Opinion
No. 473 C.D. 2014
01-09-2015
TGR Warehousing, LLC, Appellant v. Borough of Berwick Zoning Hearing Board
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
TGR Warehousing, LLC (TGR) appeals from the February 14, 2014, order of the Court of Common Pleas of the 26th Judicial District (Columbia County Branch) (trial court), denying TGR's appeal from a decision of the Borough of Berwick Zoning Hearing Board (ZHB). The ZHB denied TGR's request for a special exception to allow a transfer station in an I-1 light industrial zoning district under the Borough of Berwick Zoning Ordinance No. 2003-11 (Ordinance). We affirm.
TGR requested a special exception for property located at 123 West Eleventh Street in Berwick, Pennsylvania (Property) under section 906 of the Ordinance. TGR presently operates a nonconforming recycling center on the Property. In its application, TGR sought to expand the recycling center to add a transfer station for the storage and transfer of solid municipal waste. According to TGR's proposal, citizens and private trash haulers would bring solid municipal waste to the facility, where the waste would be stored for a maximum of 72 hours and then would be transported to a landfill. TGR expects to store and haul 80 tons of municipal waste at the Property. Storage containers for the waste would be enclosed in the existing three-sided structure on the Property. The transfer station would operate six days per week, from 8:00 a.m. to 4:00 p.m. Monday through Friday and from 8:00 a.m. to 12:00 p.m. on Saturday. The transfer station would be located 300 yards from a school and adjacent to a football field. TGR previously obtained a special exception for a structure expansion on the Property under section 906 of the Ordinance.
Section 906 of the Ordinance states:
The [ZHB] may grant a special exception for the enlargement of a nonconforming use and/or structure, if the [ZHB] finds the following standards will be met:
A. The enlargement will not replace a conforming use.
B. The nonconforming structure and/or use, after enlargement, shall comply with applicable setback requirements to the zoning district in which it is located.
C. The use and/or structure, after enlargement, shall comply with all applicable off-street parking and/or loading requirements for said use and/or structure.
D. Not more than one (1) enlargement of a nonconforming use and/or structure shall be permitted.
E. A nonconforming structure and/or use shall not be enlarged beyond the limits of the zoning lot on which it is located. Expansion to an adjoining lot shall be prohibited, even if such adjoining lot was in the same ownership at the effective date of the adoption of this Ordinance.
F. The enlargement shall not exceed thirty (30%) percent of the floor area or land area as it existed at the time the structure or use first became nonconforming.
After a hearing on TGR's application, the ZHB determined that the proposed transfer station would "be more objectionable in its operations in terms of noise, fumes, [and] odors than would be the operations of any permitted use" in the I-1 district. (ZHB's Findings of Fact, No. 29.) Moreover, the proposed transfer station would be incompatible with the adjoining properties and the present character of the zoning district because it would be near a school and a frequently used football field. (Id., No. 30.) The ZHB also found that TGR previously obtained a special exception for a structure expansion on the Property under section 906 of the Ordinance. (Id., No. 28; ZHB's Conclusions of Law, No. 1.) Therefore, the ZHB denied TGR's application for a special exception.
TGR appealed to the trial court, which upheld the ZHB's decision. The trial court rejected TGR's claim that the transfer station would be a natural expansion of an existing, nonconforming use, noting that "volume is not the issue. The change in the character of the materials is the issue, i.e., a change from clean recycling materials to solid municipal waste, i.e., garbage." (Trial Ct. Op. at 3.) The trial court further noted that "[t]he [ZHB's] concern about a garbage transfer station in the middle of Berwick is not unreasonable and is within [its] discretion as a local board." (Trial Ct. Order, 2/14/14, at 2 n.1.) This appeal followed.
Our scope of review where the trial court takes no additional evidence is limited to determining whether the ZHB abused its discretion or committed an error of law. Tri-County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 A.3d 488, 504 n.4 (Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014).
On appeal, TGR asserts that the trial court erred in concluding that the natural expansion doctrine is inapplicable to this case. We disagree.
Under the natural expansion doctrine, a nonconforming use may be expanded in scope as the business increases in magnitude, over ground previously occupied by the property owner at the time the ordinance was enacted. Township of Chartiers v. William H. Martin, Inc., 542 A.2d 985, 988 (Pa. 1988). While a municipality cannot per se prohibit the natural expansion of a nonconforming use, a property owner's right to expand a nonconforming use is not unlimited. Silver v. Zoning Board of Adjustment, 255 A.2d 506, 507 (Pa. 1969). A nonconforming use may not be expanded if the proposed use would have an adverse impact on the public's health, safety, or welfare. Id.
TGR asserts that both the recycling facility and the transfer station are included in the Ordinance's definition of a solid waste facility and that the transfer station would not require any new construction on the Property. Citing Chartiers, TGR also asserts that an increase in volume or a change in intended use does not constitute an unlawful extension of a nonconforming use. However, TGR's reliance on Chartiers is misplaced. In Chartiers, the Pennsylvania Supreme Court held that a landfill operator could increase its daily volume under the natural expansion doctrine, where the operator "was not changing the intended use of the property." 542 A.2d at 989. Here, however, TGR did not propose an increase in volume; TGR proposed a change in the type of materials stored on the Property from clean recyclable materials to solid waste, which, as TGR admits, emits odors and leaks. The ZHB determined that the proposed transfer station would be incompatible with the adjoining properties and the present character of the zoning district. We find no abuse of discretion.
Section 202 of the Ordinance defines a "solid waste facilit[y]" as "[a]ny facility whose operations include the following as defined and regulated by the Pennsylvania Department of Environmental Protection: landfills, transfer facilities, refuse vehicle staging areas, resource recovery facilities, waste disposal and processing facilities and recycling facilities." --------
Furthermore, TGR had already received one special exception to expand the nonconforming accessory structure on the Property. Under section 906(D) of the Ordinance, "[n]ot more than one (1) enlargement of a nonconforming use and/or structure shall be permitted." Therefore, the ZHB properly denied TGR's request for a special exception.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 9th day of January, 2015, we hereby affirm the February 14, 2014, order of the Court of Common Pleas of the 26th Judicial District (Columbia County Branch).
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge