Opinion
No. 1051 C.D. 2013 No. 1097 C.D. 2013
06-18-2014
Geryville Materials, Inc., Appellant v. Board of Supervisors of Lower Milford Township, Lehigh County, Pennsylvania, and Don Weinberger, Paul Shallaway and Lori Sickenberg Geryville Materials, Inc. v. Board of Supervisors of Lower Milford Township, Lehigh County, Pennsylvania, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Geryville Materials, Inc. and the Board of Supervisors of Lower Milford Township (Township) have each appealed an order of the Court of Common Pleas of Lehigh County (trial court) that ruled upon Geryville's substantive challenge to several provisions of the Township's Zoning Ordinance. The trial court held that almost all of Section 523, entitled "Extraction of Natural Resources," was preempted by the Noncoal Surface Mining Conservation and Reclamation Act (Noncoal Act). The Township appeals this part of the trial court's order. The trial court also held that Section 470, entitled "Protection of Natural Resources," was not unduly restrictive of non-coal surface mining in the Township and, thus, was constitutional and compliant with the Pennsylvania Municipalities Planning Code (MPC). We affirm the trial court.
LOWER MILFORD TOWNSHIP ZONING ORDINANCE (1997) §§100-900.
Act of December 19, 1984, P.L. 1093, as amended, 52 P.S. §§3301-3326.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
Neighboring landowners Don Weinberger, Paul Shallaway and Lori Sickenberg have intervened in this action. Intervenors have filed one brief in response to both appeals. The brief only counters the claims raised by Geryville in its appeal to this Court.
Geryville is the equitable owner of 628.48 acres of land in the Township's Agricultural-Rural District and thereon seeks to operate a stone extraction quarry. Geryville's proposed quarry is permitted by special exception in the Agricultural-Rural District.
In 2004, Geryville filed a substantive validity challenge to Section 470 and Section 523 of the Zoning Ordinance, asserting, inter alia, that they impermissibly limited Geryville's ability to operate a stone extraction quarry in the Township. In 2012, after 40 hearings over the course of eight years, the Township denied Geryville's challenge. Geryville appealed to the trial court, which affirmed in part and denied in part.
The trial court rejected Geryville's claim that Section 470 was unduly restrictive on surface mining in the Township. At most, Geryville showed that the natural resource requirements in Section 470 impacted a significant portion of its land, but this was not sufficient to make its constitutional claim. Rather, Geryville had to show that Section 470 restricted development throughout the Township. Likewise, the trial court rejected Geryville's claim that Section 470 violated the MPC. In so holding, the trial court rejected Geryville's argument that the Township capriciously disregarded the testimony of Geryville's expert, John Ross. The trial court held that the testimony was not disregarded but, rather, rejected as inadequate to show Section 470 impacted land development throughout the Township. Finally, the trial court rejected Geryville's claim that Section 470 was preempted by the Noncoal Act, concluding that Section 470 restricted where surface mining can take place but did not regulate the manner by which mining operations will be conducted.
On the other hand, the trial court held that most of Section 523 was preempted by the Noncoal Act. Specifically, the trial court held that Sections 523.1-4 and 523.6-11 were preempted by the Noncoal Act because those provisions sought to regulate the conduct of surface mining.
On appeal to this Court, Geryville raises four issues. It contends that Section 470 is unconstitutional because it is arbitrary, unreasonable and not substantially related to the public interest that the Zoning Ordinance purports to serve. Second, Geryville argues that Section 470 is preempted by the Noncoal Act because it does more than regulate where surface mining can take place; it also regulates how it will be conducted. Third, Geryville argues that the trial court erred in holding that Section 470 does not unreasonably restrict forestry and mining in the Township. Fourth, Geryville asserts that the trial court capriciously disregarded the testimony of its expert.
In a land use appeal, where the trial court does not take any additional evidence, our review is limited to whether the local governing body committed an error of law or an abuse of discretion. Weiser v. Latimore Township, 960 A.2d 924, 929 n.9 (Pa. Cmwlth. 2008). An abuse of discretion occurs when the governing body's findings are not supported by substantial evidence. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lantos v. Zoning Hearing Board of Haverford Township, 621 A.2d 1208, 1211 (Pa. Cmwlth. 1993).
In its appeal, the Township raises two issues. First, it contends that the trial court erred in holding that Sections 523.1-4 and 6-11 of the Zoning Ordinance are preempted by the Noncoal Act. Second, the Township raises a "protective" appeal with respect to Section 523.12 of the Zoning Ordinance, which was not addressed by the trial court.
Accordingly, it need not be addressed by this Court.
Having reviewed the record and arguments of the parties, we hold that Geryville did not sustain its burden of proving that Section 470 of the Zoning Ordinance was unconstitutional or otherwise invalid. We also hold that Sections 523.1-4 and 523.6-11 are preempted by the Noncoal Act. Because the trial court thoroughly analyzed the issues and correctly applied the law, this Court affirms the trial court's order on the basis of the well-reasoned opinion by the Honorable Edward D. Reibman in Geryville Materials, Inc. v. Board of Supervisors of Lower Milford Township, Court of Common Pleas of Lehigh County (No. 2012-C-2018, filed June 11, 2013).
Geryville argues that this Court's decision in Geryville Materials, Inc. v. Planning Commission of Lower Milford Township, 74 A.3d 322 (Pa. Cmwlth. 2013), invalidated Section 470 of the Zoning Ordinance. We reject this contention. This Court held that the Planning Commission's construction and application of Sections 470 and 471 was preempted. Here, Geryville lodges a facial challenge to Section 470. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 18th day of June, 2014, the order of the Court of Common Pleas of Lehigh County, dated June 11, 2013, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge