Opinion
No. 1852 C.D. 2011
09-07-2012
Geryville Materials, Inc., Appellant v. Zoning Hearing Board of Lower Milford Township, Board of Supervisors of Lower Milford Township and Don Weinberger
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
On August 25, 2004, Appellant Geryville Materials, Inc. (Geryville) submitted an application for a special exception to the Zoning Hearing Board of Lower Milford Township (ZHB) with respect to a parcel of property located in an Agricultural-Rural Zoning District (AR District). Geryville sought approval to use the property to extract minerals and operate a quarry. After a prolonged period due, in large part, to multiple continuances of scheduled hearings, the ZHB scheduled a final hearing on Geryville's application during its August 26, 2009 meeting. At the conclusion of the hearing, the ZHB voted to deny the application for a special exception.
In its written decision in support of its denial, the ZHB noted Geryville's concession during the August 26, 2009 hearing that its plans could not comply with Section 471 of the Zoning Ordinance. The ZHB also concluded that the evidence Geryville submitted was insufficient to satisfy the requirements of Section 523 of the Zoning Ordinance. Section 523 of the Zoning Ordinance contains specific standards that must be satisfied to obtain a special exception for mineral extraction.
Section 471 is captioned "Natural Resource Protection Standards." This section of the Zoning Ordinance contains standards relating to subjects including limitations on alterations of land in flood plains, wetlands, and woodlands, and standards for land containing steep slopes, watercourses, and lakes and ponds.
Geryville appealed the ZHB's decision to the Court of Common Pleas for Lehigh County (trial court). In its brief to the trial court in support of its land use appeal (Certified Record (C.R.) #19), Geryville challenged as an abuse of discretion the ZHB's decision to refuse to continue again its consideration of Geryville's application for a special exception (which by that time had been pending for five years). Geryville also claimed that the ZHB improperly applied the natural resource protection provisions found in Section 470 through 472 of the Zoning Ordinance to Geryville's application for special exception. With regard to the ZHB's additional ground for denial—that Geryville failed to comply with Section 523 of the Zoning Ordinance—Geryville contended that it did satisfy the requirements of that provision and that the ZHB either abused its discretion or capriciously disregarded evidence in reaching a contrary conclusion.
The trial court, by the Honorable Edward D. Reibman, affirmed the ZHB's decision. Geryville appeals from the trial court's order, raising the same issues and arguments that it raised with the trial court. Indeed, we note that much of the written argument in Geryville's brief to this Court mirrors the written argument found in Geryville's brief to the trial court.
This Court's standard of review of a trial court's order affirming a decision of a zoning hearing board denying a special exception application is limited, when the trial court takes no additional evidence, to considering whether the zoning hearing board committed any constitutional violations or erred as a matter of law, which includes review of the zoning hearing board's necessary factual findings. Lombardozzi v. Millcreek Twp. Zoning Hearing Bd., 829 A.2d 779, 781 (Pa. Cmwlth. 2003), appeal denied, 577 Pa. 699, 845 A.2d 819 (2004). --------
We have reviewed the parties' briefs and the record in this matter, and we conclude that the trial court thoroughly and correctly analyzed the issues. Accordingly, we affirm the trial court's September 12, 2011 order and adopt the well-reasoned opinion of Judge Reibman, entered in Geryville Materials, Inc. v. Zoning Hearing Board of Lower Milford Township, No. 2009-C-5577 (C.C.P. of Lehigh County Mar. 14, 2011).
/s/_________
P. KEVIN BROBSON, Judge Judge Cohn Jubelirer did not participate in the decision of this case.
ORDER
AND NOW, this 7th day of September, 2012, the order of the Court of Common Pleas of Lehigh County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge