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Home My WebLink About95-6890 Civilq6-J7 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 IN RE: APPELLANTS' MOTION FOR HEARING TO PRESENT ADDITIONAL EVIDENCE BEFORE OLER, J. ORDER OF COURT AND NOW, this %~day of August, 1996, upon consideration of Appellants' Motion for Hearing To Present Additional Evidence, and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, Eugene E. Dice, Esq. 1721 North Front Street Suite 101 Harrisburg, PA 17102 Attorney for Appellants Richard C. Snelbaker, Esq. 44 'West Main Street Mechanicsburg, PA 17055 Attorney for Appellee Michael Finio, Esq. 240 North Third Street Harrisburg, PA 17101 Attorney 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 Ve 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: APPELLANTS' MOTION FOR HEARING TO PRESENT ADDITIONAL EVIDENCE BEFORE OLER, J. OPINION and ORDER OF COURT Appellants, 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., have filed a motion for a hearing to present additional evidence in their land use appeal from approval by Appellee, the Board of Commissioners of Hampden Township, of a preliminary/final land development plan for a solid waste transfer station to be Pennsylvania.~ will be denied. operated by Intervenor, Waste Management of For the reasons stated in this opinion, the motion ~ See Act of July 31, 1968, P.L. 805, S1005-A, as added, 53 P.S. Sll005-A (1996 Supp.) (provision for judicial hearings, inter alia, in land use appeals). NO. 95-6890 CIVIL TERM PROCEDURAL HISTORY; STATEMENT OF FACTS Appellants are identified as various Pennsylvania corporations and a partnership that own or lease property located in close proximity to a proposed waste transfer station to be constructed by Intervenor, Waste Management of Pennsylvania, Inc. (hereinafter, Waste Management).2 On August 23, 1995, Waste Management filed an application with the Township of Hampden in Cumberland County, Pennsylvania, for approval of a land development plan to construct a waste transfer station.3 The transfer station was to be located in the northwest corner of a 16.61-acre parcel of land located at 4300 Industrial Park Road in the township.4 Basically, the plan provided for an 11,250 square foot transfer building, an access drive, a transfer trailer storage area, and a truck weighing station,s These buildings were to occupy 1.94 acres of the 16.61-acre parcel.6 The waste transferred at the station was to be municipal, commercial, nonhazardous industrial solid waste and non-impacting 2 Notice of Appeal, paragraphs 1-11. 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). 4 Id. Id. Id. NO. 95-6890 CIVIL TERM municipal-like waste from industrial facilities.? No more than 600 'tons of such waste was to be transferred at the station on an average daily basis and no more than 800 tons on any single day.8 The plan was considered at a meeting of the township's planning commission (hereinafter, the planning commission) on September 14, 1995.9 During the meeting, Waste Management replied to several comments made by the township engineer and the tri- county planning commission regarding, among other things, storm water management plans for the site, possible site contamination from ground pollution, and potential traffic problems.~° Following the discussion, the planning commission recommended that the plan be approved by the Board of Commissioners of Hampden Township (hereinafter, the Board).~ A slightly revised version of the plan was filed with the township on September 22, 1995.TM This version was designated as 7 Id. 8 Certified Record, filed December 15, 1995, Item 2 (Application for Subdivision or Land Development Approval dated August 23, 1995). 9 Certified Record, filed December 15, 1995, Item 7 (Minutes of Township Planning Commission meeting held September 14, 1995). Id. at 2-3. Id. at 4. ~2 Certified Record, filed December 15, 1995, Item 10 (Preliminary/Final Land Development Plan filed on September 22, 1995). 3 NO. 95-6890 CIVIL TERM a "Preliminary/Final Land Development Plan."~3 The preliminary/final plan was considered by the Board at a meeting held on September 27, 1995.TM However, the issue of approval was tabled after Waste Management indicated that it was not prepared to-discuss needed improvements to the intersection at St. John's Church Road and Industrial Park Road at that time.~5 Several days after the meeting, Waste Management indicated that it would contribute $15,000 toward improvement of the intersection.~6 The Board subsequently reviewed, and-eventually voted upon, the.preliminary/final plan at a meeting held on November 2, 1995.~? An attorney representing Appellants attended the meeting and presented Appellants' objections to the preliminary/final plan to the Board.~8 Appellants were able to express their concerns about potential traffic, water and odor problems which might result if ~3 Id. ~4 Certified Record, filed December 15, 1995, Item 13 (Minutes of Board of Commissioners meeting held September 27, 1995). Id. at 6-7. ~6 Certified Record, filed December 15, 1995, Item 15 (Letter from Waste Management of Central Pennsylvania to Township Manager dated November 1, 1995). ~? 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). 4 NO. 95-6890 CIVIL TERM the plan were approved.~9 Appellants also discussed the effect which an appeal they had filed with the Environmental Hearing Board, opposing approval by the Pennsylvania Department of Environmental Protection (hereinafter DEP) of a permit to operate a waste transfer station at that location, should have on the Board's approval process.2° Following this discussion, 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.''2~ Subsequently, on November 9, 1995, DEP suspended Waste Management's permit to operate 'a solid waste transfer station at the site.2~ Appellants thereupon requested that the Board rescind ~9 Certified Record, filed December 15, 1995, Item 16 at 4; Certified Record, filed July 10, 1996, Item 5 at 2-5; Certified Record, filed July 10, 1996, Item 4 (Document entitled "Objections to Waste Management of Central Pennsylvania's Proposed Land Development Plan" dated November 2, 1995). 20 Certified Record, filed December 15, 1995, Item 16 at 4; Certified Record, filed July 10, 1996, Item 5 at 2-3. DEP had granted Waste Management a permit to operate a solid waste transfer station at the site on June 14, 1994. Certified Record, filed December 15, 1995, Item 11 (Copy of Permit No. 1016240, dated June 14, 1994). z~ Certified Record, filed December 15, 1995, Item 16 at 4. ~ Certified Record, filed December 15, 1995, Item 19 (DEP Letter dated November 9, 1995). NO. 95-6890 CIVIL TERM its approval of the preliminary/final plan.23 The township responded by advising that approval by the township engineer would "be withheld pending reinstatement of the DEP permit."24 Appellants filed an appeal challenging the Board's approval of the preliminary/final plan on a number of grounds. With respect to the instant motion, Appellants have alleged that the issues raised in the appeal relating to traffic, stormwater management, and ground pollution and contamination are not fully and adequately addressed in the certified record. Appellants have requested that they be afforded a hearing before the court to present additional evidence.2~ DISCUSSION It is well settled that a court may receive additional evidence "[i]f, upon motion, it is shown that proper consideration of a land use appeal requires the presentation of additional evidence." Act of July 31, 1968, P.L. 805, S1005-A, as added, 53 P.S. §l1005-A (1996 Supp.). The law is also clear that whether the presentation of additional evidence is to be permitted in a land use appeal rests 23 Certified Record, filed December 15, 1995, Item 18 (Letter from Eugene E. Dice to Board of Commissioners dated November 14, 1995). 24 Certified Record, filed December 15, 1995, Item 21 (Letter from Township Manager to Attorney Dice dated November 16, 1995). 2~ Motion for Hearing To Present Additional Evidence, paragraphs 5-6. NO. 95-6890 CIVIL TERM within the discretion of the court. Kossman v. Zoning Hearing Bd. of the Borough of Green Tree, 143 Pa. Commw. 107, 597 A.2d 1274 (1991). An appellant must be allowed to present additional evidence only when he or she "demonstrates that the record is incomplete because [of a denial of] an opportunity to be fully heard, or when the Board excluded relevant testimony that was offered." Reformed Seventh Day Adventist Church, Inc. v. Philadelphia Zoning Bd. of Adjustment, 127 Pa. Commw. 445, 451, 561 A.2d 1324, 1327 (1989). Appellants do not contend in their motion for a hearing to present additional evidence that the Board denied them an opportunity to be fully heard or excluded any relevant testimony which they offered. Nor would the record support such a contention. Moreover, the record does not suggest affirmatively any insufficiencies in the evidence regarding traffic, storm water management, or ground pollution and contamination which would prevent the court from properly considering the land use appeal. To the contrary, a review of the record indicates that traffic, storm water, and pollution issues were specifically discussed at various times during the approval process by both the planning commission and the Board. Under these circumstances the court believes that the merits of Appellants' appeal can properly be considered on the basis of 7 NO. 95-6890 CIVIL TERM the record certified by the township. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 13th day of August, 1996, upon consideration of Appellants' Motion for Hearing To Present Additional Evidence, and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, Eugene E. Dice, Esq. 1721 North Front Street Suite 101 Harrisburg, PA 17102 Attorney for Appellants Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Appellee Michael Finio, Esq. 240 North Third Street Harrisburg, PA 17101 Attorney for Intervenor : rc s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J.