Opinion
No. 2017 C.D. 2012
07-10-2013
Save Lackawaxen and Helga Sachno v. Lackawaxen Township Board of Supervisors, Wayne Holbert, Dave Holbert and Holbert Brothers Bluestone Company Appeal of: Helga Sachno
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this land use appeal, Helga Sachno (Objector) asks whether the Court of Common Pleas of Pike County (trial court) erred in affirming a decision of the Lackawaxen Township Board of Supervisors (Supervisors) that granted the conditional use application of Wayne Holbert, Dave Holbert and Holbert Brothers Bluestone Company, Inc. (collectively, Applicant) to permit the expansion of Applicant's bluestone quarry. Specifically, Objector argues the trial court erred in: (1) failing to find that quarries are prohibited in an overlay zoning district in which the quarry is located, thus rendering the quarry a prohibited use with expansion governed by the standards for non-conforming uses; and (2) determining Applicant's proposed expansion was not governed by the 25% limitation on expansion of non-conforming uses set forth in the Township's Zoning Ordinance (zoning ordinance). Upon review, we affirm.
I. Background
Applicant owns and operates a bluestone quarry, known as Holbert Brothers Bluestone Quarry, on a portion of its property in Lackawaxen Township (Township), Pike County. Applicant's property is comprised of a total of approximately 270 acres. Applicant's quarry lies in the Township's RU - Rural District as well as the Delaware River Corridor (DRC) Overlay District.
In 2011, Applicant filed an application for a conditional use seeking to expand its quarry from 10 acres to an area comprising a total of 40 acres. A hearing ensued before the Supervisors.
Neither the transcript of the hearing before the Supervisors nor the exhibits presented at that hearing are contained in the certified record. However, the hearing transcript is included in Applicant's Supplemental Reproduced Record.
In support of its application, Applicant presented the testimony of one of its two owners and operators, Wayne Holbert, as well as two engineers, Betsy Hynak, P.E. and Frederick Spott, P.E. Several nearby landowners appeared without counsel in opposition to the proposed expansion.
After the hearing, the Supervisors granted Applicant's conditional use application subject to nine conditions. In so doing, the Supervisors made the following relevant findings.
Quarrying has occurred on the property since approximately 1870. A portion of the property is currently used as a quarry. The Department of Environmental Protection (DEP) issued Applicant two five-acre permits for a total of 10 acres that can currently be mined. Applicant seeks to expand to a total of 40 acres, primarily so that it can remove the overburden (waste rock that accumulated over the years) from the top of the new rock that will eventually be mined.
Wayne Holbert testified that if the Supervisors did not approve the requested expansion, and Applicant could not remove the overburden, Applicant's business would close within four years. Importantly, Holbert further testified that if the Supervisors approved the expansion, Applicant would only mine one acre of new rock at a time. He testified that once one acre was mined, Applicant would reclaim the mined acre, or bond it for reclamation, before proceeding to the next one acre area.
The expansion of the quarry will occur to the west of the existing quarry so the expanded area will be further away from the Delaware River than the current mining area.
One of Applicant's engineers, Betsy Hynak, testified the quarry could not be seen from either the Pennsylvania or New York shores of the Delaware River because of the topography, and she provided an aerial map and elevation scale in support of those observations. Hynak also presented a plan depicting the expansion areas and the detention basins on the property, but acknowledged Applicant would have to submit more detailed plans to DEP's Bureau of Mining before any new permits would be issued.
Natural Resource Uses (NRUs) are permitted by conditional use in the RU District in which the property lies. See Article III of the zoning ordinance (defining an NRU as "[t]he removal or recovery by any means whatsoever of soil, rock, minerals, mineral substances or organic substances other than vegetation from water, land, on or beneath the surface thereof; said substances including but not limited to coal, limestone, shale, dolomite, sandstone, sand, clay, gravel rock, stone, earth, peat, soil, ore or other mineral.")
The property also lies in the DRC Overlay District, which is identified and described in Section 536 of the zoning ordinance. Section 536 sets forth regulations regarding uses in the DRC Overlay District. The DRC Overlay District is not shown on the Township's Zoning Map, but the location of the DRC Overlay District is set forth on the River Management Plan for the Upper Delaware, which is incorporated by reference in Section 536 of the zoning ordinance.
The Township Engineer reviewed the conditional use application and provided a letter stating the application complies with the Township's ordinances.
The landowners who appeared in opposition to Applicant's request expressed concerns over truck traffic, noise and water quality, but offered no specific testimony or evidence as to how the proposed use would adversely impact their properties, the character of the neighborhood or the public health, safety and welfare.
Based on these findings, the Supervisors made the following conclusions. There is a need for the expansion of Applicant's existing use in the area and, because it pre-exists most development in the area, it is in keeping with the character of the neighborhood. NRUs are permitted in the RU District by conditional use. The provisions of the DRC Overlay District prohibit certain new uses; therefore, the prohibition on NRUs in the DRC Overlay District does not apply to, or limit, the expansion of the quarry.
The opposing landowners offered only speculation and no evidence of any adverse impact if the requested expansion were approved. Therefore, they did not meet their burden of showing the proposed expansion would have a substantial adverse impact on their property, the character of the community, traffic conditions, adjacent property values or the public health, safety and general welfare.
In order to preserve the historic use of the property, and as a quarry, Applicant should be permitted to continue the use, which, of necessity, requires expansion. However, the expansion shall occur in a limited and controlled manner, including the proposed limitation of only mining one acre at a time and keeping the quarry ownership and operation in the same family.
Based on these findings and conclusions, the Supervisors approved Applicant's conditional use request subject to nine conditions. Several objecting landowners appealed to the trial court.
In addition, the Upper Delaware Council, Inc. filed an appeal to the trial court, and Applicant filed a motion to consolidate the two appeals. It is not entirely clear what occurred after the Upper Delaware Council filed its appeal; however, the trial court subsequently denied Applicant's motion to consolidate the appeals as moot. Only Objector's appeal is before us here.
Before the trial court, the objecting landowners sought to present additional evidence. Specifically, they sought to supplement the record with several prior decisions of the Supervisors regarding Applicant's quarry and certain related documents. The trial court denied the motion to supplement the record. The trial court subsequently affirmed the Supervisors' decision. This appeal by Objector followed.
II. Discussion
A. Contentions
On appeal, Objector's brief sets forth four questions presented. However, these issues and Objector's corresponding arguments are largely overlapping. Thus, we discuss Objector's contentions together.
Where, as here, the trial court did not take additional evidence, our review is limited to determining whether the Supervisors abused their discretion or committed an error of law. Aldridge v. Jackson Twp., 983 A.2d 247 (Pa. Cmwlth. 2009).
Objector argues the Supervisors disregarded the language of the zoning ordinance and approved an application allowing Applicant to use its property as a quarry by extending the quarry a total of 40 acres, albeit to be mined one acre at a time.
Objector maintains Applicant's quarry is a non-conforming use and the proposed expansion is impermissible under the zoning ordinance provision governing the limitation on expansion of non-conforming uses. Specifically, Section 507.3 B of the zoning ordinance states:
A non-conforming use may be extended, expanded or enlarged upon the lot occupied by such use to a maximum of twenty five (25) percent additional space occupied by the non-conforming use when approved pursuant to section 507.7, and provided that such extension or enlargement does not replace a conforming use, and does not violate the yard and coverage requirements of the zone in which the non-conforming use exists.Id. (emphasis added).
Objector argues the fact that the quarry is a non-conforming use is evident from the Supervisors' own conclusion of law. Specifically, the Supervisors determined, "[t]he provisions of the DRC Overlay District set forth in Section 536, do prohibit certain new uses; therefore, the prohibition of NRUs in the DRC Overlay District does not apply to, or limit, the expansion of the Holbert Quarry." Appellant's Br. at 5 (quoting Supervisors' Dec., 7/23/11, Concl. of Law No. 5). Objector asserts that if an NRU is prohibited as a new use in the DRC Overlay District, an existing NRU is a non-conforming use subject to Section 507.3 B, set forth above. Objector maintains the trial court erred in determining Section 507.3 does not apply.
In further support of her argument that the quarry is a non-conforming use, Objector contends the use of the property as a quarry existed prior to the enactment of the zoning ordinance. See Supervisors' Dec., Finding of Fact (F.F.) No. 3. The fact that the quarry existed before the zoning ordinance's enactment and is, at present, in violation of the zoning ordinance's requirements for the DRC Overlay District, renders the quarry a non-conforming use and thus, within the purview of Sections 507.3 and 507.7 of the zoning ordinance.
To that end, Objector argues Section 536.5 of the zoning ordinance states that major NRUs, as regulated by Section 506, are prohibited in the Hamlet Areas of the DRC Overlay District. Additionally, the Recreational and Scenic Segments of the DRC Overlay District also prohibit major NRUs as well as manufacturing uses, with the exception of home occupations involving "manufacturing, light" uses, which are allowed by conditional use. Based on these provisions, Objector contends, the Supervisors erred in determining the prohibition on NRUs in the DRC Overlay District does not apply to or limit the Holbert Quarry. Objector maintains the argument that the quarry is permitted by conditional use fails in light of the language of the above sections of the zoning ordinance.
Applicant responds that Objector's entire argument is based on the false premise that Applicant's land use is prohibited by the River Management Plan and the DRC Overlay District. Objector reasons that because it is a prohibited use, it must be a non-conforming use. Applicant argues Objector's premise and conclusion are both incorrect.
Specifically, Applicant contends the zoning ordinance incorporates the River Management Plan by reference. To that end, the DRC Overlay District is based on the River Management Plan, and the restrictions on land uses in the DRC Overlay were taken directly from the River Management Plan. The Plan clearly has no effect on existing land uses. Thus, if Applicant's quarry was a permitted or conditional use pre-dating the River Management Plan, it remains a permitted or conditional use.
Further, Applicant maintains the "Schedule of Uses" for the RU District, which includes Applicant's quarry, specifically prohibits certain uses in the DRC Overlay District, but designates NRUs as conditional uses.
Applicant asserts, even if we disregard the unequivocal language of the River Management Plan, and the Schedule of Uses, the expansion permitted by the Supervisors does not violate the zoning ordinance or the River Management Plan. To that end, "Minor Surface Mining Operations" and "Minor Natural Resource Uses," as defined in the Plan and the zoning ordinance, respectively, are not prohibited in the DRC Overlay District.
Applicant further contends the Supervisors specifically limited the conditional use approval to allow mining of only one acre at a time and reclamation before another one acre area can be mined. It asserts the conditions imposed by the Supervisors limit Applicant to a minor NRU (Minor Surface Mining Operation), which the zoning ordinance lists as a conditional use.
This Court previously precluded the Supervisors from filing a brief and participating in oral argument.
B. Analysis
Essentially, Objector's argument is that the existing quarry is a non-conforming use, thus rendering the approved expansion from 10 acres to 40 acres in violation of the 25% restriction on the expansion of non-conforming uses. We reject this argument.
To that end, our review of the transcript of the Supervisors' hearing reveals that the neighboring landowners who appeared in opposition to Applicant's proposed expansion did not raise this issue.
However, an individual with the National Park Service on the Upper Delaware River, Don Hamilton, appeared before the Supervisors and briefly stated Applicant's proposed expansion was prohibited in the DRC Overlay District, and was "significantly larger than could be allowed for a non-conforming use with the township's zoning regulations." Supplemental Reproduced Record (S.R.R.) at 6b, 134b. Applicant's counsel objected to the National Park Service's participation as a party, S.R.R. at 15b, and the Supervisors declined to grant party status to the National Park Service. S.R.R. at 29b. As a result, this issue was not developed further before the fact-finder. Thus, it is not surprising the Supervisors made no clear factual findings upon which to conclude whether the existing quarry is, in fact, a non-conforming use.
The propriety of that decision is not before us here.
The Supervisors' decision contains a general finding that "quarrying [has occurred] on the [p]roperty since approximately 1870." F.F. No. 3. However, the Supervisors made no definitive or precise findings as to the extent, nature, time of creation and continuation of the alleged non-conforming use in the period before the enactment of the DRC Overlay District regulations, which, as discussed more fully below, prohibit some, but not all, NRUs. See, e.g., Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997 A.2d 423, 438 (Pa. Cmwlth. 2010) ("It is the burden of the party proposing the existence of ... a [non-conforming] use to establish both its existence and legality before the enactment of the ordinance at issue. This burden includes the requirement of conclusive proof by way of objective evidence of the precise extent, nature, time of creation and continuation of the alleged nonconforming use.") (Citation omitted) (Emphasis added).
In short, only a brief "hint" of the non-conforming use issue was raised by a non-party before the fact-finder here. As a result, no error is apparent in the Supervisors' failure to resolve the issue of whether Applicant's proposed use constitutes an impermissible expansion of an existing non-conforming use rather than a conditional use.
Further, while the neighboring landowners who opposed Applicant's request sought to supplement the record before the trial court with previous decisions of the Supervisors that purport to show Applicant's quarry is, in fact, a non-conforming use, the trial court denied this motion. Reproduced Record (R.R.) at 94a-95a. Objector does not challenge that decision in this appeal. Thus, we cannot consider those previous decisions and related materials here.
In evaluating Applicant's request for expansion, the Supervisors analyzed Applicant's request in accordance with the standards for conditional uses. No error is apparent in the Supervisors' grant of conditional use approval here.
In addressing an application for a conditional use, a local governing body must employ a shifting burden of persuasion. Aldridge. First, the applicant must persuade the local governing body its proposed use is a type permitted by conditional use and the proposed use complies with the requirements in the ordinance for such a conditional use. Id. Once it does so, a presumption arises the proposed use is consistent with the general welfare. Id. The burden then shifts to objectors to rebut the presumption by proving, to a high degree of probability, the proposed use will adversely affect the public welfare in a way not normally expected from the type of use. Id.
More specifically, the Supervisors aptly characterized Applicant's quarry use as a "Natural Resource Use" (NRU) for purposes of the zoning ordinance. See Article III of the zoning ordinance (defining an NRU as the removal or recovery by any means whatsoever of soil, rock, minerals, mineral substances or organic substances from land, on or beneath the surface thereof; said substances including but not limited to coal, limestone, shale, dolomite, sandstone, sand, clay, gravel rock, stone, earth, peat, soil, ore or other mineral.) Indeed, Objector does not assert otherwise.
As the Supervisors found, Applicant's property is located in the RU District, which allows NRUs as conditional uses. F.F. No. 15; Section 406 of the zoning ordinance ("Schedule of Uses"). The property also lies in the DRC Overlay District, which is identified and described in Section 536 of the zoning ordinance. F.F. No. 16. Section 536.5 prohibits certain uses in the DRC Overlay District.
Specifically, Section 536.5(A) prohibits "Major natural resource uses as regulated by Section 506 of this Ordinance" in the "Hamlet Areas" of the DRC Overlay District. Id. (emphasis added). Additionally, Section 536.5(B) prohibits such uses in the "Recreational and Scenic Segments" of the DRC Overlay District. Id.
Objector points out that while Section 536.5(B) of the zoning ordinance specifically prohibits manufacturing uses in the Recreational and Scenic Segments of the DRC Overlay District, it allows, by conditional use, "home occupations involving 'manufacturing, light' uses which meet the requirements of Section 536.8 of this Ordinance." Id. Objector asserts that Section 536.5 does not contain similar language indicating that NRUs are permitted by conditional use in the DRC Overlay District. As explained above, however, Section 536.5 of the zoning ordinance contains a list of prohibited uses, and it does not prohibit all NRUs in the DRC Overlay District. Id. Rather, the specific language of that provision prohibits "Major Natural Resource Uses as regulated by Section 506 of this Ordinance" (as contrasted with minor NRUs) in the DRC Overlay District. Id. (emphasis added).
With regard to the prohibited "Major natural resource uses," Section 506, states, in pertinent part (with emphasis added):
Natural resource uses shall be considered conditional uses as listed in the Schedule of Uses, and in addition to all applicable standards of this Ordinance and all State and Federal regulations, said uses shall comply with the standards in this Section 506. Natural resource uses with an open face of two (2) acres or less, or which will not result in a total disturbed area of
more than five (5) acres, (herein referred to as "minor natural resource uses") shall be exempt from the plan submittal requirements of this Section 506; however, said operations shall comply with the operational and rehabilitation standards in this Section 506.Id. In turn, the zoning ordinance defines "open face" as "[t]hat area of a natural resource use where the extraction or removal of said natural resource is underway; and including an area of the property which has not been fully reclaimed and rehabilitated following resource removal in accord with this Ordinance and applicable [DEP] requirements." Article III of the zoning ordinance.
Article III of the zoning ordinance defines "Natural Resource Use, Minor" as "[a] natural resource use with an open face of two (2) acres or less, and which will not result in a total disturbed area of more than five (5) acres." Id. (emphasis added).
The distinction between this definition and Section 506's express reference to a "minor natural resource use" (set forth above) is that the general definitions section utilizes the conjunctive "and" when referring to the "two acres or less" area of "open face" and total disturbed area of five acres, while Section 506 uses the disjunctive "or" when referring to the "two acres or less" area of open face or the total disturbed area of five acres.
Because the prohibition on major NRUs in the DRC Overlay District directly references Section 506 rather than the general definitions section, Section 506 controls. See 1 Pa. C.S. §1933 (statutory provision that is more specific overrides one that is more general); Heck v. Zoning Hearing Bd. for Harvey's Lake Borough, 397 A.2d 15 (Pa. Cmwlth. 1979) (whenever, in the same statute, several clauses are irreconcilable, the clause last in order of date or position shall prevail). Further, an ambiguity or conflict in a zoning ordinance should be resolved in favor of the landowner. Latimore Twp. v. Latimore Twp. Zoning Hearing Bd., 58 A.3d 883 (Pa. Cmwlth. 2013).
Similar to the definition of a "minor natural resource use" found in Section 506 of the zoning ordinance, the River Management Plan defines a "Minor Surface Operation" as "[a]ny new extraction of minerals by, but not limited to, strip mining, dredging, or quarrying, not exceeding two acres of active face at one time plus an area equal in size to the active face necessary for accessory use." S.R.R. at 200b (emphasis added). Further, the River Maintenance Plan's "Land and Water Use Guidelines" state that "Minor Surface Operations" are appropriate conditional uses in the Upper Delaware Scenic and Recreational River Corridor. S.R.R. at 201b.
In granting Applicant's conditional use request, the Supervisors limited Applicant's proposed expansion to a "minor natural resource use" within the meaning of Section 506 of the zoning ordinance (or a "minor surface operation" as defined by the River Management Plan), which is not prohibited by Section 536.5 of the DRC Overlay District regulations. In particular, the Supervisors attached a condition to the grant of the conditional use that Applicant "shall only mine one (1) acre at a time and shall reclaim and/or bond each acre, pursuant to DEP and Section 506.3 of the [z]oning [o]rdinance, when that mining is concluded before commencing mining of the next one (1) acre area. ..." Supervisors' Dec. at 5, Condition 2. Thus, the Supervisors limited Applicant's proposed expansion to an NRU with less than two acres of "open face," which is considered a "minor natural resource use" under Section 506 of the zoning ordinance, and which is not prohibited in the DRC Overlay District.
The Supervisors determined, "[t]he provisions of the DRC Overlay District set forth in Section 536, do prohibit certain new uses; therefore, the prohibition of NRUs in the DRC Overlay District does not apply to, or limit, the expansion of the Holbert Quarry." Concl. of Law No. 5 (emphasis added). While Objector asserts the language of this conclusion reveals the Supervisors considered Applicant's existing quarry a non-conforming use, the language of the conclusion itself does not state that. Further, while the exact meaning of this determination is not entirely clear, the emphasized language can be read consistently with the Supervisors' decision to limit the requested expansion to a non-prohibited minor NRU.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 10th day of July, 2013, the order of the Court of Common Pleas of Pike County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge