Opinion
No. 2076 C.D. 2008.
Submitted: June 19, 2009.
Filed: July 27, 2009.
BEFORE: McGINLEY, Judge; JUBELIRER, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
Judy Bird-Gulden (Appellant) appeals the order of the Court of Common Pleas of Northumberland County (common pleas court) that dismissed Appellant's appeal from the decision of the Point Township Zoning Hearing Board (Board) which granted a permit to Lyco 1, LLC (Lyco) for the construction of an ethanol storage facility and related structures.
By order dated April 8, 2009, this Court dismissed the appeal as to David Young-Oue and Helen DiBonaventura (DiBonaventura) because the notice of appeal was signed only by Appellant.
Central Builders Supply Company (Central) owned real property located at 3288 Point Township Drive (also known as US Route 11) in Point Township, Northumberland County, Pennsylvania. The property was located in three zoning districts: industrial, highway commercial, and open space. The property consisted of 100.414 acres and was permitted for sand and gravel mining by special exception. On November 21, 2006, Central executed an agreement of sale with Lyco a Pennsylvania limited liability company. Under the agreement of sale, Lyco contracted to purchase the property from Central. The purchase was contingent upon the issuance of a zoning permit to build an ethanol manufacturing facility. Representatives from Lyco spoke with Point Township Zoning Officer Roy Sulouff (Officer Sulouff) who advised Lyco to take the matter before the Board. It was later stipulated that Officer Sulouff's action constituted a deemed denial.
Lyco applied for a permit. The Board conducted two hearings. Lyco's attorney, Alvin Luschas, explained Lyco's plans for the property. Officer Sulouff testified that a three hundred foot setback buffer on the east side of the property would substantially exceed the requirements of the Point Township Zoning Ordinance (Ordinance). Notes of Testimony, January 24, 2008, (N.T.) at 32. Richard Robey, chairman and chief executive officer of North Shore Railroad Company, the railroad which provided service via the rail line contiguous to the property, explained that two sidings and a freight terminal would be constructed to serve the property. N.T. at 89. Andrew Keister (Keister), director of site engineering for Larson Design Group, testified regarding the site plan designed for the property. Keister outlined the steps to be taken to shield and buffer the site from neighboring properties. N.T. at 118. Kent McManus (McManus), an environmental engineer with Malcom Perny, Inc., testified generally regarding freight transfer stations and accessory tankage involving ethanol and specifically that there would be no blending, processing, or manufacturing of ethanol on the property. N.T. at 144. McManus estimated that the ethanol transfer facility would have no problem meeting Pennsylvania environmental standards. N.T. at 153. Richard Truslowe, managing member of Lyco, attempted to clarify Lyco's plans for the property.
Linda Balliet, a resident of the Township, testified regarding the Eldorado tank farm which was located elsewhere in the Township. She believed the value of her property had declined and that she was less safe. Notes of Testimony, February 28, 2008, (N.T. 2/28/08) at 46. Appellant testified that she sold her house because of the Eldorado project. N.T. 2/28/08 at 51. Jim Steigerwalt testified as an environmental expert about the dangers of fires from gasoline or ethanol tanks. DiBonaventura, a neighboring property owner, spoke against the proposed use of the property. James Geise, fire chief for the Township fire department, testified regarding preparations for a fire at the Eldorado site. Ross Blain, assistant fire chief, testified that the department could not handle a large bulk chemical storage facility fire of ethanol by itself. N.T. 2/28/08 at 95-96.
The Board sustained the appeal of the deemed denial of Lyco's oral application and directed Officer Sulouff to issue the permit conditioned upon (1) the provision of a three hundred foot buffer along the eastern side of the property; (2) construction of a ten foot high earthen berm along US Route 11 and three hundred feet from the eastern property line which will have trees and landscape vegetation as a visual shield; (3) the construction of the control building and any other improvements associated with industrial operations located solely in the industrial zone as set forth in Lyco's final site plan; (4) the provision of public access to the Susquehanna River through the three hundred foot buffer area; and (5) Lyco's donation of $300,000.00 to the Point Township Fire Company. The Board made the following conclusions of law:
4. Section 8.01 of the Ordinance states that `This district is designed to accommodate wholesale activities, warehouses and industrial operations whose external physical effects are restricted to the area of the district and in no manner affect in a detrimental way any of the surrounding districts.'. . . .
. . . .
7. The storage of ethanol is a warehousing activity as it involves the storage of a commercial product, i.e. ethanol.
8. The storage and transfer of ethanol from tank car to tank facility to trucks is an industrial activity.
9. The storage and transfer of ethanol would only occur in the portion of the premises in question which is zoned industrial.
10. There was no evidence presented that the storage and transfer of ethanol would have external effects outside of the district or would detrimentally affect surrounding districts.
10.1 The applicant [Lyco] has satisfied the Board that it has carefully considered the safety and environmental aspects of the project and that its proposed use would employ current best practices to ensure that the project complied with applicable health, safety, and environmental regulations. . . . .
. . . .
10.3 The Board finds that the operation of an ethanol storage and transfer facility, with railyard within the Industrial District, is in accord with the intended purpose of the Point Township Zoning Ordinance.
11. The Board notes the concerns of residents about the consequences of a catastrophic leak or explosion at the proposed facility. However, the Board finds that the probability of a catastrophic failure is extremely remote due [to] the applicant's [Lyco] thorough heal [sic], safety and environmental plans.
11.1 The Board notes that the applicant's [Lyco] environmental engineer testified that there would be fully automated monitoring which would immediately identify any leak and that the containment ponds around the tanks would catch any leak.
11.2. The Board notes that petroleum tank farms have been in the industrial zone for many decades without any leaks or other problems, let alone a catastrophic failure.
11.3 The Board notes that the applicant's [Lyco] environmental engineer testified that the proposed use will not adversely affect air quality and that the daily traffic on Route 11 is a much more serious source of air pollution than any potential emission from the ethanol tanks.
12. For all of the foregoing reasons, the Board concludes that the applicant's [Lyco] proposed use is in compliance with Section 8.01, Intended Purpose. The Board notes that the party opponents argued that if the intended use could potentially albeit remotely create a risk of harm to adjoining zones then the Application must be denied. The Applicant [Lyco] answered this objection by making reference to Brojous vs. Borough of Carlisle, 685 A.2d 620 (Pa.Cmwlth. 1996), which held that when there are specific provisions that clearly allow a land use, the governing body may not restrict the use by making reference to a vague, general standard. (Emphasis in original).
Decision of Point Township Zoning Hearing Board, Conclusions of Law Nos. 4, 7-12 at 7-8; Reproduced Record (R.R.) at 119a-120a.
Appellant appealed to the common pleas court. Lyco intervened. The Board moved to dismiss David A. Young-Oue from the appeal because he was not a resident of the Township. After it heard argument on September 23, 2008, the common pleas court did not reach the standing issue. The common pleas court determined there was no issue of law and the appeal was frivolous. Consequently, the common pleas court affirmed.
Appellant contends that the common pleas court committed an error of law, that the common pleas court had a conflict of interest, that the constitutional rights of the citizens of the Township were violated, that Ordinance No. 2002-220 of the Township was constitutional, and that it was illegal to place a moratorium on the health, safety, and welfare of the citizens of the Township.
Ordinance No. 2002-220 is an ordinance to protect the health, welfare, and safety of the residents of the Township as well as the environment of the Township by providing for the registration and inspection of certain air emissions and requiring the control of air pollution nuisances within the Township.
Because the common pleas court took no additional evidence, this Court's review is limited to a determination of whether the ZHB abused its discretion or committed an error of law. The ZHB abuses its discretion when its findings are not supported by substantial evidence.Hitz v. Zoning Hearing Board of South Annville Township, 734 A.2d 60, 65 n. 9 (Pa.Cmwlth. 1999), petition for allowance of appeal denied, 562 Pa. 676, 753 A.2d 821 (2000).
Initially, Appellant contends that the trial court committed an error of law when it affirmed the Board despite the Board's failure to recognize the external detrimental effects of ethanol outside of the industrial district where it was located. Essentially, Appellant challenges the Board's finding of fact number ten which stated in part: "There was no evidence that the storage and transfer of ethanol would have external effects outside of the district or would detrimentally affect surrounding districts." Board Decision, Finding of Fact No. 10 at 7; R.R. at 119a. Although Appellant states that evidence was presented on this issue, she fails to cite to any portion of the record where such evidence may be found. This Court finds no error on the part of the Board or common pleas court.
Next, Appellant contends that the Board failed to recognize the importance of land uses within the Township such that petroleum tank farms have not been located in an industrial zone for many decades contrary to the Board's conclusion of law 11.2: "The Board notes that petroleum tank farms have been in the industrial zone for many decades without any leaks or other problems, let alone a catastrophic failure." Board Decision, Conclusion of Law No. 11.2 at 8; R.R. at 120a. Appellant fails to explain how this conclusion was in error. Actually, it is difficult for this Court to discern her point. Even if petroleum tank farms had not been located in an industrial district, it does not mean that the proposed use of the property violated the Ordinance.
Appellant next asserts that the common pleas court failed to recognize that the Board erred when it relied on a paid consultant of Lyco to supersede a health, safety, and welfare ordinance. This assertion is without any legal basis. The Board did not err when it considered and accepted the testimony of the Lyco witnesses.
Appellant next asserts that that Board failed to consider her testimony regarding tanker trucks pulling out onto Route 11 when the Board concluded that Lyco's would ensure that the project complied with applicable health, safety, and environmental regulations. See Board Decision, Conclusion of Law 10.1 at 7; R.R. at 119a. The Board as the factfinder is the sole judge of credibility of witnesses and the weight to be afforded their testimony. Manayunk Neighborhood Council v. Zoning Board of Adjustment, 815 A.2d 652 (Pa.Cmwlth. 2002), petition for allowance of appeal denied, 574 Pa. 777, 833 A.2d 145 (2003). The Board was free to accept or reject Appellant's testimony.
Appellant next asserts that the Board issued contradictory findings when it found that the agreement between Central and Lyco could not be entered into unless approvals for an ethanol manufacturing plant were issued (Finding of Fact No. 4) and that Truslow testified that there was no intention to build an ethanol manufacturing plant (Finding of Fact No. 25). The findings are not in and of themselves contradictory. One finding states what was in the agreement of sale and one stated the intentions of Lyco. Despite the language in the agreement of sale, there was no testimony that Lyco intended to create an ethanol manufacturing facility.
Appellant also asserts that the Board abused its discretion when it failed to consider Board member Mark Heitzelman's reasons for resignation which Appellant asserts was based on health, safety, and welfare concerns. The reasons for Mark Heitzelman's resignation are not in the record and will not be considered by this Court. Appellant also asserts that the Board abused its discretion when it failed to consider that a $300,000.00 donation from Lyco to the Fire Department possibly influenced Officer Sulouff, a long time member of the fire department. Appellant did not raise this issue when Officer Sulouff testified and did not preserve it for this Court's consideration. Appellant next contends that the Board abused its discretion when it allowed Lyco to amend its map during closing arguments so that the control building for the facility would be contained within the industrial district. Although Appellant declares that this amendment caused confusion with respect to what concessions were granted to Lyco, this Court does not agree that the Board's decision was confusing. Appellant also argues that substantial evidence supported the finding that "All of the objecting parties who testified, claimed they opposed the Lyco I application, believed that the project presented unreasonable danger to the residents of Point Township and therefore would adversely affect the adjoining zones and properties." Board Decision, Finding of Fact No. 20 at 4; R.R. at 116a. The finding itself is supported by substantial evidence. Those in opposition to the project did believe that it presented an unreasonable danger. Lyco presented evidence to the contrary. The Board chose to believe Lyco's witnesses as was its prerogative.
Appellant also contends that evidence was presented that the storage and transfer of ethanol would have external effects outside of the industrial district. Essentially, Appellant asks this Court to reweigh the evidence. That is not the function of this Court. The common pleas court determined that the Board's decision was supported by substantial evidence, and this Court agrees.
Appellant also contends that there was a conflict of interest between the common pleas court and the solicitor of the Township, that citizens' constitutional rights were violated, and that it was illegal to place a moratorium on the health, safety, and welfare of the citizens of the Township. Appellant fails to address these issues in the argument section of her brief. Consequently, they are waived. See Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989).
Appellant also asserts that Ordinance 2002-220 was constitutional. There was no challenge to the constitutionality of the Ordinance before the common pleas court. In essence, Appellant asserts that Ordinance 2002-220 was ignored. The pro se Appellant continually intermingles the constitutionality of the Ordinance with the enforcement of it. The trial court stated:
This Court [the trial court] properly considered the Air quality ordinance [Ordinance 2002-220] and the applicable zoning ordinance in its decision that the PTZHB's [Board] ruling was not an error of law. Further, this Court found no basis for the argument regarding the air quality ordinance. In fact, the Appellant's main safety concern was related to the traffic at or near the Intervenor's [Lyco] projected ethanol tank site. The PTZHB [Board] promulgated a concise, legal decision that appropriately addressed the safety and general welfare concerns.
Trial Court Opinion, February 19, 2009, at 14; R.R. at 29a. This Court agrees.
In the argument section of her brief, Appellant contends that the contract between Central and Lyco is null and void and that certain health, safety, and welfare concerns were not addressed by the trial court. Because Appellant did not raise these issues in the Statement of Questions Involved, they are waived. See St. Joseph Hospital v. Berks County Board of Assessment Appeals, 709 A.2d 928 (Pa.Cmwlth. 1998).
Accordingly, this Court affirms.
ORDER
AND NOW, this 27th day of July, 2009, the order of the Court of Common Pleas of Northumberland County is affirmed.