HomeMy WebLinkAbout95-6890 CivilEASTERN CONSOLIDATION AND
DISTRIBUTION SERVICES, INC.,
BARON ENTERPRISES, HUGO
SERVICES, INC., EASTERN
REPAIR CENTER, INC., NEW
PENN MOTOR EXPRESS,
LEBARNOLD, INC., and
ARNOLD INDUSTRIES, INC.,
Appellants
BOARD OF COMMISSIONERS
OF HAMPDEN TOWNSHIP,
Appellee
and
WASTE MANAGEMENT OF
PENNSYLVANIA, INC.,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-6890 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE BAYLEY and OLER, JJ.
ORDER OF COURT
AND NOW, this ay of February, 1997, upon consideration of
Appellants' land use appeal, and for the reasons stated in the
accompanying opinion, the decision of the Board of Commissioners of
Hampden Township, approving the Waste Management of Central
Pennsylvania Transfer Station Land Development Plan, is AFFIRMED.
BY THE COURT,
J Wesley Ole~ ~., J. 'V ~ '
BAYLEY, J., files a concurring opinion.
Eugene E. Dice, Esq.
William W. Thompson, Esq.
Suite 101
1721 North Front Street
Harrisburg, PA 17102
Attorney for Appellants
Richard C. Snelbaker, Esq.
Snelbaker, Brenneman & Spare, P.C.
44 West Main Street
Mechanicsburg, PA 17055-0318
Attorneys for Appellee
Michael Finio, Esq.
Anthony P. Forte, Esq.
Suite 700
240 North Third Street
Harrisburg, PA 17101
Attorneys for Intervenor
: rc
EASTERN CONSOLIDATION AND
DISTRIBUTION SERVICES, INC.,
BARON ENTERPRISES, HUGO
SERVICES, INC., EASTERN
REPAIR CENTER, INC., NEW
PENN MOTOR EXPRESS,
LEBARNOLD, INC., and
ARNOLD INDUSTRIES, INC.,
Appellants
V®
BOARD OF COMMISSIONERS
OF HAMPDEN TOWNSHIP,
Appellee
and
WASTE MANAGEMENT OF
PENNSYLVANIA, INC.,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-6890 CIVIL TERM
Oler, J.
At
decision
IN RE: LAND USE APPEAL
BEFORE BAYLEY and OLER, JJ.
OPINION and ORDER OF COURT
issue before the court is an appeal challenging the
of the Board of Commissioners of Hampden Township,
.Cumberland County, Pennsylvania, approving a preliminary/final land
development plan filed by Waste Management of Pennsylvania, Inc.
The land development plan proposed construction of a facility for
the transfer of certain solid waste materials.
Appellants are various business neighbors of the proposed
development. Their objections to the project include its alleged
incompatibility with the municipality's zoning ordinance,
anticipated traffic congestion, suggested adverse health effects,
and predicted stormwater excesses.
For the reasons stated in this opinion, the decision of the
NO. 95-6890 CIVIL TERM
Board of Commissioners will be affirmed.
STANDARD OF REVIEW
Section 1005-A of the Pennsylvania Municipalities Planning
Code provides, in pertinent part, the following:
If the record below includes findings of fact
made by the governing body, board or agency
whose decision or action is brought up for
review and the court does not take additional
evidence or appoint a referee to take
additional evidence, the findings of the
governing body, board or agency shall not be
disturbed by the court if supported by
substantial evidence. If the record does not
include findings of fact or if additional
evidence is taken by the court or by a
referee, the court shall make its own findings
of fact based on the record below as
supplemented by the additional evidence, if
any.~
In the present case, the Board did not make findings of fact.
In accordance with the statutory provision quoted above, this court
will conduct a de novo review of the record below and make its own
factual determinations.
PROCEDURAL HISTORY; STATEMENT OF FACTS
On August 23, 1995, Waste Management filed an application with
Hampden Township requesting approval of a land development plan to
construct a solid waste transfer station.2 The proposed project
Act of July 31, 1968, P.L. 805, as added, 53 Pa. C.S.A.
§l1005-A (1996 Supp.).
2 Certified Record, filed December 15, 1995, Items 2-3
(Application for Subdivision or Land Development Approval dated
August 23, 1995; Land Development Plan filed with Application).
NO. 95-6890 CIVIL TERM
involved construction of a solid waste transfer station on
approximately 1.94 acres at the northwest corner of the applicant's
16.61-acre parcel of land located at 4300 Industrial Park Road in
Hampden Township, Cumberland County, Pennsylvania.3
Waste Management's plan included an ll,250-square-foot
transfer building, an access drive, a transfer trailer storage
area, and a truck weighing station.4 The transfer station facility
was expected to transfer an average of up to 600 tons per day, and
a maximum of 800 tons per day, of municipal, commercial,
nonhazardous industrial solid waste and nonimpacting municipal-like
waste from industrial facilities,s
The proposed transfer station was to be a facility for the
collection of municipal and construction waste from incoming
trucks, the temporary storage of such waste on-site in an enclosed
building, and the transfer of the waste to outgoing trucks for
processing or disposal at another facility,s Its primary function
was to be the transfer of waste; it was not to involve the
3 Certified Record, filed December 15, 1995, Items 2-3
(Application for Subdivision or Land Development Approval dated
August 23, 1995; Land Development Plan filed with Application).
Id.
s Id.
s Certified Record, filed December 15, 1995, Items 2, 9
(Application for Subdivision or Land Development Approval dated
August 23, 1995; Response to Comments, Hampden Township dated
September 15, 1995 and Cumberland County 95-286 Letters).
NO. 95-6890 CIVIL TERM
treatment of waste or the transformation of waste into another
product.7
Opposition to the plan developed among several Pennsylvania
corporations and a partnership owning or leasing properties located
in close proximity to the proposed waste transfer station.8 The
activities engaged in by these neighboring entities, now Appellants
herein, included trucking, warehousing and storage of food
products, and truck repair.9
The opponents eventually filed with the township the following
written objections to the plan:~°
1. The proposed facility will add up to 180
truck trips per day through a congested area
which is already inadequate .... n
2. The transfer station will draw seagulls,
rodents and other vectors, and cause odors.
This is inconsistent with the industries in
the area who deal with food and food products,
and have stringent federal and customer
standards to comply with.
3. The area is subject to frequent
Id.
Notice of Appeal, paragraphs 1-11.
Id., paragraphs 1-15.
~o See Supplemental Record, filed July 10, 1996, Item 4.
(Objections to Waste Management of Central Pennsylvania's Proposed
Land Development Plan, paragraphs 1-5).
~ In support of this contention, Appellants attached to their
written objections a Traffic Impact Analysis prepared by Robert E.
Bashore, P.E., Senior Traffic Engineer. Id., at Exhibit A.
NO. 95-6890 CIVIL TERM
flooding .... ~2 The culvert immediately
downstream from the proposed transfer facility
site is undersized and causes routine flooding
in the area.~3
4. PennDOT never approved of the project and
requested additional studies which were never
conducted by Waste Management.
5. The presence of this facility will cause
[Appellants] to lose customers and threatens
the continued existence of these valuable
industries. The loss of these industries to
Hampden Township will outstrip any potential
advantage construction of the facility could
have.
On September 14, 1995, the Hampden Township Planning
Commission reviewed Waste Management's land development plan.TM At
this meeting, Waste Management specifically addressed numerous
comments from Planning Commission members, the Township Engineer
and the Tri-C°unty Planning Commission regarding various issues,
including the following: (1) the status of state and county
environmental approvals and reviews; (2) the lot coverage
requirements of the Hampden Township Zoning Ordinance; (3) the
stormwater management plans for the site; (4) the zoning of
7.. adjacent properties; (5) the required collection, containment,
~2 In support of this contention, Appellants attached to their
written objections a Preliminary Drainage Analysis proposed in
March of 1992. Id., at Exhibit B.
~3 In support of this contention, Appellants attached an
expert witness report by Michael A. Nawrocki, P.E., to their
objections. Id., at Exhibit C.
~4 Certified Record, filed December 15, 1995, Item 7 (Minutes
of Township Planning Commission meeting held September 14, 1995).
5
NO. 95-6890 CIVIL TERM
storage and removal from the site of any leachate and rinse water;
(6) the ongoing maintenance of the site by Waste Management; (7)
the provisions for dust collection and control at the site; (8) the
potential traffic problems in the area near the site; (9) the need
for a queuing area for trucks at the site; (10) the potential need
for improvements to Industrial Park Road; (11) the length of time
that loaded trucks would be permitted on the site; (12) the 100-
year flood elevation of the site; (13) the potential odor problems
in connection with the proposed transfer station; and (14) the
possibility of site contamination due to ground pollution.~s
In November of 1989, nine underground storage tanks had been
excavated and removed from five different tank pits by the owner of
the site at that time, Roadway Services, Inc. During and after the
tank excavation and removal, a contamination was discovered in the
site soil and groundwater. As a result, approximately 152 tons of
soil were excavated from two of the tank pits and temporarily
stockpiled on the site. A groundwater remediation system was also
operated for a short period during late 1989 and early 1990.~6
~6 Supplemental Record, filed July 10, 1996, Item 4
(objections to Waste Management of Central Pennsylvania's Proposed
Land Development Plan, dated November 2, 1996, Exhibit C).
Michael A. Nawrocki, a professional engineer, indicated in
a report submitted to the township by appellants that in his
opinion groundwater and probably soil contamination existed at the
time a permit application was submitted by Waste Management to DEP.
Id. The report expressed the further opinion that contamination
was still present. Id.
NO. 95-6890 CIVIL TERM
No underground tanks remained on the site as of the time of
Waste Management's application for approval of the transfer
station.~7 In addition, as will be noted hereafter, the
Pennsylvania Department of Environmental Protection eventually
reviewed Waste Management's plan and issued a permit for the
facility.~8
As a general rule, a given loaded vehicle was not to remain on
the site for more than 24 hours.~9 Trucks were to be covered with
tarpaulins, and deodorizers were to be utilized to counteract any
odors.2° Supervisors were to be provided on extended weekends to
check on the trucks.2~
Truck traffic was not expected to exceed that generated by the
previous occupant of the site, a truck terminal operator.22 The
~? Certified Record, filed December 15, 1995, Item 7 (Minutes
of Township Planning Commission meeting held September 14, 1995).
~8 See Certified Record, filed December 15, 1995. Item 11
(Copy of Permit No. 1016240 dated June 14, 1994, from DEP to Waste
Management of Pennsylvania, Inc.); text accompanying notes 34-36
infra.
~9 At certain times, such as holiday weekends, this period
might be somewhat longer. Certified Record, filed December 15,
1995, Item 7 (Minutes of Township Planning Commission meeting held
September 14, 1995).
20 Id.
2~ Id.
22 Certified Record, filed December 15, 1995, Item 9 (Response
of R.E. Wright Environmental, Inc., to Township Engineer, received
September 22, 1995).
NO. 95-6890 CIVIL TERM
following information presented to the township was elaborative of
this point:
The original use of the facility was as a
Roadway trucking terminal for over 200 semi-
trucks and trailers on a daily basis.
Currently, Waste Management truck traffic is
between 100 and 120 trucks per day. The
proposed transfer station activity will result
in an increase of current traffic of
approximately 50 to 75 trucks per day. This
increase will not exceed the truck traffic
which occurred while Roadway owned and
operated the facility.23
The plan provided for the queuing of as many as 20 vehicles in
the driveway at the site - a number not anticipated to occur even
during peak hours of operation.24 In addition, Waste Management
eventually agreed to contribute $15,000.00 toward improvement of
the intersection at St. John's Church Road and Industrial Park Road
to accommodate traffic in that area.~s
In response to comments from the Township Engineer, Waste
Management eventually added detailed storm water notes to the plan.
The record supports the proposition that the current storm water
system on the site would be capable of handling the additional
23 Id.
24 Certified Record, filed December 15, 1995, Item 7 (Minutes
of Township Planning Commission meeting held September 14, 1995).
2s Certified Record, filed December 15, 1995, Item 15 (Letter
from Waste Management to Township Manager, dated November 1, 1995).
8
NO. 95-6890 CIVIL TERM
stormwater produced by the transfer station.26 The generation of
leachate (the product of leaching or percolation) was not a
probable consequence of the facility's operation.27
The Planning Commission unanimously recommended approval of
the plan, subject to 16 comments by the Township Engineer and 14
comments by the tri-county planning agency, on September 14, 1995.28
'Revisions to the plan were made by the applicant, and a
preliminary/final version of the plan~9 was initially considered by
the Board of Commissioners at its meeting on September 27, 1995.3°
The plan was again considered by the Board, and eventually
26 Certified Record, filed December 15, 1995, Item 9 (Response
of R.E. Wright Environmental Inc., to Township Engineer received
~ -September 22, 1995).
27 Certified Record, filed December 15, 1995, Item 7 (Minutes
of Township Planning Commission meeting held September 14, 1995).
28 Id.
29 The township's Land Development Ordinance provided for an
expedited procedure in the consideration of minor subdivision
and/or single commercial lot land development plans, whereby the
customary preliminary plan process was dispensed with. Hampden
Township Land Development Ordinance §303.
38 Certified Record, filed December 15, 1995, Item 13 (Minutes
of Board of Commissioners meeting held September 27, 1995).
However, the issue of approval was tabled after Waste Management
indicated that it was not prepared to discuss needed improvement to
the intersection at St. John's Church Road and Industrial Park Road
at that time. Id., at 6-7. Shortly thereafter, Waste Management
informed the Board of its willingness to contribute $15,000 toward
improvement of the intersection. See Certified Record filed
December 15, 1995, Item 15 (Letter from Waste Management of Central
Pennsylvania to Township Manager dated November 1, 1995).
NO. 95-6890 CIVIL TERM
voted upon, on November 2, 1995.3~ At this meeting, Appellants
presented objections to the preliminary/final plan. These
objections centered on concerns regarding potential traffic, water
and odor problems related to the plan.32 Following a discussion of
these objections, the Board voted to approve the preliminary/final
plan conditioned upon, inter alia, sign-off by the Township
Engineer. The Board's action was taken with the understanding that
"the approval assumed the existence of a state permit to operate a
transfer station."3~
Thereafter, on November 9, 1995, the Pennsylvania Department
of Environmental Protection temporarily suspended Waste
Management's permit to operate a solid waste transfer station at
the site.34 However, a state permit for the facility under the
Solid Waste Management Act was eventually issued by DEP on June 14,
~ Certified Record, filed December 15, 1995, Item 16 (Minutes
of Board of Commissioners Meeting held November 2, 1995); Certified
Record, filed July 10, 1996, Item 5 (Transcript of tape recorded
relevant portion of meeting held by Board of Commissioners on
November 2, 1995).
~2 Supplemental Record, filed July 10, 1996, Items 4-5.
(.Objections to Waste Management of Central Pennsylvania's Proposed
Land Development Plan, dated November 2, 1995; Transcript of tape
recorded relevant portion of meeting held by Board of Township
Commissioners on November 2, 1995).
~ Certified Record, filed December 15, 1995, Item 16 (Minutes
of Board of Township Commissioners' meeting held November 2, 1995
at 4.)
34 Certified Record, filed December 15, 1995, Item 19 (DEP
Letter to Waste Management of Central Pennsylvania dated November
9, 1995).
10
NO. 95-6890 CIVIL TERM
1996.3s The permit issued contained, inter alia, certain conditions
which Waste Management's facility was required to meet in order to
begin and continue the proposed operation. These conditions were
as follows:
1. No more than 600 tons/day of solid waste
may be received for transfer at this facility
on an average daily basis over the standard
year calendar quarter. Any increase in this
volume must be approved by permit
modification.
2. No more than 800 tons/day of solid waste
may be received for transfer at this facility
on any single operating day. Any increase in
this volume must be approved by permit
modification.
3. Waste other than municipal waste and
construction/demolition waste, as defined in
25 Pa. Code Section 271.1 may not be accepted
at the transfer station. No special handling
waste ( including infectious or
chemotherapeutic waste, sewage sludge, and ash
from municipal waste incineration) hazardous
or residual waste may be accepted at the
facility without first obtaining a permit
modification from the Department.
4. The facility is permitted to accept waste
for transfer off-site six (6) days during the
week. The permitted days and hours are Monday
through Friday -- 4:00 am to 8:00 p.m. and
Saturday - 4:00 am to 1:00 pm, or such other
reasonable hours as the host municipality may
set by ordinance.
5. Ail loading, unloading, storage and
3s Appellants have filed an appeal from that action, which
appeal is still pending before the Pennsylvania Environmental
Hearing Board. Supplemental Record, filed July 10, 1996, Item 3
(Letter from Eugene A. Dice, Esq. to Hampden Township Board of
Supervisors, dated November 2, 1995).
11
NO. 95-6890 CIVIL TERM
compaction of solid waste must take place
within the transfer building, with the
exception of recyclables as described in
Permit Condition 9 below.
6. Ail equipment that is used to handle
putrescible waste must be cleaned thoroughly
at the end of the working day.
7. The operator may not allow putrescible
waste to remain on the floor of the facility
following the end of the working day or for
more than 24 hours.
8. The facility must be inspected daily by
the operator for the presence of vectors and
litter.
9. The operator must establish at least one
drop-off center for the collection and sale of
at least three recyclable materials chosen
from the following: clear glass, colored
glass, aluminum, steel and bimetallic cans,
high-grade office paper, newsprint, corrugated
paper and plastics. The drop-off center must
be located at the facility or at a location
that is easily accessible to substantial
numbers of persons generating municipal waste
that is processed at the facility. The drop-
off center shall be operated in compliance
with Section 1502(b) of the Municipal Waste
Planning, Recycling, and Waste Reduction Act,
532 P.S. Section 4000.1502(b).
10. Any leachate generated at the facility
which is disposed of within the state must be
disposed of at a DER approved facility.
11. The permittee shall not act in a manner
that is contrary to any municipal waste
management plan approved by the Department
pursuant to the Municipal Waste Planning,
Recycling and Waste Reduction Act.
12. The permittee shall not allow waste
generated outside of Cumberland County to be
transported to, managed at, or transferred
from the facility, if the transportation,
12
NO. 95-6890 CIVIL TERM
management, or transferring of the waste would
violate applicable laws in effect in the
county or state in which the waste was
generated or local solid waste management
plans in effect where the waste was generated.
13. Waste received at the facility shall be
disposed of in compliance with all applicable
municipal, county, and state solid waste
management plans, ordinances, regulations, and
statutes.
14. Nothing herein shall be construed to
supercede, amend or authorize violation of the
provisions of any valid and applicable local
law, ordinance, or regulation, provided that
said local law, ordinance or regulation is not
preempted by the Pennsylvania solid Waste
Management Act, the Act of July 7, 1980, 35
P.S. 6018.101, et seq.36
On December 4, 1995, Appellants filed a Notice of Appeal with
this court from the approval of Waste Management's land development
plan by the Board of Commissioners. The bases for the appeal were
stated as follows in the notice:
13. Under S1403 of the Hampden Township
Zoning Ordinance operation of a municipal
waste transfer facility is not listed as a
permitted use with an area zoned I-G.
14. Under S1404 of the Hampden Township
Zoning Ordinance, operation of a municipal
waste transfer facility is not listed as a
conditional use within an area zoned I-G.
15. Pursuant to ~1403 of the Hampden Township
Zoning Ordinance, uses in I-G zoned areas must
be "compatible with existing land uses and
buildings." The Waste Management transfer
36 Certified Record, filed December 15, 1995, Item 11.
(Letter from DEP to Waste Management of Central Pennsylvania, dated
June 15, 1994.)
13
NO. 95-6890 CIVIL TERM
station is not consistent with such uses and
buildings. The processing of putrescible
waste, and the storage and handling of
leachate is inconsistent with Appellants' uses
and buildings which store, consolidate and
handle food products. Odors, vectors, litter,
traffic and similar nuisances associated with
operation of the said waste transfer facility
will interfere with and adversely affect
Appellants' businesses.
20. The proposed Waste Management Transfer
Facility will have adverse impacts on traffic
and traffic safety, when the area is already
over congested with unsatisfactory traffic
conditions. The approval without limiting or
adequately planning for traffic impacts
violates the Subdivision and Land Development
Ordinance section 503 and 502, and the Zoning
Ordinance, Section 1403.37
21. The land development plan as approved by
the Township Commissioners has inadequate
stormwater management facilities, and would
discharge stormwater runoff into a wetland and
streams in quantities in excess of pre-
development runoff, in violation of Section
506 of the Township Subdivision and Land
Development Ordinance.
23. The land development plan violates
§502.2A of the Hampden Township Subdivision
and Land Development Ordinance in that the
land to be developed is subject to flooding
and has a high groundwater table.
24. The approval of the land development plan
violated §502.2G of the Subdivision and Land
Development Ordinance in that the land is
subject to ground pollution and contamination.
25. The approval of the land development plan
37 Appellants' brief does not appear to refer to Section 503
of the Land Development Ordinance, and it is assumed that any issue
under that section is not being pursued. See C.C.R.P. 210-7
(issues not briefed deemed abandoned).
14
NO. 95-6890 CIVIL TERM
violates Article 1 S27 of the Pennsylvania
Constitution in that the proposed facility
will harm or threaten public natural
resources, will cause adverse impacts on
public safety, will have adverse impacts on
traffic and traffic safety. These adverse
impacts have not been minimized as required by
law and are not justified based on any social
and economic benefit balanced against adverse
impacts has been conducted or considered by
the Township Commissioners.
On December 28, 1995, Waste Management filed a Notice of
Intervention. On February 22, 1996, Appellants filed a motion for
Hearing To Present Additional Evidence, asserting that the issues
raised in the appeal relating to traffic, sto=mwater management,
and ground pollution and contamination were not fully and
adequately addressed in the certified record. This motion was
denied by this court in an order, accompanied by an opinion, on
August 13, 1996.
DISCUSSION
General rules applicable to action upon land development plan.
"The general rule is that the governing body - or the planning
agency where the approval authority has been delegated to it - must
approve a subdivision [or land development] plan if it complies
with the applicable statutes and ordinances." 2 Ryan, Pennsylvania
Zoning Law and Practice S11.2.8, at 18 (1981). "Approval may not
be denied, for instance, on the ground that the use is
inappropriate, or that the plan shows 'poor planning' and
'overdevelopment' or does not make adequate provision for traffic
15
NO. 95-6890 CIVIL TERM
flow, or for other similar general or 'policy' reasons which are
not reflected in the requirements of the ordinance." Id.; see Act
of July 31, 1968, P.L. 805, §508(2), as amended, 53 P.S. §10508(2)
(1996 Supp.) (citation to statute or ordinance required when plan
not approved as filed).
Approval of a plan conditioned upon subsequent issuance of a
required permit by a state agency is a permissible procedure.
Stein v. Easttown Township Board of Supervisors, 110 Pa. Commw.
293, 532 A.2d 906 (1987).
Alleqed nonconformity of plan at issue to township's zoninq
ordinance. Under Section 502.4 of the Hampden Township Land
Development Ordinance, it is provided that "proposed land uses
shall conform to the Township Zoning Ordinance." Under the zoning
ordinance and map, the lot proposed to be developed lies in an
Industrial-General (I-G) zoning district.
Under Sections 1403 and 1404 of the zoning ordinance, thirty-
one "permitted uses" and two "conditional uses" are provided for in
the general industrial zoning district. Section 1403 of the zoning
ordinance provides in pertinent part as follows:
S1403. Permitted Uses. When not otherwise
permitted by law, a building may be erected or
used and a lot may be used or occupied for any
of the following uses and no other. Such uses
and buildings shall be compatible with the
adjoining existing land uses and building and
shall comply with the provisions of Part 16 of
this Chapter[, relating to general
regulations] ....
16
NO. 95-6890 CIVIL TERM
10. Freight terminal and freight
yards ....
13. [B]ulk storage of petroleum and
similar products.
14. [T]ruck terminals.
18. Distribution plants ....
29. [W]arehouses and cold storage
plants.
Section 1404 of the zoning ordinance provides in pertinent
part as follows:
S1404. Conditional Uses. The following
conditional uses and no others may be allowed
by the Board of Commissioners after
recommendations by the Planning Commission
pursuant to the express general standards and
criteria set forth in part 18 of this
Chapter[, relating to conditional uses,] and
the specific standards and criteria set forth
in Part 17, §1703[, relating to "natural
production" uses]:...
2. Junk yard.
For a number of reasons, it appears to the court that the type
of activity to be conducted at the proposed transfer station is
sanctioned within a general industrial district by the ordinance.
First, the term "distribution plant" appears to directly encompass
the activities associated with a waste transfer station.
"Distribution," as defined by Webster's New Twentieth Century
Dictionary, means the "system or process of distributing
17
NO. 95-6890 CIVIL TERM
commodities to consumers."38 Further, "to distribute" means to "to
divide among two or more, to deal out; to give out; to give or
bestow in parts or portions; to allot."39 "Plant" is defined as
"the tools, machinery, fixtures, buildings, grounds, etc. of a
factory or business.''4° In keeping with the well-established
principle that words, when not otherwise defined in a statute or
ordinance,4~ should be given their ordinary meanings,42 we conclude
that the consolidation of waste for its transfer falls within the
scope of the term "distribution plant."
Assuming arguendo, however, that a waste transfer station of
the present type is not precisely a "distribution plant," it is
believed that other rules of statutory construction warrant a
conclusion that such activity is sanctioned in a general industrial
district. In this regard, it may be noted initially that a waste
transfer station can reasonably be said to serve generally the
functions of a bulk storage area, junk yard, distribution plant,
~ Webster's New Twentieth Century Dictionary, Unabridged (2nd
Edition, 1964).
Id. (emphasis added).
4~ We note that the definition section of the zoning ordinance
does not include a definition for "distribution," "plant," or
"distribution plant." See Hampden Township Zoning Ordinance,
§§201-204.
42 Upper Salford Township v. Collins, 542 Pas. 608, 669 A.2d
335 (1995).
18
NO. 95-6890 CIVIL TERM
warehouse and terminal; in contrast, uses provided for in other
zoning districts by the ordinance can not be easily analogized to
the proposed activity sub judice.
The following principles are well settled: (a) that
exclusionary zoning by a municipality presents grave constitutional
problems,43 (b) that a constitutional interpretation of an ordinance
is to be preferred over one raising serious constitutional doubts,44
(c) that in zoning law an activity not specifically referred to in
an ordinance will generally be considered to be encompassed by that
enumerated use most similar to it,4~ and (d) that landowners are to
be afforded broad interpretation of zoning ordinances so as to give
the least restrictive use and enjoyment of land.~6 These principles
lend support to an interpretation of the Hampden Township Zoning
Ordinance which would include a waste transfer station among the
uses sanctioned in a general industrial district.
Finally, "[a] principle, now codified as
interpretation under section 1921(c)(8) of
to statutory
the Statutory
~3 See Adams Outdoor Advertising, Ltd. v. Hanover Township
Zoning Hearing Bd., 159 Pa. Commw. 372, 633 A.2d 240 (1993).
~ See Water & Power Resources Bd. v. Green Springs Co., Inc.,
394 Pa. 1, 145 A.2d 178 (1958); Bd. of Supervisors of Upper Merion
Township v. McDonalds, 91 Pa. Commw. 299, 497 A.2d 264 (1985).
~5 Van Sciver v. Zoning Bd. of Adjustment, 396 Pa. 646, 152
A.2d 717 (1959).
~ Clout, Inc. v. Clinton Zoning Bd., __ Pa. Commw. , 657
A.2d 111, appeal denied, 542 Pa. 650, 666 A.2d 1058 (1995).
19
NO. 95-6890 CIVIL TERM
Construction Act, 1 Pa. C.S. § 1921(c)(8), [is] that courts should
give great weight and deference to the interpretation of a
statutory or regulatory provision by the administrative or
adjudicatory body that is charged with the duty to execute and
apply the provision at issue." Johnston v. Upper Macungie
Township, 162 Pa. Commw. 170, 176, 638 A.2d 408, 412 (1994). In
this case, the interpretation by the Board of Commissioners of its
zoning ordinance with respect to inclusion of a transfer station
among the uses authorized in a general industrial zoning district
is, as noted above, a reasonable one, and one with which this court
concurs.47
Alleged site contamination. Section 502 of the township's
Land Development Ordinance provides, in pertinent part, as follows:
S502. Land Requirements ....
2. Land which is unsuitable for
development because of hazards to
life, safety, health or property
shall not be developed until such
hazards are provided for in the Land
Development Plan. Land included as
having unsuitable characteristics
would be the following:...
G. Land which is subject to
ground pollution or
contamination.
Appellants claim that petroleum contamination of the soil and
47 As suggested by the statement of facts, the court is unable
to agree with Appellants that the transfer station would be so
offensive in nature as to be incompatible with existing adjoining
uses.
20
NO. 95-6890 CIVIL TERM
groundwater exists. They argue that this alleged contamination is
the result of the release of petroleum products from underground
storage tanks formerly located on the site when it was owned by
Roadway Services, Inc.48
A review of the record, however, does not substantiate
Appellants' claim that the Waste Management site is subject to
unremediated contamination by petroleum products. Despite the past
presence of underground fuel tanks, no definitive or substantial
evidence exists to suggest that, if any contamination remains at
all on the site, such contamination presents a significant threat
to "life, safety, health or property." As noted previously, no
underground storage tanks remained on the proposed site when Waste
Management's plan was submitted. In addition, DEP has reviewed
Waste Management's plan and has issued a permit for the facility.
Finally, DEP has not notified Waste Management that the site
requires any additional remediation.
Alleged promotion of vector activity, production of odors, and
creation of nuisance. Appellants claim that the on-site storage of
waste will increase vector activity, produce toxic odors, and
create a nuisance. Appellants further contend that such storage
will jeopardize public health because of the proximity of the
station to food distribution and warehousing facilities and to a
fast food restaurant.
48
See note 14 supra.
21
NO. 95-6890 CIVIL TERM
However, the record fails to show that the presence of waste
on the site will have an adverse impact on the surrounding area.
On the average, a given vehicle containing a load will be present
at the facility for less than 24 hours. With regard to long
holiday weekends, the utilization of several procedures should
effectively control odors. First, supervisors are to be available
to check on the trucks on extended weekends. Second, if any odors
are detected, Waste Management will utilize deodorizers to
counteract them. Third, additional protection against the effect
of odors and the possibility of vectors will be provided by the use
of tarpaulins on the storage trailers. Finally, with regard to the
likelihood of a nuisance being created by extended on-site waste
storage, it is noted that the conditions attached to the DEP permit
should preclude any such eventuality.
Alleqed traffic problems. Appellants contend that the waste
transfer station would generate approximately 198 new truck trips
on an average weekday. This traffic increase, they argue, would
create additional delays at the intersection of St. John's Church
Road and Industrial Park Road - an intersection that Appellants
claim already operates at an unacceptable level of service.
Appellants also argue that the queuing area proposed to accommodate
the waste transfer facility would be insufficient during peak hours
of operation.
In the court's view, however, the record does not show that
22
NO. 95-6890 CIVIL TERM
the Board incorrectly analyzed the impact that the transfer station
would have on traffic safety. First, the number of expected daily
truck trips generated by the facility is not likely to exceed the
truck traffic at the Waste Management site when it was operated as
a truck terminal.
Second, the record fails to provide convincing evidence that
the queuing area provided for in Waste Management's plan is
insufficient. The plan allows for the backing of approximately 20
vehicles in the driveway of the property, and this quantity of
truck traffic is not expected to actually exist even during peak
hours of operation. Finally, Waste Management's agreement to
contribute $15,000.00 toward the improvement of the intersection of
St. John's Church Road and Industrial Park Road should serve to
promote the flow of traffic in that area.
Alleqed prospect of floodinq. Appellants claim that an
undersized culvert immediately downstream from the proposed
transfer facility would result in potential flooding problems. A
review of the record, however, establishes that the Board properly
addressed Appellants' concerns as to whether the site would be
subject to flooding. Specifically, the record shows that in
response to the Township engineer's comments Waste Management added
detailed storm water management notes to its plans and provided
satisfactory assurances that the current storm water system on the
site is capable of handling the additional stormwater produced by
23
the transfer station.
Alleqed leachate production. Appellants contend that the
storage of leachate would increase gas generation and putrescence
and would create increased health and safety risks as well as
potential vector problems. However, in the court's view, the
record demonstrates otherwise. The facility was not expected to
generate leachate; and conditions attached to the permit issued by
DEP should have the effect of properly managing any leachate
production that might occur.
For the foregoing reasons, the following order will be issued:
ORDER OF COURT
AND NOW, this 5th day of February, 1997, upon consideration of
Appellants' land use appeal, and for the reasons stated in the
accompanying opinion, the decision of the Board of Commissioners of
Hampden Township, approving the Waste Management of Central
Pennsylvania Transfer Station Land Development Plan, is AFFIRMED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
BAYLEY, J., files a concurring opinion
Eugene E. Dice, Esq.
William W. Thompson, Esq.
Suite 101
1721 North Front Street
Harrisburg, PA 17102
Attorney for Appellants
NO. 95-6890 CIVIL TERM
Richard C. Snelbaker, Esq.
Snelbaker, Brenneman & Spare, P.C.
44 West Main Street
Mechanicsburg, PA 17055-0318
Attorneys for Appellee
Michael Finio, Esq.
Anthony P. Forte, Esq.
Suite 700
240 North Third Street
Harrisburg, PA 17101
Attorneys for Intervenor
: rc
25