Opinion
No. 1515 C.D. 2012
05-16-2013
Choice Fuelcorp, Inc., Appellant v. Zoning Hearing Board of Armstrong Township
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge (P.) HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this land use appeal, Choice Fuelcorp, Inc. (Applicant) asserts the Court of Common Pleas of Lycoming County (trial court) erred in affirming a decision of the Zoning Hearing Board of Armstrong Township (ZHB) that denied Applicant's applications for: (i) pumping, storage, transferring and dispensing of water (Water Extraction); (ii) construction of a second rail spur (Rail Spur); and, (iii) construction/expansion of additional parking area (Cut and Fill). The ZHB determined Applicant's proposed uses did not qualify as special exceptions or expansions of a nonconforming use under the Zoning Ordinance (Ordinance) of Armstrong Township (Township) and the amendment enacted in 2004 (Amendment). The ZHB further determined Applicant did not meet the objective criteria of the Ordinance, and the proposed uses would be detrimental to the community.
The Honorable Richard A. Gray presided.
The Amendment amended Article 6 of the Ordinance pertaining to Floodplain Regulations. Section 600(C) of the Amendment provides:
This ordinance supersedes any other conflicting provisions which may be in effect in identified floodplain areas. However, any other ordinance provisions shall remain in full force and effect to the extent that those provisions are more restrictive. If there is any conflict between any of the provisions of this Ordinance, the more restrictive shall apply.The ZHB applied the criteria set forth in the Ordinance and the Amendment to the applications.
Applicant argues the ZHB abused its discretion by determining the proposed three uses do not qualify as special exceptions under the Ordinance. Alternatively, Applicant contends the uses constitute natural expansions of the existing use. Applicant asserts Section 900(C)(1)(b) of the Ordinance, which completely precludes expansion of nonconforming uses in the floodway district, is unconstitutional. Applicant maintains the record shows its proposed uses satisfy the objective criteria of the Ordinance. Some error is evident, as competent evidence does not support the ZHB's determination that the proposed uses would have substantial adverse impacts on the general health, safety and welfare of the community to a high degree of probability. Nevertheless, for the reasons that follow, we affirm.
I. Background
Applicant owns property located at 2344 Sylvan Dell Road, Armstrong Township, Lycoming County, Pennsylvania (Property). Part of the Property is located in the Floodway District and part of it is located in the Conservation Open Space Zoning District.
The Property is permitted to be used as a fuel facility, which involves the pumping, storage, transferring and dispensing of petroleum-based fuel, but has not been actively used for this purpose since 2001. This use is a preexisting nonconforming use. In 2008, Applicant expanded the existing use to include biodiesel fuel. See Choice Fuelcorp, Inc. v. Zoning Hearing Bd. of Armstrong Twp. (C.P. Lycoming, Dkt. No. 07-02,598, filed Mar. 24, 2008) (approving biodiesel mixing facility as a natural expansion of the existing fuel facility). The Property includes, but is not limited to, eight petroleum-based fuel storage tanks, underground petroleum fuel pipelines, a petroleum-based fuel transfer station, a warehouse, and storage buildings. Significantly, the Property also has an existing rail spur pursuant to a special exception granted by the ZHB in 2008. These structures are all located in the Floodway District.
Applicant filed applications for Water Extraction, Rail Spur and Cut and Fill. All three applications pertain to the portion of Applicant's Property located within the Floodway District. The underlying purpose of the applications is to extract water from the Susquehanna River and then transport that water by truck and rail for the hydraulic fracturing of Marcellus Shale gas wells. Applicant contends the proposed uses are permitted as special exceptions or, in the alternative, expansions of the existing nonconforming use.
Applicant initially filed seven applications, but withdrew four and amended the three as indicated.
The ZHB held five hearings on the applications. Applicant presented the testimony of Jason Weisz, John Welkie, Karl Matz, P.E., and James Krise, P.E., and 19 exhibits in support of the applications. Concerned Citizens of South Williamsport and Armstrong Township (Objectors) testified and presented evidence in opposition. Todd Pysher, P.E., the Township Engineer, also testified.
Ultimately, the ZHB denied the applications. The ZHB issued a written decision containing findings of fact and conclusions of law. We summarize the ZHB's pertinent findings and conclusions as follows.
The proposed uses do not qualify as special exceptions. Pursuant to the Ordinance, utilities, railroads, extraction and storage of certain non-hazardous materials are permitted in a Floodway District by special exception. However, the Ordinance precludes bulk storage of hazardous materials and substances. The proposed Water Extraction, which involves withdrawal from public water courses and the storage and dispensing of bulk quantities of nonpotable water, does not qualify as a special exception in the Floodway District.
With regard to the proposed Rail Spur, its use in conjunction with a facility to store or transload materials, as opposed to simply a right-of-way through the Floodway District to transport materials, is not permitted in a floodway by right or by special exception. Id. As for the Cut and Fill, construction of a parking area is not permitted in the floodway; rather, only limited residential pervious parking or parking related to an agricultural or recreational use is permitted.
Additionally, the proposed uses are an unreasonable and unlawful expansion of the preexisting nonconforming uses as a petroleum-based and biodiesel fuel facility. Whether the proposed use is a new use, or an expansion of a preexisting, nonconforming use, the applications describe at least a 100% expansion of the prior commercial activity on the Property. Moreover, extensions or enlargements of nonconforming uses are strictly prohibited in the floodway pursuant to Section 900(C)(1)(b) of the Ordinance.
The ZHB continued, even if the proposed uses qualified as special exceptions, Applicant did not demonstrate compliance with the objective special exception criteria. The applications are incomplete, and compliance with the Ordinance and Amendment cannot be reasonably determined from the applications and evidence presented. The description of the proposed uses changed significantly over the course of the hearings held, and the scope of the various uses existing or proposed was not limited.
Applicant did not show by credible evidence that any of the proposed uses met the objective criteria of the Ordinance for special exceptions. Specifically, whether the uses: are designed in a manner to protect public health and safety, and will avoid adverse impacts; will not cause injury to neighboring property values; will provide for adequate off street parking and loading; will be compatible with the proposed character of the district; and will conform to all applicable floodway regulations, including the Ordinance as well as regulations issued by Pennsylvania Department of Environmental Protection (DEP), Army Corps of Engineers, the Federal Emergency Management Agency (FEMA), and others.
Additionally, Applicant did not show by credible evidence that the proposed uses will meet the requirements for approval of a special exception in the Floodway District as detailed at Section 610 of the Ordinance, that is, no rise in flood heights; no increase in flood water velocities; no danger of materials being swept onto adjacent lands or downstream; the importance of the service proposed to the community; or, the mitigation of hazards to public health and safety in general. Applicant has not: quantified the types of materials to be loaded, unloaded and stored on the rail cars; detailed the cut and fill volumes on the plans; or, defined the broad scope of the uses.
The ZHB further found Objectors showed, to a high degree of probability, the proposed uses will result in substantial adverse impacts to health and safety, not just speculation of possible harms. Specifically, Objectors presented substantial, credible evidence that the proposed uses will: reduce property values; create safety hazards for residents; create excessive noise, dust and fumes; impair the safe flow of traffic on public streets; impair the safe use of existing public recreational facilities in the district; and, unduly burden public infrastructure. Applicant did not credibly refute this evidence. Thus, the ZHB denied the applications.
Applicant appealed to the trial court. Without taking additional evidence, the trial court affirmed. Applicant then filed the present appeal.
The trial court entered two decisions. The trial court filed the first decision on July 12, 2012, followed by a supplemental opinion on September 11, 2012, in response to Applicant's Amended Statement of Matters Complained of on Appeal.
Because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).
II. Discussion
A. Special Exception
Applicant first contends the ZHB erred in determining its applications for Water Extraction, Rail Spur and Cut and Fill do not qualify as special exceptions. According to Applicant's interpretation of the Ordinance, these uses are permitted in the Floodway District. Any doubt must be resolved in favor of Applicant.
A special exception is not an exception to a zoning ordinance, but rather a use that is expressly permitted provided the applicant meets the objective standards in the zoning ordinance for special exception approval. Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007). The applicant bears the burden of proving the proposed use is a type permitted by special exception and that the proposed use complies with the requirements in the ordinance for such a special exception. Id.
The issue of whether a proposed use falls within a given categorization contained in a zoning ordinance is a question of law for this Court. Aldridge v. Jackson Twp., 983 A.2d 247 (Pa. Cmwlth. 2009). In considering this issue, we are mindful that ordinances are to be construed expansively, affording the landowner the broadest possible use and enjoyment of his land. Id. Thus, "restrictions on a property owner's right to free use of his property must be strictly construed and all doubts resolved in his favor." Appeal of Gilden, 406 Pa. 484, 492, 178 A.2d 562, 566 (1962).
Like statutes, the primary objective of interpreting an ordinance is to determine the intent of the legislative body that enacted it. Aldridge. Where the words in an ordinance are free from all ambiguity, the letter of the ordinance may not be disregarded under the pretext of pursuing its spirit. Id. An ambiguity exists when language is subject to two or more reasonable interpretations and not merely because two conflicting interpretations may be suggested. Id. The ZHB is entitled to considerable deference in interpreting its zoning ordinance. Id.
Moreover, undefined terms are given their plain meaning. H.E. Rohrer, Inc. v. Zoning Hearing Bd. of Jackson Twp., 808 A.2d 1014 (Pa. Cmwlth. 2002). To define an undefined term, we may consult definitions found in statutes, regulations or the dictionary for assistance. Id. A given phrase must be interpreted in context and read together with the entire ordinance. Id.
Here, Section 310 of the Ordinance permits (with emphasis added) the following uses by special exceptions in a Floodway District:
Utilities, railroads, streets, bridges, transmission lines and other related uses and activities
Water related uses and activities such as marinas, docks, wharves, piers, etc. (See 436)
Extraction of sand, gravel, and other materials (See 425)
Storage of materials and equipment provided that they are not buoyant, flammable or explosive, and are not subject to major damage by flooding or provided that such material and equipment is firmly anchored to prevent flotation or movement, and/or can be readily removed from the area in the time available after flood warning
Campgrounds (See 413)
Id.
With this framework in mind, we examine each of Applicant's proposed uses.
1. Water Extraction
First, Applicant argues its proposed Water Extraction use qualifies as a "water related use" and is therefore permitted as a special exception in the Floodway District. According to Applicant, Section 310 of the Ordinance permits two types of uses: (1) "water related uses" and (2) "activities such as marinas, docks, wharves, piers, etc." The Ordinance does not define "water related uses." The term "water related uses" clearly entails any application involving water, including the proposed Water Extraction use.
Contrary to Applicant's assertions, "water related uses" cannot be read separate and apart from "activities." The phrase must be interpreted in context and read together with the entire provision. H.E. Rohrer. Marinas, docks, wharves, and piers are not technically "activities" but "uses." The examples provided are boating facilities, which are used in navigable waters to allow boats or other vessels to receive or discharge passengers or cargo. "Activities" or functions customarily associated with such uses would therefore include docking, mooring, and loading/unloading passengers/cargo.
The trial court determined the water-related uses refer to recreational purposes, as opposed to "business-related purposes." Tr. Ct., Slip Op., 7/12/12, at 7. However, we cannot find support for that interpretation as marinas, docks, wharves and piers can also be used for commercial purposes.
According to Applicant's proposal, water will be extracted from the Susquehanna River, transferred to a dispensing station by underground pipe on the Property, and ultimately dispensed into trucks and rail cars on the Property for distribution. The proposed Water Extraction use is a completely different use than a boating facility and is not compatible with any of the example uses enumerated.
Applicant also argues the Water Extraction use qualifies as a "transmission line." The Ordinance does not define this term. Relying on dictionary definitions, Applicant advances that a "transmission line" includes a pipeline used to transfer water from one place to another.
According to Webster's dictionary, the term "transmission" is defined as "an act, process, or instance of transmitting." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1254 (9th ed. 1987). "Transmit" means to "send or convey from one . . . place to another." Id.
Utilizing these definitions, Applicant's interpretation seems reasonable, but only when read in isolation from the other uses listed. When read in conjunction with the other uses, as required, a different meaning arises. Utilities, railroads, streets, and bridges are typically public uses, often regulated by the Public Utility Commission (PUC). See Section 102 of the Public Utility Code, 66 Pa. C.S. §102 (defining public utilities). These contemplated uses also entail rights-of-way. When read in this context, the meaning of "transmission line" takes on a public purpose. The proposed Water Extraction use is private, not public, and is not a right-of-way. Moreover, the proposed use is not related to a public use.
The primary objective of interpreting ordinances is to determine the intent of the Township in enacting the Ordinance. See Aldridge. Clearly, the Township intended this provision to pertain to improvements and right-of-ways for public use. We conclude the ZHB did not err or abuse its discretion when it determined that Applicant's Water Extraction use does not qualify as a special exception as contemplated by the Ordinance.
2. Rail Spur
Next, Applicant argues the Rail Spur qualifies as a special exception because Section 310 of the Ordinance expressly permits "railroads . . . and other related uses and activities."
The Ordinance does not define "railroads." The dictionary defines "railroad" as "a permanent road having a line of rails fixed to ties and laid on a roadbed and providing a track for cars or equipment drawn by locomotives or propelled by self-contained motors; also: such a road and its assets constituting a single property." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 972 (9th ed. 1987). Section 102 of the Public Utility Code similarly defines railroad as "[e]very railroad, other than a street railway, by whatsoever power operated, for public use in the conveyance of passengers or property, or both, and all the facilities thereof." 66 Pa. C.S. §102. The federal Interstate Commerce Act defines "railroad" to include "a switch, spur, track, terminal, terminal facility, and a freight depot, yard, and ground, used or necessary for transportation." 49 U.S.C. §10102(6)(c). "[A] track leading from the main line of a railroad is variously described as a 'switch,' a 'siding,' a 'spur' or a 'branch.'" Erie & W.V.R. Co. v. Public Service Comm'n, 74 Pa. Super. 338, 345, 1920 WL 1534, 3 (Pa. Super. 1919).
The proposed Rail Spur is a section of track that branches off from the Norfolk Southern Main Line, which borders the Property. Reproduced Record (R.R.) at 1a; see ZHB Hearing, Notes of Testimony (N.T.), 7/29/09, at 9. The Rail Spur will be used in conjunction with the main railroad to load and unload rail cars. Although the proposed Rail Spur is private, it is part of the railroad, which is a public use. See Rogoff v. Buncher Co., 395 Pa. 477, 151 A.2d 83 (1959) (holding a private siding is part of a railroad system).
The ZHB's restrictive interpretation of a "railroad" as only a right-of-way through the Floodway District completely ignores the allowance for "other related uses and activities." The proposed Rail Spur use is clearly a "related use" to a railroad. Therefore, the ZHB erred in determining the Rail Spur use is not permitted by special exception under the terms of the Ordinance.
3. Cut and Fill
Applicant further argues the ZHB erred when it denied its Cut and Fill application to accommodate a truck parking and queuing area. The use involves the removal of soil and the addition of pervious materials to stabilize the area. Applicant argues the ZHB should have approved its application because the excavation of sand, gravel and other materials is permitted in the Floodway District by special exception.
Section 310 of the Ordinance permits the "[e]xcavation of sand, gravel and other materials" by special exception and references Section 425 of the Ordinance. In turn, Section 425 of the Ordinance states that soil erosion and sedimentation is a primary concern and directs the stabilization or protection of exposed ground surfaces "with a vegetative cover." Id. Section 425 additionally provides:
Following excavation of the site, the applicant must restore the area to a safe, stable, natural condition. In all cases, the applicant shall grade, stabilize, and seed the area to restore vegetative cover without disrupting the existing surrounding drainage patterns.
Id.
Nevertheless, Section 310 of the Ordinance permits by right "storage of materials or equipment" provided they are not prohibited by other ordinances or regulations and do not require structures. Section 310 permits by special exception:
For example, Section 606 of the Ordinance precludes the bulk storage of hazardous materials and substances.
Storage of materials and equipment provided that they are not buoyant, flammable or explosive, and are not subject to major damage by flooding provided that such material and equipment is firmly anchored to prevent flotation or movement, and/or can be readily removed from the area in the time available after flood warning.
Id.
These provisions, when read in conjunction with one another, support Applicant's position that a pervious parking area is permitted within the floodway. It is difficult to envision how vehicles and equipment, which can be stored as of right on the Property, can be readily removed from the area if stored on ground covered by vegetation. Such interpretation is consistent with the purpose of the Floodway District to prevent the loss of property. See Section 600(A) of the Amendment. We conclude the ZHB erred in determining the "cut" or removal of soil and the "fill" or replacement of pervious material to store trucks and equipment is not permitted in the Floodway District.
B. Expansion of Nonconforming Use
1. Validity of 900(C)(1)(b) of the Ordinance
Alternatively, Applicant argues its proposed uses are natural expansions of the nonconforming use of the Property as a fuel facility. However, Section 900(C)(1)(b) of the Ordinance expressly precludes the expansion of nonconforming uses in the Floodway District.
In very brief argument, Applicant contends that Section 900(C)(1)(b) of the Ordinance, which prohibits all expansion of a nonconforming use in the Floodway District, is unconstitutional. However, it is not clear that Applicant put the Township on notice that it intended to raise a facial challenge to Section 900(C)(1)(b) of the Ordinance. Rather, Applicant seems to briefly raise an as-applied challenge, so that a total prohibition of expansion could not be applied to these applications. Applicant has not sufficiently developed the basis for analyzing a constitutional issue broader than an as-applied challenge.
A preexisting nonconforming use creates a vested property right in the owner of the property. Domeisen v. Zoning Hearing Bd. of O'Hara Twp., 814 A.2d 851 (Pa. Cmwlth. 2003). Accordingly, the right to the natural expansion of a valid nonconforming use is a constitutional right protected by the due process clause. Silver v. Zoning Bd. of Adjustment, 435 Pa. 99, 102, 255 A.2d 506, 507 (1969). Because the right of natural expansion is part of the due process-protected right to continue a nonconforming use, its total prohibition is problematic. See Lench v. Zoning Bd. of Adjustment of City of Pittsburgh, 974 A.2d 551 (Pa. Cmwlth. 2009) (observing ordinances that prohibit per se the natural expansion of a nonconforming use have been deemed unconstitutional).
For this reason, we agree with Applicant that denials of its applications cannot be based on Section 900(C)(1)(b)'s total prohibition of expansion of nonconforming uses in the Floodway District. Applicant's due process right to continue and naturally expand its nonconforming use is subject only to reasonable regulation. See Silver. This is consistent with the approach adopted by the trial court, which noted that "in regard to these parties and this [P]roperty, this Court has previously held that the natural expansion of a non-conforming use is permitted within a [F]loodway [D]istrict." Tr. Ct., Slip Op., 7/12/12, at 5 (emphasis in original). Therefore, we must consider whether the proposed uses are allowed as natural expansions of the existing nonconforming use.
2. Water Extraction
Applicant argues the proposed Water Extraction is allowed as an expansion of the existing nonconforming use as a fuel facility. The present use involves petroleum-based and biodiesel fuels, which are brought onto the site by pipeline, truck or rail car; transmitted around the Property through a series of pipes and tanks; and, then removed from the Property by truck or rail. The proposed Water Extraction use involves fresh water, which is pumped from the river, transferred to an above-ground filling station and rail spur on the Property, and then removed from the Property by truck or rail. Applicant contends both uses involve the same basic activity with the only difference being the nature of the industrial liquid. Based on these strong similarities between the existing use and the proposed use, Applicant asserts the Water Extraction is a natural expansion of its nonconforming use.
The right of natural expansion of a valid nonconforming use is not unlimited. Silver; Jenkintown Towing Serv. v. Zoning Hearing Bd. of Upper Moreland Twp., 446 A.2d 716 (Pa. Cmwlth. 1982). The proposed expansion must be a reasonable, natural one and must not be detrimental to the welfare of the community. Domeisen. Moreover, the expansion may not create a new nonconforming use. Id.
Nevertheless, the doctrine of natural expansion does not require a proposed use be identical to the nonconforming use. Limley v. Zoning Hearing Bd. of Port Vue Borough, 533 Pa. 340, 625 A.2d 54 (1993). Rather, the proposed use must be sufficiently similar so as not to constitute a new or different use. Id. (proposed public restaurant and bar similar to existing use as private social club); see also Pappas v. Zoning Bd. of Adjustment of City of Phila., 527 Pa. 149, 589 A.2d 675 (1991) (pizza restaurant with seating for 40 customers similar to existing use as sandwich shop with limited customer seating that sold primarily take-out food); Appeal of Indianhead, Inc., 414 Pa. 46, 198 A.2d 522 (1964) (proposed day camp and swim club similar to existing use as amusement park); Mutimer Co. v. Wagner, 376 Pa. 575, 103 A.2d 417 (1954) (proposed machinery sales office similar to existing use as real estate sales office).
However, there is no constitutionally protected right to change a nonconforming use to another use not allowed by the zoning ordinance. Hager v. W. Rockhill Twp. Zoning Hearing Bd., 795 A.2d 1104 (Pa. Cmwlth. 2002). Where the use is not sufficiently similar, expansion is properly denied. 200 W. Montgomery Ave. Ardmore, LLC v. Zoning Hearing Bd. of Lower Merion Twp., 985 A.2d 996 (Pa. Cmwlth. 2009) (conversion of a nonconforming gasoline station to a retail carwash and convenience store was denied on the grounds that the proposed use was not a continuation of the existing nonconforming use, but instead represented a change of use); Dziedzic v Zoning Hearing Bd. of Upper Hanover Twp., 444 A.2d 810 (Pa. Cmwlth. 1982) (providing owner could not expand an existing nonconforming junkyard to include a nonconforming automobile repair and body shop business); Gustin v. Zoning Bd. of Sayre Borough, 423 A.2d 1085 (Pa. Cmwlth. 1980) (attempt to add self-service gas pumps to a nonconforming grocery store was a prohibited expansion of a nonconforming use). Changes of existing nonconforming uses are to be strictly construed. Philm Corp. v. Washington Twp., 638 A.2d 388 (Pa. Cmwlth. 1994).
Applicant's proposed Water Extraction use is not a natural expansion or enlargement of the Property's present use as a fuel facility. Despite the similarities for the storage and distribution of liquid, the uses are not sufficiently similar. The present permitted use of the Property involves hazardous materials, namely petroleum-based and biodiesel fuels, whereas the Water Extraction use involves nonhazardous river water. The existing use does not involve any extraction or withdrawal from the river. Water Extraction is a new, independent use with no connection to the existing permitted uses. Thus, the ZHB properly denied the Water Extraction application on this basis.
3. Rail Spur
Next, Applicant contends its proposed Rail Spur is a natural expansion of its preexisting nonconforming use. Applicant explains a rail spur already exists on the Property in connection with the existing fuel facility.
A municipality has the right to impose reasonable restrictions on expansion. Jenkintown; see, e.g., W. Central Germantown Neighbors v. Zoning Bd. of Adjustment of the City of Phila., 827 A.2d 1283 (Pa. Cmwlth. 2003) (nonconforming nursing home could not expand its facility by an increase of 167% over its current size because this far exceeded the 10% limit on expansion of nonconforming uses permitted by the ordinance). Section 900(C)(1) of the Ordinance provides that extension or enlargements may be made to nonconforming structures or uses provided that they "do not cumulatively extend the structure or use by more than 25 % of the area occupied."
Although Applicant's Rail Spur use is sufficiently similar, if not identical, to the existing spur, the proposed use far exceeds the limitation imposed by the Ordinance. Applicant's proposed track is roughly the same size as the existing spur. See R.R. at 1a, 21a. Although the existing rail spur has the capacity to hold five cars, by agreement, only two cars can be used on the spur at any given time. N.T., 9/19/11, at 14; R.R. at 5a. Applicant seeks authorization to use five rail cars on the proposed Rail Spur at one time. N.T., 9/19/11, at 14. The proposed Rail Spur more than doubles the present rail capacity and far exceeds the 25% limit on expansion of nonconforming uses permitted by the Ordinance. On this basis, the ZHB did not err in determining the Rail Spur is an unlawful expansion.
4. Cut and Fill
Applicant also asserts its Cut and Fill application qualifies as an expansion of the existing nonconforming use to accommodate tractor trailer truck parking in association with the existing fuel facility. Although the parking area is depicted on the plans, the area of proposed "expansion" is not. See R.R. at 1a, 21a; see also N.T., 9/19/11, at 67. Applicant offered no testimony regarding the existing size of the parking area. Therefore, we are unable to ascertain whether the proposed expansion falls within the 25% permitted range.
Moreover, at the final hearing, Jason Weisz, Applicant's owner, testified he does not propose any additional parking. N.T., 9/19/11, at 67. Rather, he testified Applicant applied for additional parking to satisfy the cut and fill requirements related to the rail spurs. Id. at 68, 73; see R.R. at 39a (DEP letter authorizing relocation of fill removal for existing rail spur). Because Applicant does not actually intend to expand the parking area, the application does not qualify as an expansion of a nonconforming use.
C. Objective Criteria
Next, Applicant contends the ZHB erred by finding the proposed Water Extraction, Rail Spur, and Cut and Fill uses do not satisfy the objective criteria of the Ordinance. Applicant also claims the ZHB erred in determining its Cut and Fill application was incomplete. Applicant contends its testimony and evidence sufficiently addressed the Ordinance's relevant requirements.
Although Applicant claims its three applications are distinct and not dependent on one another, the ZHB treated them as one application when applying the objective criteria. Therefore, we review the criteria as applied to all three applications.
An applicant for a special exception has both the duty of presenting evidence and the burden of persuading the ZHB that its proposed use satisfies the objective criteria of the zoning ordinance for the grant of a special exception. Greaton Props. v. Lower Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002). Once an applicant shows compliance with the specific requirements of the ordinance, a presumption arises that the proposed use is consistent with the general health, safety and welfare of the community. Id. The burden shifts to the objectors to prove the proposed use will have a detrimental effect on the public health, safety, and welfare of the community. Id.
Here, pursuant to Section 1001(D)(1) of Ordinance, the ZHB must consider the following requirements in granting any application for special exception:
(a) That the use is so designed, located and proposed to be operated that the public health, safety, welfare and convenience will be protected.
(b) That the use will not cause substantial injury to the value of other property in the neighborhood where it is to be located.
(c) That the use will be compatible with adjoining development and the proposed character of the zone in a district where it is to be located.
(d) That adequate landscaping and screening is provided as required herein.
(e) That adequate off-street parking and loading is provided and ingress and egress is designed to cause minimum interference with traffic on abutting streets.
(f) That the use complies with all applicable regulations governing the district where located.
Section 610 of the Ordinance directs the ZHB to consider the following criteria for special exceptions in a Floodway District:
A. The danger to life and property due to increased flood heights or velocities caused by encroachments. In the Floodway District, no special exception shall be permitted which would cause any rise in the 100 year flood.
B. The danger that materials may be swept onto other lands or down stream to the injury of others.
C. The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions during periods of inundation.
D. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners.
E. The importance of the services provided by the proposed facility to the community.
F. The requirements of the facility for a waterfront location.
G. The availability of alternative locations not subject to flooding for the proposed use.
H. The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
I. Relationship of the proposed use to the goals and objectives and flood plain management program for Armstrong Township.
J. Safety of access to the property in times of flood by ordinary and emergency vehicles.
K. The expected height, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site.
L. Such other factors which are relevant to the purposes of this Ordinance.
Pursuant to Section 1002(C)(5) of the Ordinance, an applicant for a special exception must provide a reasonably accurate description of the present improvements and the additions or changes intended to be made, "indicating the size of such proposed improvements, material and general construction." Section 601(E)(4) of the Amendment sets forth the minimum information required. This includes a document by a registered professional engineer or architect, which states the proposed construction or development has been adequately designed to withstand the pressures, velocities, impact and uplift forces associated with the one hundred (100) year flood.
Additionally, Section 601(E)(4) of the Amendment requires a description of the type and extent of flood proofing measures which have been incorporated into the design of the structure and/or the development. It also requires detailed information regarding the amount, location and purpose of any materials intended to be used, stored or otherwise maintained on site. Where any excavation or grading is proposed, an applicant must provide a plan meeting the requirements of DEP to implement and maintain erosion and sedimentation control. Section 601(E)(4)(d) of the Amendment. Plans must also show information concerning flood depths, pressures, velocities, impact and uplift forces and other factors associated with a one hundred (100) year flood and information concerning proposed flood proofing measures. Section 601(E)(3) of the Amendment.
Moreover, Section 601(B) of the Amendment precludes the issuance of any permits until all other necessary government permits required by state and federal laws have been obtained. In a floodway, this includes a permit from the DEP. Section 607(A)(2) of the Amendment. Moreover, no application for special exception shall be granted until the ZHB first receives and considers an advisory report from the Township Planning Commission. See Section 1001(D)(3) of the Ordinance.
Here, the ZHB found that Applicant did not sufficiently explain the details of the proposed uses in the applications or evidence presented at the hearings. ZHB Op., 10/27/11, Finding of Fact (F.F.) No. 46. Throughout the hearings, the ZHB expressed concerns that the applications were incomplete and lacked sufficient detail to apply the special exception criteria or floodway management criteria. See N.T., 10/6/10, at 136-137. The ZHB gave Applicant ample opportunity to provide additional information to address the applications' shortcomings.
Ultimately, the ZHB determined the evidence submitted was simply incomplete or not credible regarding critical aspects of the project. For example, Applicant did not provide details regarding cut and fill volumes, the types of materials to be transloaded, and limitations on the scope of use. F.F. No. 46. Applicant failed to credibly show the proposed uses will not increase flood heights or velocities and will not create danger to persons and property downstream in time of flooding. ZHB Op., 10/27/11, Concl. of Law (C.L.) No. 6. Applicant did not show that any of the proposed uses will provide for adequate off street parking and loading. C.L. No. 11.
Although Applicant presented testimony and evidence in support of compliance, the ZHB did not find this evidence credible that the proposed uses will meet existing Ordinance requirements for approval of a special exception in a floodway. In so finding, the ZHB ultimately relied on the testimony of Todd Pysher, the Township Engineer.
At the final hearing, Pysher credibly testified the applications failed to meet the objective criteria in the Ordinance and Amendment. F.F. No. 42; N.T., 9/19/11, at 87-93. Specifically, he testified that the area of proposed expansion is not depicted on the Applicant's plans. N.T., 9/19/11, at 88. "[T]here's nothing on the plans that indicate what the existing use is in terms of aerial extent and structures and what the proposed use is in terms of additional area." Id.
He testified that off-street parking, loading, and traffic flow is not sufficiently depicted to show whether it will adequately accommodate the existing and proposed uses. Id. at 89; see R.R. at 1a, 21a. The plans do not show how the trucks servicing the existing fuel facility will be able to access the parking and queuing area. Id.
Pysher further testified the Cut and Fill application is inaccurate or incomplete. He explained Applicant did not provide the cut and fill volumes for the proposed excavations on the plans or the application. N.T., 9/19/11, at 90-93; see R.R. at 1a, 12a, 21a. Such information is necessary to ascertain conformity with flood plain requirements, namely, no rise in flood heights. N.T., 9/19/11, at 90-91; see Section 607(A) of the Amendment (prohibiting any new development in a floodway that would cause any increase in flood heights).
Pysher testified that susceptibility to flood damage of materials on-site cannot be quantified based on the lack of information regarding the nature of the materials, the number and use of rail cars. N.T., 9/19/11, at 91. Indeed, Applicant did not specify what material would be transloaded or stored on the Property. Throughout the hearing, Applicant mentioned various materials that could potentially be temporarily stored on the Property, such as river water, sand, gravel, pipe, treated water, and other commodities. See N.T., 10/6/10, at 113, 116-117, 124-126, 128-129; N.T., 9/19/11, at 62-65, 76-77.
Additionally, Applicant did not show safety of access in time of flooding for ordinary and emergency vehicles. N.T., 9/19/11, at 93. Applicant did not file a Township Planning Commission application. Id. at 88-89.
To the extent Applicant's witnesses presented testimony to the contrary, the ZHB rejected it in favor of Pysher's testimony. Such credibility determinations are within the province of the ZHB and will not be reversed absent an abuse of discretion. In re Jones, 29 A.3d 60 (Pa. Cmwlth. 2011). We conclude the ZHB's findings are supported by substantial evidence and support the determination that Applicant did not demonstrate compliance with the Ordinance's objective criteria.
Indeed, our review of the record reveals little, if any, evidence demonstrating compliance with these requirements.
Applicant further contends the ZHB abused its discretion in finding that Objectors have shown, to a high degree of probability, that the proposed uses would have substantial adverse impacts to health, safety and welfare of the community. Because Applicant did not show compliance with the specific requirements of the Ordinance for its proposed uses, the burden never shifted to Objectors to prove the proposed uses will have a detrimental effect on the public health, safety, and welfare of the community. See Greaton Props. v. Lower Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002). --------
III. Conclusion
In summary, we conclude the ZHB did not err or abuse its discretion in denying the applications. Applicant's Water Extraction use does not qualify as a special exception or an expansion of a nonconforming use. Applicant's Rail Spur and Cut and Fill uses do not qualify as expansions of a nonconforming use. Although the Rail Spur and Cut and Fill uses constitute special exceptions under the Ordinance, Applicant did not meet the Ordinance's objective criteria for the grant of special exceptions, especially in the Floodway District.
Accordingly, we affirm the order of the trial court.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 16th day of May, 2013, the order of the Court of Common Pleas of Lycoming County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge