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HomeMy WebLinkAbout91-4389 Civilt CARLOS R. LEFFLER, INC., Appellant V. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA, Appellee IN THE COURT CUMBERLAND CO CIVIL ACTION COMMON PLEAS OF VY, PENNSYLVANIA LAW NO. 4389 CIVIL 1991 OF NONCONFORMING USE ~— BEFORE HESS and OLER JJ. ORDER OF COURT AND NOW, this Z 2 n a day of July, 199P, upon careful consideration of the evidentiary record, the Find'ngs and Order of the Zoning Hearing Board, and the briefs and oral arguments of the parties, the decision of the Board is AFFIRMED. BY THE COURT, ti James M. Lillis, Esq. KOZLOFF, DIENER, PAYNE & FEGLEY 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 Attorneys for Appellant Carlos R. Leffler, Inc. J. Edward W. Rothman, Esq. Steven J. Weingarten, Esq. McNEES, WALLACE & NURICK 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Appellee Zoning Hearing Board Richard C. Snelbaker, Esq. SNELBAKER & BRENNEMAN, P.C. 44 West Main Street Mechanicsburg, PA 17055-0315 Attorneys for Intervenor Silver Spring Township CARLOS R. LEFFLER, INC., . Appellant V. ZONING HEARING BOARD OF SILVER SPRING TOWNSHIP, . CUMBERLAND COUNTY, . PENNSYLVANIA, Appellee . Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 4389 CIVIC. 1991 OF NONCONFORMING USE BEFORE HESS and OLER JJ. OPINION AND ORDER OF COURT In this case we are called upon to deterilline whether the Zoning Hearing Board of Silver Spring Township ("Zoning Hearing Board" or "Board") improperly denied the reque t of Carlos R. Leffler, Inc. ("Leffler") to expand an existing nonconforming use to include the installation of three gasoline storage tanks at its fuel oil storage facility located in Silver Spring Township, Cumberland County, Pennsylvania. For the reasons set forth in this Opinion, we affirm the decision of the Board. HISTORY AND PROCEDURAL BACKGROUND Carlos R. Leffler, Inc., is the corporate owner of real property located at Locust Point Road, New Kingstown', Silver Spring Township, Cumberland County, Pennsylvania, on which property Leffler maintains a bulk fuel storage facility. Le fler's property is located in a district zoned M-1 [Limited Indusrial District]. While bulk fuel storage facilities are not pI�mitted in M-1 districts, the facility at Locust Point Road predaTed the adoption No. 4389 Civil 1991 in 1976 of the existing Silver Spring Township ("Zoning Ordinance' or "Ordinance"); as a consequi heating fuel oil storage is permitted as a no Gasoline, as opposed to oil, is not at this tii Zoning Ordinance e, the present onforming use. stored at the facility, although it may have been at an unspecified point in the past, under a prior owner.' In September of 1991, Leffler filed an application with the Zoning Hearing Board for permission to expand the nonconforming use to include the installation of three gasoline storage tanks. A public hearing was held on October 17, 1991, before the Board' to consider Leffler's application. At the hearin , the applicant presented testimony and an engineer's plan which tended to show that the storage tanks would be constructed wi'hin the present perimeter of the tank field. Following the hearing, the Board rej cted Leffler's application. In support of its decision, the oard concluded, inter alia, as follows: The Applicant has not met the requirements, as set forth in Section 15 of the Ordinance, for the expansion of a nonconforming use inasmuch as no evidence was presented regarding compliance witthe dimensional, coverage and height requir'ments of the zoning district (M-2) which permi s the ' N.T. 35-37, 81, Hearing, Silver Spring Township Zoning Hearing Board, October 17, 1991 (hereinafter N.T., ). ' Participating in the decision of the Beard were Lloyd Clements and Mary Lou Pierce. 2 No. 4389 Civil 1991 proposed use and the height require the zoning district (M-1) in w nonconforming use is located. nts of h the The Applicant is not entitled to an expansion of its nonconforming use inasinuch as the proposed expansion would - as a result of the increased dangers associated with the storage of gasoline, as opposed to oil, and more importantly, the substantial added risks presented by the significant increase ii truck traffic - be detrimental to the public health, welfare and safety.... Findings and Order of Silver Spring Township Zon November 26, 1991, at 5-6. On December 16, 1991, Leffler filed an appe from the decision of the Board, and on Januar Township of Silver Spring intervened in decision. In its brief on appeal, Leffler Zoning Ordinance does not provide for Zoning Hear of the addition of tanks for gasoline storage ur circumstances,3 (b) that the Board erred in conclud had failed to show that the proposed facility we height and other limitations applicable to Hearing Board, L to this Court 8, 1992, the of the Board's s (a) that the zg Board review .er the present ng that Leffler ld comply with expansions of 3 Appellant had applied to the Board for such review, and it does not appear that this issue was raised before the Board. See 2 Ryan, Pennsylvania Zoning Law and Practice §9.5.1 (Main Vol. and 1989-90 Supp.). Nor does the issue appear in the Notice of Appeal as one of the grounds relied upon by appellant. ee Act of July 31, 1968, P.L. 805, §1003-A, as added, 53 P.S. §11003-A (1992 Supp.); Hill v. Lower Saucon Township Zoning Hearij g Board, 72 Pa. Commw. 381, 456 A.2d 667 (1983). 3 No. 4389 Civil 1991 nonconforming uses under the Ordinance,' and (c erred in concluding that the proposed facility wo to the public health, safety and welfare. STANDARD OF REVIEW In an appeal from a decision of a zoning that the Board be detrimental ing board, where the trial court has taken no evidence beyond thatipresented to the zoning hearing board,' the scope of review is limited to whether the board committed a manifest abuse of discreti n or an error of law. Faith Presbyterian Church v. Bensalem Township Zoning Hearing Board, 114 Pa. Commw. 107, 109, 538 A.2d 135, 136 (1988). The reviewing court may conclude that the board abus d its discretion with respect to its determinations only if the Eindings are not supported by substantial evidence. Id. By "subs antial evidence" is meant "such relevant evidence as a reasonable as adequate to support a conclusion." Id. ' Leffler argues that "the construction ( tanks (is] a permitted natural expansion of the fui the zoning ordinance and applicable law." Brief 4. "[T]he expansion should be allowed because Led relevant requirements for the expansion of a non Id., at 6. 5 Upon request by the Court at oral argu: Ordinance and the engineer's sketch of Leffler's ; made part of the record; however, it must be note( were before the Board at the October 17, Accordingly, counsel at the argument agreed that t the items with the Court would have no effect on review. 4 might accept f three storage 1 facility under if Appellant, at fler has met all :onforming use." ent, the Zoning orage site were that both items 1991, hearing. e mere filing of the standard of No. 4389 Civil 1991 DISCUSSION With respect to the issue of Zoning Hearing'Board review of a proposed expansion of the present type, Leffler argues that construction of three gasoline storage tanks within the confines of an already existing storage facility does not, and r the Ordinance, require approval by the Board. On the merits,' we are unable to agree with this position. Section 815.2 of the Silver Spring Township Zoning Ordinance provides, inter alia, that "[a] nonconforming use of a building or land may be extended in area in any amount provided that the combined extension and original facility comply with all of the dimensional, coverage and height requirements of the zoning district which permits such use and height requirements of the zoning district in which it is located," and that "all such extensions shall be approved by the Zoning Hearing Board" in accordance with certain application and hearing requirements set forth in Section 1100 of the Ordinance. Leffler apparently contends that because t dike perimeter surrounding the tank field will not be expanded, no potential for "area" extension can be said to exist, and, therefore, no prerequisite of Zoning Hearing Board approval is provided for in the Ordinance. Where the project proposed, howev r, contemplates 6 See note 3 supra. 5 No. 4389 Civil 1991 an expansion of a tank field by the construction of three fuel storage tanks, doubling the existing capacity of the structures for the storage of fuel,' we believe that the area and use extension referred to in the Ordinance as being subject to Board approval is more than broad enough to encompass the project. For this reason, appellant's first argument must be rejected. With respect to the issue of whether Leffler failed to demonstrate compliance with height or other limit tions applicable to expansions of nonconforming uses under the Ordinance, it is necessary to determine whether any such limitati ns exist and, if so, whether the project would be in conformity th erewith. On the former question, it may be observed generally t�at Pennsylvania courts have distinguished between an increase ina nonconforming use and an expansion beyond dimensional limitatior Sof such a use. While the natural expansion doctrine applies to nonconforming uses, it does not apply to "dimensional, space, to size, design, structural or aesthetic restrictions of a nonconforming use as proscribed by a zoning ordinance." Township f Chartiers v. William H. Martin, Inc., 518 Pa. 181, 188 n.3, 51 2 A.2d 985, 989 n.3 (1988); see also 2 Ryan, Pennsylvania Zoning �aw and Practice 217.7.2 (1970). ' In addition, although there was some referelce in testimony to plans to remove some old tanks in the future, t iere is no basis in the record to conclude that the ultimate Iround coverage occupied by tanks will not increase. 6 No. 4389 Civil 1991 In the case of structural extensions of n the ordinance under consideration contains a mandating compliance with all of the dimens height restrictions of the zoning district orming uses, ision expressly 1, coverage and ch permits the nonconforming use (in this case, an M-2 zoning di trict), and with the height restrictions of the zoning district in which the use in question is located (in this case, an M-1 zonin� district).1 In the M-2 zoning district, the height limitation applicable to "bulk oil and gasoline storage and service yards" is 114� feet maximum.i9 On the latter question - whether the project 6roposed would be in conformity with Ordinance limitations - it i� clear from the engineer's plan submitted by Leffler that the prol osed tanks would measure fifty-six feet in height, creating a dimensional nonconformity of eight feet beyond the a�ready existing nonconformity represented by several forty-eight loot tanks. This the law does not allow where it is proscribed e Silver Spring Township Zoning Ordinance § Extensions]. 9 Silver Spring Township Zoning Ordina Regulations], §402.2 [Area and Bulk Regulatio: limited to 1145 feet maximum or 4 stories." Ta contrast to buildings, can not be said to conta id., §102.3 [Definitions - "Building"]. Although the Ordinance excludes the heig] various other projections of a building from a coi building's height, such an exclusion can not be 3 height restrictions otherwise applicable to free-; facilities of the present type. See id., §102. "Height of Building"]. 7 the Ordinance; .2 [Structural e §402.1 [Use ]. Height is s, however, in stories. See of tanks and .tation of that d as obviating ending tanks in [Definitions - No. 4389 Civil 1991 consequently, appellant's second argument alleg ng error on the part of the Zoning Hearing Board must be rejected. With respect to the issue of whether the Board erred in concluding that the proposed facility would be d trimental to the public health, safety and welfare, it may be ob erved generally that an expansion of a nonconforming use must be consistent with the policy of this state to restrict nonconforming uses closely and to construe strictly any provisions in zoning ordinances which provide for the continuance of nonconforming uses.... The right to expansion is not unlimited, bit may be subject to reasonable restrictions sD that the expanded use is not detrimental to the public health, welfare and safety.... Appeal of Gambone, Pa. Commw. , , 598 A.2d 620, 626 (1991). Thus, where an expansion of a nonconforming use detrimentally impacts upon the public health, welfare and safety, the expansion must be denied. Feldman v. Zoning earing Board of the City of Pittsburgh, 89 Pa. Commw. 237, 241, 492 A.2d 468, 470 (1985). To be determined in the instant case is wh ther the record contains substantial evidence to support the finding of detriment in connection with the facility proposed. The Zoning Hearing Board premised its conclusion in this regard upon the special dangers associated with the storage of gasoline and upon the problems presented by significant increases in truck traffic; specifically, the main concerns of the Board were the higher risks associated with gasoline fires, as contrasted with 1.9 No. 4389 Civil 1991 oil fires, and the increased traffic congestion along Locust Point Road.10 Evidence in the matter came from Leffler's representatives, New Kingstown Fire Chief Jim Hall, and several protestants, neighbors to the site of the proposeexpansion. On the subject of fire risks associated' with gasoline, Leffler's representative conceded that the flash p I bint of gasoline is much lower than that of other relevant fuels." Moreover, the Board received information from both Leffler and the Fire Chief of the Fire Company in New Kingstown regarding the response time and adequacy of the local fire fighting facilities. Fire Chief Hall testified that [f]ire protection, as far as residentiaarea and also with [Leffler's] tank farm as it now exists, is pretty much adequate. But when we add gasoline to it, the facilities are n t now at New Kingstown Fire Company to combat 'large volume of fire, if we would happen to ha a one of them, those tanks go off....12 Leffler, through its representative, agreed with Chief Hall's assessment of the fire -fighting capabilities of the local company and admitted that Leffler would have to supply its 6wn firefighters because "most local firefighters, such as [New K'ngstown's fire company], are not too familiar with foam and fighting [a gasoline] 10 Findings and Order of Silver Spring Townshi Zoning Hearing Board, November 26, 1991, at 4. 11 N.T. 82-83. iz N.T. 54. 7 No. 4389 Civil 1991 fire. i13 Leffler added in testimony that it w uld be wise to summon fire control assistance from the Harrisburg International Airport 14 or the Capital City Airport," and th t the response time would be one hour.16 However, Leffler pr sented evidence that, if a gasoline fire is nqt extinguished by foam within twenty minutes, the fire must burn itself out.17 On the subject of traffic problems expected to be generated by the proposed expansion of the storage facilit , evidence was received by the Board tending to show a substantial projected increase in truck traffic volume and consequent in rease in public inconvenience and danger due both to the inadequacy' of Locust Point Road" to handle a greater number of trucks, and to the risks associated with trucks transporting flammable gas line attempting to enter the southbound lanes of U.S. Route 11, i a 55 mile -per - hour zone, from the incline of Locust Point Road. 13 N.T. 57. 14 N.T. 57-58. This airport is sometimes referred to as Middletown Airport; it is in Dauphin County. 15 N.T. 58. This airport is located in York County. 16 N.T. 58. 17 N.T. 58-59. Chief Hall also testified that "the water supply that would be there would be very inadequate," for reasons involving the existing water main. N.T. 55. 1e Locust Point Road is a state road. Accordi g to Fire Chief Hall, while the Pennsylvania Department of Transpor ation has plans to improve the road in the future, funds have) not yet been allocated for the project. N.T. 78. 10 No. 4389 Civil 1991 Specifically, the Board heard evidence thal. storage at the tank field would double to eight million gallo s,19 that trucks would eventually transport eighty million gallons of gasoline from the site each year,20 while continuing delivery',of home heating fuel,21 and that the average truck has a capacity f eight thousand gallons.22 The Board was told that Locust Point oad is a narrnw one, with eroding berms, and that the trucks must travel that road from the fuel storage site to access U.S. Route l', there being no alternate route.23 The Board was advised by Fire hief Hall as to the danger of tri -axle trucks from the Hempi sideswiping Leffler gasoline tankers;2' by Stai Locust Point Road resident, of his observations o mill trucks experiencing difficulty passing each c directions on Locust Point Road and frequent en( residential lawns;25 and by Mr. Goodwin of winte which tractor -trailers become stuck on the hill an 19 N.T. 49. 20 N.T. 65-66. 21 N.T. 66. 22 N.T. 50. 23 N.T. 51-52. 24 N.T. 53. 25 N.T. 68. 11 Quarry nearby ley Goodwin, a ' Hempt and feed :her in opposite roachments upon conditions in slide or drift No. 4389 Civil 1991 backward.26 "The road is not designed, it is not is not ready to take the additional truck traffi he stated." In addition, the traffic danger involved emerging from Locust Point Road onto U.S. Route 1 described by Chief Hall: equipped, and it that is there," gasoline trucks was graphically [A]t the intersection of Locust Point Road and Main Street in [New Kingstown], you have two lanes of travel going northbound, where you would have tank trucks crossing both' those lanes in which they do now. The intersection is. kind of a crooked-- it's not a sl raight intersection going from Locust Point Road south to Locust Point Road north. Wen you get to the southbound lanes, what you have is gasoline tank trucks pulling out onto z high- speed highway. That high-speed highway is 55 - miles -an -hour from Kost Road to the west end of Hogestown on, going southbound. And that's the same speed as what the Penns lvania Turnpike is. So we have these gasoline tank 'trucks pulling out into the high-speed highway going south ....28 In view of the foregoing matters of record, including the 26 N.T. 69. 27 Another resident observed, "[t]hat road is too narrow to have all the ... trucks plus now gas tankers, pl's fuel tankers. And the road is just too narrow, it is proven riilht all over our yards." N.T. 78 (emphasis added). 28 N.T. 52-53. Chief Hall also pointed out jhat in the event of an accident involving a rupture of a tank truc , gravity would cause gasoline to flow into New Kingstown. N.T. 3-54. 12 No. 4389 Civil 1991 statements of laypersons," as to fire and trafi���',ic hazards, this Court is not in a position to hold that the Boar 's conclusion as to detriment to the public health, safety and i lelfare from the facility's expansion was unsupported by such relevant evidence as a reasonable mind might accept as adequate. I Igor this reason, appellant's final argument must be rejected. ORDER OF COURT AND NOW, this Z Z n d day of July, 199 , upon careful consideration of the evidentiary record, the Findings and Order of the Zoning Hearing Board, and the briefs and oral arguments of the 29 Leffler argues that the Board should not ''have considered the statements of local residents. We disagree a d conclude that the Board was free to take into account such 40vidence in its decision-making process. In Hersh v. Zoning Hearing Board of Marlboroigh Township, 90 Pa. Commw. Ct. 15, 21, 493 A.2d 807, 810 (1985)01 he Commonwealth Court determined that the zoning hearing board, aslfactfinder, did not abuse its discretion by grounding its deci'ion to deny an expansion of a nonconforming use in part on t e testimony of neighboring landowners. See also Borger V. Towaniensing Township Zoning Board of Adjustment, 39 Pa. Commw. Ct. 36 , 364, 395 A.2d 658, 659 (1978)(°[1]ay testimony of adjoining la downers on such matters as whether a proposed use ... would) compound road congestion ... is not necessarily incompetent" In the instant case, the Board did not rely, solely on lay testimony; rather, the Board heard extensive testimony by New Kingstown Fire Chief Hall with respect to th fire hazards associated with gasoline storage in general and lithe particular dangers arising from the transport of gasoline. Unlike the objectors in Manor Healthcare Corporation v. 'Lower Moreland Township Zoning Hearing Board, Pa. Commw. Ct. A.2d 65, 71 (1991), the lay protestants in the instant case testified not about speculative dangers but aboutlknown risks of adding gasoline tanker traffic to a road alread burdened with existing truck traffic, inter alia. 13 No. 4389 Civil 1991 parties, the decision of the Board is AFFIRMED. BY THE COURT, James M. Lillis, Esq. KOZLOFF, DIENER, PAYNE & FEGLEY 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 Attorneys for Appellant Carlos R. Leffler, Inc. Edward W. Rothman, Esq. Steven J. Weingarten, Esq. McNEES, WALLACE & NURICK 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Appellee Zoning Hearing Board Richard C. Snelbaker, Esq. SNELBAKER & BRENNEMAN, P.C. 44 West Main Street Mechanicsburg, PA 17055-0318 Attorneys for Intervenor Silver Spring Township 14 J.