Preliminary/Final Land Development Plan, dated May 15,
1997. This tract was owned by Henry W. Nolt and Mary P. Nolt and
leased to Intervenor for its shale mining operation. See id.; Pro
Forma Hopewell Township Application for Subdivision and Land
Development Plans, dated March 12, 1997.
~ See Certificate of Non-Conformance, dated February 25,
1997; Hopewell Township Zoning Ordinance, Article 4, §4.02 (1991)
(permitted uses in A-1 Agricultural District).
? See Exhibit 1, Pro Forma Hopew~ll Township Application for
Subdivision and Land Development Plans, dated March 12, 1997. An
appeal from the issuance of this permit, filed by Appellants
herein, was denied by an administrative law judge on August 13,
2
NO. 97-3663 CIVIL TERM
proposed increase in the area subject to surface mining from 4.6
acres to 44.84 acres.8
At the time the application was filed, the question of whether
the expansion would be permissible under the township's zoning
ordinance was pending before the municipality's zoning hearing
board.9 The zoning ordinance provided as follows with respect to
expansion of non-conforming uses:
The lawful use of a building or premises
existing on the effective date of this
ordinance may be continued, although such use
does not conform with the provisions of this
ordinance. Such use may be expanded
throughout the building or premises lawfully
acquired previous to such date, provided that
such expansion meets the provisions applicable
to that use as given in the zoning district in
which such use is designated a permitted use.
Where such use is permitted in more than one
1996. See Adjudication, EHB Docket No. 95-005-MR (August 13,
1996).
~ See Adjudication, EHB Docket No. 95-005-MR (August 13,
1996).
9 Under the township's zoning ordinance, a zoning permit was
required "prior to the change or extension of Ia] non-conforming
use." Hopewell Township Zoning Ordinance, Article 12, S12.02
(1991). Such a permit was denied on December 18, 1996, and the
applicant filed an appeal to the township's zoning hearing board,
where the matter remained pending. See Minutes, Hopewell Township
Board of Supervisors Special Meeting, March 12, 1997; Letter, from
Sally J. Winder, Esq., to Charles E Zaleski, Esq , dated March 13,
1997. ' ·
In light of the pendency of the appeal at the zoning
hearing board level, any subsequent action by the township's zoning
officer purporting to dispose of this issue was a nullity. See id.
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NO. 97-3663 CIVIL TERM
zoning district the least restrictive zoning
district requirements may be used.~°
It would appear that the zoning issue is still pending before
the zoning hearing board as of this writing.~ Conformity with the
township's zoning ordinance was one of the requirements for a land
development plan under the township's subdivision and land
development ordinance.~2
planning
The plan was the subject of a March 27, 1997, review by the
township engineer; in a portion of the engineer's report entitled
"Zoning," the township was advised as follows:
It is our understanding that this facility is
an existing non-conforming use, as the use is
not ~pecifically provided for as a permitted
use in the agricultural zone. The proposed
expansion of the shale pit operations should
comply with the conditions set forth by the
Township Zoning Officer, the Zoning ~earing
Board and/or Township Supervisors under the
Sections of the Ordinance regulating expansion
.... of non-conforming uses.~3
The plan was subjected to a first review by the township's
commission on March 27, 1997, at which time the
~o See Hopewell Township Zoning Ordinance, Article 10, S10.01
(1991).
~ Brief of Appellee, Hopewell Township Board of Supervisors,
at 2, filed December 2, 1997; Land Use Appeal, paragraph 28, filed
July 7, 1997; See Answer to Land Use Appeal paragraph 28 filed
October 17, 1997. ' '
~ See Hopewell Township Subdivision and Land Development
Ordinance, Article VIII, S800(E) (1991).
~3 See Report of Douglas S. Brehm and Wayne E. Statler, dated
March 27, 1997.
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NO. 97-3663 CIVIL TERM
applicant's request for. a waiver of the preliminary plan process
was recommended for approval.TM The plan was reviewed by the
planning commission a second time on April 24, 1997; at this
meeting the matter was tabled.~s
On May 7, 1997, the township's engineer issued a report
intended to serve "as a summary of the plan reviews, responses and
comments from the Planning Commission meetings held on March 27,
1997 and April 24, 1997 .... ..~6 This report included the following
statement in a section entitled "Zoning":
It is our Understanding that this facility is
an existing non-conforming use, as the use is
not ~pecifically provided for as a permitted
use an the agricultural zone. The proposed
expansion of the shale pit operations should
comply with the conditions set forth by the
Township Zoning Officer, Zoning Hearing Board
and/or Township Supervisors under the sections
of the Ordinance regulating expansion of non-
conforming uses.
(Status) The Planning Commission
did not address this issue feeling
the interpretation as to the use of
the site was better left to the
persons or entities noted above.
~4 See Minutes, Hopewell Township Planning Commission Meeting,
March 27, 1997; Hopewell Township Subdivision and Land Development
Ordinance, Article V, S503 (1991).
~s See Minutes, Hopewell Township Planning Commission Meeting,
April 24, 1997.
~6 See Report of Douglas S. Brehm and Wayne E. Statler, dated
May 7, 1997.
NO. 97-3663 CIVIL TERM
The record implies that the township's planning commission
recommended approval of the plan at a meeting on May 22, 1997,
although the minutes of this.meeting have not been certified to the
court. On June 23, 1997, the township's board of supervisors
conditionally approved the plan. The minutes from that meeting in
pertinent part state as follows:
SNOKE'S MINING: Mr, Glenn Snoke and
Charles Zalaski [sic] present. A discussion
was held on the Speed Study for Chamberlin
Road. Mr. Snoke agreed to pay for the study
to be done by Statler-Brehm Associates.
Solicitor Winder to contact the engineers to
proceed.
Land Development Plan: A motion to
approve the Land Development Plan for Snoke's
Mining was made by George Hoover, seconded by
Marlin Hoover. Plans will be signed when a
letter stating agreement to do the speed study
is received. A vote on the approval by Board
Members is as follows: George Hoover, Yea,
Marlin Hoover, Yea, Harold Bender, Nay.~?
On July 7, 1997, Appellants filed a land use appeal,
challenging Appellee's approval of Intervenor's land development
plan.~8 The appeal challenged the approval on the ground that
Appellee exceeded its authority in sanctioning a use violative of
~7 Minutes, Hopewell Township Board of Supervisors Meeting,
June 23, 1997.
~8 A stay with respect to the plan was issued by ~he Honorable
Edgar B. Bayley on July 9, 1997. The plan was, however, filed in
the Office of the Recorder of Deeds in and for Cumberland County on
August 22, 1997.
NO. 97-3663 CIVIL TERM
the zoning ordinance and within the jurisdiction of the zoning
hearing board, inter alia.~9
On August 12, 1997, In%ervenor was permitted to intervene by
the Honorable Edgar B. Bayley. An answer was filed by Intervenor
on October 17, 1997. The answer contended, inter alia, that the
~9 Other grounds asserted by Appellants for the appeal were
as follows:
30. There was neither a traffic study
completed nor a dust, noise, or potential
danger to resident study conducted, despite a
recommendation by the Hopewell Township
Planning Commission, nor was any bonding
secured for road damage, nor was there a
public hearing conducted on the issue.
31. The health, safety, and general welfare
of the ~urrounding property owners and the
public ~n general will be impaired by the
tenfold expansion of the mining activities and
tracking traffic. Article 11, ~11.03,
Prohibited Uses in All Districts, states that,
"No use may be permitted which is noxious,
offensive, or objectionable by reason of the
emission of smoke, dust, gas, odor, .... "
32. Article 11, §11.04, Uses Not Provided
For, states that, "In any district established
by this ordinance, when a specific use is
neither permitted nor denied, the Board of
Supervisors shall make a determination as to
the similarity or compatibility of the use in
question to the permitted uses in the district
upon receipt of an application requesting such
determination. No zoning permit shall be
issued by the Zoning Officer for any
unspecified use until this determination has
been made."
Land Use Appeal, filed July 7, 1997.
NO. 97-3663 CIVIL TERM
zoning use issue was not implicated in Appellee's approval of the
plan.2°
DISCUSSION
In the present case, it is apparent from the record that the
approval by Appellee of Intervenor's land development plan was not
intended or understood to represent a decision on the issue of
whether Intervenor's proposed use of the property was in conformity
with the requirements of Appellee's zoning ordinance. Cf. Stolz v.
Zoning Hearing Board, 130 Pa. Commw. 458, 568 A.2d 746 (municipal
governing body's approval of subdivision plan held not dispositive
of issue of conformity of lots to zoning ordinance requirements),
appeal denied, 525 Pa. 615, 577 A.2d 546 (1990). This issue was
pending, and remains pending, before the township's zoning hearing
board.2~
Since Appellants' primary challenge to the approval of the
land development plan is based upon a concern that the approval may
be construed as foreclosing consideration of the legality of
Intervenor's expansion of its use under the zoning ordinance, it
appears to the court that a notation applicable to the plan and
recorded in the Office of the Recorder of Deeds that the
20 Intervenor further suggested in its answer that the zoning
use issue had been resolved favorably to Intervenor by a decision
of the zoning officer on February 25, 1997. The court is unable to
agree with this contention. See note 9 supra.
See notes 9, 11 supra.
8
NO. 97-3663 CIVIL TERM
development in question is not to proceed without approval of the
use by the zoning hearing board will resolve the difficulty
presented by approval of the plan without such clarification.
Appellants, remaining challenges to the approval have been reviewed
by the court and do not appear to be meritorious.22
For the foregoing reasons, the following order of court will
be entered:
ORDER OF COURT
AND NOW, this 3rd day of April, 1998, upon consideration of
Appellants' land use appeal, and of Intervenor's petition to strike
the appeal, and for the reasons stated in the accompanying opinion,
the petition to strike the appeal is denied, and Appellants, appeal
22 More specifically, it is noted that the township's
subdivision and land development ordinance does not require a
traffic study, "a dust, noise, or potential danger ko resident
study," or a bond "for road damage." Nor is there a requirement
for a public hearing on an application for approval of a land
development plan. See 2 Ryan, Pennsylvania Zoning Law and Practice
S11.2.5 (1970).
In addition, the record does not support a finding that the
proposed development would be "noxious, offensive, or objectionable
by reason of the emission of smoke, dust, gas, [or] odor .." See
Adjudication, EHB Docket No. 95-005-MR (August 13, 1996)']
Finally, the provision of Appellee's zoning ordinance
authorizing, upon request, a determination by Appellee's governing
body as to whether an activity not specifically provided for in the
ordinance so closely approximates a permitted use as to be
allowable on that basis, does not, in the court's view, relate
generally to the_expansion of nonconforming uses. Nor was such a
determination requested in this case; it was not Intervenor's
position that surface mining could be authorized in A-1
Agricultural zoning districts on the basis of its equivalence to an
enumerated use of right.
9
NO. 97-3663 CIVIL TERM
is sustained to the extent that a notation is to be recorded
applicable to Intervenor,s land development plan to the effect that
the project shall not commence without a zoning permit for the
expanded use approved by the zoning hearing board of Hopewell
Township.
THE STAY issued on July 9, 1997, shall be deemed vacated as of
the recording of the notation.
BY TEE COURT,
David E. Lehman, Esq.
Steven J. Weingarten, Esq.
Gregory B. Abeln, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Appellant
Sally J. Winder, Esq.
701 East King Street
Shippensburg, PA 17257
Attorney for Appellee
Charles E. Zaleski, Esq.
John R. Kachur, Esq.
213 Market Street
Harrisburg, PA 17101
Attorneys for Intervenor
: rc
s/ J. Wesley Oler, Jr.
· Wesley Oler, Jr., J.
10